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Criminal Procedure: Comparative Aspects


The contrast between adversarial and inquisitorial styles of conducting the criminal process becomes most evident at the trial stage. In inquisitorial systems, the trial is typically dominated by the presiding judge, who selects and calls up the evidence to be presented at trial, makes procedural rulings as necessary, and interrogates defendants, witnesses, and experts. In adversarial systems, the judge's role is limited to presiding over the parties' presentation of the evidence. Advantages and disadvantages of either system have long been the subject of scholarly debate. To some extent, the difference between the modes of trial is technical rather than substantive: as long as the court as well as the parties have the right to question witnesses, the sequence of interrogation is of little relevance. Yet there is one basic difference between adversarial and inquisitorial systems that relates back to differing definitions of the purpose of the process: the inquisitorial judge has the responsibility of making certain that a complete account of the relevant facts is given in court so that the verdict can be based on "the truth"; in the adversary system, by contrast, the finder of fact decides on the factual basis as it is presented by the parties, and neither the court nor the jury have the right to probe into the factual background or (in most systems) to introduce evidence on their own initiative.

In inquisitorial systems, the court has complete freedom in evaluating the evidence. The French Code of Criminal Procedure leaves the judgment on guilt or innocence to the "internal conviction" (intime conviction) of the judges (French CCP, art. 427; cf. StPO, § 261; Italian CCP, art. 192). This means that there are, in principle, no rules of law determining the weight to be given to particular items of evidence. As a further consequence of the court's independent duty to determine the truth, the court cannot be bound by parties' factual admissions or stipulations.

Inquisitorial and adversarial systems also typically differ with respect to the relationship between pretrial and trial proceedings. Systems that place great emphasis on the adversarial presentation of evidence tend to shield the trial process from being influenced by the results of the pretrial investigation—only what is presented and discussed at the trial can form the basis of the judgment. Inquisitorial systems, on the other hand, are much less adamant in keeping the various stages of the process separate, because they regard the trial as the culmination of a continuous effort at determining the "truth." Thus, a French or Dutch lawyer would not regard it as a violation of procedural principle that a witness's prior police testimony can be introduced at the trial by reading from the police transcript in the absence of the witness; and this is indeed common practice in both countries' lower criminal courts (Frase, 1999, p. 174; Swart, p. 298).

Beyond these characteristics, it would be misleading to say that continental systems universally adhere to a strict inquisitorial style of proceeding. On the contrary, a closer look reveals a great variety of trial styles, some of which are surprisingly similar to the common law trial. One can, in fact, determine an advance of the adversary trial mode on the continent, for which several explanations can be given. On the one hand, "trial by combat" is attractive to skilled and competitive lawyers everywhere; on the other hand, the European Convention on Human Rights, which has been adopted by virtually all European countries, guarantees certain trial rights typical of the common law style, most importantly the defendant's right to present evidence in his defense and to confront witnesses against him (European Convention on the Protection of Human Rights and Basic Freedoms of Nov. 4, 1950, art. 6 sec. 3 lit. d). The jurisprudence of the European Court of Human Rights in Strasbourg, which tends to give broad interpretations to the clauses of the Convention, has indeed cast doubt upon the continued permissibility of some traditional practices of inquisitorial systems in the light of the European Convention's trial rights (see, e.g., Unterpertinger v. Austria, Reports of Judgments and Decisions, Series A, Nr. 110 (1987); Lüdi v. Switzerland, Reports of Judgments and Decisions, Series A, Nr. 238 (1992)). French criminal procedure is still closest to the prototype of the inquisitorial model. The Code of Criminal Procedure confers upon the presiding judge discretionary authority to take, "on his honor and conscience," all measures he or she deems useful to discover the truth (French CCP, art. 310). When the formal document of accusation has been filed by the prosecutor, the presiding judge reviews the evidence gathered before trial. In addition to witnesses suggested by both parties, he or she can have any other witnesses called, can appoint experts and have physical evidence produced. It is the presiding judge who interrogates the defendant and all witnesses. Members of the court may ask additional questions (French CPP, art. 311) whereas the parties are limited to suggesting additional questions but may not themselves examine witnesses (French CCP, art. 312).

