American Criminal Procedure in A European Context: Mar Jimeno-Bulnes

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AMERICAN CRIMINAL PROCEDURE IN A

EUROPEAN CONTEXT
Mar Jimeno-Bulnes*
If I were innocent, I would prefer to be tried by a civil court,
but if I were guilty, I would prefer to be tried by a common-law
court. 1
TABLE OF CONTENTS
I. INTRODUCTION ........................................................................ 410
II. HISTORICAL BACKGROUND: TWO OR THREE MODELS
OF CRIMINAL PROCEDURE? ................................................... 416
A. Accusatorial ...................................................................... 417
B. Inquisitorial....................................................................... 420
C. Mixed ................................................................................. 423
III. TERMINOLOGICAL QUESTIONS AND CHARACTERISTIC
FEATURES: ACCUSATORIAL OR ADVERSARIAL
CRIMINAL PROCEDURE? ........................................................ 426
IV. THE MUTUAL INFLUENCE BETWEEN ANGLO-AMERICAN
AND EUROPEAN CRIMINAL PROCEDURES ............................ 436
A. Pretrial Investigation ....................................................... 437
B. Trial ................................................................................... 446
V. CONCLUSION ............................................................................ 454
* Visiting Professor of Law at the Chicago-Kent College of Law (2011-2012) and Full
Professor of Procedure Law at the University of Burgos (Spain); addresses for
correspondence: [email protected] and [email protected]. A first draft was
presented on April 10, 2012 at the Chicago-Kent Spring Seminars; I appreciate the
comments from Professors Joan Steinman, Carolyn Saphiro, César Rosado, Felice Batlan,
Marsha Ross-Jackson, Richard Wright, and Sanford Greenberg. Also, many thanks to
Professor Sarah Harding for her suggestions, to David Gerber and Nancy S. Marder for
their encouragement; my gratitude to Professor Susan Adams and criminal defense
attorney Steven W. Becker for their support. Last, but not least, I wish to thank Stephanie
Crawford and Scott Vanderbilt for their resourceful research assistance and Antony Price
for reviewing the English syntax. This research was conducted with funding from the
Spanish Ministry of Education and the Regional Government of Castile and León.
1 JOHN HENRY MERRYMAN & ROGELIO PÉREZ-PERDOMO, THE CIVIL LAW
TRADITION: AN INTRODUCTION TO THE LEGAL SYSTEMS OF WESTERN EUROPE AND
LATIN AMERICA 127 (3d ed. 2007).
409
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410 CARDOZO J. OF INT’L & COMP. LAW [Vol. 21:409
I. INTRODUCTION
In Europe and the United States, two different global legal
traditions exist: 2 Anglo-American common law and Romano-
Germanic civil law. These two systems have evolved into what are
now known as the accusatorial and the inquisitorial criminal
systems. 3 The civil law tradition is person-centered and grounded
in the traditions of Roman law, whereas the common law tradition
is centered on adjudication, beginning its historical development
with the conquest of England by the Normans. In the former,
written law has produced an inquisitorial type of procedure, which
has negative connotations for many legal professionals and lay
persons more accustomed to accusatorial procedure, a term used
in Europe and elsewhere, which refers to oral criminal proceedings
based upon the common law tradition developed in England. 4
These diverse legal traditions and their historical roots create
enormous procedural differences that greatly impact criminal
justice in the United States and the United Kingdom, compared to
European and Latin American countries. 5 In contrast to civil
2 See MARY ANN GLENDON ET AL., COMPARATIVE LEGAL TRADITIONS IN A

NUTSHELL 13 (2d ed. 1999) (discussing the concept of legal tradition). See generally H.
PATRICK GLENN, LEGAL TRADITIONS OF THE WORLD: SUSTAINABLE DIVERSITY IN
LAW (2d ed. 2004) (detailing other legal traditions, such as the Asian, Hindu, Islamic, and
Talmudic legal traditions). Controversy remains over exactly how many legal traditions
there are in the world. See PHILIP L. REICHEL, COMPARATIVE CRIMINAL JUSTICE
SYSTEMS: A TOPICAL APPROACH 104-05 (4th ed. 2008). Specifically in relation to
criminal procedure, see ERIKA S. FAIRCHILD, COMPARATIVE CRIMINAL JUSTICE
SYSTEMS (1993); GEORGE F. COLE ET AL., MAJOR CRIMINAL JUSTICE SYSTEMS (1981);
CRIMINAL PROCEDURE: A WORLDWIDE STUDY (Craig M. Bradley ed., 2d ed. 2007). See
also RICHARD VOGLER, A WORLD VIEW OF CRIMINAL JUSTICE (2005).
3 Although a difference between the terms “process” and “system” in relation to
criminal justice has been suggested, for the purpose of this paper both terms shall be used
interchangeably. See PETER C. KRATCOSKI & DONALD B. WALKER, CRIMINAL JUSTICE
IN AMERICA: PROCESS AND ISSUES 10-11 (2d ed. 1984) (discussing conceptual
differences).
4 GLENN, supra note 2, at 125, 232. For this reason, the author suggests the use of
investigative and adversarial criminal procedures because of their more positive
connotations.
5 For a general discussion of the differences between criminal and civil procedure, see
David J. Gerber, Comparing Procedural Systems: Toward an Analytical Framework, in
LAW AND JUSTICE IN A MULTISTATE WORLD: ESSAYS IN HONOR OF ARTHUR T. VON
MEHREN 665 (James A.R. Nafziger & Symeon C. Symeonides eds., 2002). This paper is
limited to discussion of criminal justice systems in Europe. For a discussion of criminal
justice in Latin America, see generally MERRYMAN & PÉREZ-PERDOMO, supra note 2, as
well as EDMUNDO S. HENDLER, SISTEMAS PROCESALES PENALES COMPARADOS (1999),
and especially Máximo Langer, Revolution in Latin American Criminal Procedure:
Diffusion of Legal Ideas from the Periphery, 55 AM. J. COMP. L. 617 (2007).
2013] AMERICAN CRIMINAL PROCEDURE 411
procedure, a unique aspect of criminal procedure is its potential

politicization. 6 This invites discussion of and preference for
different criminal justice models, in which adversarial features of
the accusatorial model make it the best choice, giving way to a sort
of Manichean dichotomy. 7 However, it should be noted that there
is currently no “pure” criminal procedure in the world. All
criminal systems, in fact, are the product of exchanges and
mixtures of different legal traditions. 8 In addition, it appears
existing criminal procedures are converging 9 due to the countless
criminal proceedings around the world, coupled with the specific
influence of the U.S. legal system. 10 This phenomenon supports
6 See ROBERT A. KAGAN, ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW

80-81 (2001). This author is very critical of what he calls American “adversarial legalism”
dominating criminal justice. Id. at 61. Another example of politicization of criminal law
with respect to budgetary policy is presented by Mary D. Fan, Beyond Budget-Cut
Criminal Justice: The Future of Penal Law, 90 N.C. L. REV. 581 (2012).
7 This will likely be the case until the similarities between accusatorial and adversarial
criminal procedures are recognized. See Mirjan R. Damaška, Evidentiary Barriers to
Conviction and Two Models of Criminal Procedure: A Comparative Study, 121 U. PA. L.
REV. 506, 569 (1973).
8 See Stephen C. Thaman, A Comparative Approach to Teaching Criminal Procedure
and its Application to the Post-Investigative Stage, 56 J. LEGAL EDUC. 459 (2006). See
David J. Gerber, Toward a Language of Comparative Law, 46 AM. J. COMP. L. 719 (1998)
(discussing how comparative law functions); George P. Fletcher, Comparative Law as a
Subversive Discipline, 46 AM. J. COMP. L. 683 (1998) (identifying the perils of comparative
law); Jaye Ellis, General Principles and Comparative Law, 22 EUR. J. INT’L L. 949 (2011)
(explaining the principles of comparative law).
9 See Nico Jörg, Stewart Field & Chrisje Brants, Are Inquisitorial and Adversarial
Systems Converging?, CRIMINAL JUSTICE IN EUROPE: A COMPARATIVE STUDY 41 (P.
Fennell et al. eds., 1995). See also John Anthony Jolowicz, On the Comparison of
Procedures, in LAW AND JUSTICE IN A MULTISTATE WORLD: ESSAYS IN HONOR OF
ARTHUR T. VON MERHEN, supra note 5, at 721 (discussing the globalization of civil
procedures).
10 See Máximo Langer, From Legal Transplants to Legal Translations: The
Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure,
45 HARV. INT’L L.J. 1 (2004). In reference to the transplant effect of legal systems from
an economics perspective, see Daniel Berkowitz et al., Economical Development, Legality
and the Transplant Effect (Ctr. for Int’l Dev. at Harvard Univ., Working Paper No. 39,
2000), available at
http://www.hks.harvard.edu/var/ezp_site/storage/fckeditor/file/pdfs/centers-
programs/centers/cid/publications/faculty/wp/039.pdf, as well as Ugo Mattei, Efficiency in
Legal Transplants: An Essay in Comparative Law and Economics, 14 INT’L REV. L. &
ECON. 3 (1994). The U.S. criminal procedure model is preeminent in contemporary times.
See Bernd Schünemann, Krise des Strafprozesses? Siegeszug des Amerikanischen
Strafverfahrens in der Welt?, in JORNADAS SOBRE “LA REFORMA DEL DERECHO PENAL
EN ALEMANIA” 49 (1992); ¿Crisis del Procedimiento Penal? (¿Marcha Triunfal del
Procedimiento Penal Americano en el Mundo?), in TEMAS ACTUALES Y PEMANENTES
DEL DERECHO PENAL DESPUES DEL MILENIO 288 (B. Schünemann ed. 2002). The
the notion that the classical distinction between the accusatorial

and the inquisitorial models should cease to exist. Further, there is
no single European criminal procedure 11 in Europe; instead, there
exist various procedures that posessess different characteristics
and features. This is yet another reason to remove the distinction
between the two models.
While accusatorial and inquisitorial models are the primary
mechanisms of criminal procedure, scholars have proposed many
other binomial models. Most, if not all, make reference to existing
criminal procedures in the U.S. and the U.K, as well as Europe.
For example, both models proposed by Packer 12—the Due Process
Model and the Crime Control Model (or Battle and Family
Model)—follow a review of models purported by Griffiths. 13
Griffiths acknowledged that both Packer’s models and his own
operate more as “perspectives” or “interpretations,” rather than as
strict models of criminal procedure. 14 An ideological approach is
present in all of these models, which has attracted some criticism
from scholars. 15 The two models of criminal procedure proposed
author is well known in Europe as a prestigious professor of criminal law with a very
critical view of the U.S. criminal procedure model.
11 Any proposal on this topic—for example, between the member states belonging to
the European Union, in order to adopt a common proceeding—is far away because the
existing and forthcoming regulations only provide minimum rules on specific topics. See
generally MAR JIMENO-BULNES, UN PROCESO EUROPEO PARA EL SIGLO XXI (1st ed.
2011). For a general description of mainly European criminal procedures in Europe, see
EUROPEAN CRIMINAL PROCEDURES (M. Delmas-Marty & J.R. Spencer eds., 2005), as
well as CRIMINAL PROCEDURE IN EUROPE (R. Vogler & B. Huber eds., 2008).
12 Herbert L. Packer, Two Models of the Criminal Process, 113 U. PA. L. REV. 1
(1964); HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 149 (1968).
Regarding the two models of criminal procedure, the author points out:
[T]hey represent an attempt to abstract two separate value systems that
compete for priority in the operation of the criminal process. . . . The two
models merely afford a convenient way to talk about the operation of a
process whose day-to-day functioning involves a constant series of minute
adjustments between the competing demands of two value systems and whose
normative future likewise involves a series of resolutions of the tensions
between competing claims. . . . And, since they are normative in character,
there is a danger of seeing one or the other as Good or Bad.
Id. at 153.
13 John Griffiths, Ideology in Criminal Procedure or a Third ‘Model’ of the Criminal
Process, 79 YALE L.J. 359 (1970). Griffiths proposes the “family model” as an alternative
understanding to both of Packer’s models, which are considered polar responses to only
one model, the “battle model.” Id. at 367.
14 Id. at 362.
15 See Abraham S. Goldstein, Reflection on Two Models: Inquisitorial Themes in
American Criminal Procedure, 26 STAN. L. REV. 1009, 1016 (1974) (suggesting that “it
by Damaska are well known but have less of an ideological impact,

despite taking into account sociological and political elements.
This places them somewhere in between the hierarchical and the
coordinate model 16 (in contrast to the inquisitorial and
accusatorial model) because they respond to different conceptions
of political and judicial organization related to whether certainty
and uniformity in decision-making is accorded greater or lesser
importance. 17
Over many years, and especially in the 1960s, 18 academics in
the U.S. and Europe focused on these issues sought to shed light
on this topic and demystify deeply-rooted theories. Some scholars
analyze the European experience, despite the negative
connotations associated with its inquisitorial criminal model, in
order to find a useful remedy for the ailing U.S. criminal justice
system. 19 In contrast, others sought to dispel the importance of
may be useful to return to an older mode of analysis which is more explicitly procedural
and which offers the possibility of choosing among systems rather than between a system
and a tendency.”). See also Erik G. Luna, The Models of Criminal Procedure, 2 BUFF.
CRIM. L. REV. 396, 400, 404 (1999) (analyzing different stages of criminal procedure from
the perspective of Packer’s two models).
16 Mirjan R. Damaška, Structures of Authority and Comparative Criminal Procedure,
84 YALE L.J. 489 (1975) [hereinafter Structures]. Other research by the same author
includes the classical distinction between accusatorial and inquisitorial models of criminal
procedure. See, e.g., Mirjan R. Damaška, Models of Criminal Procedure, 51 ZBORNIK
COLLECTED PAPERS OF ZAGREB L. SCH. 477 (2001). The author also discusses the
adversarial and non-adversarial modes. See MIRJAN R. DAMAŠKA, THE FACES OF
JUSTICE AND STATE AUTHORITY: A COMPARATIVE APPROACH TO THE LEGAL
PROCESS 16 (1986) [hereinafter FACES] (demonstrating the earlier distinction between
hierarchical and coordinate models in relation to the organization of judicial and other
authorities).
17 Structures, supra note 16, at 83, 509. Both models also include two forms of
adjudication, which the author refers to as the conflict-solving type of proceeding in a
coordinate government and the policy-implementing justice in a hierarchical government.
See Damaška, supra note 16, at 88.
18 Important earlier contributions must be also pointed to, for example, Morris
Ploscowe, The Development of Present-Day Criminal Procedures in Europe and America,
48 HARV. L. REV. 433 (1935).
19 See, e.g., Jan Stepan, Possible Lessons from Continental Criminal Procedure, in THE
ECONOMICS OF CRIME AND PUNISHMENT 181 (1973). For an interesting point of view
and an extensive review of the existing scholarship, see Thomas Weigend, Continental
Cures for American Ailments: European Criminal Procedure as a Model for Law Reform,
2 CRIME & JUST. 381 (1980). See also Rudolf B. Schlesinger, Comparative Criminal
Procedure: A Plea for Utilizing Foreign Experience, 26 BUFF. L. REV. 361 (1976); Amalia
D. Kessler, Our Inquisitorial Tradition: Equity Procedure, Due Process, and the Search for
an Alternative to the Adversarial, 90 CORNELL L. REV. 1181 (2005) (building upon
continential European criminal procedures and relating them to both civil and criminal
proceedings). An interesting aspect of Kessler’s work is the presentation of the theory on
any disparity between criminal justice systems in Europe in this

context. In particular, they argued that a gap would always exist
between theory and judicial practice and contended that real
criminal proceedings in Europe were much closer to the U.S.
proceedings than previously thought. 20 Scholars suggested
alternative models for American criminal justice, made with
references to some of the criminal procedures in force at that time
in Europe. 21 Controversy arose between scholars due to the
perceived similarity of judicial practices in Europe and
miscarriages of justice in the United States. 22
Admittedly, some may consider the debate surrounding the
two criminal procedural models in force in the United States,
England, and Europe to be an old fashioned controversy that has
been thoroughly discussed by scholars. However, there still exists
a misconception that is rooted, if not specifically in the legal world,
in the general community. This misconception arises especially
when the two legal traditions, civil and common law, interact. For
example, such interaction occurs when an American citizen is
subject to indictment and trial in Europe, 23 or vice versa. A
the presence of inquisitorial elements in the American adversarial system due to

European influences at that time. Id.
20 Abraham S. Goldstein & Martin Marcus, The Myth of Judicial Supervision in Three
“Inquisitorial” Systems: France, Italy and Germany, 87 YALE L.J. 240 (1977). It must be
highlighted that these are usually European criminal proceedings analyzed by comparative
scholars, probably with more references to France and Germany because the former
country is considered the source of the inquisitorial criminal procedure system.
21 The best example is the alternative model proposed by Lloyd Weinreb. Major
amendments are suggested regarding the investigative phase in an effort to adopt patterns
similar to those in European criminal procedures. In Europe, investigative responsibility
is transferred to a trained judicial officer; this fact provokes the unification of
investigations into a single investigation. See LLOYD L. WEINREB, DENIAL OF JUSTICE
117-46 (1979); see also John Thibaut & Laurens Walker, A Theory of Procedure, 66 CALIF.
L. REV. 541, 543 (1978) (constructing a hypothetical model for conflict resolution that
counterbalances the twin objectives of truth and justice).
22 See John H. Langbein & Lloyd L. Weinreb, Comparative Criminal Procedure:
“Myth” and Reality, 87 YALE L.J. 1549 (1978). The authors address strong criticism to
previous research by Abraham S. Goldstein and Martin Marcus, supra note 20,
considering that no foreign literature is taken into account and only interviews with
different European practitioners are held. Further response is made by Abraham S.
Goldstein and Martin Marcus in Comment on Continental Criminal Procedure, 87 YALE
L.J. 1570 (1978), supporting their previous statements. More recently, see, for example,
Keith A. Findley, Adversarial Inquisitions: Rethinking the Search for the Truth, 56 N.Y.L.
SCH. L. REV. 911, 914, 918 (2012) (relating to the current efforts, such as the Innocence
Project, taking place throughout U.S. jurisdictions with respect to wrongful convictions).
23 See Renee Lettow Lerner, The Intersection of Two Systems: An American on Trial
for an American Murder in the French Cour d’Assises, 2001 U. ILL. L. REV. 791 (2001).
contemporary example of this is the trial of Amanda Knox, which

took place in Italy in December 2009. Media coverage of the trial
resulted in public perception of Italy as having a lower standard of
due process of law in comparison to the United States; 24 even
following an appeal of the two accused that led to their acquittal. 25
This further demonstrates the necessity for scholarly discussion on
the topic of criminal procedure and its varying models.
The purpose of this Article is to provide insight into the
classical distinction between accusatorial and inquisitorial criminal
procedures in the U.S. and Europe, and to review the
contemporary relevance of existing terminology and its underlying
concepts. 26 One may ask whether the terms should be
Lerner provides a fine example of the confluence of both legal systems. In particular, she
provides an explanation of the French court system and criminal procedure, as well as
references to how American procedure differs. Also interesting is the parallelism in
relation to the well-known Simpson double murder trial (which was called the “trial of the
century” and lasted 474 days) according to a European model. See Myron Moskovitz, The
O.J. Inquisition: A United States Encounter with Continental Criminal Justice, 28 VAND. J.
TRANSNAT’L L. 1121 (1995) (employing the original method of a dramatic script
reproducing the dialogues that could have taken place at the trial).
24 See, e.g., NINA BURLEIGH, THE FATAL GIFT OF BEAUTY 265-67 (2011) (listing
various instances demonstrating a lack of fairness, such as: “the defendants had stopgaps
and safety checks against prosecutorial misconduct at every step of the investigation,”
“judges and prosecutors are technically on the same side,” “defense lawyers working in
the Italian system are also at an institutional disadvantage,” “police surveillance and
wiretapping are endemic, requiring little oversight.”). The author, a well-known journalist
involved with judicial issues, concludes that the system is mostly inquisitorial and that the
changes put into place in 1988 are not yet common practice. Italian criminal procedure is
the most accusatorial in Europe since the reform of its criminal procedure code in 1988.
See Giulio Illuminati, The Accusatorial Process from the Italian Point of View, 35 N.C. J.
INT’L & COM. REG. 297 (2010); see also Ennio Amodio & Eugenio Selvaggi, An
Accusatorial System in a Civil Law Country: The 1988 Italian Code of Criminal Procedure,
62 TEMP. L. REV. 1211 (1989); Michele Panzavolta, Reforms and Counter-Reforms in the
Italian Struggle for an Accusatorial Criminal Law System, 30 N.C. J. INT’L & COM. REG.
577 (2005); William T. Pizzi & Mariangela Montagna, The Battle to Establish an
Adversarial Trial System in Italy, 25 MICH. J. INT’L L. 429 (2004).
25 Judgment pronounced on October 3, 2011, by the Court of Appeal of Perugia,
reversing the lower court judgment on December 16, 2010, which sentenced Amanda
Knox to 26 years. See Amanda Knox Acquitted of Murder, CBSNEWS.COM (Oct. 3,
2011), http://www.cbsnews.com/2102-202_162-20114867.html?tag=contentMai; see also
JOHN FOLLAIN, DEATH IN PERUGIA: THE DEFINITIVE ACCOUNT OF THE MEREDITH
KERCHER CASE FROM HER MURDER TO THE ACQUITTAL OF RAFFAELE SOLLECITO
AND AMANDA KNOX (2011) (discussing the events from the perspective of an English
journalist focused on the victim’s story). For a legal perspective see Julia Grace Mirabella,
Note, Scales of Justice: Assessing Italian Criminal Procedure Through the Amanda Knox
Trial, 30 B.U. INT’L L.J. 229 (2012) in relation to new “adversarial” Italian criminal
procedure.
26 Lorena Bachmaier Winter, Acusatorio Versus Inquisitivo. Reflexiones Acerca del
abandoned—even though it would be inaccurate to plaster over

the differences between both procedures—to justify their
convergence or to arrive at an absolutist determination of which is
the “good” and which the “bad” model. Nevertheless, the intent
of this Article is to clarify certain misconceptions, especially in
relation to “inquisitorial” procedure, and to provide a clearer
understanding of the place for “accusatorial” procedure.
The structure of this Article is as follows: Part II discusses the
historical background of both models, discussing their theories and
features, and considers the construction of a third model. Part III
presents the conceptual background in relation to terminological
questions and the characteristics of the different criminal
procedural models. A discussion of existing terminology with
opposing characteristics follows. Part IV provides examples of
mutual influence between different American and European
criminal procedures regarding pretrial investigation and trial
phases. Finally, Part V provides some concluding remarks.
II. HISTORICAL BACKGROUND: TWO OR THREE MODELS OF

CRIMINAL PROCEDURE?
The number of existing models of criminal procedure passed
down through history is still disputed, with some authors quoting a
bipartite, and others a tripartite, division. Scholars tend to take a
stand in line with their geographical and scholastic background,
insofar as U.S. academics makes reference to a bipartite division,
dismissing the existence of the mixed model 27 that is, in contrast,
upheld by European scholars. There is a rich history in Europe
supporting this third model. 28 In particular, the Napeolenic Code
d’Instruction Criminelle, adopted in France in 1808, is hailed as a
landmark and starting point of this model. If we consider this
mixed model or system of criminal procedure, it inevitably leads to
the conclusion that all criminal procedures—not only those of
Proceso Penal, PROCESO PENAL Y SISTEMAS ACUSATORIOS 11 (2008).

