The role of Judges in criminal trials: a comparative study of civil and common law approaches

Abstract

The court of law is the last hope of the common man and it is required that justice does not serve the purpose of the State alone but should be justice for the accused person; justice for the victim and finally justice for the society at large. In the adversarial system, the criminal procedure does not allow the judge to descend into the arena unlike in the case of inquisitorial system where the judge is expected to talk and also walk i.e. he must inquest into the evidence and physically investigate matters as presented before him. A well-rounded judge will better serve the interest of justice than a judge that is subjected to jurisdictional approach of adjudication rather an open approach inclusive of best practices. This study employed the use of doctrinal research methodology which will involve mostly a theoretical and pure legal point of view. This research discusses the concepts of law and justice according to the positivist and naturalist traditions and how it relates to the AdversariaYCommon Law System and the InquisitoriaYCivil Law System. The role of judges in criminal trials was compared looking at the Malaysian and the French Criminal Systems with the aim of proffering best practices. The study also looked into the history of the jury system and how well a Common Law judge can function without a jury. The study found that the following mechanisms if properly managed and utilized will be a good fusion of best practices in any given jurisdiction and these practices include; the application of judicial precedent; the re-enactment of the jury system or the use of 2 or more judges in the court of first instance; the merging of a civil and criminal matter that have the same parties disputing on the same matter in both instances; oral submissions for inquisitorial proceedings; the eradication of secret trials; upholding the tenets of natural justice; and a better attitude towards openness and integration for the betterment of justice.