In the most serious cases, tried before a mixed court of three professional and nine lay judges (the cour d'assises), the presiding judge formulates the specific questions for the court to answer (French CCP, art. 348). Since the professional and lay judges deliberate on the verdict together, the presiding judge also has ample opportunity to explain the law and advise the other judges on the evidence behind closed doors. The presiding judge's role is even greater in the lower courts, where he sits alone or together with two associate professional judges (French CCP, arts. 398, 398-1, and 523); these courts handle over 99 percent of criminal trials (Frase, 1999, p. 163).

In Germany, the great majority of cases are decided by a single professional judge, who can impose penalties of up to four years imprisonment (Gerichtsverfassungsgesetz in der Fassung der Bekanntmachung vom 9. Mai 1975 (Bundesgesetzblatt 1975 I, p. 1077), § 24 sec. 2). More serious cases are adjudicated by mixed courts of professional judges and lay persons sitting and deliberating together (cf. Dubber, pp. 556–567). As in France, the court is responsible for having all relevant evidence available at the trial (StPO, § 244 sec. 2). Parties can, however, bring their own witnesses and experts, and the court must hear them unless it can determine in advance that their testimony will be irrelevant or duplicative (StPO, §§ 244 sec. 3, 245). The presiding judge initially interrogates the defendant (if he or she wishes to testify), witnesses, and experts. In that interrogation, the dossier of the pretrial investigation, assembled by the public prosecutor and submitted to the court, often plays an important role: the presiding judge frequently confronts witnesses with prior statements contained in the dossier and asks them to explain contradictions between their trial testimony and what they had earlier told the police or the prosecutor. The other judges as well as counsel for the prosecution and the defense have the right to ask additional questions. The court can reject parties' questions only if they are inappropriate or irrelevant (StPO, § 241 sec. 2)—a standard that German courts have interpreted narrowly ( Judgment of the Federal Court of Appeals of April 22, 1952, 1 StR 96/52, 2 BGHSt 284). In routine cases, parties tend to make sparing use of their right to ask additional questions; yet in contested cases, the defense may employ the right to interrogate prosecution witnesses to much the same effect as an Anglo-American cross-examination. At the end of the trial, the prosecution and the defense sum up their views of the evidence, and the defendant has the opportunity to speak last. As in France, professional and lay judges deliberate together. A two-thirds majority is required for conviction (StPO, § 263). Given the composition of German mixed courts (one, two, or three professional judges sitting with two lay judges), this means that lay judges can in any event block a conviction if they vote together.

In Spain, it is the parties who primarily determine what evidence will be presented at the trial (LEC, art. 728), but the court can add evidence to the extent it regards such evidence as necessary for proving one of the offenses listed in the formal accusation (LEC, art. 729 No. 2). The allocation of roles is similar with respect to the actual presentation of evidence: examination and cross-examination by the parties is the primary method of taking oral testimony. The presiding judge can, however, not only reject misleading and irrelevant questions (LEC, art. 709 sec. 1), but can also change the sequence in which witnesses are interrogated and ask additional questions (LEC, arts. 701 sec. 6, 708). The presiding judge thereby fulfills his or her role as the guardian of the proceedings and of their orientation toward determining the truth (LEC, art. 683). Even apart from these remnants of the inquisitorial process, party domination of the trial is of lesser relevance in Spain than in common law jurisdictions because the results of judicial pretrial investigations can filter through to the trial stage and form the basis of the judgment, especially when a witness's trial testimony deviates from his or her earlier statements (LEC, art. 714).

A similar structure exists in Italy where, since 1989, the trial is supposed to be party-dominated and strictly separated from the pretrial process. It is the parties who present lists of evidence to be taken, and it is they who examine and cross-examine witnesses (Italian CCP, arts. 468, 498). But the presiding judge can strike manifestly superfluous witnesses from the list (Italian CCP, art. 468 sec. 2), reject irrelevant lines of questioning (Italian CCP, art. 499 sec. 6), ask additional questions of witnesses and experts (Italian CCP, art. 506 sec. 2), and can even, "if absolutely necessary," order additional evidence to be taken (Italian CCP, art. 507). The supposed strict separation between pretrial and trial proceedings has not survived the very first years after the reform of the Italian criminal process: the law and the jurisprudence of the courts have since permitted the introduction of pretrial statements under more and more liberal rules (see Italian CCP, arts. 510-513; Grande).