27 See Goldstein, supra note 15 (providing a good example of this bipartite position
and commenting on Packer’s models). The author also considers that the “American
procedure is a mixed system.” Id. at 1016. The bipartite position is also adopted in
English scholarship. See EUROPEAN CRIMINAL PROCEDURES, supra note 11, at 10.
28 The importance of scholarship in the construction of this third model must also be
underlined. See ADHÉMAR ESMEIN, A HISTORY OF CONTINENTAL CRIMINAL
PROCEDURE (1913) (translating into English the original French version, HISTOIRE DE
LA PROCÉDURE CRIMINELLE EN FRANCE, ET SPECIALEMENT DE LA PROCÉDURE
INQUISITOIRE DEPUIS LE XIII SIÈCLE JUSQU’A NOS JOURS (1882)).
Europe, but also those of the U.S. and the U.K.—may belong in
the same category. 29 A discussion of the predominant models of
criminal procedure follows, including a brief historical overview
from the point at which trial by ordeal became the means of
obtaining evidence to establish guilt or innocence. 30
A. Accusatorial
The so-called accusatorial model, as opposed to the
inquisitorial model, appears to be linked to the application of
English common law and the institution of the jury; however,
recall that Roman criminal procedure has also been described as
fundamentally accusatorial. 31 The model replaced trials by battle
and ordeals, which were definitively prohibited in 1219 by Henry
III. 32 Common law emerged in England in the 12th century, where
a sort of royal justice had existed since the times of the Anglo-
29 Goldstein, supra note 15; see Jacqueline Hodgson, The Future of Adversarial
Criminal Justice in 21st Century Britain, 34 N.C. J. INT’L & COM. REG. 319, 320 (2010)
(regarding the United Kingdom or, more explicitly, England and Wales, as Roman Law
was also introduced in Scotland); Edwin R. Keedy, Criminal Procedure in Scotland, 5 J.
AM. INST. CRIM. L. & CRIMINOLOGY 728 (1913); see also Allard Ringnalda, Inquisitorial
or Adversarial? The Role of the Scottish Prosecutor and Special Defences, 6 UTRECHT L.
REV. 119, 137 (2010) (concluding that Scottish criminal procedure is hybrid in nature as it
has “inquisitorial features in a predominantly adversarial setting.”).
30 This practice largely came to an end in Europe during the 12th and 13th centuries.
See ROBERT BARTLETT, TRIAL BY FIRE AND WATER 34, 70 (1986). It appears that the
exact date of the end of ordeal was 1215, the year of the enactment of 4th Lateran Council
promoting condemnation of trial by ordeal and establishing the rule that “nor may anyone
confer a rite of blessing or consecration on a purgation by ordeal of boiling or cold water
or of the red-hot iron, saving nevertheless the previously promulgated prohibitions
regarding single combats and duels.” See Canons of the Fourth Lateran Council, canon 18
(1215), available at http://www.ewtn.com/library/councils/lateran4.htm. According to this
statement, trial by battle (duels) had been prohibited before trial by fire and water.
31 Roman criminal procedure is considered accusatorial in nature, as formal allegations
from an accuser, who was also obliged to furnish the necessary evidence, was required to
bring a case against another Roman. See ESMEIN, supra note 28, at 18. Nevertheless,
inquisitorial elements gradually developed in Roman criminal procedure during the period
of Republic. See Kai Ambos, El Principio Acusatorio y el Proceso Acusatorio: Un Intento
de Comprender su Significado Actual Desde la Perspectiva Histórica, in PROCESO PENAL
Y SISTEMAS ACUSATORIOS, supra note 26, at 49, 51.
32 Ploscowe, supra note 18, at 446. Trial by battle is regarded as a common heritage of
the Germanic kingdoms of the early Middle Ages, but it was unknown by Anglo-Saxons,
which is supposed to be a more literate culture; it does not appear in Britain until the
Norman conquest. See BARTLETT, supra note 30, at 103-05; see also PAUL R. HYAMS,
Trial by Ordeal: The Key to Proof in the Early Common Law, in ON THE LAWS AND
CUSTOMS OF ENGLAND: ESSAYS IN HONOR OF SAMUEL E. THORNE 90 (M.S. Arnold et
al. eds., 1981) (discussing trial by ordeal in England).
Saxon kings and the two great departments of state (the Chancery
and the Exchequer). 33 The activity of the royal court paved the
way for important treatises compiled by Glanvill and Bracton 34
describing the laws and customs of England. Enacted during the
reign of Henry II (1154-1189), the first treatise was a product of
existing English law and led to Henry II becoming known as the
“father of common law.” 35 The first treatise was also a crucial
component in the emergence of common law practice, compiling a
“law of the writs” 36 accompanied by a commentary in Latin.
At that time, the task of identifying the guilty parties involved
in each crime (accusation) fell upon the community. If those
responsible failed to present themselves before the royal judges,
the whole community was punished in a kind of communal
retribution. These representatives formed the institution known as
the Grand Jury, a system that became mandatory under the
Assizes of Clarendon and Northampton. 37 The Assize of
Clarendon, followed by the Assize of Northampton, created a new
institution: a body of accusation for every community composed of
twelve “good and lawful men” under the name “presenting jury.”
The institution was later given the more familiar and modernly
used name, the Grand Jury (Jury of Accusation). 38 This body of
33 See generally J.H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 11 (2d

ed. 1979); see also R.C. VAN CAENEGEM, THE BIRTH OF THE ENGLISH COMMON LAW
62-84 (1973) (relating to the functioning of the jury in the royal courts). For a discussion
of substantive criminal law, see THEODORE F.T. PLUCKNETT, A CONCISE HISTORY OF
THE COMMON LAW 11 (2d ed. 1956); OLIVER WENDELL HOLMES, JR., THE COMMON
LAW 39-76 (45th ed. 1923).
34 See BAKER, supra note 33, at 12 (noting that the first treatise is traditionally, albeit
questionably, attributed to Sir Ranulf de Glanvill, justiciary of England between 1180-
1189). The first treatise was written around 1187 and the second one around 1250, in the
latter case by Henry de Bracton, who was a judge coram rege in the 1240s and 1250s. Id. at
161.
35 JOHN GILLINGHAM, The Early Middle Ages (1066-1290), in OXFORD HISTORY OF
BRITAIN 115, 167 (1991).
36 That is “the instruments which initiated lawsuits in the king’s courts and of the
remedies they enshrined.” See BAKER, supra note 33, at 13. For an analysis of different
types of writs see Baker, supra note 33, at 54, and VAN CAENEGEM, supra note 33, at 29.
37 BAKER, supra note 33, at 23, 415; PLUCKNETT, supra note 33, at 19. The assizes and
the petty assizes were created by Henry II in the 1160s as an alternative to the writ of
rights in order to protect the status quo against wrongfulness through speedy inquiries by
neighbors, taking only questions of fact into account. See BAKER, supra note 33, at 201.
Earlier scholarship also discusses such criminal issues. See PENDLETON HOWARD,
CRIMINAL JUSTICE IN ENGLAND: A STUDY IN LAW ADMINISTRATION (1931); JAMES
FITZJAMES STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND (2d ed. 1890).
38 Unlike the later petty or trial jury, the Grand Jury—or jury of accusation—was
twelve men, being sworn to tell the truth, was called a jury (curate)
and its members were persons who have been sworn (juratores).
The idea of sworn testimony, in which a man promised before
God to recount the truth (veredictum), is ancient and by no means
confined to England. In fact, this sort of inquest appears to have
its roots in Scandinavia and the old Carolingian empire. Not
surprisingly, it was also used in Normandy, where the jury of
accusation also appears in the Doomsday Book 39 commissioned by
William the Conqueror. However, the jury was not recognized as
an institution to settle private disputes until the reign of Henry II.
The first provision referred to actions of trespass, where
allegations of disturbing the peace of the realm warranted its use.
Recall, this Grand Jury or jury of accusation was still considered as
a method of gathering “proof” rather than a “trial” 40 per se or a
method for ending disputes. Its task was to scrutinize information
received in the form of “bills of indictment” in order to decide
whether sufficient evidence existed to put the accused person on
trial.
It has been asserted that this sort of private accusation by the
community, coupled with the notion that the commission of a
crime is not only an offense against the state itself, but also against
a member of the community, means that the criminal trial bears a
certain resemblance to a private litigation. 41 It is true that the jury
of men who investigated crimes and brought accusations based
upon their own knowledge gradually evolved into the modern-day
jury that listens to the evidence of witnesses in the context of a jury
trial. However, it is probably this original Grand Jury, or jury of
comprised of more members of the community. On many occasions, more than “twelve
good men” (a number that was preserved for the petty jury) made up the Grand Jury. See
BAKER, supra note 33, at 64 and HOWARD, supra note 37, at 352-54, on the tasks of the
Grand Jury.
39 A sort of judicial combat with the intervention of the jury was also provided here.
See HENRY J. ABRAHAM, THE JUDICIAL PROCESS 109 (7th ed. 1998); MAXIMUS A.
LESSER, THE HISTORICAL DEVELOPMENT OF THE JURY (1894 ed. 1992); see also
WILLIAM FORSYTH, HISTORY OF TRIAL BY JURY 45 (2d ed. 1994) (determining that the
institution of the jury was unknown in Anglo-Saxon times).
40 It has been said that “trial suggests the weighing up of evidence and arguments by an
intelligent tribunal.” See BAKER, supra note 33, at 63.
41 HOWARD, supra note 37, at 383 (“The fact that the private vengeance of the person
wronged by a crime was the principal source to which men trusted for the administration
of justice in the early times is one of the most characteristic circumstances connected with
English criminal law, and has had much to do with the development of what may perhaps
be regarded as its principal distinctive peculiarity, namely, the degree to which a criminal
trial resembles a private litigation.”).
accusation that shaped the essentially adversarial nature of

accusatorial criminal procedure. 42 This is interesting because the
existence of the jury trial 43 is often considered the essence of the
accusatorial model. It became a primary component of English
liberty, insofar as the accused had the right to opt for jury trial; the
same right to jury trial that was included in the English Bill of
Rights (1689) 44 that subsequently spread to Europe 45 and
America. 46 Recognition of the Grand Jury as a body of accusation
continued up until 1933 in England, 47 and it is still an institution in
the U.S., with specific mention in the Fifth Amendment of the U.S.
Constitution.
B. Inquisitorial
The so-called inquisitorial model often has negative
connotations stemming from its use of torture during the Holy
Inquisition, which began in the 13th century to quell the great
42 That is the idea of private prosecution and privatized criminal investigation. See
JOHN H. LANGBEIN, THE ORIGINS OF ADVERSARY CRIMINAL TRIAL 11 (2003); see also
STEPHEN, supra note 37, at 17 (discussing the functions of the petty and grand juries and
stating that the difficulty of establishing fixed dates contributes to the gradual
development of this change).
43 See Ploscowe, supra note 18, at 455; see also JOHN P. DAWSON, A HISTORY OF LAY
JUDGES 10-34 (1960) (discussing the jury trial’s origins in Greece and Rome); FORSYTH,
supra note 39, at 178 (detailing the Grand Jury).
44 Bill of Rights, 1689, § 11 (Eng.), available at
http://www.fordham.edu/halsall/mod/1689billofrights.asp (“[J]urors ought to be duly
impaneled and returned, and jurors which pass upon men in trials for high treason ought
to be freeholders.”).
45 The Declaration of the Rights of Man and of the Citizen, drafted during the French
Revolution, did not consider the jury institution as it may have initially been thought. See
JOHN H. LANGBEIN, THE TRIAL JURY IN ENGLAND, FRANCE, GERMANY 1700-1900
(Schioppa ed., 1987).
46 See U.S. CONST. amend. VI (1791), as well as the Bill of Rights in different states,
particularly Virginia, Maryland, and North Carolina. See also JOHN PHILLIP REID,
CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION: THE AUTHORITY OF
RIGHTS 47 (1986) (discussing the importance of the right to trial by jury). Nevertheless,
some U.S. states—like Louisiana, due to its French and Spanish origin—were reluctant to
provide jury trials. See Duncan v. Louisiana, 391 U.S. 145, 151-58 (1968); see also ROSCOE
POUND, CRIMINAL JUSTICE IN AMERICA 117 (1945) (stating that while the American
criminal justice system was inherited from England, it became distinctively American in
the 18th century).
47 Administration of Justice (Miscellaneous Provisions) Act, 1933, § 2 (Eng.), available
at http://www.legislation.gov.uk/ukpga/Geo5/23-24/36/contents; see NATHAN T. ELLIF,
Notes on the Abolition of the English Grand Jury, 29 AM. INST. CRIM. L. & CRIMINOLOGY
3, 15 (1938).
heresies in Europe (especially in the South of France) 48 and

reached its peak in Spain in the late 15th century. Its name is
derived from the inquest, a tool used to compile a written account
of the investigation of the facts. Nevertheless, it must be noted
that the inquisition or inquest did not belong exclusively to the
inquisitorial model, 49 nor was it the first inquest in history. In fact,
another sort of inquest existed under the name of pesquisa that
began in the 11th century in some parts of Europe as an exemption
to the earlier ordeals. 50 What is indeed important is that the public
authority, the royal or ecclesial, took charge of the investigation of
the crime and had the right to decide the punishment. 51
Although the inquisitorial model should not be associated
with an ecclesiastical origin, it is nevertheless true that the Catholic
Church was certainly the first legal authority to implement this
inquisitorial procedure because of the presumed efficacy of this
sort of official prosecution. The birth of inquisitorial procedure is
dated at the end of the 12th century and was founded upon canon
law. Up until then, canon law made use of the early Roman
accusatory procedure. 52 With this new model, the magistrate or
judge was authorized to undertake an objective investigation of
48 ESMEIN, supra note 28, at 93 (pointing out that the Holy Inquisition employed the
most drastic aspects of the canon common law, which included torture); see also HENRY
ANGSAR KELLY, INQUISITIONS AND OTHER TRIAL PROCEDURES IN THE MEDIEVAL
WEST (2001) (relating to ecclesial procedures); JOHN H. LANGBEIN, TORTURE AND THE
LAW OF PROOF: EUROPE AND ENGLAND IN THE ANCIEN RÉGIME (1977) (relating to
criminal procedure). Langbein uses the term “judicial torture” because torture was
considered an ordinary component of criminal procedure and was routinely used as a
means to investigate and prosecute crimes. Id. This author also associates the origin of
the torture itself in the 13th century with the abolition of ordeals as system of proof, as
tortune was a more humane system of proof. Id. at 6.
49 Esmein points to the use of the inquest as an alternative to the accusatio in the
Middle Ages and in England under the name of “inquest by the country,” a procedure
with no accuser at all and composed of proof given by witnesses. See ESMEIN, supra note
28, at 64-65. An inquisitorial criminal procedure also developed in England during the
16th century, according to statutes adopted under Queen Mary. In particular, a
“preliminary inquiry” was established which was, in essence, an official investigation and
evidence gathering. See JOHN H. LANGBEIN, PROSECUTING CRIME IN THE
RENAISSANCE: ENGLAND, GERMANY, FRANCE 5-6 (2005).
50 This is the case in Spain, where this sort of inquest (pesquisa) was contemplated in
certain charters of liberties called fueros. For example, Fuero de Logroño, enacted by
Alfonso VI of Castile and Léon for the populatores de Logroño in 1095. See BARTLETT,
supra note 30, at 60-61.
51 Illuminati, supra note 24, at 301.
52 See ESMEIN supra note 31; see also LANGBEIN, supra note 49, at 129 (discussing the
role played by the church and Roman-canon law).
the crime without having to wait for a formal accusation. 53 This

official and bureaucratic investigation was composed of a written
dossier that had to remain absolutely secret and that likely
constitutes one of the most characteristic features of the
inquisitorial procedure.
Inquisitorial criminal procedures spread from Northern Italy
into France and Germany due to the studies of Roman and Canon
law by jurists and intellectuals at that time. It was especially
disseminated due to the founding of the University of Bologna and
other schools in Europe. The success of the procedure is also
associated with the professionalization of the administration of
justice itself and increased juridicial knowledge over time. As a
result, a new complex and technical law of evidence, coined legal
proof (preuve légale), emerged. 54 Condemnation, and even the
form of accusation, became a matter of concern for the judge, as it
was essential to dictate a better standard of proof and to provide
clear procedural rules. A leading maxim of that time was that any
judgment should be rendered secundum allegata et probata
(“according to the allegation and the proof”), and that the judge’s
decision should be bound by such proof; this was understood to
counterbalance the secret nature of the procedure, to the benefit
of the defense. 55 In fact, this question of legal proof is also another
crucial feature of inquisitorial procedure.
Inquisitorial procedure gradually developed through the
enactment of several ordinances in Europe in the 15th and 16th
centuries, 56 but it reached its peak with the Criminal Ordinance of
1670 (Ordonnance Criminelle) in France. This legislation
responded to the project of codification performed by Colbert and
his uncle Pussort under the rule of Louis XIV (1643-1715), one of
the greatest proponents of absolutism. 57 The ordinance was even
refered to as the Code Louis at that time. This code governed
French legal practice throughout the 16th, 17th, and 18th centuries
and was only replaced after the French Revolution. Interestingly,
it summarizes the main features of inquisitorial procedure.
According to the Code, the instruction was perceived as the soul of
53 Ploscowe, supra note 18, at 447.

