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The Adversarial System

American justice is based on the adversarial, or accusatory, system, as opposed to the inquisitional system. Under the latter, a magistrate—or a king or religious official—takes an active role in determining facts and making judgments, while defense lawyers (assuming any are allowed) remain in the background, only speaking when asked to speak. This description calls forth a number of images, none of them pleasant: the Spanish Inquisition or various other religious witch hunts, France under Louis XIV, the "kangaroo courts" of Nazi Germany and Stalinist Russia, or the Islamic fundamentalist system in Iran under the Ayatollah Khomeini. It is almost by definition a method in which the accused is guilty until proven innocent.

Under the adversarial system, the roles are reversed: lawyers, both for the defense and the state, take an active part in the proceedings, while the magistrate assumes the...