Sentencing procedures under the adversarial and inquisitorial models of justice: a comparative analysis

Abstract This article examines the key procedural distinction in sentencing between adversarial (common law) and inquisitorial (civil law) systems: bifurcation versus unification. Common law jurisdictions separate sentencing from the trial phase, while civil law systems integrate sentencing within the verdict determination. The article examines the implications of these approaches and assesses their strengths and weaknesses. Bifurcation allows for a focused mitigation hearing, ensures that all relevant information is considered prior to sentencing, and minimises potential bias from prior convictions or sentencing factors during trial. However, it also prolongs proceedings and can lead to inefficiencies. By contrast, unified sentencing integrates all relevant factors into a single hearing, streamlining the process but potentially exposing defendants to prejudicial considerations before a verdict is reached. While neither tradition is likely to fully abandon its approach, the authors suggest that if a new jurisdiction were to adopt a sentencing model, the adversarial system—with modifications to increase efficiency—would be preferable. They conclude by calling for further empirical research to assess the comparative impact of these systems on sentencing outcomes and perceptions of fairness.