Hi, everybody. Welcome back.

Let's continue our survey of how different criminal justice systems around the world deal with the problem of exacting the criminal liability price in the second half of the criminal transaction between the offender and the bearers of moral cause. Every core system of criminal liability in the world has its own distinctive features it, and its own distinctive procedures to determine guilt and punishment. We've seen that the English system is much like the American. But even so, there are important differences between them in the way prosecution is organized. And most importantly in plea bargaining context in the participation of the judge in plea bargaining, which is really somewhat different than the way plea bargains are conducted in the United States. As it turns out, almost every criminal justice system in the world falls into one or another of two easily distinguishable categories. The one category, I've called the adversarial category and put that, and put in that category the American and the English systems. And indeed the adversarial systems around the world tend to be those who've had a close connection with the common law of England. The adversarial systems are an outgrowth of common law principals and the development of the common law of England. And thus, most of the adversarial systems in the world, although by no means all of them, are in those nations who trace their legal systems origins to the English common law. But other equally, equally venerable and equally honorable systems of criminal justice trace their origins to Roman law. And in Europe, some more directly to the civil code and criminal codes of Napoleon of France, in the early part of the nineteenth century. These systems are called inquisitorial, a term I'll come back to in a moment. And the inquisitorial systems dominate the European continent. Every system of criminal justice on the European continent is an inquisitorial system.

And inquisitorial systems exact criminal liability prices in a rather different way than adversarial systems of criminal justice. And the way to distinguish these two systems from one another, I think most effectively, is to say that the adversarial and the inquisitorial systems of criminal justice are distinguished by rather different approaches to the search for truth in the trial procedure. As we've seen in the adversarial systems, the trial is understood as a kind of combat between the prosecutor and the defendant. There's evidence, but the evidence is presented by the prosecutor and presented by the defendant. And then, it is interpreted in the way that the prosecutor would like to interpret it. And then, interpreted again in the way that the defendant would like to interpret it. And as we've seen, there are rules about what evidence can be introduced that makes the evidence that's actually presented to the trial jury somewhat incomplete and problematic. Nonetheless, the juror, jury as the trier of fact, is asked to reach a verdict by somehow selecting between the story told by the prosecution and the story told by the defendant to reach a resolution of the lawsuit between them. The principle features of the adversarial system are some we've seen before. One of them, as we've seen, is that defendants are granted rights against the truth to level the playing field with the prosecution. And of course, if defendants have rights against the truth, they're liable to use them. And the casualty of their using the rights is the truth. It won't be revealed before the jury in the court proceedings if it's unfavorable to the defendant and if the defendant has a right to keep that evidence away from the juries' view. As a result, juries frequently make decisions on incomplete evidence which is sometimes because of the way in which the evidentiary rules had been interpreted in that case, sometimes quite misleading and lead juries to what would be factually erroneous results. A second feature of adversarial systems is that adversarial trials are run by the

attorneys, the prosecutor and the defense attorneys who are obviously in the adversarial system strongly partisan. It's they who bring the evidence to court. It's they who question the witnesses. It's they who propound the theories of the case that they want the jurors to agree with. It's they who disagree with their opponents and try and pick holes in the logic or the facts of their defendants, of their opponents' cases. The judge, on the other hand, sits above all as a neutral referee interpreting the many and complex rules which govern the operation of the trial but not taking any sides, and certainly not taking any active role, in the presentation either of the prosecutions case or of the defense rebuttal of that case. A third point about Adversarial Systems is that the standard of guilt, the burden of proof that must be met by the prosecution before a conviction will follow is very, very high. It's typically expressed in the United States as that guilt must be proven beyond a reasonable doubt. That means not that it is impossible that it could have been any other way. But that it is simply unreasonable to think that the defendant is not guilty of the crime with which he has been charged. And this guilt beyond a reasonable doubt must be proven unanimously to a jury of lay people, people who are not professional jurors and who have not seen cases like the one before them before. And as I suggested earlier, lay juries tend to be much more skeptical of the government's case than professional juries or professional judges deciding cases or deciding issues of that. They tend to be more merciful, generally speaking, than do professional sentencers and so on. And so, guilt must be proven at a very high level of certainty to a jury of non-professional deciders who must agree unanimously on the verdict. And if that all is not done, then the defendant is acquitted and not made to pay the criminal liability price. A fourth interesting feature of adversarial systems, is what the jury actually does. It comes back after deliberating on all of the facts and all of the arguments that it has heard and it returns a

