Continental Cures for American Ailments: European Criminal Procedure as a Model for Law Reform

Abstract

As the gap widens between the ideal of adversary procedure and the practice of bargained justice, European ways of organizing the criminal process have gained attention. European criminal procedure, characterized by the dominating position of the judge before and at trial, appears to offer a workable alternative to the traditional adversary process. Although French and West German systems of pretrial investigation, prosecutorial discretion, and adjudication appear fundamentally different from American practice, only the last is substantially different in practice. American plea bargaining has no analogue in France or West Germany. Despite the existence of an investigating magistrate in France, French and German practices as to organization and control of pretrial investigation are not significantly different from American practice. Prosecutorial charging discretion is limited to less serious offenses in West Germany; however, neither in France nor in West Germany is prosecutorial decision-making effectively controlled with regard to the great majority of criminal cases. Disposition of cases by trial rather than by plea bargaining remains the prevalent method in both European countries. In order to profit from the advantages of the European system of providing brief, concise trials to all defendants, Americans may have to sacrifice revered common law institutions, like trial by jury and adversary presentation of the evidence.

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