Trials Without Truth: Why Our System of Criminal Trials Has Become an Expensive Failure and What We Need to Do to Rebuild It

Chapter 5: Discovering Who We Are

CHAPTER FIVE Discovering Who We Are A Look at Four Different Trial Systems Our Need for Perspective on Our Trial System In this chapter, I will describe in overview the trial systems of four different western countries: the Netherlands, Germany, Norway, and England. I chose the first three because their criminal justice systems are well respected and yet they vary considerably from one another. I chose England because it is a common law country like the United States and other parts of the English-speaking world, and yet, as I will show, there are many important differences between the trial system in England and that in the United States. The purpose of this chapter is not to make readers experts in other legal systems, nor to suggest that those systems don’t have their own problems. (England, in particular, has had serious problems in recent years stemming from a series of cases involving suspected IRA terrorists in which the convictions had to be thrown out, often due to the fabrication of incriminating evidence by the police.1 ) Rather, the purpose of these short overviews of four other trial systems is to provide a badly needed perspective on our own. Writing in joseph in egypt, the great German novelist Thomas Mann wrote: “For only by making comparisons can we distinguish ourselves from others and discover who we are, in order to become all that we are meant to be.”2 While Mann was writing about people , his point applies equally to trial systems. Only by comparing 89 our trial system to other systems can we get “outside” our system and see how extreme it has become. Americans badly need the perspective on our trial system that this chapter offers. This is especially true of lawyers and judges because an American legal education is very narrow in its focus. I say this as someone who trains future American lawyers and judges and who is thus part of the problem. In a hurry to provide law students with a basic understanding of the sorts of complicated legal subjects they are likely to encounter in practice, our legal education concentrates almost exclusively on training students within our own legal system. Students become familiar with American statutes, regulations , decisional law, and the American trial system. Other legal traditions and trial systems are generally ignored. This means that we graduate lots of law students every year who are well prepared to take the bar exam and to begin careers as prosecutors and public defenders. They know evidence law, trial procedure , the main outlines of search and seizure law, the rules of interrogation , and so on. They have also often taken courses aimed at honing their advocacy skills, or their negotiating or interviewing skills. But they end up knowing almost nothing about other trial systems or even about the evolution over time of their own legal system. Even with respect to the trial systems of other Englishspeaking countries such as England, Scotland, Australia, or New Zealand—other so-called “common law countries”—that share our legal heritage, students usually know very little. The sum total of what American lawyers (and law professors) know about such systems is likely to be the little they may have garnered from watching popular entertainments such as Rumpole of the Bailey on Public Broadcasting, or movies such as the comedy A Fish Called Wanda, in which one of the principals was a barrister. When it comes to what I have been referring to in this book as “continental” or “European” countries, such as Germany, France, or the Netherlands, American lawyers know next to nothing. SomeDiscovering Who We Are 90 times what they think they “know” is worse than knowing nothing. You will occasionally hear leading members of the bar saying things about other western countries—for example, that “in country X the defendant is assumed guilty and must prove he is innocent” or that “in country Y the defendant is not given a trial”—which are untrue for those countries. The tone of such pronouncements usually implies that our trial system is clearly superior to any other, that our lawyers and judges have it all pretty much figured out, and that we have little to learn from other legal systems. (As someone who lectures to various groups of judges and lawyers, I have to say that this attitude is beginning to change and I find many lawyers and judges much...