verdict. It says either that the defendant is guilty of the crime, in which case the defendant becomes liable to pay a liability price. Or the defendant is not guilty of the crime, in which case the defendant is deemed not to have unlawfully taken a criminal entitlement, and therefore, not responsible for paying a liability price. That's all the jury does. It does not, importantly, issue a report on the case. It issues no document that says what the jury actually thought happened in the case. There's never a full report of how the case was resolved. And how the factual issues in the case were determined by the people whose responsibility it was to determine what those facts are. What this means is, that at the end of a complete criminal trial, what we know for certain about the case is that the defendant is either guilty or not guilty. But we know very, very little authoritatively about what actually happened in the case. We don't know which facts the jury believed and which facts it did not believe and, therefore, we don't know exactly what theory of the facts led the jury to the conclusion of guilty or not guilty that they ultimately reached. And so, at the end of a full jury trial, even after there's been a verdict of guilty or not guilty, officially there's no resolution to the case. There's no official document that tells the victim or the victim's survivors or the public at large. Just what all of the investigative and adjudicative mechanism of the criminal justice system has in fact determined about this crime. The result of all of these features is that trials are complex, they're expensive, and uncertain as we've seen. But another outcome is that defendants have substantial rights against the government. Those rights are enforced and protected in court. And the government's power to act unfavorably against its citizens is, therefore, held in check by those very things that make trials complex, expensive, and uncertain. In opposition, in contrast to the

adversarial systems, stand the inquisitorial systems which, as I have said, characterize the criminal justice systems of every European country from Portugal in the west, all the way to Russia in the East. When these systems are called inquisitorial, then they may bring the image of Torquemada, the grand inquisitor of the Spanish Inquisition to mind and the inquisition's practice of torturing people in order to get them to reveal their innermost thoughts and their beliefs about God and about the doctrines of the church. But in fact, the European systems are not inquisitorial in the way that Torquemada's inquisition was. They're inquis-, inquisitorial in the sense that European trial is a court of inquiry. The idea of a European trial is exactly what the idea of an adversarial trial is not. The idea of an inquisitorial trial is to produce with the greatest accuracy possible, a full report after a complete and exhaustive investigation of exactly what happened in the case of an alleged crime. And exactly how the defendants conduct was related to the law and how the law reached the decision about that defendant's guilt or innocence that it did. That is, the basis, the fundamental feature of the inquisitorial systems, is that there's a search. Trials are a search for an objective truth about exactly what happened in the alleged criminal transaction. And exactly what laws were or were not broken. And that objective truth is simply assumed to be out there. That there is an objective truth about what happened in the criminal case, and that that objective truth can be discovered by careful investigation. in this sense the adversarial systems look more post-modern that the European systems do because the adversarial systems are more skeptical about the existence of an absolute truth and objective truth about what actually happened. They seem to admit that interpretation plays a great role in relating the facts and interpretation plays the primary role in assuming or determining motives.

And so, the adversarial system seen, as it were, to acknowledge, the elusiveness of facts and the difficulty of actually pinning down the kinds of truths that criminal trials are suppose to explicate. But the Inquisitorial Systems, the European systems are not plagued by doubt, that there is an objective truth out there about what happened, that it's possible to know what the defendant was thinking, it's possible to know what the defendant's motives were, and that careful investigation by a trained investigative judge using the full resources. Not just of the prosecution and the police, but of the defendant, and his attorney, themselves, that that truth can be found by careful investigation. In order to realize the goal of conducting this factual inquiry, the inquisitorial system have features which are very different from the features of the adversarial systems. Obviously, since the point is to get at the truth, defendants are generally not given rights against the truth. Until very recently, just as I suggested earlier, the first witness in every European criminal trial was the defendant who testified in response to the question, did you commit this crime or not? The defendant is, of course, the most efficient evidentiary witness and, therefore, is the first person to be asked in the European rule. Since World War II, European systems have adopted grudgingly, a right against self-incrimination for the most part. But, nonetheless, there are still pressures on defendants to testify not least because they believe that if they, if they confess or demonstrate remorse in the trial, that things may go better for them in the end. Unlike the adversarial trial, where the judge is a neutral referee, who plays no active role in the presenting or interpretation of evidence. That's very different in Europe, where the investigative judge, who is trained in the techniques of forensic investigation, is firmly in control of the entire trial proceedings and operates them as a court of inquiry. That means that the attorneys are not there to argue with one another, nor are they there to assert anyone's rights if those rights get in the way of the