The examples of Spain and Italy demonstrate how resistant the inquisitorial heritage is to efforts to inoculate it with elements of a foreign system; they also show to what extent procedural practice is shaped by the traditions and attitudes of the lawyers involved rather than by the letter of the law. On the other hand, adherence to certain basic tenets of the inquisitorial process, in particular the quest for the truth as the overriding purpose of the process, is obviously compatible not only with a recognition of defendants' rights, such as the presumption of innocence and the privilege against self-incrimination, but also with procedural features commonly associated with the adversary trial, such as party examination of witnesses and the defendant's right to confront witnesses against him. It seems that the choice among procedural styles is of much lesser importance for the "quality" of the process than has long been assumed; what is important is an effort to respect parties' individual rights even in light of systemic and political pressures toward greater efficiency and speed.

Trial and sentencing. In common law countries, trial and sentencing are kept strictly separate. Sentencing hearings usually take place a few weeks after the defendant has been found guilty. In continental systems, by contrast, issues of both guilt and sentence are argued and decided upon in one single trial: the court's judgment at the end of the trial includes a finding on the issue of guilt and, if there is a conviction, the sentence. Consequently, no distinction is made between evidence relevant to guilt and evidence relevant to sentence; even sensitive information concerning the offender's personality and prior offenses is admissible at the trial because of its impact on sentencing. The unitary trial, though saving time, creates a number of problems. Material relevant to the sentence can be prejudicial to the defendant, and in contested trials the focus is often so much on the issue of guilt that the determination of the sentence may not be based on sufficient argument and information. The continental tradition of conducting a unitary trial has nevertheless survived academic criticism, and even those systems that have adopted American-style adversary trials have not seriously considered the introduction of separate sentencing hearings. This may be an area in which vested bureaucratic interests in efficiency are too strong to be overcome by considerations of fairness.

Juries and lay judges. Trial by a jury of one's peers was one of the great demands of liberal reformers of the European criminal process in the nineteenth century. Several countries at that time followed the example of England and introduced trial juries, but the jury system often did not survive. In France, the jury was introduced in 1791 but merged into a mixed court of professional and lay judges in 1941. Germany established juries for the most serious offenses in 1877, but likewise abolished the jury as an independent fact finder and replaced it by mixed panels in 1924. The jury had a particularly interesting history in Spain: it was introduced in 1888, abolished in 1924 and recreated, for the most serious offenses, in 1995 (Ley Orgánica 5/1995, de 22 de mayo 1995 del Tribunal del Jurado; see Thaman), on the basis of a constitutional provision guaranteeing every Spanish citizen the right to participate in the administration of criminal justice as a juror (Spanish Constitution, art. 125 sec. 1).

Americans tend to regard trial by jury as one of the hallmarks of a civilized system of criminal justice. And it is certainly true that the vagaries of decision-making by a group of lay persons introduces into the criminal process an element of chance that often benefits the accused. On a more rational basis, one can argue that a verdict of guilty is valid only if it can be based both on the law and on the moral persuasion of a group of citizens. Paradoxically, however, decisionmaking by juries has in the United States led to an enormously complex system of rules on the presentation of evidence at trial (Damaska, 1997, pp. 28–46): the attempt to shield jurors from overly prejudicial evidence and to make difficult issues of fact and law palatable to lay persons goes a long way in explaining why American trials are so costly, protracted, and often far removed from the actual facts of the case.

