In an inquisitorial system of law, the examining magistrate, or investigating magistrate, or inquisitorial magistrate, is a judge who carries out investigations into allegations of criminality and arranges prosecutions.
Contents
Origin
Many European judiciaries are based on the formal methods of the 1804 Napoleonic Code. As early police forces were often unreliable, the practice was to allow anyone to approach an examining magistrate and, on presentation of prima facie evidence alone, ask for an official investigation of supposed wrongdoing.
Process
Provided the examining magistrate is satisfied there is substance to the allegations, the official criminal investigation services gather additional evidence under court supervision.
Differences between investigatory and trial courts
Unlike the fixed courtrooms used by criminal trial courts which usually operate in public and require proof beyond reasonable doubt, the examining magistrate's court is held in camera (secret until finally summarized), is less formal and may visit relevant scenes, ask questions of bystanders or investigators or relocate if necessary. For example, examining magistrate's courts may function in hospitals, official offices, private premises or even open fields considered relevant to the acquisition or verification of evidence, which may be admissible in the trial court on the basis of being relevant merely on the balance of probability.
Purpose
The purpose of the examining magistrate is to classify the whole body of evidence as it is acquired, to decide if it is admissible evidence, and to call witnesses, and request the appointment of a prosecutor (often called a fiscal). Witnesses may be of two categories:
Conclusion
Finally the case may be
Advantages
Although the trial evidence verified by the examining magistrate is likely to be comprehensive and extensive, it also seeks to ensure that the trial process is thorough with neither a premature conclusion nor undue delay that might occur by the introduction of extraneous evidential material.
Disadvantages
The main disadvantage is the length of time the process takes and the high cost, compared to the Anglo-Saxon prosecution procedure, and that once it is concluded, any subsequent trial is likely to be long and complicated although new material is difficult to introduce into the trial process.
Another problem is that since the investigating magistrate's court session is held in private, there is apt to be much press speculation as to who said what, as each witness is called publicly. That is especially important in many major cases, which are the result of investigative journalism. Merely filming arrivals and departures of high-profile witnesses may be construed as defamatory media bias to promote unfair public opinion resulting in trial by media.