investigative judges search for truth. On the contrary, the judges are there to help the investigative judge get the facts that they judges need. So, the prosecutor could be expected to try to produce facts that will help the judge determine that the defendant is guilty. And the defendants attorney could be expected to submit evidence in the other direction. But the court does not recognize that their principal obligation is to their client In the one case or to the people who are the state in the other case. Their obligation is to the court and specifically, to cooperate with the judge, as he or she conducts the forensic investigation into the crime. And in the inquisitorial systems, as in courts of inquiry, guilt is proven by a much less demanding standard than proof beyond a reasonable doubt. If it's more than a simple majority vote or preponderance of the evidence, it doesn't rise to the standard of beyond a reasonable doubt. Moreover, guilt or innocence is not determined by unanimous vote of a lay jury. It's determined by a majority vote of a jury which, in the case even of, of serious crimes, murder and like. Juries composed in part of professional jurists, investigative judges themselves, and in part, by lay people, and in no country are the lay people in the majority of the jury. So, it's easier to convict defendants, if the evidence suggests that they should be convicted. Finally, and this is a key point about the adversarial systems, that the point of the entire trial is to culminate an investigation that leads to a report that tells the public, the victim, and the defendant exactly what the official resolution of the case is. It's a full report on what the judge believes to the best of his ability, after the full scale investigation, actually happened in the alleged criminal transaction, what laws were or were not broken by whom. And, therefore, what the consequences for the defendant should be, if the defendant is found to have been in violation of the law. And as a result of these features, trials are simple, because they're not cluttered

by defendants exercising rights against the truth. They're cheap because there are no arguments being made in either direction, no long stories to be told, and trials can be opened and closed even for serious offenses within a matter of hours. And because they are so focused on getting at the truth, they typically do a very good job of it. So, the trials are revealing. At the end of a successful criminal trial in Germany or in France the public knows exactly what the state now believes actually happened in the criminal transaction and exactly what laws were broken. At the same time, of course, in contradistinction to the Adversarial Systems, European defendants don't have very many rights. They're in fact at the mercy of the judge to produce facts for the judge to help that judge determine what's actually happening. And therefore judges, and the state that they represent, have a good deal more power against defendants in the inquisitorial system than they do in the adversarial system. And there is very, very little in the trial procedure which checks the authority of those judges and the police and prosecutors who work with them that checks the authority of those judges as they search for the truth in each particular case. So, some of the key differences between these two systems, as they play themselves out, can be summarized briefly. One of them comes from a pithy sentence that was spoken by John Merryman, who was a professor of Comparative Law at the Stanford Law School many years ago. He summarized, I think without meaning to make the same point I did about the relative positions of the two systems on the search for truth when he said, Merryman did, if I were guilty of a crime, I'd rather be tried in the US. But if I were innocent of a crime I'd rather be tried in Europe. And you can see what he means. If he were guilty, he'd like to be tried in the system that makes the most mistakes. And if he were innocent, he'd like to be tried in the system that gets it right as much as possible.

Adversarial systems fear false convictions above all. That's why rights against the truth are instituted, so that the state does not have too easy a time convicting defendants. And, therefore, the belief is that giving rights, defendant's rights against the truth will keep innocent defendants from being swept into the net by a powerful government whose prosecutorial powers are unchecked. But the Inquisitorial System see all false outcomes of trials is equally to be avoided. The idea of an Adversarial system is combat in which the defendant is elevated to level resources with the prosecution. The point of an inquisitorial trial is making is not making a mistake and getting it right. So, the inquisitorial systems fear false acquittals just as they fear false convictions. And they, they fear them equally. And finally, as I've suggested, the inquisitorial systems place great power in the police and the judicial officials. And don't check that power with rights and procedures in the trial themselves. This means, to systems, to the citizens of these systems, that they place great trust in their judicial and police officials and trust those officials not to be abusive. They trust them to be honest and to not to use their positions in an inappropriate way. In England and the United States, again, especially in the United States, the attitude toward government is much, much more skeptical, perhaps even hostile. And, therefore, the trial procedure the criminal procedure is heavily weighted towards the defendant and the government's power is firmly checked at trial. But in addition to these relatively important differences, there are two really important differences between the Inquisitorial Systems and the Adversarial Systems when it comes to plea bargains and resolution in criminal cases. As I've noted earlier, in the United States, plea bargaining is made possible. One, because defendants have the right to plead guilty. And by pleading guilty, they can stop the criminal trial. And secondly, because prosecutors have