54 EUROPEAN CRIMINAL PROCEDURES, supra note 11, at 9.
55 ESMEIN, supra note 28, at 251.
56 Id. at 145-79. These enactments include the Ordinances of 1498 and 1539 enacted in
France, as well as the Carolina Code of 1532 ratified in Germany. Id.
57 The declaration “I am the state” (l’État c’est moi) by Louis XIV is now famous. Id.
at 183 (relating to the drafting and content of the Ordinance of 1670).
procedure and its purpose was to prepare the conviction or the

acquittal of the accused. 58 In brief, its features were as follows: the
procedure (instruction) was written and secret; the investigative
task corresponded to the judge or court with no clear division of
the prosecutional and judicial functions; it had a system of legal
proof involving compulsory interrogation of the defendant
(confession), who was required to take an oath and who could be
tortured if necessary; 59 it provided channels for appeals; and the
right to a double degree of jurisdiction was upheld.
C. Mixed
As previously mentioned, the third (mixed) model is not
commonly accepted among legal scholars. In fact, its existence
would imply the demise of the other two models, as all criminal
procedures worldwide are semi-accusatorial and semi-inquisitorial
to different degrees and could be said to belong to this third
category. 60 It is nevertheless included because its emergerence
marked a turning point in the historical development of criminal
procedure in Europe, distancing it from the former inquisitorial
model. This was largely due to the enactment of the French Code
of Criminal Examination of 1808 (Code d’Instruction Criminelle), 61
58 Criminal Ordinance of 1670, registered on Aug. 26, 1670, and entered into force on
Jan. 1, 1671 (Fr.), available at
http://ledroitcriminel.free.fr/la_legislation_criminelle/anciens_textes/
ordonnance_criminelle_de_1670.htm; see also Ploscowe, supra note 18, at 449-50 (defining
the object of this instruction according to the original legal expression “préparer,
rechercher, ordonner et composer tout ce qui est nécessaire pour parvenir à la
condamnation où à l’absolution de l’accusé,” which means to prepare, investigate, order
and compose all that is necessary to arrive at the conviction or the absolution of the
accused).
59 See Criminal Ordinance of 1670, supra note 58, tit. XIX (regarding judgments and
oral proceedings of questions and torture). The reference to torture is made under the
name of “question” in Article 1: “[i]f there is considerable evidence against the accused of
a crime that deserves capital punishment, and which is constant, all judges can order that
he [the accused] will be applied to the “question,” in case the evidence were not
sufficient.” Id. Article 8 makes reference to the compulsory swearing of oath by the
accused: “[t]he accused will be questioned after having taken an oath, before he is applied
to the question and will sign his interrogation, if not mention will be made of his refusal”
(free translation in both cases). Id.
60 See GLANVILLE WILLIAMS, THE PROOF OF GUILT: A STUDY OF THE ENGLISH
CRIMINAL TRIAL 29 (1963).
61 See R. Garraud, Presentation of the Code of Criminal Procedure, LE DROIT
CRIMINEL, available at
http://ledroitcriminel.free.fr/la_legislation_criminelle/anciens_textes/code_instruction_cri
minelle_1808.htm (last visited Feb. 5, 2013) (detailing the principles of the French Code of
which greatly influenced and extended to many other European

countries after the Napoleonic era. The new code represented a
sanitized version of the inquisitorial procedure, 62 and for this
reason, the French considered it a landmark for a new model of
criminal procedure. The new system combined the earlier
inquisitorial model with the features of the English accusatorial
system introduced during the French Revolution. 63 It has been
argued by some scholars that the system represents a compromise
between the former Criminal Ordance of 1670 and English
criminal procedure. 64
Surely one of the most important changes imposed by this
third model is the separation of the prosecutor and the
investigative judge: the prosecutor as a representative of the public
interest and the judge as a representative of judicial authority. 65 In
fact, the task of accusation is entrusted in special functionaries,
who act as public prosecutors and for whom the parties should, in
principle, be no more than auxiliaries. In contrast, the judge
presides over the investigation. Thus the appointment of the
investigative judge or magistrate is a distinctive characteristic of
European criminal procedure. This fact had a logical explanation
in its day because it was not possible to entrust the investigation in
the police. 66 However, it also did not make sense to leave it in the
Criminal Examination).
62 EUROPEAN CRIMINAL PROCEDURES, supra note 11, at 10.
63 See MONTESQUIEU, DE L’ESPIRIT DES LOIS (1748), available at
http://classiques.uqac.ca/classiques/montesquieu/de_esprit_des_lois/de_esprit_des_lois_td
m.html. This work has acquired particular importance over time.
64 Ploscowe, supra note 18, at 462 (discussing the preliminary stage or instruction
before the investigative magistrate and stating “the Code is the child of the Ordonnance of
the ancien régime.”).
65 The judicial branch cannot be considered a “power” (pouvoir) but, instead, an
“authority” (potestas). See ERNESTO PEDRAZ PENALVA, Sobre el ‘Poder’ Judicial y la
Ley Orgánica del Poder Judicial, in CONSTITUCIÓN, JURISDECCIÓN Y PROCESO 141, 154
(2000); ERNESTO PEDRAZ PENALVA, La Jurisdicción en la Teoría de la División de
Poderes de Montesquieu, in REVISTA DE DERECO PROCESAL 905 (1976). With respect to
the separation of the prosecutorial and investigative functions, recall that it is akin to the
accusatorial criminal procedure described above. See Vicente Gimeno Sendra, El
Derecho Fundamental a un Proceso Acusatorio, 7869 DIARIO LA LEY (2012), available at
http://www.mpfn.gob.pe/escuela/contenido/actividades/docs/2239_derechoacusatorio.pdf
(discussing the mixed model of criminal procedure).
66 See A.E. Anton, L’Instruction Criminelle, 9 AM. J. COMP. L. 441, 442-43 (1960)
(arguing “it would have been thought absurd to allow it to be conducted by the
gendarmerie. Although the gendarmes enjoyed a merited reputation for firmness, they
often lacked the independence, impartiality, knowledge of the law, and sometimes even
the intelligence necessary for the conduct of an information.”).
hands of the prosecutor because the primary purpose of the new

code was to maintain the accusatory function as separate from the
investigation and trial. Indeed, the only interest in having an
investigative judge, as opposed to police and prosecutor, was to
ensure that justice would be done. 67
The comprehensiveness of this system is seen in its dividing of
the criminal proceeding into two phases, each following the
characteristics of the former accusatorial and inquisitorial models.
The first phase, called the preliminary examination, investigation,
or instruction phase, relates to the abovementioned investigative
magistrate. In accordance with the features of the inquisitorial
model, including a written and secret 68 proceeding, its objective is
to prepare a further trial (dossier) and no defense counsel is
initially appointed. 69 The second phase is the trial itself, which
accords to the guidelines of the accusatorial model and principles
of orality and publicity, as well as the confrontation between
parties. In such a case, the legal proof is substituted by the
principle of intimate conviction. 70 This trial takes place before a
tribunal or court, as the English concept of the jury swept through
Europe as a further consequence of French revolutionary fervor.
This mixed system, embodied in the Napoleonic code, spread
through other European countries, especially Germany, Italy, and
Spain 71. The characteristics of this model turned out to be more
enduring than the French conquest itself, and remain in place to
this day. At that time, the institution of public prosecution existed
67 See id. at 443. Unlike France, in England there was no organization of public
prosecutors at that time, which was one of the reasons why criminal procedure continued
to be accusatorial and based upon private prosecution. See Ploscowe, supra note 18, at
459. In fact, the first public prosecution service was inaugurated in England and Wales in
1986 under the name of the Crown Prosecution Service (CPS); until then the role of
accusation was done by the police. See Hodgson, supra note 29, at 320, 333.
68 Although no express provision in the French Code of Criminal Examination of 1808
declared the procedure secret, its secrecy was mandated in 1827. See Anton, supra note
66, at 443 n.1.
69 As Ploscowe recalls, “it took fifty years of agitation to win for the accused the
privilege of assistance of counsel during the preliminary investigation.” Ploscowe, supra
note 18, at 462; see LANGBEIN, supra note 42, at 106 (explaining the role of defense
counsel, in the context of the trial, in English accusatorial criminal procedure).
70 See Illuminati, supra note 24, at 304; see also ESMEIN, supra note 28, at 12 (stating,
“although the search for and the furnishing of the evidence are subject to legal rules, its
probative value is not measured beforehand and the outcome of the charge depends upon
whether the judges are or are not thoroughly convinced.”).
71 See ESMEIN, supra note 28, at 570-606; see also Ploscowe, supra note 18, at 463-67
(regarding Germany and Italy).
throughout Europe, the divergence of the criminal procedure

mimicked the two stages described above; and even the jury was
adopted, albeit in different forms. 72 It was at this time that the
Codes of Judicial Organization and of Criminal Procedure of 1877
were enacted in Germany, the Code of Criminal Procedure of 1865
in Italy, and the Criminal Procedure Acts of 1872 and 1882 in
Spain, the last of which remains in force. 73 All of these codes
maintained, at their inception, the characteristics and the
institution of the investigative magistrate. Essentially, the
magistrate could administer this first, investigative stage of
criminal procedure in preparation for the trial itself. In this
context, the existence of a totally separate judicial investigation
from that carried out by the police forces (if one did indeed take
place) was a common feature found in each of these European
criminal procedures.
III. TERMINOLOGICAL QUESTIONS AND CHARACTERISTIC

FEATURES: ACCUSATORIAL OR ADVERSARIAL CRIMINAL
PROCEDURE?
Having presented the historical background of the two
accusatorial and inquisitorial models of criminal procedure, we
may now explore the terminological and conceptual questions and
the most characteristic features of both criminal procedures, which
are traditionally regarded as in contrast to each other. 74 Both have
specific, geographical connotations and their prevalence in
particular territories or jurisdictions often evidences a link with a
different legal systems. For example, the accusatorial systems in
England and the United States hold to the common law legal
tradition, while the inquisitorial system in European countries
upholds the civil law tradition. It should also be taken into
account that (in fact) many different European criminal
72 See Mar Jimeno-Bulnes, La Participación Popular en la Administración de Justicia

Mediante el Jurado (art.125 CE), 2 DOCUMENTOS PENALES Y CRIMINOLÓGICOS 297, 307-
11 (2004) (providing a more extensive analysis and citing legislative and bibliographical
sources); see also Dawson, supra note 43, at 35-112 (regarding France and Germany).
73 New legislation has been proposed and is currently under discussion. See Actividad
Legislativa, MINISTERIO DE JUSTICIA, GOBIERNO DE ESPANA,
http://www.mjusticia.gob.es/cs/Satellite/es/1215198252237/DetalleActividadLegislativa.htm
l (last visited June 21, 2012).
74 In this context, no reference to the mixed model shall be made, insofar as it
reproduces the combination of former models presented above.
procedures 75 that are rooted in this inquisitorial background. The

same distinction may be made in relation to the enforcement of
the accusatorial model in England and the United States, as each
system has its own unique features. 76
The first question raised in relation to this discussion of
terminology concerns the global use of the “accusatorial” and
“inquisitorial” labels. More doubts arise in reference to the
inquisitorial model, where negative connotations persist. This
association gives way to some misconceptions of common law,
particularly in relation to the criminal procedure enforced in the
civil law countries. These misconceptions are usually related to
the presumption of guilt, instead of the innocence, that may be
experienced by the defendant, as well as the unfairness of the
entire proceeding due to the lack of jury trial. 77 Of course, both
statements are completely false today and the epithet inquisitorial,
if ever used, should only apply to the active role of the European
judge in general. This judicial participation must be understood as
relating not only to the existing judicial investigation by the
investigative magistrate but also—and even more importantly—as
a clear reference to judicial activism through the development of
the criminal trial. 78
As one scholar has suggested, the meaning of inquisitorial is,
in itself, contrary to the proper essence of the process, 79 which
75 Thomas Volkmann-Schluck, Continental European Criminal Procedures: True or

Illusive Model?, 9 AM. J. CRIM. L. 1, 3 (1981). See infra Part I and accompanying footnote
text for discussion of French, German, and Italian models; see also CRIMINAL
PROCEDURE: A WORLDWIDE STUDY, supra note 2 (providing a more extensive approach
on different modern Anglo-American and European criminal procedures).
76 See, e.g., Irving R. Kaufman, Criminal Procedure in England and the United States:
Comparisons in Initiating Prosecutions, 49 FORDHAM L. REV. 26 (1980); see also D.J.
Feldman, England and Wales, in CRIMINAL PROCEDURE: A WORLDWIDE STUDY, supra
note 2, at 149; C.M. Bradley, United States, in CRIMINAL PROCEDURE: A WORLDWIDE
STUDY, supra, at 519; John Ll. J. Edwards, English Criminal Procedure and the Scales of
Justice, in CRIMINAL PROCEDURE: A WORLDWIDE STUDY, supra, at 203-04; Stepan,
supra note 19 (arguing that England will never adopt an inquisitorial criminal procedure
model).
77 See, e.g., GLENDON ET AL., supra note 2, at 99 (“There are three common
misconceptions in the common law world about criminal procedure in the civil law
countries: that the accused is presumed guilty until proven innocent, that there is no jury
trial, and that the trial is conducted in an ‘inquisitorial’ fashion (with pejorative
connotations of unfairness to the accused).”). As these authors state, “the first of these
notions is simply false,” “the second is incorrect,” and the third one is a
“misapprehension.” Id.
78 See id. at 99; see also WILLIAMS, supra note 60, at 30.
79 See Juan Montero Aroca, Principio Acusatorio y Prueba en el Proceso Penal La
should be understood today as due process of law. 80 It should be

recognized as an overarching principle in all European
constitutional rules, as well as in supranational European texts. 81
In the United States, the standards of fairness operate in the same
way and at the same level as they function in criminal procedure
according to the Sixth Amendment. This was especially true under
the so-called “criminal procedure revolution” 82 which emerged
during the Warren Supreme Court era, the best example of which
is the Court’s ruling in Miranda v. Arizona. 83 Thus, to discuss
Inutilidad Jurídica de un Eslogan Político, PRUEBA Y PROCESO PENAL 17, 22 (Colomer

ed., 2008). The author also criticizes the use of the accusatorial label as repetitive and
monopolized by the Anglo-American criminal procedure models. Id.
80 It appears that the original expression comes from a provision of the Liberty of
Subject Act of 1354, enacted in England during the reign of King Edward III. See Liberty
of Subject Act, 1354, ch. 3 (Eng.), available at http://www.legislation.gov.uk/aep/Edw3/28/3
(“[N]o man of what State or Condition he be, shall be put out of Land or Tenement, nor
taken, nor imprisoned, nor disinherited, nor put to death, without being brought in
Answer by due process of law.”). At that time, “due process of law” had the same
meaning as “law of the land” (as discussed in section 39 of the Magna Carta). Both
signified that certain established modes of trial were to be followed. See WILLIAM
MERRITT BEANY, THE RIGHT TO COUNSEL IN AMERICAN COURTS 142 (1977).
81 European Convention for the Protection of Human Rights and Fundamental
Freedoms art. 6, Nov. 5, 1950, 213 U.N.T.S. 221 [hereinafter ECHR]; Charter of
Fundamental Rights of the European Union arts. 47-48, Dec. 18, 2000, 2000/C 364/01
[hereinafter CFREU] (binding after the ratification of the Treaty of Lisbon in 2009). It
must also be noted that the provision of a right to a fair trial and the presumption of
innocence has been ratified by European countries in international texts, as well. See
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. Doc.
A/6316 (1966), 999 U.N.T.S. 171 art. 14 (Dec. 16, 1966) [hereinafter ICCPR]; Universal
Declaration of Human Rights art. 11, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III),
(Dec. 10, 1948) [hereinafter UDHR]; see also Jacqueline Hodgson, EU Criminal Justice:
The Challenge of Due Process Rights Within a Framework of Mutual Recognition, 37 N.C.
J. INT’L L. & COM. REG. 308 (2011) (discussing fairness in judicial proceedings and the
European meaning of “due process of law”).
82 Thaman, supra note 8, at 461; see also Arenella, Rethinking the Functions of
Criminal Procedure: the Warren and Burger Courts’ Competing Ideologies, 7 GEO. L.J.
185, 189 (1983) (discussing the Warren Court’s “revolution”). In fact, it is often argued
that during this period and throughout the 1960s, the “constitutionalization of criminal
procedure” took place. See generally JEROLD H. ISRAEL & WAYNE R. LAFAVE,
CRIMINAL PROCEDURE: CONSTITUTIONAL LIMITATIONS IN A NUTSHELL 1 (7th ed.
2006); KAMISAR ET AL., MODERN CRIMINAL PROCEDURE: CASES, COMMENTS, AND
QUESTIONS 471 (1994). The developments during this period largely related to pretrial
investigation and the enforcement of the Fourth and Fifth Amendments. For general
commentary, including related case law, see CONG. REC. SERV., S. DOC. No. 108-17, THE
CONSTITUTION OF UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION
1281 (2002), available at http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-
CONAN-2002.pdf.
83 Miranda v. Arizona, 384 U.S. 436 (1966); see WELSH S. WHITE, MIRANDA’S
WANING PROTECTIONS 1 (2004) (describing Miranda as the most famous criminal
inquisitorial criminal procedure is a contraditio in terminis. 84 The

term itself should be abolished and replaced by a more specific and
descriptive term. This term could be investigative criminal
procedure, in reference to the European model and in order to
distinguish it from Anglo-American criminal procedure, as has
been proposed in related scholarship. 85
However, accusatorial criminal procedure is often difficult to
explicate, because according to its literal meaning, both
contemporary Anglo-American and European criminal
procedures should be characterized as accusatorial. 86 In fact, all
forms of criminal procedure include formal accusation (in terms of
the Roman model), and in today’s context, as a different
prosecutorial and judicial authority. Despite much scholarship
seeking to clarify this concept and its relationship to the notion of
adversariness itself, 87 the pattern of this accusatorial criminal
procedure has become a source of fascination for European
scholars. It has created a sort of accusatorial principle, 88 which has
even been described as a political slogan. 89 In this context, while
European scholarship looks to North America for inspiration on
procedure decision). In Dickerson v. United States, 530 U.S. 428, 442-45 (2000), the Court
noted that the Miranda decision has become a seminal part of criminal procedure
jurisprudence. See Ronald Steiner, Rebecca Bauer & Rohit Talwar, The Rise and Fall of
the Miranda Warnings in Popular Culture, 59 CLEV. ST. L. REV. 219 (2011); see also
Stephen C. Thaman, Miranda in Comparative Law, 45 ST. LOUIS U. L.J. 581 (2001)
(discussing the influence of Miranda on European criminal procedures, as a result of the
adversarial features in U.S. criminal procedure).
84 See Juan Montero Aroca, supra note 79, at 23. The inquisitorial model is a
terminological contradiction, according to the author, because inquisitorial features are
opposed to criminal procedure itself.
85 See GLENN, supra note 2.
86 See Juan Montero Aroca, La Inutilidad del Llamado Principio Acusatorio para la
Conformación del Proceso Penal (prepared for X Congreso Nacional de Derecho Procesal
Garantista) (Nov. 12-14, 2008), available at http://es.scribd.com/doc/76717270/Congreso-
Azul-2008-Montero-Aroca.
87 See Mirjan R. Damaška, Adversary System, in 1 ENCYCLOPEDIA OF CRIME &
JUSTICE 24, 25 (2002).
88 See Kai Ambos, Zum Heutigen Verständnis von Akkusationsprinzip und –verfahren
aus Historischer Sicht, 8 JURA 586 (2008), available at http://www.department-ambos.uni-
goettingen.de/index.php/component/option,com_docman/Itemid,133/gid,130/task,cat_view
/; Juan Luis Gómez Colomer, Adversarial System, Proceso Acusatorio y Principio
Acusatorio: Una Reflexión Sobre el Modelo de Enjuiciamiento Criminal Aplicado en los
Estados Unidos de Norteamérica, 19 REVISTA DEL PODER JUDICIAL 25 (2006); see also
MICHAEL BOHLANDER, PRINCIPLES OF GERMAN CRIMINAL PROCEDURE 24 (2012)
(detailing German denominations such as Anklagegrundsatz); TERESA ARMENTA DEU,
PRINCIPIO ACUSATORIO Y DERECHO PENAL (1995).
89 See Montero Aroca, supra notes 79 passim; supra note 86, at 19.
how to best reconstruct the criminal procedure of its own

