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In US, the trial is adversarial.

The court works with 3 parties

One argue one way (The defendant is very evil and deserve punishment). Another argue another way (the defendant is a saint).

Then a third neutral party, namely the judge, decides which one is right.

Does this work in Indonesia?

Is this possible that the judge thinks that the defendant is guilty anyway even if the prosecutor disagree?

One case that comes to mind is Ahok case. Here the prosecutor think that Ahok is guilty of one verse in KUHP and recommend a probation. However, the judge declares that Ahok is guilty anyway.

  • Aside: there are many defenses besides "the defendant is a saint"; there's also "the government broke the rules", "the law is invalid because...", sometimes even "the victim had it coming", etc. In the US, your evilness is all but irrelevant -- what matters is whether the jury/judge is convinced that you actually broke the law, and there's no enforceable law against being evil. :) – cHao May 4 '18 at 14:48
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No. Indonesia Law uses Civil Law structures which use an Inquisitorial Trial. The chief difference is that in the United States (which has a Common Law Structure) the judge usually does not decide the case, but interprets the law (Trier of Law) and with a few exceptions, will determine the sentence once guilt is found. The Jury decides the case (Trier of Fact) and pronounces guilt (It is the right of the defense to request a Bench Trial, which gives the Judge both roles. The prosecution cannot object to this request).

In a Civil Court, the big difference is that their is no Jury and the Judge has both roles (Trier of Law, and Trier of Fact). As the name suggests, rather than two sides fighting each other (adversarial), the two sides are answering questions posed to them by the Judge or usually a panel of Judges are used and the Judge may initiate further investigation in the evidence.

The United States does use Inquisitional Trials from time to time, but they are often seen in misdemeanors, traffic courts, and small claims courts. The latter is a popular daytime TV genre (think Judge Judy) while misdemeanors and traffic court decisions are often time funny and make great Youtube videos. There are not many great Adversarial media as many throw out rules for time sake (real U.S. trials have many long boring periods during testimony) and story/drama sake. I would recommend "My Cousin Vinny" which was written by two lawyers who were fed up with Hollywood messing up how court room drama works and is hilarious to boot. When viewing either, take them with a grain of salt.

  • Off-topic, but who were the lawyers who wrote My Cousin Vinny? According to IMDB, the only credited writer was Dale Launer, who apparently never was a lawyer. – Nate Eldredge May 4 '18 at 15:34
  • I'll have to double check. I know that there was a lawyer instrumental in the creative process (maybe a Producer or a Director) that worked on this movie, but it's been forever since I the exact role. – hszmv May 4 '18 at 15:42
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    The gist of this answer is correct (Indonesia does have an inquisitorial civil law system), but there are details that are inaccurate (e.g. bench trials in the U.S. in minor matters are still not inquisitorial). The inquisitorial v adversarial distinction really hinges on the extent that the judge may be pro-active beyond merely asking questions in addition to those of the parties of witnesses provided by the parties in a case. The lead investigative judge in a panel of civil law judges has more power to proactively seek out evidence and control the trial than an adversarial judge does. – ohwilleke May 4 '18 at 19:41
  • @ohwilleke: en.wikipedia.org/wiki/Inquisitorial_system Third line in: "Countries using common law, including the United States, may use an inquisitorial system for summary hearings in the case of misdemeanors such as minor traffic violations." – hszmv May 7 '18 at 19:56
  • @hszmv They are allowed to but they almost never do. – ohwilleke May 7 '18 at 22:13

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