• Despite the tendency toward global thinking in criminal law, each country retains its distinctive approach to criminal procedure.

  • The differences in procedural systems probably run deeper than in substantive law.

• The most common terms for describing systems of criminal procedure are adversarial, inquisitorial, and accusatorial.

  • These systems are defined according to the way in which the three different functions of the trial are allocated.

    • These functions are: gathering evidence and presenting it at trial, charging the accused with a crime, and judging guilt or innocence.

• The inquisitorial system is the easiest to define because it unites all three of these functions in the person of the judge.

  • A single official gathers the evidence, charges the accused, and decides guilt or innocence.

  • The obvious objection is that each of these functions breeds a certain bias against the accused, and the combination of all three in one person can easily lead to a triple bias in favor of conviction.

    • If the judge has gathered the evidence, charged the defendant, and then conducted the trial, it would take a superhuman effort for the judge to reverse such efforts in all these dimensions and find the defendant not guilty.

  • It is incorrect to describe European systems of procedure today as inquisitorial.

• The adversarial system that prevails in the common law world today is based on a radical division of the four functions of investigation, accusation, factual determination, and punishment.

  • The police and the lawyers investigate, the grand jury charges on the basis of a prosecutorial recommendation, and after presentation of the evidence by the lawyers, the petit jury decides guilt or innocence.

  • The role of the judge in this system seems to be left out until the assessment of punishment.

• The accusatorial system is a compromise between the outdated inquisitorial system and the common law adversarial system.

  • The prosecution—not the judge—charges the crime, and the lawyers have responsibility for presenting the evidence at trial.

    • Yet the judge does retain the power of deciding guilt, and the judge also bears the ultimate responsibility for the investigation and presentation of all the relevant evidence.

• The inquisitorial system reflects the mentality of monarchical power; concentrating all the power in the judge is like thinking of the king as font of all political power.

• The adversarial system resembles the structure of the tripartite system of government conceived by Montesquieu and incorporated in the U.S. Constitution.

• The accusatorial trial resembles constitutional democracy in modern European systems.

The Separation of Conviction and Sentencing

• A little-appreciated feature of the jury, as we know it in Anglo-American legal systems, is that it leads to the separation of fact-finding on guilt and innocence from the sentencing phase of the trial.

• Juries could conceivably determine sentences in the number of years to be served, as civil juries assign a dollar sign to the defendant’s liability.

  • Yet if the jury were to issue a composite verdict as it does in civil cases—for example, guilty of an assault worth five years—there would be a greater danger that juries would reach compromised verdicts.

• Civilian trials combine the inquiry into guilt with sentencing

  • In Germany, at least, a single judgment is announced at the end.

  • Even in cases where the defendant claims insanity and the plea is rejected by the court, the single judgment imposes a sentence on the defendant; if the defendant committed the act but is found insane, the judgment imposes a mode of administrative detention on the defendant on the assumption that he or she is dangerous to the public.

• The common law practice has significant advantages for the defense because many facts relevant for sentencing—notably, the fact of prior convictions—are considered irrelevant at the stage of finding guilt for the commission of the crime.

  • The interweaving of the two questions—responsibility for the crime and society’s response to the crime—leads to one of the most disquieting features of the civilian trial

The Asymmetrical Rules of Appeal

• If the jury cannot be trusted with all the evidence, if it cannot be trusted with sentencing decisions, one would expect appellate courts to exercise close supervision over the jury’s finding of fact.

• Common law deference to the power of the jury to acquit is thought necessary to guarantee the jury’s independence; civilians see no reason to defer in the same way to their trial courts.