countries, 90 Anglo-Americans, and especially American
academics, are voicing their disappointment with adversariness
and are also reevaluating their approach to Europe’s criminal
procedure. 91
The terminology of adversarial criminal procedure is more
accurate and specific, pointing to features of Anglo-American
criminal procedures, as well as differences from the European
models. Further, adversarial is the appropriate term, although
often used as equivalent to accusatorial. Nevertheless, some
authors have tried to quote a different meaning for each of these
concepts. 92 Despite this, terminology differentiating both concepts
is not pervasive and most related scholarship uses both terms
90 Spain is one country seeking to rework its criminal procedure paradigm. See
MINISTERIO DE JUSTICIA, supra note 73; Juan Burgos Ladrón de Guevara, La Reforma
del Proceso Penal: Por un Modelo Contradictorio, 3-4 JUSTICIA: REVISTA DE DERECHO
PROCESAL 121 (2011). Countries are looking to the U.S. model for solutions. See JUAN
LUIS GÓMEZ COLOMER, EL SISTEMA DE ENJUICIAMIENTO CRIMINAL PROPIO DE UN
ESTADO DE DERECHO 37 (2008); LORENA BACHMAIER WINTER, Rechtsvergleichung
und Typologie des Strafverfährens Xweischen Inquisitorische und Adversatorische Modelle:
Grundzüge des Vorverfahrens des Strafprozesses der USA, in DAS STRAFPROZESSUALE
VORVERFAHREN IN ZENTRALASIEN ZWISCHEN INQUISITORISCHEM UND
ADVERSATORISCHEM MODELL (2012) (in press). The same interest in U.S. criminal
procedure is evident in other countries with respect to legislative reforms. See, e.g., Hans
Heinrick Jescheck, Principles of German Criminal Procedure in Comparison with
American Law, 56 VA. L. REV. 239 (1970). Conversely, American scholars, in
comparative studies, have recognized German criminal procedure. See Richard S. Frase &
Thomas Weigend, German Criminal Justice as a Guide to American Law Reform: Similar
Problems, Better Solutions?, 18 B.C. INT’L & COMP. L. REV. 317 (1995). For a general
perspective of both German and U.S. criminal procedures, see GERSON TRUG,
LÖSUNGSKONVERGENZEN TROTZ SYSTEMDIVERGENZEN IM DEUTSCHEN UND US-
AMERIKANISCHEN STRAFVERFAHREN (2002).
91 See Gorden Van Kessel, Adversary Excesses in the American Criminal Trial, 67
NOTRE DAME L. REV. 403, 425, 465 (1992) (pointing to failures in the U.S. criminal justice
system, judicial passivism, and the predominance of lawyers and plea bargaining as the
price to be paid for these characteristics); see also L.H. Leigh, Liberty and Efficiency in the
Criminal Process: The Significance of Models, 26 INT’L & COMP. L.Q. 516, 520 (1977);
JACQUELINE HODGSON, FRENCH CRIMINAL JUSTICE: A COMPARATIVE ACCOUNT OF
THE INVESTIGATION AND PROSECUTION OF CRIME IN FRANCE (2005) (discussing the
French model of criminal procedure).
92 See Goldstein, supra note 15, at 1016-17 (defining the term “adversary” as referring
“to a method of resolving disputes [that] takes its contours from the contested trial,”
explaining further characteristics, and considering that the adversary method “is merely
one way of finding facts and implementing norms.”). In contrast, the word “accusatorial”
refers to “a classic procedural model that encompasses not only an adversary trial
procedure but also other fundamental premises” where social significance is also involved
and that implies, in the end, reactive and/or passive conduct by the judge. Id.
synonymously. 93 Additionally, the characteristics of both are often

presented in relation to the criminal procedures of a common law
legal tradition. While the outline of an accusatorial model appears
blurred in the United States and Europe it is not explicit enough
for use as the Anglo-American model of criminal procedure. This
Article suggests the term adversarial be used, in clear reference to
English and U.S. criminal procedure. Use of this term is more
representative of what takes place in the courtroom, as well as the
implicit values and behaviors of its different players.
It has been argued that the adversarial character of Anglo-
American, and specifically U.S., criminal procedure lends the
appearance of an aggressive combat between the parties, in which
they compose their stories before an impartial and passive
audience that acts as the decision-maker. 94 This conception is
especially present at the trial stage, which is party-centered, unlike
European criminal procedures, which are judge-centered. 95 In the
adversarial context, the roles of the prosecution and defense
counsel become essential 96 to controling and managing the trial
itself, where the presentation of evidence by both sides must take
place. Thus, it has been argued that a sort of lawyerization is
93 See, e.g., Joachim Herrmann, Various Models of Criminal Proceedings, 2 S. AFR. J.

CRIM. L & CRIMINOLOGY 3 (1978); Miranda v. Arizona, 384 U.S. 436, 460 (1966).
94 See Gary Goodpaster, On the Theory of American Adversary Criminal Trial, 78 J.
CRIM. L. & CRIMINOLOGY 118, 120 (1987) (expressing the opinion that “the American
adversary criminal trial is a regulated storytelling contest between champions of
competing, interpretive stories that are composed under significant restraints. The parties
compose their stories for and present them to an impartial and passive audience, which
acts as a decision-maker, by assigning criminal liability on the basis of the stories.”). Some
scholars have equated judicial proceedings to a “source of drama” and likely not only in
reference to the adversarial system. See Milner S. Ball, The Play’s the Thing: An
Unscientific Reflection on Courts under the Rubric of Theater, 28 STAN. L. REV. 81, 82
(1975).
95 See Herrmann, supra note 93, at 5. Thus, the party or the judge (depending on the
jurisdiction) exercises control over litigation, especially in relation with the first
expression. See STEPHAN LANDSMAN, READINGS ON ADVERSARIAL JUSTICE: THE
AMERICAN APPROACH TO ADJUDICATION 27, 33 (1988) (identifying the benefits and
detriments of this feature of adversarial criminal procedure).
96 See LANGBEIN, supra note 42, at 252 (discussing the roles within and origins of the
adversary trial); Jacqueline Hodgson, The Role of the Criminal Defence Lawyer in
Adversarial and Inquisitorial Procedure, in STRAFVERTEIDIGUNG VOR NEUEN
HERAUSFORDERUNGEN 45 (T. Weigend et al. eds., 2008), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1504000 (discussing the lawyer’s
position in adversarial and non-adversarial criminal procedures); see also Richard E.
Myers, Adversarial Counsel in an Inquisitorial System, XXXVII N.C. J. INT’L L. & COM.
REG. 411 (2011) (presenting an interesting comparative study of criminal procedure
systems).
predominant in adversarial systems, 97 as proceedings usually

include a body of laypersons (jury) and only sometimes a
professional judge, 98 as opposed to a passive or neutral judge
serving as the decisionmaker. 99 In fact, the adversarial trial is
considered to be the appropriate due process of law, as guaranteed
in the Sixth Amendment, according to U.S. federal and state
jurisprudence. 100
The relevance of such adversariness is highlighted by the fact
that both the prosecution and the defense, according to this
schema of confrontation, construct and present two independent
97 See Jacqueline Hodgson, Conceptions of the Trial in Inquisitorial and Adversarial

Procedure, JUDGMENT AND CALLING TO ACCOUNT 223 (A. Duff et al. eds., 2006). This
fact has led to the virtual silence of the accused and, according to the author, the “accused
speaks” trial has been replaced by the “lawyer speaks” trial, where the defendant is
marginalized by the protection of her lawyer. Id.
98 Singer v. United States, 380 U.S. 24, 36 (1965) (revealing the reluctance of the U.S.
Supreme Court to waive the defendant’s right to a jury trial, as guaranteed in the Sixth
Amendment and in spite of Federal Rule of Criminal Procedure 23). As is explicitly
argued, “a defendant’s only constitutional right concerning the method of trial is to an
impartial trial by jury.” Id. That is, “due process of law” in this case guarantees a trial by
jury and not a right to a trial by an impartial decision-maker. See also Duncan v.
Louisiana, 391 U.S. 145 (1968); N.S. MARDER, THE JURY PROCESS (2005).
99 This passivity or neutrality of the decision-maker as a fact finder, coupled with
reliance on party presentation of evidence, is a key element of adversariness. See Stephan
Landsman, A Brief Survey of the Development of the Adversary System, 44 OHIO ST. L.J.
713, 714 (1983); LANDSMAN supra note 95, at 77 (discussing the passivity of trial
procedeedings). See generally THEODORE L. KUBICEK, ADVERSARIAL JUSTICE:
AMERICA’S COURT SYSTEM ON TRIAL (2006). In England, 1730 is considered the starting
point for the increased role of defense counsel in criminal proceedings at the court of the
Old Bailey in London and following the more widespread judicial organization of the
Tudor and Stuart eras. See Stephan Landsman, The Rise of the Contentious Spirit:
Adversary Procedure in Eighteenth Century England, 75 CORNELL L. REV. 496, 525
(1990); J.M. Beattie, Scales of Justice: Defense Counsel and the English Criminal Trial in
the Eighteenth and Nineteenth Centuries, 9 L. & HIST. REV. 221, 226 (1991); see also
LANGBEIN, supra note 42, at 253 (regarding the “lawyerization” of criminal procedure in
England, especially in the trial stage).
100 Faretta v. California, 422 U.S. 806, 818 (1975). In particular, “the right to notice,
confrontation, and compulsory process, when taken together, guarantee that a criminal
charge may be answered in a manner now considered fundamental to the fair
administration of American justice—through the calling and interrogation of favorable
witnesses, the cross-examination of adverse witnesses, and the orderly introduction of
evidence.” Id.; see also California v. Green, 399 U.S. 149, 176 (1970) (Harlan, J.,
concurring) (referring to the confrontation clause in the Sixth Amendment in conjunction
with the requirements of “notice, counsel and compulsory process,” all of them “incidents
of an adversarial proceeding before a jury as evolved during the 17th and 18th
centuries.”); Gideon v. Wainwright, 372 U.S. 335, 342 (1963) (relating to the interpretation
of the Fourteenth Amendment applying “due process of law” to the legislative acts and
sanctions of each state).
cases before the court. 101 Both must gather their own evidence in
order to persuade the passive decision maker (the juror) in this
reactive adversarial model. 102 Thus, complex evidentiary rules are
provided in an attempt to streamline the process and assist the
decision maker’s inferences. 103 The concept of discovery therefore
becomes essential in the adversarial context when, in contrast, it is
unknown in European criminal procedure. 104 In Europe, the
investigative dossier 105 (the only dossier or record that exists in
relation to the specific case) may be consulted by both parties at
the beginning of the preliminary (and judicial) investigation. 106
This method of presenting the case or cases before the court
also has important consequences in relation to the truth-finding
theory. The search for the truth takes place only at the trial, which
is the best place to look for it, 107 but it happens that the whole
101 Damaška, supra note 87, at 25 (arguing that the limits of tolerance of such
partisanship are lower for the prosecution due to their public responsibility, in order to
protect the public interest).
102 See Goldstein, supra note 15, at 1017. The author draws a distinction between the
reactive position of the judge representing the state in adversarial systems and the
proactive role of the judiciary in non-adversarial systems. Damaška follows the same
approach. See Structures, supra note 16, at 493; FACES, supra note 16, at 71.
103 See Richard A. Posner, An Economical Approach to the Law of Evidence, 51 STAN.
L. REV. 1477 (1999) (analyzing this form of evidence gathering in the adversarial and
inquisitorial criminal procedures from an economic perspective). For a comparison of the
presentation of evidence in both criminal justice systems, see Damaška, supra note 7
(purporting the existence of two evidentiary styles).
104 See Damaška, supra note 7, at 533; Schlesinger, supra note 19, at 372 (referring to a
sort of “Neanderthal stage” in U.S. criminal procedure); see also ROBERT M. CARY ET
AL., FEDERAL CRIMINAL DISCOVERY (2011); Chapter 11: Discovery and Procedure
Before Trial, in THE AMERICAN BAR ASSOCIATION STANDARDS RELATING TO THE
ADMINISTRATION OF CRIMINAL JUSTICE (1983) (discussing Rule 16 of the Federal Rules
of Criminal Procedure, as well as leading cases, such as Brady v. Maryland and its
progeny).
105 This term was adopted by Thaman. See STEPHEN C. THAMAN, COMPARATIVE
CRIMINAL PROCEDURE: A CASEBOOK APPROACH 14 (2002).
106 See Mar Jimeno-Bulnes, El Principio de Publicidad en el Sumario, 4 JUSTICIA:
REVISTA DE DERECHO PROCESAL 645 (1993) (distinguishing between contradiction, as
equivalent to confrontation in civil law systems, and publicity, in relation to this
investigative stage in criminal procedure); see also DANIEL E. MURRAY, A SURVEY OF
CRIMINAL PROCEDURE IN SPAIN AND SOME COMPARISONS WITH CRIMINAL
PROCEDURE IN THE UNITED STATES, 40 N.D. L. REV 7, 19 (1964) (discussing the
similarities between sumario and the written dossier). It must be noted that an important
amendment to Article 302 of the Spanish Criminal Procedure Act was made in 1978. In
contrast, other American scholars talk of unlimited discovery. See Schlessinger, supra
note 19, at 382.
107 See CORNELIUS P. CALLAHAN, THE SEARCH OF THE TRUTH (1997) (quoting, in an
introductory page, the saying that “[a] trial is a search for truth; an appeal is a search for
truth is not always reached through the adversarial method. As

has been argued that adversaries are often, if not always, more
interested in winning rather than in the discovery of the truth. 108 It
appears that the search for the truth, or to determine “what really
happened” (material truth), is not the goal of adversarial criminal
procedure. Instead, a more important value emerges: the fairness
of the trial in order to resolve the criminal conflict. 109 A different
method of proof has even been suggested for adversarial and non-
adversarial procedures, addressing these divergent goals and
values. 110 This concept of truthfinding demonstrates one of the
greatest differences from non-adversarial criminal procedures in
Europe. 111 The existence of official investigations conducted by
error.”). The author also includes several practical examples of questioning at the trial, in
order to look for this truth according to witnesses and expert evidence. Id. at 7.
108 See Goodpaster, supra note 94, at 124. Also in relation to this truth-deficit, see
Landsman, supra note 94, at 26 and LANGBEIN, supra note 42, at 331 (considering a truth-
deficit in adversarial systems). The latter author justifies this feature of the adversarial
system as a consequence of the preceding altercation (question and answer) model, which
is in fact the origin of adversary trial. Other scholars have been more critical of the
approach. See Marvin E. Frankel, The Search for Truth: An Umpireal View, 123 U. PA. L.
REV. 1031, 1035 (1975). Several scholars contested Frankel’s proposal. See Monroe H.
Freedman, Judge Frankel’s Search for Truth, 123 U. PA. L. REV. 1060 (1975); H. Richard
Uviller, The Advocate, the Truth and Judicial Hackles: A Reaction to Judge’s Frankel Idea,
123 U. PA. L. REV. 1067 (1975); see also Findley, supra note 22, at 914 (pointing out the
barriers to uncovering the truth in the American adversarial system). For the reasons
cited by these scholars, many talk of “truth-deflecting” instead of “truth-finding.” See,
e.g., Myers, supra note 96, at 114.
109 See Thomas Weigend, Should We Search for the Truth and Who Should Do It?, 36
N.C. J. INT’L & COM. REG. 389, 390 (2011); Jack Norton et al., Truth and Individual
Rights: A Comparison of United States and French Pretrial Procedures, 2 AM. CRIM. L.Q.
159 (1963) (comparing the search for the truth in both countries). Also, in relation to
these goals and the values of adversarial procedure, see Ellen E. Sward, Values, Ideology
and the Evolution of the Adversary System, 64 IND. L.J. 301, 304 (1989). Recall the
reference to both objectives in the theory of solving conflicts presented by Thibaut and
Walker, supra note 21, at 543.
110 See J.D. Jackson, Two Methods of Proof in Criminal Procedure, 51 MOD. L. REV.
549, 561 (1988). For a comparative view, see Karl H. Kunert, Some Observations on the
Origin and Structure of Evidence Rules Under the Common Law System and the Civil Law
System of “Free Proof” in the German Code of Criminal Procedure, 16 BUFF. L. REV. 122,
123 (1966) (refering to the modern theory of intimate conviction that developed in
European criminal procedures, as opposed to the traditional system of legal proof).
111 See Michael L. Corrado, The Future of Adversarial Systems: An Introduction to the
Papers from the First Conference, 35 N.C. J. INT’L & COM. REG. 285 (2010) (presenting
key elements in both adversarial and non-adversarial systems). In summary, the following
are aspects of adversarial systems: litigation is run by the parties and not by the judge and
they have equal status, at least in theory; the defendant (or the defendant’s legal counsel)
is entitled to confront and cross-examine the accuser; the right to a jury trial as provided in
the Sixth Amendment; evidence can only be presented at the trial; and victims have no
the investigative magistrate (or now, in many European countries,

the public prosecutor) and the creation of the investigative dossier
are another significant difference regarding the non-adversarial
criminal procedures existing in Europe.
Lastly, another important distinction usually identified
between the adversarial and non-adversarial systems relates to the
role of the accused in the criminal procedure, specifically in
relation to the truth-finding process. It has been noted that the
defendant in adversarial criminal proceedings is considered a
subject or a party to the trial, deserving of protection and entitled
to a privilege against self-incrimination (as interpreted in
Miranda, 112 although of limited scope as recently reviewed in
Berghuis v. Tompkins). 113 In contrast, the defendant is treated as
role as prosecutors. In contrast, the characteristics of the most inquisitorial non-

adversarial model are presented: trial conducted by a professional judge with little
participation of counsel; pretrial judicial investigation in the form of dossier to be
delivered to the trial judge (which, in the author’s opinion constitutes the biggest different
between two systems, with regard to the presumption of innocence); non-equality between
parties because the prosecutor follows the same judicial career as the judges; almost no
presence of jury or lay assessors; and the victim has a role as a prosecutor, and also in
some cases, as a civil party in criminal proceedings.
112 Miranda v. Arizona, 384 U.S. 436, 452, 459-60 (1966) (stating that the privilege
against self-incrimination is “the essential mainstay of our adversary system” and is part of
the right to remain silent contained in the Fifth Amendment, under the entitlement no
person shall be compelled in any criminal case to be a witness against himself); see also
Griffith v. California, 380 U.S. 609 (1965) (relating to the privilege of self-incrimination);
Thea A. Cohen, Self-incrimination and Separation of Powers, 100 GEO. L.J. 895 (2012)
(analyzing the Self-Incrimination Clause).
113 Berghuis v. Tompkins, 130 S.Ct. 2250, 2264 (2010) (holding that “a suspect who has
received and understood the Miranda warnings, and has not invoked his Miranda rights,
waives the right to remain silent by making an uncoerced statement to the police.”). This
lower standard of the right to remain silent has been criticized by scholars. See, e.g.,
Brigite Mills, Is Silence Still Golden? The Implications of Berghuis v. Tompkins on the
Right to Remain Silent, 44 LOY. L.A. L. REV. 1179 (2011); Jaime M. Rogers, You Have the
Right to Remain Silent . . . Sort of: Berghuis v. Tompkins, The Social Costs of a Clear
Statement Rule and the Need for Amending the Miranda Warnings, 16 ROGER WILLIAMS
U. L. REV. 723 (2011); Emma Schauring, Berghuis v. Thompkins: The Supreme Court’s
“New” Take on Invocation and Waiver of the Right to Remain Silent, 31 ST. LOUIS U. PUB.
L. REV. 221 (2011). The consequences of the Berghuis decision will likely be grave for
non-English speakers. See 130 S.Ct. 2250, at 2266 (Sotomayor, J., dissenting) (arguing that
criminal suspects must now invoke their right to remain silent i.e., “counter-intuitively,
speak and must do so with sufficient precision to satisfy a clear-statement rule that
construes ambiguity in favor of the police.”); see also Brenda L. Rosales, Note, The Impact
of Berghuis v. Tompkins on the Eroding Miranda Warnings and Limited English Proficient
Individuals: You Must Speak Up to Remain Silent, 9 HASTINGS RACE & POVERTY L.J. 109
(2012); George M. Dery III, Do You Believe in Miranda? The Supreme Court Reveals its
Doubts in Berghuis v. Tompkins Paradoxically Ruling that Suspects Can Only Invoke
Their Right to Remain Silent by Speaking, 21 GEO. MASON U. CIV. RTS. L.J. 407 (2011);
an object in non-adversarial procedure, emphasizing the most

negative aspect of the term “inquisitorial.” In the latter system,
the defendant’s confession emerges as the principle piece of
evidence (or regina probatorum), 114 among all other sorts of
evidence. The accused’s declaration is considered the most
important source of information. 115 Other means of obtaining
evidence are usually employed in adversarial criminal procedure,
such as substituting the accused’s declaration or confession. The
best example of this is the cross-examination of witnesses, where a
sort of witness coaching 116 occurs, as both prosecutor and defense
counsel are associated with different parties and cases.
IV. THE MUTUAL INFLUENCE BETWEEN ANGLO-AMERICAN AND