the discretion to select the charge that corresponds to the sentence that they want imposed. And that they can use that discretion as it were to get the defendant to plead guilty to a crime that might not even remotely come close to describing what the defendant has actually done. Because defendants can plead guilty and abort the trial and because prosecutors can lower the defendant's sentence by selecting the appropriate charge, each has something of value to give to the other. And bargaining can proceed. But in the Inquisitorial Systems, neither of these conditions exists. First, defendants can't plead guilty. There's nothing a defendant can do to prevent the out-, the, the occurrence of a criminal trial, in his case. Even a confession by the defendant. Even if the first thing that happens at the trial. Is that the defendant sits and says to the judge, Your Honor, I did it. Everything that's in that dossier is absolutely correct. There's no need for us to go any further because I confess to absolutely everything to which I've been accused. The trial doesn't stop. It doesn't enter a conviction because in fact, the confession may not be accurate. Maybe the defendant doesn't re-, remember things perfectly. Maybe, for some strange reason, the defendant is confessing to something that he didn't do. The confession becomes evidence but it doesn't dispose of the issue of what happens and the principal idea of the trial is to find out what happened. So, defendants have no right to prevent the court from finding out what happens. They have no right to abort the proceeding all together, as American defendants do. And even by confessing, they cannot stop the court from continuing its forensic investigation of the crime itself. Secondly, and equally important, European criminal justice systems are governed by what is called the rule of compulsory prosecution or in some systems, the principle of legality. Compulsory prosecution means that every outcome of every criminal trial must reflect exactly what the defendant did. Therefore, defendants can not be charged

with and can not be convicted of offenses which are lesser than what they actually did. To enforce the rule of compulsory prosecution, prosecutors in European systems are denied discretion to select the charges that will be tried at the criminal trial. They must, instead, always bring the charge and, therefore, the trial must always be about the highest charge, the most serious crime that the evidence will support. And this is so, that judgements in the case can be as accurate as possible. If the prosecutor believes that the facts show that a defendant has committed an armed robbery, the prosecutor has no authority to charge the defendant with any crime other than armed robbery. And in particular, the prosecutor has no authority to reduce the charge to something below armed robbery, so as to subject defendant, the smaller jeopardy upon conviction. There are underlying similarities between these two systems. Both of the systems, at least in Europe and in the English Commonwealth countries, are based on crimes that are graded by and punishments that are made proportional to the seriousness of the offense. And this means, in light of our earlier conversations, that both these kinds of systems can be interpreted as liability systems. That attempt to internalize the moral costs of crime on a case by case basis. So, that each offender is confronted with the costs of his crime and is, therefore, made to pay a criminal liability price that is deemed to internalize those costs. The probability scaling is simply not possible, not possible in systems where punishment was being proportionate to the crimes. And this is true of the European systems just as it is in the American systems. But, as crime rates rise, both the Inquisitorial and the Adversarial Systems must face the question of how limited judicial resources are to be allocated across those increasing case loads. Even though European trials are cheap compared to American trials, they're not free. And if there are a lot of crimes, there will need to be a lot of trials

especially if the rule of compulsory prosecution is to be honored. But, those increasing crime rates put a great deal of pressure on the resources that are available for criminal justice. And therefore there is a subject to be studied what we might call comparative plea bargaining. In the United States and Britain, the response to rising caseloads has been plea-bargaining. Whether that's been acknowledged as it has in the case of the United States and regulated or whether it's not acknowledged and goes unregulated as it does in Britain. But in Europe, the absence of the features of adversarial systems that make plea-bargaining possible in the adversarial systems. That same absence makes the explicit sentence bargaining impossible under the European set of systems and raises the question of how, how do the Inquisitorial Systems just as we asked about the Adversarial System. How do inquisitorial systems respond to the pressures of rising case loads and limited judicial resources? Do Inquisitorial Systems, like the adversarial systems, have alternative methods of adjudication that enable them to avoid the costs of trials just as the Adversarial Systems do? And if they do, what might these analogues to plea bargaining look like?