Criminal Procedure: Comparative Aspects

This entry does not advocate any particular legal reform but limits itself to providing outlines of the criminal process in some European countries, especially France, Germany, Italy, and Spain (for more detailed information on these and other systems see, Bradley, 1999 and Van den Wyngaert; for in-depth comparisons of two or three legal systems, see Fennell et al. (England and the Netherlands) and Hatchard et al. (England, France, and Germany)). Of these systems, France and Germany still represent, with great variations, the "inquisitorial" model of the criminal process, whereas Italy and Spain have procedural systems that represent intermediate solutions between the inquisitorial style of proceeding and the adversarial model practiced in the systems of the common law tradition.

One basic difference between the inquisitorial and the adversarial modes of conducting the criminal process lies in the definition of the goals of the process. The inquisitorial model is geared toward determining the truth of what has happened, and the judgment is based on findings of fact that approximate the historical truth as closely as possible; the adversary model regards the criminal process as a tool for the resolution of a dispute between the accuser (usually, a public prosecutor) and the accused, and it emphasizes the search for the truth only to the extent that truth-finding is necessary for the resolution of this dispute (cf. Damaska, 1998). Moreover, the adversary system, determined to provide both sides with a fair opportunity to win the contest, closely circumscribes the means by which facts can be established in court, and it excludes from the fact finder's consideration evidence that might unfairly prejudice one party. This basic contrast in outlook explains, for example, one of the conspicuous differences in evidence law between continental and common law systems: whereas hearsay evidence is generally admissible in inquisitorial systems (because even hearsay, regardless of its lesser reliability, can help the finder of fact in his or her attempt to find out what actually happened), common law systems exclude hearsay (with several exceptions) because its introduction would prevent the opposing party from effectively testing the truthfulness and reliability of the source of information (Damaska, 1997, pp. 79–81).

Inquisitorially oriented systems typically rely on neutral agents of the state (a judicial magistrate or a state's attorney cast in an objective role) to initially collect the evidence and to prepare the case for trial. At the trial stage, the court, in particular the presiding judge, is responsible for introducing the relevant evidence, and the attorneys for the state and for the defense play only supplementary roles. In the adversary system, by contrast, each party (i.e., the prosecutor and the defense) collects and presents the evidence favoring its position. The judge plays the role of an umpire at the trial stage, whereas a jury of laypersons is typically responsible for finding the verdict. The Italian approach is similar to the adversary model in that trial proceedings are adversarial, but trial is preceded by a thorough pretrial investigation conducted by the public prosecutor, who at that stage is expected by the law to act in an "objective" fashion and to also investigate facts favoring the suspect (Codice di procedura penale, allegato al decreto del Presidente della Repubblica 22 sept. 1988, n. 447 (Italian CP), art. 358). Before a case can go to trial, the results of the pretrial investigation must be submitted to a magistrate; he or she determines whether there is sufficient evidence against the suspect and whether the case can be resolved—if the defendant consents—by convicting and sentencing him on the spot, without trial (Italian CCP, arts. 416–433). Spanish procedure similarly provides for a combination between an inquisitorial investigation and a party-dominated trial (for an overview, see Vogler, pp. 394–396).

The existence of such eclectic systems—of which there are more—demonstrates that the inquisitorial and adversarial models of the process are merely ideal-types (Damaska, 1975), convenient for reference in scientific debate but with limited relevance for the understanding of a particular country's procedural system. It is unclear to what extent either of these models has historically existed in pure form; today, in any event, every system of criminal procedure includes inquisitorial as well as adversarial features.