EUROPEAN CRIMINAL PROCEDURES
Having presented the characteristics of adversarial and non-
adversarial criminal procedures in their respective common law
and civil law traditions and in accordance with their origins, this
Article will now explore whether these differences, especially in
relation to arguments for adversariness as opposed to so-called
inquisitiveness, 117 are present today in European and Anglo-
American criminal procedures. The increasing influence of the
U.S. legal system in Europe in recent years must be taken into
Illan M. Romano, Is Miranda on the Verge of Extinction? The Supreme Court Loosens
Miranda’s Grip in Favor of Law Enforcement, 35 NOVA L. REV. 525 (2011); Austin
Steelman, Note, Miranda’s Great Mirage: How Protections Against Widespread Findings of
Implied Waiver Have Been Lost on the Horizon, 80 UMKC L. REV. 239 (2011).
114 See Volkmann-Schluck, supra note 75, at 2 (referring to the confession as the
“principal item of evidence” in traditional inquisitorial criminal procedure, coupled with
the principle of “quod non est in actis, non est in mundo” considering that the word actis
relates to the dossier or investigative file).
115 See Damaška, supra note 7, at 526; see also LANGBEIN, supra note 42, at 35 (taking
into account the historical background); Schlesinger, supra note 19, at 377 (criticizing the
accused’s right to remain silent, arguing that it gives way to “one-way-street” discovery).
It is important to note that the privilege against self-incrimination is also a component of
European criminal procedures. See Manfred Pieck, The Accused’s Privilege Against Self-
Incrimination in the Civil Law, 11 AM. J. COMP. L. 585 (1962) (discussing its inclusion in
French and German criminal procedure at that time); Kevin H. Tierney, Transatlantic
Attitudes Toward Self-Incrimination, 6 AM. CRIM. L.Q. 26 (1967) (relating to its existence
in English common law). Incidentally, Tierney is very critical of the interpretation of the
Fifth Amendment provided by the Supreme Court in Miranda.
116 See Mirjan R. Damaška, Presentation of Evidence and Fact-Finding Precision, 123 U.
PA. L. REV. 1083, 1088 (1975) (detailing the way both models develop evidence through
witness cross-examination).
117 See Mirjan R. Damaška, The Uncertain Fate of Evidentiary Transplants: Anglo-
American and Continental Experiments, 45 AM. J. COMP. L. 839, 843 (1997).
account. In particular, the plea bargain, a pervasive aspect of

American criminal procedure will be discussed at length. 118 In
fact, some of the classical features of Anglo-American criminal
procedure, as opposed to adversariness, may be found in
European procedures. Thus, due to these mutual influences, it is
apparent that the line between the two classical models is blurring
and the convergence of the adversarial and non-adversarial (or
investigative) systems 119 will likely have sufficient support.
A. Pretrial Investigation
All European and Anglo-American criminal procedures, as
well as those in other parts of the world, begin with an
investigation carried out by police officers, individuals who are the
first to arrive at the crime scene. In fact, they act as the
“doorkeepers” for entry into the criminal justice process, 120 and for
this reason, it is recognized that they also have powers to
118 See Langer, supra note 10, at 3 (pointing to how other criminal procedures become
“Americanized”). The author uses the concept of legal transplant in order to convey the
idea that institutions are adapted and not simply “cut and split up” between legal systems.
By contrast, the European model was traditionally seen as more advanced and fair in
comparison to the American system. See also Schünemann, supra note 10, at 290.
119 See Jörg et al., supra note 10, at 41 (discussing two possibilities to facilitate
convergence: either the two classical systems move “towards each other” or one system
finally “comes to dominate the other, thereby causing the latter to lose many of its salient
and unique features.”). The latter possibility, it can be argued, is taking place in the
European Union as a result of the Treaty of Lisbon, which set the goal of harmonizing
criminal procedure. However, complete unification of European criminal proceedings is a
distant goal, as only minimum rules in relation to specific concerns are being adopted. See,
e.g., JIMENO-BULNES, supra note 11, at 91. The best example of this is the negotiation of
procedural rights, which has become very problematic. See Mar Jimeno-Bulnes, The
Proposal for a Council Framework Decision on Certain Procedural Rights in Criminal
Proceedings Throughout the European Union, in SECURITY VERSUS JUSTICE? POLICE
AND JUDICIAL COOPERATION IN THE EUROPEAN UNION 171 (Elspeth Guild & Florian
Geyer eds., 2008); see also Mar Jimeno-Bulnes, The EU Roadmap for Strengthening
Procedural Rights for Suspected or Accused Persons in Criminal Proceedings, 4 EUR.
CRIM. L.F. 157 (2009); Mar Jimeno-Bulnes, Towards Common Standards on Rights of
Suspected and Accused Persons in Criminal Proceedings in the EU?, CENTRE FOR
EUROPEAN POLICY STUDIES (Feb. 26, 2010), available at
http://www.ceps.eu/book/towards-common-standards-rights-suspected-and-accused-
persons-criminal-proceedings-eu; see also T.N.B.M. Spronken & D.L.F. de Vocht, EU
Policy to Guarantee Procedural Rights in Criminal Proceedings: “Step by Step”, 37 N.C. J.
INT’L L. & COM. REG. 436 (2011); Konstantinos D. Kerameus, Procedural Harmonization
in Europe, 43 AM. J. COMP. LA. 401 (1995) (discussing procedural harmonization in the
context of civil procedure).
120 KRATOCSKI & WALKER, supra note 3, at 98.
communicate the notice of the crime (notitia criminis). 121 In this

context, Anglo-American and European procedures (the so-called
accusatorial and inquisitorial legal systems, respectively) differ
with respect to the addressee who will receive this notice and take
final responsibility for instituting the criminal proceeding itself.
This addressee will eventually conduct the pretrial investigation.
It was customary in Europe for the director of this first phase of
the criminal procedure to be a judicial authority, with the title of
investigative magistrate (juge d’instruction), 122 as opposed to the
public prosecutor, or in some cases, the police in Anglo-American
models. 123
Some European countries 124 have given governmental bodies,
rather than judges, power over criminal procedure. Particularly
Germany, where control of the pretrial investigation was
attributed to the public prosecutor in 1975 following the abolition
of the Untersuchungsrichter, 125 and Italy, where in 1988, the giudice
delle indagini preliminary became the responsible body for
121 See Joseph Goldstein, Police Discretion Not to Invoke the Criminal Process: Low-
Visibility Decisions in the Administration of Justice, 69 YALE L.J. 543 (1960) (criticizing
this approach). See KENNETH CULP DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY
INQUIRY (1969) (detailing the meaning, effects, and authors of disrection); see also
Sandford H. Kadish, Legal Norm and Discretion in the Police and Sentencing Processes, 75
HARV. L. REV. 904, 906 (1962).
122 See ESMEIN, supra note 28, at 288 (discussing the historical background in different
European countries). For a comparative view of the role of the investigative magistrate in
Europe (particularly the Netherlands, France and Germany), as well as the situation in the
U.S., see G.O.W. Mueller and F. Le Poole, The United States Commissioner Compared
with the European Investigating Magistrate, 10 CRIM. L.Q. 159 (1967).
123 This was the case in England and Wales until the establishment of the Crown
Prosecution Service and the enactment of the Prosecution of Offenses Act 1985, No. 1800,
c.23, ¶ 1 (Eng.), available at http://www.legislation.gov.uk/ukpga/1985/23; see Hodgson,
supra note 29, at 333; Andrew Ashworth, Developments in the Public Prosecutor’s Office
in England and Wales, 8 EUR. J. CRIME, CRIM. L. & CRIM. JUST. 257 (2000); see also
Feldman, supra note 76 (detailing modern English and Welsh criminal procedure).
124 See generally Goldstein & Marcus, supra note 20, at 246; Langbein & Weinreb, supra
note 22, at 1549; PLOSCOWE, supra note 18, at 460; Volkmann-Schluck, supra note 75, at
11; Weigend, supra note 19, at 389; THAMAN, supra note 105, at 14; see also THOMAS
WEIGEND, Prosecution: Comparative Aspects, in 3 ENCYCLOPEDIA OF CRIME & JUSTICE
1232, 1235 (2002) (offering a comparative analysis of the Anglo-American and European
models).
125 See STRAFPROZESSORDNUNG [STPO] [CODE OF CRIMINAL PROCEDURE], Apr. 7,
1987, § 160(1) (Ger.), available at http://www.iuscomp.org/gla; see also BOHLANDER, supra
note 88, at 67; Joachim Herrmann, Federal Republic of Germany, in MAJOR CRIMINAL
JUSTICE SYSTEMS 86, 100 (1981); Thomas Weigend, Germany, in CRIMINAL PROCEDURE:
A WORLDWIDE STUDY 243, 262 (Craig M. Bradley ed., 2d ed. 2007).
overseeing the course of judicial investigations. 126 Currently, the

investigative magistrate exists in countries such as France and
Spain, although attempts have been made in France to replace this
judicial authority, 127 which coexists with a Judge of Liberties and
Detention (juge des libertés et de la détention). In Spain, a new bill
has recently been enacted that suppresses this judicial
investigation. 128 If the non-existence of the investigative
magistrate is considered a general characteristic of the accusatorial
systems, it may also be said that European criminal procedures are
reviewing this system.
Another feature that distinguishes both models of criminal
procedure is the appropriate level of power exercised by the
prosecutor in order to institute criminal proceedings. The
principle of prosecutorial discretion is usually attached to Anglo-
126 See Codice di procedure penale [C.p.p.] art. 328 (It.), available at
http://www.altalex.com/index.php?idnot=2011; see also Robert Adrian Van Cleave, Italy,
in CRIMINAL PROCEDURE: A WORLDWIDE STUDY 303, 333 (Craig M. Bradley ed., 2d ed.
2007); Giulio Illuminati, The Frustrated Turn to Adversarial Procedure in Italy (Italian
Criminal Procedure Code of 1988), 4 WASH. U. GLOBAL STUD. L. REV. 567, 571 (2005);
Illuminati, supra note 24, at 308; Mirabella, supra note 24, at 234; Elisabetta Grande,
Italian Criminal Justice: Borrowing and Resistance, 48 AM. J. COMP. L. 227, 232 (2000);
Enzo Zappalà, Le Procès Pénal Italien Entre Système Inquisitoire et Système Accusatoire,
68 REVUE INTERNATIONALE DE DROIT PÉNALE 11, 113 (1997).
127 It appears as though the projected abolition is still on the political agenda. See
Thomas Meindl, Les Implications Constitutionnelles de la Suppression du Juge
D’instruction, 2 REVUE DE SCIENCE CRIMINELLE ET DE DROIT PÉNAL COMPARÉ 395
(2010) (criticizing such suppression due to dependence of the public prosecutor on
executive power). Currently, regulation of this judicial investigation is provided for in
Article 81 of France’s Code of Criminal Procedure. CODE DE PROCÉDURE PÉNALE [C.
PR. PÉN.] art. 81 (Fr.), available at http://www.legifrance.gouv.fr. For a discussion of the
French juge d’instructions and their role, see Doris Jonas Freed, Aspects of French
Criminal Procedure, 17 LA. L. REV. 730, 731 (1957); Morris Ploscowe, Development of
Inquisitorial and Accusatorial Elements in French Procedure, 23 AM. INST. CRIM. L. &
CRIMINOLOGY 372, 373 (1932); and more recently, Richard S. Frase, France, in CRIMINAL
PROCEDURE: A WORLDWIDE STUDY 201, 220 (Craig M. Bradley ed., 2d ed. 2007). See
also A.E. Anton, L’instruction Criminelle, 9 AM. J. COMP. L. 441, 442 (1960); Edwin R.
Keedy, The Preliminary Investigation of Crime in France Part II, 88 U. PA. L. REV. 692
(1940); Jacqueline Hogdson, The Police, the Prosecutor and the Juge d’Instruction: Judicial
Supervision in France, Theory and Practice, 41 BRIT. J. CRIMINOLOGY 342 (2001).
128 See Actividad Legislativa, supra note 73, arts. 457 et seq.; the establishment of a
Judge of Guarantees (Juez de Garantías) is also included in order to supervise the
investigation conducted by the public prosecutor (following the French model of the
aforementioned Judge of Liberties and Detention). On the reform of the Spanish system,
see J.M. Martín Pallín, Un anteproyecto bien vertebrado, ACTUALIDAD JURÍDICA
ARANZADI, at 3 (2011). In fact, scholars have called for the drafting of a new criminal
procedural law, as the one in force today was enacted in 1882. See J.V. Gimeno Sendra,
La Necesaria e Inaplazable Reforma de la Ley de Enjuiciamiento Criminal, 5 LA LEY 1705
(2002).
American criminal procedures and especially, to the U.S. system,

where the absence of control has been vigorously discussed. 129
This is in contrast to European models, where mandatory
prosecution has prevailed as a general rule since the enactment of
the “legality” rule. 130 Nevertheless, traces of this discretionary
prosecution can also be appreciated in the criminal procedure
codes of some European countries where, at least as an
exceptional rule, opportunity principles have increasingly been
introduced. 131 This is the case in France, 132 where the prosecutor
has discretion to apply correctionalization. In essence, a criminal
offense may be reduced to a misdemeanor (délit), which then
transfers competence from a jury trial at the Assize Court (cours
d’assises) to the criminal court (tribunaux correctionnels), which
consists of only a panel of judges and no judicial investigation. 133
129 See Davis, supra note 121, at 188; see also Wayne R. LaFave, The Prosecutor’s
Discretion in the United States, 18 AM. J. COMP. L. 532, 535 (1970); Albert W. Alschuler,
Sentencing Reform and Prosecutorial Power: A Critique of Recent Proposals for “Fixed”
and “Presumptive” Sentencing, 126 U. PA. L. REV. 550 (1978). For a specific discussion of
the benefits and risks of this prosecutorial discussion along with some guidelines, see N.
Abrams, Internal Policy: Guiding the Exercise of Prosecutorial Discretion, 19 UCLA L.
REV. 1 (1971). For a comparative view of civil law tradition countries, see William T.
Pizzi, Understanding Prosecutorial Discretion in the United States: The Limits of
Comparative Criminal Procedure as an Instrument of Reform, 54 OHIO ST. L.J. 1325
(1993). One rationale for this prosecutorial discretion is provided by Robert L. Rabin in
Agency Criminal Referrals in the Federal System: An Empirical Study of Especially
Prosecutorial Discretion, 24 STAN. L. REV. 1036, 1038 (1972). For a general discussion of
this, see Editorial, Prosecutor’s Discretion, 103 U. PA. L. REV. 1057, 1075 (1955); Gerard
E. Lynch, Prosecution: Prosecutorial Discretion, 3 ENCYCLOPEDIA OF CRIME & JUSTICE
1246 (2002). In relation to prosecutorial discretion in the U.K., see Chrisje Brants &
Stewart Field, Discretion and Accountability in Prosecution: A Comparative Perspective on
Crime Out of Court, in CRIMINAL JUSTICE IN EUROPE: A COMPARATIVE STUDY, supra
note 9, at 127 (discussing the Dutch system, as well). A recent example of such
prosecutorial accountability can be found in George A. Weiss, Prosecutorial
Accountability After Connick v. Thompson, 60 DRAKE L. REV. 199 (2011).
130 See, e.g., CONSTITUCIÓN ESPAÑOLA art. 124 (Spain), available at
http://www.senado.es/web/index.html; LEY DE ENJUICIAMIENTO CRIMINAL [L.E. CRIM]
art. 105 (Spain), available at http://noticias.juridicas.com/base_datos/Penal/lecr.html.
131 See Peter Western, Two Rules of Legality in Criminal Law, 26 LAW & PHIL. 229
(2006) (providing a comparative view of both principles and exposition of judicial practice
in U.S. courts).
132 See Robert Vouin, The Role of the Prosecutor in French Criminal Trials, 18 AM. J.
COMP. L. 483, 488 (1970); Pieter Verrest, The French Public Prosecution Service, 8 EUR. J.
CRIME CRIM. L. & CRIM. JUST. 210, 233 (2010); see also Jacqueline Hodgson, The French
Prosecutor in Question, 67 WASH. & LEE L. REV. 1361 (2010).
133 See Freed, supra note 127, at 738; Ploscowe, supra note 127, at 386 (providing an
historical explanation); see also Goldstein & Marcus, supra note 20, at 251; Langbein &
Weinreb, supra note 22, at 1552.
On the contrary, a prosecutor is attached to the initiation of the

criminal proceeding by request of the victim, who can demand that
civil liability be processed with criminal liability. 134 More
prosecutorial discretion is present in Germany, 135 where both
mandatory and prosecutorial principles coexist, 136 as well as in
Italy following the enactment of the new Criminal Procedural
Code in 1988, which introduced several adversarial elements to
Italian criminal procedure. 137 In contrast, Spain still maintains the
principle of strict mandatory prosecution according to the legality
principle while retaining the institution of private prosecution for
any citizen and not only for the victim. 138
The existence of the exclusionary rule, particularly in the U.S.,
is another formative element of adversarial criminal procedure. In
essence, the exclusionary rule provides that “the fruits of all police
procedures judged to be illegal by the courts or legislatures must
be excluded.” 139 The exclusionary rule, applicable to improperly
134 See C. PR. PÉN., art. 2; see Jean Larguier, The Civil Action for Damages in French
Criminal Procedure, 39 TUL. L. REV. 687 (1965).
135 See STPO § 153 (dealing with the non-prosecution of petty offenses—with or without
the approval of the court—according to the seriousness of the facts). Another example is
the provision contained in section 172, which contemplates the possibility of the victim
compelling public charges by lodging a complaint before the court if the prosecutor has
dropped the case on the ground of insufficient cause. Id. § 172. See also Hans-Jörg
Albrecht, Criminal Prosecution: Developments, Trends and Open Questions in the Federal
Republic of Germany, 8 EUR. J. CRIME CRIM. L & CRIM. JUST. 245, 246 (2000); John H.
Langbein, Controlling Prosecutorial Discretion in Germany, 41 U. CHI. L. REV. 439, 443
(1974); Hans-Heinrich Jescheck, The Discretionary Powers of the Prosecuting Attorney in
West Germany, 18 AM. J. COMP. L. 508 (1970) (providing a historical background).
136 See Volkmann-Schluck, supra note 75, at 20. The general rule of compulsory
prosecution is founded in Legalitätsprinzip, while discretionary prosecution is based in
Opportunitätsprinzip. See Glenn Schram, The Obligation to Prosecute in West Germany,
17 AM. J. COMP. L. 627 (1969); Joachim Herrmann, The Rule of Compulsory Prosecution
and the Scope of Prosecutorial Discretion in Germany, 41 U. CHI. L. REV. 468 (1974).
137 See C.p.p., arts. 405 et seq. Art. 112 Costituzione [Cost.] (It.). available at
http://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf. While the
principle of mandatory prosecution is present in Article 112 of the Italian Constitution,
discretional prosecution has emerged in contemporary Italian legislation. See Amodio &
Selvaggi, supra note 24, at 1218; Grande, supra note 126, at 252.
138 L.E. CRIM., art. 101. See CONSTITUCIÓN ESPAÑOLA, §125 (providing for lay
participation in the administration of justice). See also Murray, supra note 106, at 16; Julio
Pérez Gil, 25 LAW & POLICY 151, 154 (2003). For discussion of private prosecution in the
context of the U.S., see Private Prosecution: A Remedy for District Attorneys’ Unwarranted
Inaction, 65 YALE L.J. 209 (1955); Weigend, supra note 124, at 1240 (offering a
comparative angle).
139 STEVEN R. SCHLESINGER, EXCLUSIONARY INJUSTICE: THE PROBLEM OF
ILLEGALLY OBTAINED EVIDENCE 1 (1977). In fact, the exclusionary rule has been
qualified as the “centerpiece of the constitutional criminal procedure framework.” Robert
obtained evidence, operates as a privilege. 140 The rule particularly

