European Perspectives on the Accused as a Source of Testimonial Evidence

Abstract

Americans are becoming disillusioned with a system that produces a few lengthy, complex, and highly adversary (yet entertaining) criminal trials, together with a plea bargaining industry that generates numerous rapid fire convictions based on pressurized guilty pleasa system in which both trials and plea bargains often appear inaccurate or unjust.We occasionally feel that something is amiss when a few defendants, armed with star-quality lawyers and complex rules of evidence, attack the prosecution's case, but fail to come forward with their own account of the events, leaving victims and the public with incomprehensible acquittals or convictions which fail to answer central questions with respect to the cause of criminal conduct or the possible involvement of others.Both during pretrial investigation and at trial, our rules of procedure and legal culture often result in separating the accused from the criminal process and disregarding the most important witness while focusing on the lawyers rather than on the search for truth.For example, it appears that with increasing frequency, defendants in America are not testifying at trial, and little is said about the change.Apparently, few are concerned that, in such cases as Claus von Bulow, Q.J. Simpson, Timothy McVeigh, and Terry Nichols the defendants did not personally present their stories in court.However, while we generally are receptive to reforming our system of justice, we have an instinctive reaction against foreign, particularly European, systems based on a distrust of anything inquisitory and a confidence in adversary forms of procedure.'For many of us, the answer to "Is there a European advantage in criminal procedure?" is a firm "No."When I told a colleague that the topic of this conference concerned whether there was a European advantage in criminal procedure, he replied, "Sure, You hang them now and try them later."Despite its many defects, we retain a certain pride in our basic adversary process and a skepticism toward foreign systems ofjustice, assuming that, "with all its problems, IThe popular American prejudice against inquisitory systems has been recognized by many comparativists.See, e.g., Mirjan R. Damaska, Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study, 121 U. PA.L. REV.506, 557 (1973) ("inquisitorial" is surrounded with "the aura of dread and mistrust'); R. DAvID, ENGLISH LAW AND FRENCH LAW 64 (1980) (noting the widely entertained prejudice in England that a French prisoner is presumed guilty until he has proved his innocence); Ennio Amodio & Eugenio Selvaggi, An Accusatorial System in a Civil Law Country: The 1988 Italian Code of Criminal Procedure, 62 TEMP.L. REV.1211, 1213(1989) (recognizing an "emotional attitude" that makes the accusatory approach "the haven of guaranteed civil liberties" and the inquisitory method "the symbol of an investigatory and judicial technique that sacrifices those same civil liberties on the altar of law enforcement").

Cite this work

No public copy is stored for this record, so only the metadata is cited.

Stored only when both papers are in the corpus — 16 citations exist upstream.