The mixed record of juries on the European continent may be related to this and other defects. Juries were useful historically as long as trials dealt with simple issues of fact and the verdict depended largely on whether the testimony of one or the other witnesses was to be believed. With the growing complexity of factual and legal issues—white-collar offenses are paradigmatic in this regard—jurors have lost much of their capacity to reliably adjudicate cases without professional advice and guidance. If one wishes to retain a lay element in criminal justice it may thus be preferable to turn to mixed panels as can be found in many European jurisdictions (see Langbein). This system, which combines the freshness of judgment and worldly experience of nonlawyers with the sophistication of professional judges, may produce more rational and predictable verdicts than the traditional jury system.

Adjudication of uncontested cases. Anglo-American law makes a sharp distinction between contested and uncontested criminal cases. The latter are adjudicated without trial on the basis of the defendant's plea of guilty, which is often brought about through plea bargaining, that is, offering the defendant a reduced sentence in exchange for a waiver of his or her trial rights. Civil law countries traditionally did not provide for distinctive modes of processing cooperative and uncooperative defendants. The inquisitorial ideal requires a full investigation of the facts even if the defendant confesses guilt; credible admissions can do no more than reduce the amount of extrinsic evidence necessary for a finding of guilt.

At the beginning of the twenty-first century, law and practice in many continental legal systems differ from that ideal, however. The idea of disposing of uncontested cases without a full trial, which had been regarded as a typical American aberration as late as in the 1970s, has quickly spread to a large number of European jurisdictions. The main reason for this development is the jurists' common interest in efficiency: where there is no issue, the argument goes, there is no need for going through the motions of a trial. The law has in various ways been adapted to fit this argument.

One instrument of avoiding trial in clear-cut cases is conviction and sentence by written decree. This instrument, called a penal order (ordonnance pénale, Strafbefehl, decreto penale), exists in France, Germany, and Italy (French CCP, arts. 524–528-2; StPO, §§ 407–412; Italian CCP, arts. 459–464). The basic idea is the same in all three systems: at the close of an investigation for a minor offense, the prosecutor drafts a judgment including a sentence. The draft is submitted to the magistrate, who issues it as a provisional judgment unless he detects obvious defects. Typically, only monetary penalties can be imposed by penal order; yet in Germany the defendant can also receive a suspended prison sentence of up to one year by written decree without a trial (StPO, § 407 sec. 2). The defendant can accept the penal order or file an appeal; in the latter case, the verdict and sentence imposed by the penal order lose effect, and the matter is set for trial. At the trial, the court is not bound in any way by the contents of the penal order; the defendant thus risks more serious punishment if he or she declines to accept the penal order (see Italian CCP, art. 464 sec. 4, explicitly stating that the judge can impose a more serious sentence after trial). Although the defendant's prior consent is not required for the issuance of a penal order, prosecutors are well-advised to ascertain in advance that the defendant will accept the sentence, because in the event of an appeal the prior attempt to avoid a trial only serves to draw out the process. In Italy, the statute explicitly invites bargaining by permitting a sentence reduction of one half of the "deserved" penalty in case of a decreto penale (Italian CCP, art. 459 sec. 2). German law does not provide for a similar discount, but it is well-known that the content of a penal order is a frequent subject of negotiations between the prosecutor and defense counsel, with defense counsel indicating what sentence his or her client would be willing to accept without demanding a trial (Dahs, pp. 644–646).

Another means to simplify the process is to hold an abbreviated trial instead of the ordinary full trial. In France, there exists a long-standing practice of correctionnalisation, that is, trying felony cases in the lower court designed to adjudicate misdemeanors (tribunal correctionnel). In lower court, oral testimony of witnesses can largely be replaced by the record of their interrogation by the police, parties' closing statements are often limited to perfunctory remarks, and sentences are generally lower than in the nine-judge felony court (cour d'assises). The practice of "reducing" what really appear to be serious felonies requires a silent understanding among all parties to omit from the facts presented to the court certain aggravating factors that would turn the offense into a felony (Stefani, Levasseur, and Bouloc, pp. 430–433). Parties' interests to do so tend to coincide in noncontested cases: the prosecutor saves the time and effort necessary to try the case in felony court, and the defendant has reason to hope for a more lenient sentence.