addresses the police because its origins are attached to the state’s
lack of control over the police in the U.S., as opposed to the
hierarchical structure in European legal systems. 141 A landmark
decision is Mapp v. Ohio, 142 where the exclusionary rule was
extended—not only to apply in state courts on the basis of the Due
Process Clause in the Fourteenth Amendment—but also to
evidence taken in violation of other constitutional provisions. 143
Nevertheless, its wider application relates to the guarantees of the
Fourth Amendment, especially in reference to “unreasonable
searches and seizures.” 144 While the exclusionary rule helps ensure
M. Bloom & Mark S. Brodin, CRIMINAL PROCEDURE: THE CONSTITUTION AND THE
POLICE 183 (6th ed. 2010); see also KAMISAR ET AL., supra note 82, at 785; WAYNE R.
LAFAVE ET AL., PRINCIPLES OF CRIMINAL PROCEDURE: INVESTIGATION 56 (2009); L.
MILLER & RONALD F. WRIGHT, CRIMINAL PROCEDURES: CASES, STATUTES AND
EXECUTIVE MATERIALS 385 (2011); DAVID S. RUDSTEIN, CRIMINAL PROCEDURE: THE
INVESTIGATIVE PROCESS 627 (2008); RUSSELL L. WEAVER ET AL., PRINCIPLES OF
CRIMINAL PROCEDURE 252 (2008).
140 See CHARLES T. MCCORMICK, HANDBOOK OF THE LAW OF EVIDENCE 364 (E.W.
Cleary ed., 2d ed. 1972) [hereinafter MCCORMICK’S HANDBOOK]; see also Kenworthey
Bilz, Dirty Hands or Deterrence? An Experimental Examination of the Exclusionary Rule,
9 J. EMPIRICAL LEGAL STUD. 149, 151 (2012) (discussing “dirty,” “tainted,”
“contaminated,” and “infected” evidence).
141 See Volkmann-Schluck, supra note 75, at 16; see also Monrad G. Paulsen, The
Exclusionary Rule and Misconduct by the Police, 52 J. CRIM. L. CRIMINOLOGY & POLICE
SCI. 255 (1961); John Kaplan, The Limits of the Exclusionary Rule, 26 STAN. L. REV. 1027,
1029, 1031 (1974) (refering to the justification of the rule’s existence in U.S.). Kaplan
believes that “the United States is the only nation that applies an automatic exclusionary
rule” due to “uniquely American conditions.” See also Kunert, supra note 110, at 126
(comparing the exclusionary rule in the U.S. to German criminal procedure).
142 Mapp v. Ohio, 367 U.S. 642, 660 (1961) (“[The Court’s] decision gives to the
individual no more than that which the Constitution guarantees him, to the police officer
no less that to which honest law enforcement is entitled, and, to the courts, that judicial
integrity so necessary in the true administration of justice.”). Previous decisions discussing
the issue include Boyd v. United States, 116 U.S. 616 (1886); Weeks v. United States, 232
U.S. 383 (1914); Wolf v. Colorado, 338 U.S, 25 (1949); Rochin v. California 342 U.S, 165
(1952); and Elkins v. United States, 364 U.S. 206 (1960). Morever, further limitations on
the exclusionary rule have occurred. See, e.g., United States v. Calandra, 414 U.S. 338
(1974); Thomas S. Schrock & Robert C. Welsh, Up From Calandra: The Exclusionary Rule
as a Constitutional Requirement, 59 MINN. L. REV. 251 (1974).
143 In summary, the enforcement of the exclusionary rule applies to “four major types
of” violations: searches and seizures that violate the Fourth Amendment; confessions
obtained in violation of the Fifth and Sixth Amendments; identification testimony
obtained in violation of these amendments; and evidence obtained by methods so
shocking that its use would violate the Due Process Clause. See Dallin H. Oaks, Studying
the Exclusionary Rule in Search and Seizure, 37 U. CHI. L. REV. 665 (1970).
144 See Francis A. Allen, The Exclusionary Rule in the American Law of Search and
Seizure, 52 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 246 (1961); James E. Spiotto, Search
due process of law by excluding illegally obtained evidence (often

considered “fruit of the poisonous tree”) 145 from presentation at
trial, it has been and still is contested by some scholars and
practitioners, 146 who argue that its enforcement converts the fight
against crime into an obstacle race.
However, similar rules that prohibit illegal methods of
obtaining evidence and declare such evidence inadmissible are set
forth in the criminal procedure codes of European legal systems.
For example, France has a nullity penalty (peine de nullité) that
relates to domicile searches, identity checks, and wiretapping, so
that when legal requirements are not observed, the result is the
removal of this evidence from the file (investigative dossier). 147
Moreover, the German Criminal Procedural Code declares
evidence inadmissible whenever violence or illegal threats are used
and Seizure: An Empirical Study of the Exclusionary Rule and its Alternatives, 2 J. LEG.
STUD. 243 (1973); see also Tyler Regan Wood, Why Can’t We All Just Get Along? The
Relationship Between the Exclusionary Rule, the Good-Faith Exception, and the Court’s
Retroactivity Precedents After Arizona v. Grant, 80 UMKC L. REV. 485 (2011) (discussing
specific precedent related to search and seizure police practices, particularly including a
comparative analysis of Arizona v. Grant, 556 U.S. 332 (2009) and New York v. Belton,
453 U.S. 454 (1981)). For a discussion of the application of the exclusionary rule to the
Fourth Amendment, see R.M. BLOOM, SEARCHES, SEIZURES AND WARRANTS: A
REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION 19 (2003).
145 See KERRI MELLIFONT, FRUIT OF THE POISONOUS TREE: EVIDENCE DERIVIED
FROM ILLEGALLY OR IMPROPERLY OBTAINED EVIDENCE (2010); KAMISAR et al., supra
note 82, at 785; LAFAVE ET AL., supra note 139, at 459. The “fruit of the poisonous tree”
principle is considered the “simplest of the exclusionary rule.” Id. at 525. The idea is that
exclusion is “not only the direct result of an illegality but also that which flowed from the
illegality.” BLOOM, supra note 144, at 19.
146 See, e.g., Frank J. McGarr, The Exclusionary Rule: An Ill Conceived and Ineffective
Remedy, 52 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 266 (1961); William T. Pizzi, The
Need to Overrule Mapp v. Ohio, 82 U. COLO. L. REV. 679 (2011) (arguing that the
exclusionary rule is not consistent with the U.S. criminal justice system); see also JOSHUA
DRESSLER & ALAN C. MICHAELS, UNDERSTANDING CRIMINAL PROCEDURE:
INVESTIGATION 354 (5th ed. 2010) (proposing the abolition of the exclusionary rule);
Tonja Jacobi, The Law and Economics of the Exclusionary Rule, 87 NOTRE DAME L.
REV. 585 (2011); CHARLES H. WHITEBREAD, CRIMINAL PROCEDURE: AN ANALYSIS OF
CASES AND CONCEPTS 44 (1986) (analyzing the costs of the exclusionary rule and
discussing other potential remedies for these constitutional violations). These authors, in
the aggregate, propose civil remedies such as: actions for damages; criminal remedies
(such as criminal sanctions for illegal police conduct); and even non-judicial remedies
(such as internal review procedures within a police department of its own misconduct).
Nevertheless, the authors conclude that despite criticism of the exclusionary rule and its
alternatives, it is a fundamental institution of the American criminal law system.
147 C. PR. PÉN., arts. 59, 78(3), 100(7). See Frase, supra note 90, at 212; see also Robert
Vouin, The Exclusionary Rule Under Foreign Law C. France, 52 J. CRIM. L.
CRIMINOLOGY & POLICE SCI. 271 (1961).
to obtain it. 148 In general, obtaining evidence in violation of any

rule intended to safeguard the defendant’s basic procedural rights
to obtain evidence shall lead to its immediate exclusion. The same
applies to evidence obtained from illegal searches, seizures, and
wiretapping without proper judicial authorization. However, a
broad general rule against the employment of such illegally
obtained evidence is advanced in the Italian149 and Spanish legal
systems. In the latter, a general rule is provided for all different
(and not only criminal) procedures, which excludes any type of
evidence obtained due to the violation of fundamental rights. 150 In
contrast, in England—where criminal procedure is categorized as
adversarial and/or accusatorial and the state structure, as
decentralized or coordinated, 151 has no general exclusionary rule
for improperly obtained evidence—it is the court that exercises its
discretion over the exclusion of evidence that is unfairly
obtained. 152
The pretrial investigation, giving way to the preconstitution of
evidence, is a fundamental aspect of criminal procedure for two
primary reasons. First, the employment of more sophisticated and
accurate investigative techniques, due to modern technology and
scientific knowledge, carried out by experts or in some cases,
police officers, is crucial to fact-finding. The best example of this
is the forensic science of DNA analysis, 153 but general expertise
148 STPO, § 69, para. 3, § 136a, para. 3 (detailing the examination of witnesses and the
defendant in the German system); see Weigend, supra note 125, at 251 (refering to various
constitutional and German Supremes Court case-law); see also Walter R. Clemens, The
Exclusionary Rule Under Foreign Law D. Germany, 52 J. CRIM. L. CRIMINOLOGY &
POLICE SCI. 277 (1961).
149 C.p.p., art. 191; see Van Claeve, supra note 126, at 327.
150 LEY ORGÁNICA DEL PODER JUDICIAL [L.O.P.J.] art. 11(1) (Spain), available at
http://www.poderjudicial.es/eversuite/GetRecords?Template=cgpj/cgpj/pjexaminarlegislac
ion.
html&dkey=242&TableName=PJLEGISLACION; see also M. MIRANDA ESTRAMPES,
EL CONCEPTO DE PRUEBA ILÍCITA Y SU TRATAMIENTO EN EL PROCESO PENAL (2005).
151 See Damaška, supra note 7, at 522 (regarding the exclusionary rule). The author
theorizes that exclusionary rules are more vigorously enforced in common law
jurisdictions than they are in civil law jurisdictions. Id. While this is true in some civil law
countries (i.e. Spain, where the exclusionary rule was introduced in 1985), it is not accurate
in all common law countries, like England, where the law has consistently stopped short of
such a regulation.
152 Police and Criminal Evidence Act, 1984, C. 60, § 78 (Eng.) available at
http://www.legislation.gov.uk/ukpga/1984/60/contents; see Feldman, supra note 76, at 163;
Glanville L. Williams, The Exclusionary Rule Under Foreign Law B. England, 52 J. CRIM.
L. CRIMINOLOGY & POLICE SCI. 272 (1961).
153 See Ryan M. Goldstein, Improving Forensic Science Through State Oversight, 90
may also be included. Second, the emergence of new criminal

realities give way to more sophisticated offenses and crimes that
criminal procedure must recognize. Thus, the use of a broad
spectrum of mostly intrusive investigative measures, which often
touch upon fundamental rights of citizens, is necessary.
Specifically, these investigative measures include searches and
seizures, 154 surveillance of telecommunications or network
surveillance (e.g., wiretapping), 155 and even means of investigation
TEX. L. REV. 225 (2011) (discussing DNA and forensic analysis in U.S. practice). The
“infallibility” of DNA analysis and its use only as evidence “beyond a reasonable doubt,”
as a required standard of evidence in adversarial criminal procedure has raised concerns.
See Katharine C. Lester, The Affects of Apprendi v. New Jersey on the Use of DNA
Evidence at Sentencing – Can DNA Alone Convict of Unadjudicated Prior Acts?, 17 WASH
& LEE. J. CIV. RTS. & SOC. JUST. 267 (2010). The collection of DNA by governments is
often controversial and may result in a violation of fundamental rights, particularly under
the Fourth Amendment of the U.S. Constitution. See, e.g., Ashley Eiler, Arrested
Development: Reforming the Federal All-Arrestee DNA Collection Statute to Comply with
the Fourth Amendment, 79 GEO. WASH. L. REV. 1201 (2011); Kelly Lowenberg, Applying
the Fourth Amendment When DNA Collected for One Purpose is Tested for Another, 79 U.
CIN. L. REV. 1289 (2010). In contrast, defense of such policy is advanced by Jessica A.
Levitt, Competing Rights Under the Totality of the Circumstances Test: Expanding DNA
Collection Statutes, 46 VAL. U. L. REV. 117 (2011) (proposing the adoption of state
legislation expanding respective DNA collection statutes, including samples from
arrestees, but always with provision of adequate (procedural) safeguards).
154 Searches and seizures are not necessarily only of homes and their contents. See
Leanne Andersen, People v. Diaz: Warrantless Searches of Cellular Phones, Stretching the
Search Incident to Arrest Doctrine Beyond the Breaking Point, 39 W. ST. U. L. REV. 33
(2011); Camille E. Gauthier, Is it Really That Simple?: Circuits Split Over Reasonable
Suspicion Requirement for Visual Body-Cavity Searches of Arrestees, 86 TUL. L. REV. 247
(2011); James T. Stinsman, Computer Seizures and Searches: Rethinking the Applicability
of the Plain View Doctrine, 83 TEMP. L. REV. 1097 (2011). In addition, new technology is
now used by police officers in these searches and seizures, such as the placement of global
positioning system (GPS) devices in vehicles or elsewhere. There has also been discussion
of the restriction of the citizens’ right of privacy. See Joshua A. Lunsford, Prolonged GPS
Surveillance and the Fourth Amendment: a Critical Analysis of the D.C. Circuit’s “The-
Whole-is-Greater-than-the-Sum-of-its-Parts” Approach in United States v. Maynard, 38
OHIO N.U. L. REV. 383 (2011); Brian Andrew Suslak, GPS Tracking, Police Intrusion and
the Diverging Paths of State and Federal Judiciaries, 45 SUFFOLK U. L. REV. 193 (2011).
155 A sort of surveillance law and wiretapping law has been outlined by scholars. See
Patricia L. Bellia, Designing Surveillance Law, 43 ARIZ. ST. L. J. 293 (2011); J. Peter Bodri,
Tapping into Police Conduct: The Improper Use of Wiretapping Laws to Prosecute Citizens
Who Record On-Duty Police, 19 AM. U. J. GENDER SOC. POL’Y & L. 1327, 1332 (2011).
See also Stephen Rushin, The Judicial Response to Mass Police Surveillance, 2011 U. ILL.
J.L. TECH. & POL’Y 281 (2011); David J. Stein, Law Enforcement Efficiency or Orwell’s
1984? Supreme Court to Decide Whether ‘Big Brother’ is Here at Last, 2011 U. ILL. J. L.
TECH. & POL’Y 487 (2011) (applying famous literary references to the new surveillance
tools such as GPS). In contrast, the Supreme Court and Congress have also attempted to
adapt the Fourth Amendment to emerging technologies, in line with the Court’s ruling in
Katz v. United States, 389 U.S. 347 (1967), and by drafting anti-wiretapping statutes. See
Michelle K. Wolf, Anti-Wiretapping Statutes: Disregarding Legislative Purpose and the
such as dragnet investigations, 156 entrapment, or other specific

investigative acts carried out by police officers. 157 Lastly, as new
forms of criminality emerge, such as terrorism and organized
crime, there is good reason to expand the content of this
investigative period. 158
B. Trial
The trial phase has been characterized as the “jewel in the
crown” of adversarial criminal procedure 159 and this is specifically
Constitutional Pitfalls of Using Anti-Wiretapping Statutes to Prevent the Recording of On-

Duty Police Officers, 15 J. GENDER RACE & JUST. 165 (2012) (analyzing the same statutes
implicated to prohibit the recording of police activities by private citizens).
156 By use, for example, of former GPS surveillance. See Lunsford, supra note 154, at
396; Anna-Karina Parker, Dragnet Law Enforcement: Prolonged Surveillance & the Fourth
Amendment, 39 W. ST. U. L. REV. 23 (2011). Practices of “dragnet investigations” can be
found in sections 98a and 98b of the German Code of Criminal Procedure regarding the
investigation of certain crimes, which permit searches through existing data on large
numbers of people in order to determine the identity of a suspect. See BOHLANDER,
supra note 88, at 88.
157 See DRESSLER & MICHAELS, supra note 146, at 539 (discussing entrapment); Adam
A. Khalil, Knock, Knock, Who’s There?: Undercover Officers, Police Informants, and the
“Consent Once Removed” Doctrine, 41 SETON HALL L. REV. 1569 (2011) (describing
other police investigative measures). For a comparison of U.S. and European police
techniques, see Christopher Slobogin, Comparative Empiricism and Police Investigative
Practices, 37 N.C. J. INT’L L. & COM. REG. 321 (2011).
158 Attempts have been made to coordinate the accusatorial or adversarial and
inquisitorial systems. See Erin Creegan, Cooperation in Foreign Terrorism Prosecutions,
42 GEO. J. INT’L L. 491 (2011). The author justifies difficulties in cooperation as stemming
from different backgrounds of common law and civil law countries. Cooperation and
interest in the fight against terrorism as a whole has increased, especially after September
11, 2001 (9/11). This event had a tremendous impact on worldwide criminal procedures
and resulted in the reworking of the balance between civil liberties and law enforcement.
The most significant law to have followed 9/11 has been the enactment of the USA
PATRIOT Act. See BLOOM & BRODIN, supra note 139, at 349; see also Mar Jimeno-
Bulnes, After September 11th: The Fight Against Terrorism in National and European Law.
Substantive and Procedural Rules: Some Examples, 10 EUROPEAN L.J. 235, 237 (2004)
(discussing the USA PATRIOT Act, the U.K. Anti-Terrorism, Crime and Security Act of
2001, as well as Spanish and European regulations). For further discussion of the
PATRIOT Act, see John W. Whitehead & Steven H. Aden, Forfeiting “Enduring
Freedom” for “Homeland Security”: A Constitutional Analysis of the USA Patriot Act and
the Justice Department’s Anti-Terrorism Initiatives, 51 AM. U. L. REV. 1081 (2002). For a
modern reading of 9/11, see Sudha Setty, What’s in a Name? How Nations Define
Terrorism Ten Years After 9/11, 33 U. PA. J. INT’L L. 1 (2011). See generally JIMMY
GURULÉ & GEOFFREY S. CORN, PRINCIPLES OF COUNTER-TERRORISM LAW (2011).
159 See KAMISAR ET AL., MODERN CRIMINAL PROCEDURE: CASES, COMMENTS AND
QUESTIONS 1358 (1990). The subsequent edition of this book, published in 1994, does not
include any such reference to the adversary system in the chapter on criminal trial. See
supra note 82.
applicable to American criminal justice, where it represents the

