NCJ Number
44370
Journal
Yale Law Journal Volume: 87 Issue: 2 Dated: (DECEMBER 1977) Pages: 240-283
Date Published
1977
Length
44 pages
Annotation
CRIMINAL JUSTICE THEORY AND PRACTICE IN WESTERN EUROPEAN COUNTRIES OPERATING UNDER THE INQUISITORIAL, AS OPPOSED TO THE ADVERSARY, MODEL ARE EXAMINED, AND IMPLICATIONS FOR THE UNITED STATES ARE CONSIDERED.
Abstract
THE INQUISITORIAL MODEL ASSUMES THAT POLICE AND PROSECUTORS ARE INEVITABLY MADE PARTISAN BY THE ROLE THEY PLAY IN SEARCHING OUT THE FACTS OF CRIME. ONLY JUDGES CAN BE TRUSTED TO BE NEUTRAL AND DETACHED; HENCE THE INSISTENCE ON JUDICIAL POLICING AND EXAMINATION, ON THE PRINCIPLE OF COMPULSORY PROSECUTION OR CONTROLLED DISCRETION, AND ON THE REJECTION OF GUILTY PLEAS IN FAVOR OF FULL AND JUDICIALLY DIRECTED INQUIRY AT THE TRIAL OF EVERY CASE. IN GERMANY, IT IS COMMONLY HELD THAT THE PRINCIPLE OF COMPULSORY PROSECUTION BARS DISCRETION IN CHARGING SERIOUS OFFENSES AND PERMITS RELATIVELY LITTLE DISCRETION IN CHARGING MINOR OFFENSES. IN ITALY, ALL OFFENSES ARE SAID TO BE PROSECUTED TO THE EXTENT ALLOWED BY THE EVIDENCE, WITH THE ENTIRE PROCESS UNDER JUDICIAL DIRECTION. EVEN IN FRANCE, WHERE THE LAW AUTHORIZES BROAD DISCRETION IN DECIDING TO CHARGE, THE CHARGING PROCESS IS SAID TO BE UNDER FIRM JUDICIAL CONTROL. NONE OF THESE COUNTRIES PERMITS DEFENDANTS TO PLEAD GUILTY. ANALYSIS OF THE PROCESS OF INVESTIGATION AND CHARGE IN GERMANY, ITALY, AND FRANCE, OF THE UNCONTESTED TRIAL (ANALOGOUS TO THE GUILTY PLEA IN THE UNITED STATES), AND OF DISCRETION AND ACQUIESCENCE (ANALOGOUS TO PLEA BARGAINING) SUGGESTS THAT THE COMMON PORTRAIT OF INQUISITORIAL SYSTEMS IS OVERDRAWN. IN FRANCE AND ITALY, A JUDICIAL INVESTIGATION RARELY TAKES PLACE BEFORE TRIAL. IT IS THE PROSECUTOR WHO DECIDES WHETHER A CASE WILL RECEIVE JUDICIAL EXAMINATION; IN MOST CASES THE PROSECUTOR CONDUCTS THE EXAMINATION HIMSELF. CLAIMS THAT PROSECUTORIAL DISCRETION HAS BEEN ELIMINATED OR IS SUPERVISED CLOSELY APPEAR TO BE EXAGGERATED. THE VIEW OF CONTINENTAL TRIALS AS AGGRESSIVE INQUIRIES BY INQUISITORIAL JUDGES DOES NOT SURVIVE CLOSE ANALYSIS. SUCH TRIALS ARE RARE, BECAUSE MOST CASES ARE NOT CONTESTED. ON THE BASIS OF THESE AND OTHER FINDINGS, IT IS CONCLUDED THAT THE UNITED STATES SHOULD NOT LOOK UNCRITICALLY TO EUROPE FOR ANSWERS TO CRIMINAL PROCEDURE PROBLEMS.