Italian law provides for several forms of abbreviated adjudication. The most interesting of these is giudizio abbreviato (Italian CCP, arts. 438–443), that is, adjudication of the case by a magistrate on the basis of the record of the pretrial investigation, possibly augmented by additional evidence offered by the defense (see Pizzi and Marafioti, pp. 27–35). As with the penal order, the Italian Code offers the defendant an incentive to agree to this form of conviction without trial by providing for a mandatory reduction of the "deserved" sentence by one-third (Italian CCP, art. 442 sec. 2). French and German statutes also provide for speedy, simplified trials in straightforward cases (French CCP, arts. 393–397-6; StPO, §§ 417–420). In France the defendant's advance consent for immediate adjudication is needed (French CCP, art. 397) whereas in Germany a short-cut trial with reduced opportunities of presenting defense evidence can be forced upon the defendant.

Even closer analogies to American plea bargaining have developed in Italy, Spain, and Germany. Spanish law has long provided for the possibility that the defendant submit to the penalty demanded by the prosecutor at the beginning of the trial (conformidad, LEC arts. 655, 694). In that case, the court takes no evidence but imposes the sentence demanded by the prosecutor. Originally, the prosecutor's sentence demands tended to be close to the statutory maximum, thus making it unattractive for the defendant to waive trial. Through a few small changes in the law, the Spanish legislature (Ley orgánica 7/1988 de 28 de dic. 1988) invited the parties to negotiate before trial with a view toward determining a sentence acceptable both to the prosecutor and the defendant. In its 1989 version, the Code of Criminal Procedure refers to the possibility of filing the formal accusation with a sentence demand signed both by the prosecutor and defense counsel (LEC, art. 791 sec. 3) and alludes to the possibility of reducing the original sentence demand (LEC, art. 793 sec. 3)—two subtle indications of the desirability of avoiding trial through prior bargaining on mutually acceptable conditions of conformidad (see, generally, Ortells Ramos).

Italian law is even more candid in facilitating and encouraging sentence negotiations between the prosecution and the defense. The Code provides that the parties can jointly propose, in the preliminary hearing or at the beginning of the trial, a sentence of up to two years imprisonment; this sentence is to include a discount of one-third from the penalty (hypothetically) applicable after trial (Italian CCP, art. 444). If the judge finds, based on the dossier and the representations of the parties, that the penal law has correctly been applied to the facts of the case, he or she imposes the penalty as requested by the parties (Bogner, pp. 135–208).

German law does not provide for an analogue to plea bargaining, but German lawyers have nevertheless developed informal practices that have the same effect as the Spanish and Italian laws. Especially in more complex criminal cases, it has become commonplace in Germany for defense counsel to approach the presiding judge (or for the presiding judge to approach defense counsel) with suggestions for an abbreviation of the process in exchange for a lenient sentence (Herrmann). A noncooperative defense can, under German evidence law, indefinitely protract the trial by compelling the court to take additional evidence; by making a full confession in open court, the defendant can, on the other hand, relieve the court of the necessity to hear many (or any) witnesses. In contrast to Spain and Italy, bargaining in Germany is done directly between the defense and the court; the public prosecutor has an informal veto power but usually is not one of the primary negotiators. The practice of "sentence bargaining," which has become known since the early 1980s, is of dubious legality because it not only lacks any foundation in written law but even runs counter to basic tenets of German law, especially the court's duty to independently establish the "truth" (Weigend, p. 57). The Federal Court of Appeals nevertheless gave in 1997 its general approval to bargaining, subject to certain conditions of "fair deal" to be respected by the negotiating parties ( Judgment of the Federal Court of Appeals of August 28, 1997, 4 StR 240/97, 43 BGHSt 195). This development is an impressive sign of the times: it shows that the desire to be "functional" tends to override and neutralize the normative principles on which the inquisitorial criminal process was built. The advent and universal acceptance of bargained justice may indeed indicate that the traditional criminal trial is no longer adequate to deal with factually and legally complex matters that increasingly are the subject of criminal cases.

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Law Library - American Law and Legal InformationCrime and Criminal LawCriminal Procedure: Comparative Aspects - Purposes And Problems, Two Models Of The Criminal Process, Investigation, Control Of Police, Prosecution