stage on which all aspects of adversariness play their part. The
confrontation clause provided in the Sixth Amendment of the
Constitution, 160 which gives the defendant the right to face adverse
witnesses, creates a fundamental obligation that is executed in
cross-examination, 161 which is arguably the most characteristic
feature of adversarial trial in the United States. Generally,
evidence must fulfill the highest standard of proof—beyond
reasonable doubt 162—in order for the prosecution to obtain the
conviction of the accused. It has been argued that the right of
cross-examination does not exist in European criminal procedures
because any questioning at trial takes place through the
appropriate trial judge or court. 163 However, this statement is not
completely accurate because cross-examination was adopted by
statute in several European jurisdictions; particularly, in France, 164
160 See Maryland v. Craig, 497 U.S. 836, 845-46 (1990). Craig is considered a leading
case on the issue. Although exceptions to face-to-face confrontation are defended, the
Court recalls the aim of the Confrontation Clause, which is “to ensure the reliability of the
evidence against a defendant by subjecting it to rigorous testing in an adversary
proceeding before the trier of fact,” as well as how “the combined effect of these elements
of confrontation—physical presence, oath, cross-examination, and observation of
demeanor by the trier of fact—serves the purpose of the Confrontation Clause by ensuring
that evidence admitted against an accused is reliable and subject to the rigorous
adversarial testing that is the norm of Anglo-American criminal proceedings,” with
reference to past precedent. See also MARK E. CAMMACK & NORMAN M. GARLAND,
ADVANCED CRIMINAL PROCEDURE 414 (2006); MILLER & WRIGHT, supra note 139, at
1301; Robert K. Kry, Confrontation at Crossroads: Crawford’s Seven-Year Itch, 6
CHARLESTON L. REV. 49 (providing a modern point of view on the Confrontation
Clause).
161 The Supreme Court has characterized section 2 of Rule 26 of the Federal Rules of
Criminal Procedure as the “greatest legal engine ever invented for the discovery of truth.”
See Maryland v. Craig, 497 U.S. at 846; California v. Green, 399 U.S. 149, 158 (1979). The
original statement can be found in JOHN HENRY WIGMORE, A TREATISE ON THE
ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW: INCLUDING
THE STATUTES AND JUDICIAL DECISIONS OF ALL JURISDICTIONS OF THE UNITED
STATES AND CANADA (1940). See also LANGBEIN, supra note 42, at 291 (describing the
origins of cross-examination in English Old Bailey courts); MCCORMICK’S HANDBOOK,
supra note 140, at 43 (discussing the right to cross-examine).
162 See Barbara Shapiro, The Beyond Reasonable Doubt Doctrine: ‘Moral Comfort’ or
Standard of Proof?, 2 LAW & HUMAN. 149 (2008) (discussing the origins of this principle
and commenting on JAMES Q. WHITMAN, THE ORIGINS OF REASONABLE DOUBT:
THEOLOGICAL ROOTS OF THE CRIMINAL TRIAL (2008)). However, Whitman responded
to Shapiro’s criticism. See James Q. Whitman, Response to Shapiro, 2 LAW & HUMAN.
175 (2008) (responding to Shapiro’s claims).
163 See, e.g., Damaška, supra note 116, at 1088.
164 C. PR. PÉN., art. 312. However, it appears that, although permitted, cross-
examination of adverse witnesses is rare in practice. See Frase, supra note 90, at 234.
Germany, 165 Italy, 166 and Spain, where the Criminal Procedure Act
of 1882 167 remains in force to this day. Lastly, cross-examination is
explicitly mentioned in European and international texts, such as
the European Convention of Human Rights, 168 which is also
enforced in European countries.
Another classic feature of the adversarial system is the right
to a jury trial. 169 The right to jury trial hardly exists in European
countries, let alone to the magnitude it does in the Sixth
Amendment of the Constitution and in U.S. criminal procedure. 170
However, there is a sort of lay participation in the process of
adjudication in criminal proceedings, which usually takes place in
the mixed-court model. 171 In some cases, the Anglo-Saxon model
165 STPO, § 239. This provision has little practical relevance, as both the prosecution
and defense can apply it jointly. However, this hardly happens and when it does, the
assent of the presiding judge is required. As a result, the repeal of this provision has been
proposed. See BOHLANDER, supra note 88, at 119.
166 C.p.p., art. 498. Though the presiding judge in Italy may question witnesses as well,
according to Article 506; nevertheless, this judicial questioning may occur only after direct
cross-examination by the parties. See Van Claeven, supra note 126, at 343.
167 L.E. CRIM., art. 708. Similar to Italy, in Spain the presiding magistrate can also ask
questions, but only after questioning has been conducted by the parties. In fact, it appears
that Spain became the first country to incorporate cross-examination at the trial stage. See
Volkmann-Schluck, supra note 75, at 1. Confrontation between witnesses and the accused
is even provided by Article 451 of the statute. Id. art 451. See also comments by Murray,
supra note 106, at 44.
168 ICPPR, art. 14(3)(e), supra note 81; ECHR, art. 6(3)(d), supra note 81; see Marianne
Holdgaard, The Right to Cross-Examine Witnesses—Case Law Under the European
Convention on Human Rights, 71 NORDIC J. INT’L L. 83 (2002). The European Court
upheld a violation of Article 6(3)(d) as far as the applicant was “unable to test the
truthfulness and reliability of T’s evidence by means of cross-examination.” See Al-
Khawaja & Tahery v. United Kingdom, 2011 Eur. Ct. H.R. 2127, available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-108072.
169 See Valerie P. Hans, U.S. Jury Reform: the Active Jury and the Adversarial Ideal, 21
ST. LOUIS U. PUB. L. REV. 85 (2002) (detailing the jury system in the adversarial model).
For discussion of the right to a jury trial in American jurisprudence, see Kimberly A.
Mottley et al., An Overview of the American Criminal Jury, 21 ST. LOUIS U. PUB. L. REV.
99, 100 (2002) and Marder, supra note 98, at 35.
170 See Albert W. Alschuler & Andrew G. Deiss, A Brief History of Criminal Jury in the
United States, 61 U. CHI. L. REV. 867, 869 (1994) (offering a historical background within
the U.S.); Symposium, The Common Law Jury, 62 LAW & CONTEMP. PROBS. 1 (1999);
WORLD JURY SYSTEMS (N. Vidmar, ed., 2000) (providing a general view of the jury in
common law countries); Vogler, supra note 2, at 193 (offering an international perspective
on the jury trial).
171 For example, Cour d’asisses in France, Schöffengericht in Germany, Corte di assisi
in Italy, Tribunal dó juri in Portugal. See Jimeno-Bulnes, supra note 72, at 305. For
references to different European models, see the study conducted by John D. Jackson and
Nikola Kovalev, Lay Adjudication and Human Rights in Europe, 13 COLUM. J. EUR. L. 83,
94 (2006). For a general approach, see Symposium, Le Jury Dans le Procès Pénal au XXè
of jury court has been adopted, like in Spain. Criminal procedure

legislation in France, Germany, Italy, and Portugal has adopted
this mixed-court model, with the interaction of lay assessors and
professional judges, following the diminuition of jury courts some
decades ago. 172 In contrast, Spain instituted its jury model in 1995,
inspired by the common law system, which included distinctive
characteristics dating back to its earlier juridical history. 173 These
features, related to the requirement for a reasoned verdict, 174
make the institution unique in the context of European criminal
procedure models. Since their introduction, jury trials in Spain
have functioned according to a schema very close to the classic
Anglo-Saxon model, despite the reluctance of many scholars,
practitioners, and the courts themselves. 175
However, the greatest American influence in European
criminal procedures is a controversial mechanism with a very
recent history: the plea bargain. 176 It is a modality of the guilty
Siècle (Lay Participation in the Criminal Trial in the 21st Century), 72 REVUE
INTERNATIONALE DE DROIT PÉNALE 1 (2001), as well as Vogler, supra note 2, at 233.
On the joint functioning of lay assessors and professional judges, see S. Kutnjak Ivkovic,
An Inside View: Professional Judges’ and Lay Judges’ Support for Mixed Tribunals, 25
LAW & POL’Y 93 (2003) (providing several examples of personal interviews).
172 See Francois Gorphe, Reforms of the Jury-System in Europe: France and Other
Continental Countries, 27 J. CRIM. L. & CRIMINOLOGY 155 (1936); Hermann Manheim,
Trial by Jury in Modern Continental Criminal Law, 53 L. Q. REV. 388 (1937); see also
Valerie P. Hans & Claire M. Germain, The French Jury at Crossroads, Symposium on
Comparative Jury Systems, 86 CHI.-KENT L. REV. 737 (2011); Gerhard Casper & Hans
Zeisel, Lay Judges in the German Criminal Courts, 1 J. LEGAL STUD. 135 (1972); Juan
Montero Aroca, Las “Corti di Assisi” en Italia, REVISTA DE DERECHO PROCESAL 2, 325
(1970); Arturo Alvarez Alarcón, El Jurado en Portugal: Estatuto, Competencia y
Procedimiento de Delección, ANUARIO DE LA FACULTAD DE DERECHO 5, 249 (1987)
(discussing the jury systems in France, Germany, Italy, and Portugal, respectively).
173 See generally Mar Jimeno-Bulnes, Lay Participation in Spain: The Jury System, 14
INT’L CRIM. J. REV. 164 (2004); see also Stephen C. Thaman, Spain Returns to Trial by
Jury, 21 HASTINGS INT’L COMP. L. REV. 241 (1998); CARMEN GLEADOW, HISTORY OF
TRIAL BY JURY IN THE SPANISH LEGAL SYSTEM (2000).
174 See Mar Jimeno-Bulnes, A Different Story Line for 12 Angry Men: Verdicts Reached
by Majority Rule—The Spanish Perspective, 82 CHI.-KENT L. REV. 759, 769 (2007);
Stephen C. Thaman, Should Criminal Juries Give Reasons for Their Verdicts?: The
Spanish Experience and the Implications of the European Court of Human Rights Decision
in Taxquet v. Belgium, 86 CHI.-KENT L. REV. 613, 630 (2011).
175 See Mar Jimeno-Bulnes, Jury Selection and Jury Trial in Spain: Between Theory and
Practice, 86 CHI.-KENT L. REV. 585, 602 (2011) (referring to the practice of restricting the
competence of jury courts). The anticipated settlement of particular agreements between
the accused and the prosecutor is considered a sort of plea bargaining, which is not
provided for in the current law pertaining to juries. Id.
176 Plea bargaining in England and the U.S. did not become prominent until the 19th
century, when efficiency of the criminal process became an issue in both countries. See
plea 177 and is considered both a product and a failure of the

adversarial model of criminal procedure. It is a product of the
adversary model in that it takes place in a party-centered criminal
procedure where practical considerations often favor the disposal
of the proceeding. Thus, the plea bargain emerges a sort of
contract, if not compromise 178 between prosecutor and accused or,
more exactly, the defense counsel, similar to a settlement between
litigants in the civil justice system. 179 Due to the complicated and
time-consuming nature of the adversarial system, this substitutive
mechanism is now the general rule in U.S. courts. 180
In fact, it appears that a two-tier system in criminal procedure
exists. Two models of justice are now present: (1) the jury trial, a
more complicated one that should be the general rule and (2) the
John H. Langbein, Understanding the Short History of Plea Bargaining, 13 LAW & SOC’Y
REV. 261, 262 (1979); see also Albert W. Alschuler, Plea Bargaining and its History, 79
COLUM. L. REV. 1 (1979); Lawrence M. Friedman, Plea Bargaining in Historical
Perspective, 13 LAW & SOC’Y REV. 247 (1979); Jay Wishingrad, The Plea Bargain in
Historical Perspective, 23 BUFF. L. REV. 499 (1973). On plea bargaining in English Law,
see John Baldwin & Michael McConville, Plea Bargaining and Plea Negotiation in
England, 13 LAW & SOC’Y REV. 287 (1979). For a comparative view between both
common law systems, England and U.S., see H.H.A. Cooper, Plea Bargaining: A
Comparative Analysis, 5 N.Y.U. J. INT’L L. & POL. 427 (1972).
177 See FED. R. CIV. P. § 11(c) (2010). The “plea agreement” is also called a “plea
negotiation” by some authors. See LAFAVE ET AL., supra note 139, at 999. FED. R. CIV.
P. § 11(a)(1) also distinguishes three categories of pleas: not guilty, guilty, and nolo
contendere (which, in contrast to a guilty plea, does not require a formal admission of
guilt). The plea bargain is a guilty plea; however, not all guilty pleas are result of a plea
bargain. A plea bargain implies a guilty plea by the defendant in exchange for any sort of
concession or benefit from the prosecution. See CAMMACK & GARLAND, supra note 160,
at 265. There are also different types of bargains according to former FED. R. CIV. P. §
11(c)(1), such as “charge bargain” or “sentence bargain,” relating to agreements on
charges and sentences, respectively. See MILLER & WRIGHT, supra note 139, at 1101.
178 See Frank H. Easterbrook, Plea Bargaining as Compromise, 101 YALE L.J. 1969
(1992); Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 YALE L.J.
1909 (1992). In contrast, criticism on the contractual approach of plea bargaining is
supported by Jennifer Rae Taylor, Restoring the Bargain: Examining Post-Plea Sentence
Enhancement as an Unconscionable Violation of Contract Law, 48 CAL. W. L. REV. 129,
136 (2011) (reasoning that the contract model cannot be applied here because no judicial
protection for the defendant is provided in these bargains).
179 See Volkmann-Schluck, supra note 75, at 25; see also Dominick R. Vetri, Guilty Plea
Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U. PA. L. REV. 865
(1964) (providing examples of plea arrangements between prosecutor and defense through
figures and statistics); Albert W. Alschuler, The Prosecutor’s Role in Plea Bargaining, 36
U. CHI. L. REV. 50, 52 (1968) (arguing that the prosecutor can act as administrator,
advocate, judge or legislator with different motives in order to grant concessions in all
cases).
180 See KAGAN, supra note 6, at 66 (criticizing and reviewing executions in the U.S.
after sequential appeals).
plea bargain, a more simple model. 181 The plea bargain, as an

alternative to the jury trial, operates like an advantageous deal for
the defendant, 182 as well as the prosecutor and judge. Despite the
absence of any judicial intervention or oversight, 183 the plea
bargain provides a fast-track solution to an overloaded
administration of justice. As has been said, “the defendant waives
his right to trial in exchange for a more lenient sanction,”
meanwhile, “the prosecutor is relieved of the need to prove the
accused’s guilt and the court is spared having to adjudicate it.” 184
For this reason, on the basis of its administrative convenience, the
Supreme Court has recognized its constitutionality. 185 The same
economic point of view 186 has made plea bargains essential for the
survival of the system, as no less than ninety percent of criminal
cases in the U.S. criminal justice system result in guilty pleas. 187
181 See Weigend, supra note 19, at 405 (arguing that the prototype of this two-tier
system is American criminal process).
182 Plea bargains are often referred to as an advantageous deal. See WAYNE R.
LAFAVE ET AL., PRINCIPLES OF CRIMINAL PROCEDURE: POST-INVESTIGATION 436
(2009); Thaman, supra note 8, at 469.
183 See Albert W. Alschuler, The Trial Judge’s Role in Plea Bargaining, 76 COLUMB. L.
REV. 1059, 1060 (1976).
184 John H. Langbein, Torture and Plea Bargaining, 46 U. CHI. L. REV. 3, 8 (1978)
(criticizing the practice of plea bargaining). The author draws a comparison between
medieval torture and plea bargaining in the twentieth century based upon the
understanding that criminal procedure today mirrors the historical medieval experience,
as the adjudicative function is eliminated in both cases and a concessionary system is
applied. In addition, both systems are coercive and differences may only be appreciated in
“degree, not kind.” Id. at 13.
185 It has been qualified as an “essential component of the administration of justice” by
the Supreme Court. See Santobello v. New York, 404 U.S. 257, 260 (1971) (according to
the Court, plea bargaining, “properly administered, it is to be encouraged” because “if
every criminal charge were subject to a full-scale trial, the states and the Federal
Government would need to multiply by many times the number of judges and court
facilities.”); see also Brady v. United States, 397 U.S. 753, 762 (1970) (presenting the
advantages of plea bargaining: for the defendant, “his exposure is reduced, the
correctional processes can begin immediately, and the practical burdens of a trial are
eliminated,” and for the state, “the more promptly imposed punishment after an
admission of guilt may more effectively attain the objectives of punishment; and with the
avoidance of the trial, scarce judicial and prosecutorial resources are conserved for those
cases in which there is a substantial issue of the defendant’s guilt or in which there is a
substantial doubt that the state can sustain its burden of proof.”).
186 For this reason, the expression “bargaining incentive theory” has been used; by
which, the adversary system is looked at “not in terms of intellectual justifications, but in
terms of its practical effects.” See Goodpaster, supra note 94, at 139.
187 See MILLER & WRIGHT, supra note 139, at 1101; see also David S. Abrams, Is
Pleading Really A Bargain?, 8 J. EMPIRICAL LEGAL STUD. 200 (2011); Michael W. Smith,
Making the Innocent Guilty: Plea Bargaining and the False Plea Convictions of the
Buoyed by its supporters 188 and reformers, 189 and even

indirectly by its detractors, 190 the plea bargain has reached the
European continent, where criminal procedure is intended to be
judge-centered. It has advanced in a sort of “triumphal march of
consensual procedures” 191 to the point where there are now plea
bargaining institutions in France, 192 Germany, 193 Italy 194 and
Innocent, 46 CRIM. L. BULL. 5 (2010) (the latter arguing that the number of guilty pleas
increased from 87%, in 1990 to 95%, in 2010). Between 1956 and 1962, there were
approximately 80% guilty pleas or nolo contendere. See Packer, supra note 12, at 221; see
also Michael O. Finkelstein, A Statistical Analysis of Guilty Plea Practices in the Federal
Courts, 89 HARV. L. REV. 293 (1975) (discussing statistics on guilty pleas and providing a
contemporary example of a survey).
188 See, e.g., Thomas W. Church, Jr., In Defense of “Bargain Justice”, 13 LAW & SOC’Y
REV. 509 (1979); Easterbrook, supra note 178; Scott & Stuntz, supra note 178.
189 See Editorial, Restructuring the Plea Bargain, 82 YALE L.J. 286 (1972). Experiments
have also taken place in an effort to reform the system. See, e.g., Anne M. Heinz &
Wayne A. Kerstetter, Pretrial Settlement Conference: Evaluation of a Reform in Plea
Bargaining, 13 LAW & SOC’Y REV. 349 (1979). Finally, suggestions for comparative
studies of other models of plea bargaining, such as those existing in Europe and
particularly in Germany have been followed. See Markus D. Dubber, American Plea
Bargains, German Lay Judges, and the Crisis of Criminal Procedure, 49 STAN. L. REV. 547
(1997).
190 See, e.g., Langbein, supra note 184; see also Raymond I. Parnas & Riley J. Atkins,
Abolishing Plea Bargaining: A Proposal, 14 CRIM. L. BULL. 101 (1978); Stephen J.
Schulhofer, Is Plea Bargaining Inevitable?, 97 HARV. L. REV. 1037 (1984); Stephen J.
Schulhofer, Plea Bargaining as Disaster, 101 YALE L.J. 1979 (1992).
191 Thaman, supra note 8, at 469. A sort of New Legal Bargaining Theory has even
been created in a general context, in which plea bargaining can be included. See Robert J.
Condlin, Bargaining Without Law, 56 N.Y.L. SCH. L. REV. 281, 283 (2011).
192 C. PR. PÉN., arts. 40-42 (under the name of composition pénale and in relation to
such offenses with a penalty of up to five years of imprisonment). Specific provisions were
subsequently introduced by the legislature. Loi 99-515 du 23 juin 1999 renforçant
l’efficacité de la procédure pénale [Law 99-515 of June 23, 1999 Enhancing the
Effectiveness of Criminal Proceedings], JOURNAL OFFICIEL DE LA RÉPUBLIQUE
FRANÇAISE [J.O.] [OFFICIAL GAZETTE OF FRANCE], June 24, 1999, p. 09247. See Langer,
supra note 10, at 58; Weigend, supra note 19, at 406. Both authors also make reference to
plea bargaining in Germany and Italy.
193 The most significant provision today is Gesetz zur Regelung der Verständigung im
Strafverfahren [Law Regulating Agreements in Criminal Proceedings], July 29, 2009,
BUNDESGESETZBLATT, Teil I [BGBL. I] at 2353, § 257(c) (including a general regulation
of Absprach); see BOHLANDER, supra note 88, at 120. However, plea bargaining already
existed much earlier in Germany in judicial practice. See William L. F. Felstiner, Plea
Contracts in West Germany, 13 LAW & SOC’Y REV. 309 (1979).
194 C.p.p., art. 446. The conditions for plea bargaining are established under Articles
444 through 448, entitled “Applicazione della pena su richiesta della parti,” which
translates to “Application of the Punishment upon the Request of the Parties.”
Nevertheless, the institution is commonly known as patteggiamento, which also means
“bargain.” There is also a punishment limit, which is once again a maximum of five years
imprisonment. The introduction of this patteggiamento occurred during the renewal of the
Italian Criminal Procedure Code. Decreto Presidente della Repubblica [D.P.R.] 22
Spain, 195 despite its extraneous origin. In fact, all criminal

