To convict an innocent person or to free a guilty person are tragic results. It is particularly tragic when the guilty person goes free only to commit another crime or the innocent person is sentenced to either death or a period of very long incarceration.
O J Simpson's innocent verdict was the talk of the country for several months after it happened; less discussed was the situation in Illinois where a dozen death row inmates where found to be innocent by virtue of newly developed DNA testing. The situation in Illinois was so alarming that the Governor had to suspend all executions indefinitely; no one had any confidence that justice had been done in Illinois' courts.
Most recently the Avila/Runnon murder case in California has attracted national attention. John Walsh, the host of America's Most Wanted, a weekly tv show, was on Larry King Live on Aug. 8th, 2002. In the course of the interview King remarked that Avila, the pervert who killed Samantha Runnon, had been tried earlier and acquitted of molesting another child. Earlier in the week King had interviewed the mother of that molested child. She had explained how Avila's defense lawyer had managed to win acquittal for Avila.
Walsh remarked that the Avila case is not unusual. Walsh went on the say that many molesters are able to win acquittal on their first offense or even their first two. He pointed out that the criminal justice system is flawed in a couple of major ways. First it allows prosecutors to plea bargain away major charges down to lesser charges, in some cases much lesser charges. Second, if the case goes to trial, it oftentimes pits a relatively unskilled prosecutor against a very skillful defense attorney particularly if the accused has access to some money. These flaws in the system oftentimes yield very aberrant results.
Walsh had, in this exchange with King, put his finger on two of the major problems with America's criminal justice system.
Fortunately, the world has produced a criminal justice system that gets rid of these flaws and gets very accurate results most of the time. The rest of this essay is devoted to explaining how this alternative system works.
The system that has performed so well is the Criminal Justice system found in continental Europe. In this system a three step system is used after a crime has been committed. First investigating prosecutor is sent out to work with the police to ascertain the facts and identify possible suspects. As the inquiry progresses this prosecutor presents a complete review of the facts to an older examining judge The examining judge will call the suspect in and ask the suspect questions. The suspect may be represented by counsel if he chooses and he may answer some questions or not answer other questions as he sees fit. This examining phase is closed to public. At the end of this phase, the examining judge will either let the matter drop or call for a trial to be held on the most appropriate charge.
If a trial is held, the trial will be before a jury and it will be open to the public. Again the suspect is allowed to have counsel and he may pick and chose which questions he will answer. At the end the jury must decided the suspects guilt or innocence. Even if the suspect and the police have agreed to a "plea bargain" the trial must be held and the result certified by the jury. It is not uncommon for the jury to refuse to go along with a deal which the suspect and the authorities have worked out in advance.
Why does this system yield better results than the common law system found in America? (1) There is the involvement of a judge early in the process. In America the decision to go to trial is handled by a prosecutor presenting only evidence favoring a conviction to a grand jury with no involvement of a judge. This is to be contrasted with the European System where in the "examination" phase an experienced judge questions the suspect and weighs all evidence pro and con before deciding whether or not to go to a jury trial. (2) The plea bargain is essentially eliminated in the European system, the suspect has to be tried before a jury for the actual crime committed. (3) The European system has essentially a two trial system for every crime. The first trial is before a trained judge, the second trial is before a jury of the suspect's peers. The system essentially requires that the suspect be found guilty at both stages.
Obviously, mistakes can be made in any system. However, a system where both the common everyday sense of a jury and the long time experience of a trained judge get to evaluate the evidence and the suspect has to be the preferred system.
So why doesn't America adopt such a clearly superior system. There are probably three reasons: (1) The system gives more power to juries and judges and takes power away from everyday lawyers such as criminal defense lawyers and prosecutors. In a proceeding where the judge is pro active inquiring into the matter and sifting through the evidence the defense counsel is no longer a actor/orator dazzling the jury but rather a person who sees to it that his client's evidence gets full attention. In like manner, the hard nosed American prosecutor running for re-election becomes the methodical fact gathering court employee inquiring into things and gathering facts to present to the examining judge. (2) If the criminal justices system from continental Europe is adopted American lawyers are fearful that this country would also adopt the tort system from continental Europe. This would be a major change in how lawyers operate in America. The European Tort system is far cheaper than America's system and in most cases avoids the need for a trial. Judges are more heavily involved and lawyers are much less involved. This means that high paid private attorneys are reduced in importance while judges who are on the public payroll are more important. All in all, the European tort system is cheaper and faster than the current American system. (3) The American legal process is very bound up in tradition. When asked "Why do you do it that way?" an American lawyer oftentimes answers with "But you see, we have always done it that way." This attitude makes it difficult for member's of America's legal fraternity to accept change.
NOTE: This essay was written by referring regularly to Chap. 17 of John H. Merryman's book The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America. (Second edition 1985) Published by the Stanford University Press. The final paragraph in this chapter reads as follows:
"For those readers who wonder which is the more just system, the answer must be that opinion is divided. Recently a Harvard professor wrote a book charging American criminal procedure with 'denial of justice' and advocating reforms along French lines. Other Americans have sought to prove that our system is fairer to the accused. The debate is clouded by ignorance of the law and practice in civil law nations and by preconceptions that are difficult to dispel. In the end the statement made by an eminent comparative scholar after long and careful study is instructive: he said that if he were innocent he would prefer to be tried by a civil law court, but if he were guilty , he would prefer to be tried by a common law court. This is, in effect, a judgement that criminal proceedings in a civil law world are more likely to distinguish accurately between the guilty and the innocent."