Contrasting Roles: Investigators in Common Law v Civil Law Jurisdictions

Over the years, I've had the opportunity to conduct numerous international investigations, ranging from criminal cases to workplace matters, across various international organisations.

?My work has often brought me into contact with investigators from civil law jurisdictions, and I've noticed some intriguing differences between them and their counterparts in common law systems.

?For those unfamiliar, civil law investigators—often judges or magistrates—are integral to the inquisitorial legal system, where the aim is to uncover the truth in a neutral, comprehensive manner. In contrast, common law investigators typically operate within an adversarial system, gathering evidence to support either the prosecution or defence.

?Here are a few key distinctions I've observed between these two approaches:

?1.????? An Investigators Role in the Legal System

Common Law Jurisdictions: Investigators (whether law enforcement or private) operate within an adversarial legal system. They are hired by either the prosecution or defence to collect evidence that supports their side of the case. Their primary objective is to gather admissible evidence that strengthens their party's argument, rather than to serve a neutral fact-finding mission.

?Civil Law Jurisdictions: Investigators, while not acting as judges, are part of an inquisitorial legal system where the goal is to uncover the truth in a neutral, comprehensive manner. They work closely with judicial authorities (investigating judges or prosecutors), aiming to gather all relevant facts impartially, without leaning toward a prosecution or defence stance.

?2.????? Supervision and Independence

Common Law Jurisdictions: Investigators usually work independently of the judiciary. They are not directly supervised by a judge or prosecutor in most cases. For example, police investigators conduct investigations based on the instructions of their department or the legal team, and private investigators may work on behalf of a client.

?Civil Law Jurisdictions: Non-judicial investigators often work under the direct supervision or guidance of an investigating judge or prosecutor, who plays a central role in the investigation. Their work is closely monitored, and they must report their findings to the judicial authorities. This oversight ensures that the investigation aligns with the court's search for the truth, rather than any party's strategic needs.

?3.????? Purpose of the Investigation

Common Law Jurisdictions: The investigation is generally focused on ‘building a case’. Whether it's law enforcement or private investigators, their task is to identify and gather admissible evidence that can be used in the courtroom to support the party they represent. In criminal cases, for example, police work to gather evidence that supports the prosecution's case, while the defence may conduct its own investigation to challenge that evidence.

?Civil Law Jurisdictions: Investigators are expected to gather all relevant evidence, both incriminating and exculpatory, in a neutral and unbiased manner. Their aim is not to build a case for one side but to provide a complete factual picture to the court or prosecutor so that an informed decision can be made.

?4.????? Presentation of Evidence

Common Law Jurisdictions: Investigators often testify in court to defend their actions, especially in contentious adversarial proceedings. Their work can be scrutinized by the opposing party, and they are often cross-examined to challenge the validity of the evidence they present.

?Civil Law Jurisdictions: Non-judicial investigators rarely testify in court. Instead, their findings are compiled into detailed reports submitted to the investigating judge or prosecutor. The court may use these reports as part of its own investigation, but the investigator is not typically called to defend their findings in an adversarial manner.

?5.????? Scope and Methodology

Common Law Jurisdictions: Investigators may focus on gathering evidence that fits the specific legal strategy of the party they are working for, whether it's the prosecution or the defence. This can sometimes lead to a more selective approach to fact-finding, driven by the need to win a case.

?Civil Law Jurisdictions: The scope of the investigation is often broader where the goal is to uncover all relevant facts, rather than those that just support a particular narrative. Investigators in civil law systems often conduct their investigations with a view toward producing an objective report that will help the judge or prosecutor arrive at the truth.