procedures apply the legality principle (nulla poena sine lege), are
judge-centered, and the concept of a guilty plea as such is
unknown. 196 Nevertheless, plea bargaining is another symptom of
the “opportunity principle” (or discretional prosecution), which
now operates as an exceptional rule in European criminal
procedures, and the plea bargain has been welcomed for the same
reasons as in the U.S. criminal justice system.
In this context, although plea bargaining regulations in
France, Germany, Italy, and Spain present their inevitable and
logical differences, a common aspect in relation to common law
systems is that judicial control of the plea bargain reached between
the prosecutor and defense counsel usually takes place at the
appropriate hearing. 197 This judicial monitoring guarantees the
fairness of the deal and should avoid some of the problems related
to U.S. plea bargaining; particularly, the lack of legal counsel 198
and the pressure imposed by prosecutors so that the accused
settembre 1988, n. 47, in G.U. Oct. 24, 1988; n. 250 Suppl. Ord. (It.). See Grande, supra
note 126, at 253; Pizzi & Montagna, supra note 24, at 437.
195 L.E. CRIM., art. 787. The original Spanish law still in force was enacted in 1882, a
far-reaching amendment took place following the Italian example and thus, an
abbreviated proceeding with this possibility of plea bargaining was introduced. De los
Juzgados de lo Penal, y por la que se modifican diversos preceptos de las Leyes Orgánica
del Poder Judicial y de Enjuiciamiento Criminal (B.O.E. 1988, 313) (Spain). Also, a
punishment limit was required, in this case of up to six years of imprisonment. See SILVIA
BARONA VILAR, LA CONFORMIDAD EN EL PROCESO PENAL (1994); Silvia Barona Vilar,
La Justicia Negociada, in LA CRIMINALIDAD ORGANIZADA ANTE LA JUSTICIA 85
(Faustino Gutiérrez-Alviz Conradí ed., 1996).
196 See Langer, supra note 10, at 37. As mentioned previously, it is the institution of
confession that takes place in European criminal procedures, as well as the admission of
facts. For a difference between confession and admission, see MCCORMICK’S
HANDBOOK, supra note 140, at 310.
197 This is demonstrated in Spain’s Code of Criminal Procedure where it is the defense
counsel who makes a request for a “judgment of conformity” from the magistrate or court
before beginning to present the evidence. L.E. CRIM, § 787(1). See Juan Manuel
Fernández Martinez, El Control Judicial de la Conformidad en el Proceso Penal, REVISTA
ARANZADI DOCTRINAL 10, 41 (2012) (discussing judicial supervision in this context).
198 The Supreme Court has recognized the waiver of counsel by the accused. See
Johnson v. Zerbst, 304 U.S. 458 (1938); BEANY, supra note 80, at 61; see also Erin A.
Conway, Ineffective Assistance of Counsel: How Illinois Has Used the “Prejudice” Prong of
Strickland to Lower the Floor on Performance When Defendants Plead Guilty, 105 NW. U.
L. REV. 1707, 1711 (2011) (detailing the relationship between guilty pleas and ineffective
assistance of counsel; also pointing out that, despite the logical assumption, a portion of
innocent defendants plead guilty, arguing that the cause of their unfounded pleas is the
absence of legal counsel); Tom Zimpleman, The Ineffective Assistance of Counsel Era, 63
S.C. L. REV. 425 (2011).
accepts the guilty plea. 199 The judicial authority should act as the
main defender of the criminal proceeding and not merely remain
mute, as happens in the adversarial systems.
V. CONCLUSION
Having presented the origins of different criminal procedural
models under the common law and the civil law traditions, as well
as some of the specific features attached to both adversarial and
non-adversarial criminal procedures, it is apparent that adversarial
characteristics have had varying degrees of impact on the criminal
procedures of Europe. Accordingly, it may be said that up until
the present, the one-way influence that has taken place, with
European jurisdictions adopting aspects of U.S. criminal
procedure, may be best explained by the arguable superiority of
the American criminal model. This reasoning seeks to extend
itself as a sort of medieval reception of ius commune (common
law). 200 All European criminal systems are willing to become
increasingly adversarial and projected reforms are usually
designed to move their justice systems towards this ideal.
Nevertheless, concerns have been raised as to whether such
legal transplants 201 can exist and thrive in an extraneous criminal
procedure body, where principles and functions differ from the
original pattern. Legal institutions are delicate and not easily
199 See Note, Official Inducements to Plead Guilty: Suggested Morals for a Marketplace,
32 U. CHI. L. REV. 167, 168 (1964) (providing examples of such inducements); see also
George W. Pugh, Ruminations Re Reform of American Criminal Justice (Especially Our
Guilty Plea System): Reflections Derived from a Study of the French System, 36 LA. L.
REV. 947, 967 (1976) (referencing the peril of plea negotiation between the defense
counsel and the prosecuting attorney under the “neutral hand of the judge” especially in
the case of “vulnerable” (e.g., uneducated) defendants). Stronger criticism can be found
in Oren Bar-Gill & Omri Ben-Shahar, The Prisoners’ (Plea Bargain) Dilemma, 1 J. LEGAL
ANALYSIS 737 (2009) (discussing the use by the prosecution of a “threat” to take the
defendant to trial), and H. Mitchell Caldwell, Coercive Plea Bargaining: the Unrecognized
Scourge of the Justice System, 61 CATH. U. L. REV. 63 (2011) (detailing on other
prosecutorial abuses).
200 See Wolfgang Wiegand, The Reception of American Law in Europe, 39 AM. J.
COMP. L. 229, 230 (1991) (drawing an interesting comparison between the reception of
American Law today and reception of Roman Law in the Middle Ages in Europe); see
also Hiram E. Chodosh, Reforming Judicial Reform Inspired by U.S. Models, 52 DEPAUL
L. REV. 351 (2002) (detailing U.S. influence on international judiciary models).
201 See supra note 9 and accompanying text; see also Ugo Mattei, Why the Wind
Changed: Intellectual Leadership in Western Law, 42 AM. J. COMP. L. 195 (1994) (relating
to the shift from civil to common law).
grafted onto different corpus iuris 202 and the difficulty is increased
if, in this case, criminal procedures belong to different legal
systems. 203 The best example of a legal transplant is undoubtedly
the plea bargain, which has been extended not only to European
national procedures but also to international institutions such as
the International Criminal Court (ICC). 204 In fact, the criminal
procedure practiced before the ICC demonstrates the convergence
of both legal traditions, giving place to a sui generis model with
adversarial and non-adversarial elements. 205
Admittedly, one may ask whether it is necessary to
characterize international and national criminal procedures.
However, what should be of general concern is not the formal
taxonomy of criminal procedures, but instead, the taxonomy of the
principles or values, especially in order to promote procedural
fairness. 206 This goal is not always easy to achieve but it should be
maintained and strived for at all times. It has been argued that the
right to a fair trial corresponds not only to the accused but to the
state as well. 207 In the author’s view, the state—as the main
202 Gunther Teubner, Legal Irritants: Good Faith in British Law or How Unifying Law
Ends Up in New Divergences, 61 MOD. L. REV. 11, 12 (1998) (criticizing what he calls
“legal surgery”). Although the author makes no specific reference to criminal procedure,
his theory can also be applied to it.
203 A good example is the Italian criminal procedure code, which is considered the most
adversarial (or accusatorial) of European criminal procedure frameworks. However, since
its enactment in 1988, it has endured several reforms regarding the coexistence of
adversarial and non-adversarial elements are not easily rectified. See Panzavolta, supra
note 24, at 591.
204 The plea bargain, initially, could be included within the general scope of Article 54,
section (3)(d) of the Rome Statute. See Rome Statute of the International Criminal
Court, U.N. Doc. A/CONF.183/9 (Jun. 15, 1998) [hereinafter Rome Statute], available at
http://untreaty.un.org/cod/icc/statute/romefra.htm; see also Mirjan R. Damaška, Negotiated
Justice in International Criminal Courts, 2 J. OF INT’L CRIM. JUST. 1018, 1036 (2004).
205 See VOGLER, supra note 2, at 277-78; see also Kai Ambos, International Criminal
Procedure: “Adversarial”, “Inquisitorial” or Mixed?, 3 INT’L CRIM. L. REV. 1 (2003)
(concluding on the existence of this sui generis or mixed model); Linda E. Carter, The
International Criminal Court in 2021, 18 SW. J. INT’L LAW. 199, 200 (2011). The ICC
“employs an adversarial model for trial with party presentation of evidence but also
incorporates civil law features such as legal representation of victims by counsel and victim
participation in the court proceedings.” Id. An interesting relationship can also be drawn
between the U.S. and the ICC with respect to criminal procedure. See Megan A. Fairlie,
The United States and the International Criminal Court Post-Bush: a Beautiful Courtship
but an Unlikely Marriage, 29 BERKELEY J. INT’L L. 528 (2011).
206 See Mirjan Damaška, The Competing Visions of Fairness: the Basic Choice for
International Criminal Tribunals, 36 N.C. J. INT’L L. & COM. REG. 365 (2011) (relating to
the ICC).
207 Susan Bandes, Taking Some Rights Too Seriously: The State’s Right to a Fair Trial,
provider of the administration of justice—has the more specific

obligation to provide this procedural fairness because the state
that holds the jurisdictional authority (potestas). 208 Taking this
into account, the real challenge is achieving an ideal criminal
procedure. 209 In this light, it appears that the adversarial system as
demonstrated in the U.S. trial is the ideal criminal procedure
model.
However, various failures in the U.S. criminal justice system
have been identified and are currently being debated. 210 With
regard to adversariness and the role played by both parties in a
criminal trial, a pessimistic picture has been painted: one in which
prosecutors are arguably more concerned with winning than with
justice. 211 Furthermore, the degree of defense attorney
commitment is often commensurate with the amount of money the
defendant is able to provide. 212 Undoubtedly, the court caseload
appears much more prejudicial for indigent defendants, who are
represented by court-appointed lawyers or public defenders. 213
Due to this representation, criminal courts are regarded as
“marketplaces in which the only commodity traded seriously is
60 S. CAL. L. REV. 1019 (1987) (striking a balance between the rights of the accused and
the state).
208 See supra note 65 and accompanying text; Pedraz Penalva, De la Jurisdicción Como
Competencia a la Jurisdicción Como Órgano, in CONSTITUCIÓN, JURISDICCIÓN Y
PROCESO 43 (E. Pedraz Penalva ed., 2000).
209 See THURMAN W. ARNOLD, THE SYMBOLS OF GOVERNMENT 134 (1935). Arnold
states that “[t]he ideal of a fair trial, of course, is constantly in conflict with other ideals.”
Id. at 143. For example, “an attorney should not take cases the winning of which imperils
the forces of law and order; every criminal, however, is entitled to a defense; criminal
lawyers, however, should not resort to mere technicalities; nevertheless they should do
everything legally possible for their clients.” Id. at 143-44. Also, on the difficulties of
criminal justice in general, see POUND, supra note 46, at 36.
210 Editorials in U.S. periodicals often discuss the failures or shortcomings of the U.S.
criminal system.
211 See BRUCE JACKSON, LAW AND DISORDER: CRIMINAL JUSTICE IN AMERICA 81
(1984) (arguing that “there is no way to measure the quality of justice garnered or served
or delivered, but it is easy enough to count convictions, to calculate the win/lose ratio.”).
212 Id. at 99 (stating that “[t]ruly energetic and extensive defenses are rare” and that
“[t]he most common service rendered by court-appointed and public defender lawyers is
that of middleman in a quickly negotiated plea of guilty.”).
213 See Heidi Reamer Anderson, Funding Gideon’s Promise by Viewing Excessive
Caseloads as Unethical Conflicts of Interest, 39 HASTINGS CONST. L.Q. 421, 422 (2011)
(presenting a strong relationship between plea bargains and representation of defendants
by the public defender, insofar as “ninety-five percent of convictions are the result of plea
bargains” and “most defendants who plead guilty are represented by public defenders.”).
Nevertheless, this is preferable to lack of counsel throughout plea bargaining
arrangements; see supra note 198 and accompanying text.
time.” 214
In regards to the adversarial trial, which has emerged as the
ideal, it may also be pointed out that some landmarks of
adversariness itself are currently missing. For example, despite the
right of cross-examination according to the Confrontation Clause,
out-of-court statements by witnesses are now admissible in certain
circumstances. 215 The discovery rule furthered in Brady v.
Maryland, 216 under which prosecutors have a constitutional duty to
disclose evidence that is favorable to criminal defendants, is not
always observed (as the case itself reveals). In fact, complaints by
practitioners and scholars have addressed this shortcoming. 217
However, the U.S. Supreme Court has yet to rule explicitly on this
matter. It is a common wish amongst the legal community for the
Court to dictate a standard regarding compulsory disclosure by the
prosecution of evidence favorable to the defendant. 218
If there is concern over fairness and the observance of due
214 JACKSON, supra note 211, at 77.

215 See Ohio v. Roberts, 448 U.S. 56 (1980) (thought overruled by Crawford v.
Washington, 541 U.S. 36 (2004)). However, subsequent Supreme Court decisions make
hearsay available for use following the distinction between “testimonial hearsay, which
requires confrontation and non-testimonial, which does not.” Marc McAllister, Evading
Confrontation: From One Amorphous Standard to Another, 35 SEATTLE U. L. REV. 473,
475 (2011). Criticism is also directed at recent Court decisions such as Michigan v. Bryant,
131 S.Ct. 1143 (2011), where a sort of “ongoing emergency” doctrine is introduced, in
order to make available extrajudicial statements. See Mark S. Coven & James F.
Comerford, What’s Going On? The Right to Confrontation, 45 SUFFOLK U. L. REV. 269
(2012); K. Polonsky, A Defense’s Attorney’s Guide to Confrontation after Michigan v.
Bryant, 36 VT. L. REV. 433 (2011); Shari H. Silver, Michigan v. Bryant: Returning to an
Open-Ended Confrontation Clause Analysis, 71 MD. L. REV. 545 (2012).
216 See Brady v. Maryland, 373 U.S. 83, 87 (1963). The Court held that “the suppression
by the prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or punishment, irrespective of the good faith
or bad faith of the prosecution.” Id. See also Daniel Conte, Swept Under the Rug: The
Brady Disclosure Obligation in a Pre-Plea Context, 17 SUFFOLK J. TRIAL & APP. ADVOC.
74, 78 (2012) (commenting on and criticizing the shortcomings in Brady).
217 See Barbara A. Babcock, Fair Play: Evidence Favorable to an Accused and Effective
Assistance of Counsel, 34 STAN. L. REV. 1133, 1136 (1982) (pointing to differences
between the adversarial and inquisitorial systems). Impeachment evidence, the evidence
to be used by the defendant in order to undermine the credibility of witnesses presented
by the prosecutor, is an example of the type of evidence to be disclosed. This sort of
evidence is typically introduced during cross-examination and presents problematic
questions such as when and whether it should be disclosed at all. See R. Michael Cassidy,
Plea Bargaining, Discovery and the Intractable Problem of Impeachment Disclosures, 64
VAND. L. REV. 1429, 1431 (2011).
218 See Editorial, Justice and Open Files, N.Y. TIMES, Feb. 26, 2012,
http://www.nytimes.com/2012/02/27/opinion/justice-and-open-files.html; see also Conte,
supra note 216, at 101 (claiming there should be “clear and unambiguous legislation.”).
process of law in adversarial trials, the avoidance of trial by

entering a guilty plea and/or plea bargaining is highly
questionable. The aforementioned lack of counsel, or pressure on
the defendant to accept the deal, has recently been discussed in
two Supreme Court decisions, where a broader right to counsel is
suggested. 219 At the very least, it appears as though this important
guarantee for a defendant shall be better provided for, as it is
especially important in the context of plea bargains. Until recent
times, the high number of plea bargains present in both federal
and state courts 220 has yet to be solved, although scholars have
suggested alternatives. 221 The conclusion at this point is that
American criminal justice is being defined through plea bargaining
practices, not through the adversarial trial which is the ideal model
to copy.
This prompts questions of efficiency: the ideal adversarial trial
is not always efficient, but efficiency is also a fundamental
component of the administration of justice. 222 This is an old
concern, with related examples presented by scholars at the
beginning of the last century. 223 Hence the emergence of the
aforementioned remedies such as the plea bargaining institution,
which should operate as a just-in-case, “exhaust valve,” but can
never be a substitute for a fair trial. If the essential centerpiece of
criminal procedure, the trial, is so complex and cumbersome that it
becomes overly difficult to administer, there will be sufficient
reason to rework the whole criminal procedure. In fact, legal
219 See Missouri v. Frye, 132 S.Ct. 1399 (2012); Lafler v. Cooper, 132 S.Ct. 1376 (2012).
220 Currently, it appears that ninety-seven percent of federal convictions and ninety-
four percent of state convictions come from guilty pleas negotiated between prosecutors
and offenders. Editorial, A Broader Right to Counsel, N.Y. TIMES, March 22, 2012,
http://www.nytimes.com/2012/03/23/opinion/a-broader-right-to-counsel.html?_r=0.
221 See, e.g., Pugh, supra note 199, at 961 (referencing the possibility of establishing fast-
track trials). That author, in his presentation, draws a comparison between the American
and the French criminal systems. Id. In the general context of reforms in both common
law criminal procedures and civil law procedures, see Damaška, supra note 117, at 845.
222 See Samuel R. Gross, The American Advantage: The Value of Inefficient Litigation,
85 MICH. L. REV. 734 (1987) (drawing a comparison related to civil and criminal
procedure between the U.S. and Germany).
223 See Henry B. Brown, The Administration of the Jury System, 17 GREEN BAG 623,
625 (1905) (describing the delays in criminal procedure at the time)l; see also Roscoe
Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 40 AM. L.
REV. 729, 742 (1906) (arguing that “our system of courts is archaic and our procedure
behind the times. Uncertainty, delay and expense, and above all the injustice of deciding
cases upon points of practice, which are the mere etiquette of justice, the direct results of
the organization of our courts and the backwardness of our procedure . . . .”).
procedures should be a means and not an end in themselves, in

order to make criminal law effective, 224 recalling at all times that
“the quality of a nation’s civilization can be largely measured by
the methods it uses in the enforcement of its criminal law.” 225
224 See Joseph D. Grano, Implementing the Objectives of Procedural Reform: The
Proposed Michigan Rules of Criminal Procedure—Part I, 32 WAYNE L. REV. 1007, 1007
(1986).
225 Walter V. Schaefer, Federalism and State Criminal Procedure, 70 HARV. L. REV. 1,
26 (1956). The same statement is included in Miranda v. Arizona, 384 U.S. 459, 480
(1966).

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1 (Do Not Delete) 3/18/2013 1:43 PM

AMERICAN CRIMINAL PROCEDURE IN A

410 CARDOZO J. OF INT’L & COMP. LAW [Vol. 21:409

2 See MARY ANN GLENDON ET AL., COMPARATIVE LEGAL TRADITIONS IN A

2013] AMERICAN CRIMINAL PROCEDURE 411

procedure, a unique aspect of criminal procedure is its potential

6 See ROBERT A. KAGAN, ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW

412 CARDOZO J. OF INT’L & COMP. LAW [Vol. 21:409

the notion that the classical distinction between the accusatorial

2013] AMERICAN CRIMINAL PROCEDURE 413

by Damaska are well known but have less of an ideological impact,

414 CARDOZO J. OF INT’L & COMP. LAW [Vol. 21:409

any disparity between criminal justice systems in Europe in this

the presence of inquisitorial elements in the American adversarial system due to

2013] AMERICAN CRIMINAL PROCEDURE 415

contemporary example of this is the trial of Amanda Knox, which

416 CARDOZO J. OF INT’L & COMP. LAW [Vol. 21:409

abandoned—even though it would be inaccurate to plaster over

II. HISTORICAL BACKGROUND: TWO OR THREE MODELS OF

Proceso Penal, PROCESO PENAL Y SISTEMAS ACUSATORIOS 11 (2008).

2013] AMERICAN CRIMINAL PROCEDURE 417

418 CARDOZO J. OF INT’L & COMP. LAW [Vol. 21:409

33 See generally J.H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 11 (2d

2013] AMERICAN CRIMINAL PROCEDURE 419

420 CARDOZO J. OF INT’L & COMP. LAW [Vol. 21:409

accusation that shaped the essentially adversarial nature of

2013] AMERICAN CRIMINAL PROCEDURE 421

heresies in Europe (especially in the South of France) 48 and

422 CARDOZO J. OF INT’L & COMP. LAW [Vol. 21:409

the crime without having to wait for a formal accusation. 53 This

53 Ploscowe, supra note 18, at 447.

2013] AMERICAN CRIMINAL PROCEDURE 423

procedure and its purpose was to prepare the conviction or the

424 CARDOZO J. OF INT’L & COMP. LAW [Vol. 21:409

which greatly influenced and extended to many other European

2013] AMERICAN CRIMINAL PROCEDURE 425

hands of the prosecutor because the primary purpose of the new

426 CARDOZO J. OF INT’L & COMP. LAW [Vol. 21:409

throughout Europe, the divergence of the criminal procedure

III. TERMINOLOGICAL QUESTIONS AND CHARACTERISTIC

72 See Mar Jimeno-Bulnes, La Participación Popular en la Administración de Justicia

2013] AMERICAN CRIMINAL PROCEDURE 427

procedures 75 that are rooted in this inquisitorial background. The

75 Thomas Volkmann-Schluck, Continental European Criminal Procedures: True or

428 CARDOZO J. OF INT’L & COMP. LAW [Vol. 21:409

should be understood today as due process of law. 80 It should be

Inutilidad Jurídica de un Eslogan Político, PRUEBA Y PROCESO PENAL 17, 22 (Colomer

2013] AMERICAN CRIMINAL PROCEDURE 429

inquisitorial criminal procedure is a contraditio in terminis. 84 The

430 CARDOZO J. OF INT’L & COMP. LAW [Vol. 21:409

how to best reconstruct the criminal procedure of its own

2013] AMERICAN CRIMINAL PROCEDURE 431

synonymously. 93 Additionally, the characteristics of both are often

93 See, e.g., Joachim Herrmann, Various Models of Criminal Proceedings, 2 S. AFR. J.

432 CARDOZO J. OF INT’L & COMP. LAW [Vol. 21:409

predominant in adversarial systems, 97 as proceedings usually

97 See Jacqueline Hodgson, Conceptions of the Trial in Inquisitorial and Adversarial

2013] AMERICAN CRIMINAL PROCEDURE 433