| How efficient is our system of criminal
trial? Does it really do the basic job we ask of it — convicting the guilty and
acquitting the innocent? It is often said that {{U}}the British trial system is
more like a game than a serious attempt to do justice{{/U}}. The lawyers on each
side are so engrossed in playing bard to win, Challenging each other and the
judge on technical points, that the object of finding out the truth is almost
forgotten. All the effort is concentrated on the big day, on the dramatic cross
examination of the key Witnesses in front of the jury. Critics like to compare
our "adversarial" system (resembling two adversaries engaged in a contest) with
the continental "inquisitorial" system, under which the judge play a more
important inquiring role. In early times, in the Middle Ages, the systems of trial across Europe were similar. At that time trial by "ordeal" — especially a religious event — was the main way of testing guilt or innocence. When this way eventually abandoned the two systems parted company. On the continent church-trained legal officials took over the function of both prosecuting and judging, while in England these were largely left to lay people, the Justice of the Peace and the jurymen who were illiterate and this meant that all the evidence had to be put to them orally. This historical accident dominates procedure even today, with all evidence being given in open court by word of mouth on the crucial day. On the other hand, in France for instance, all the evidence is written before the trial under supervision by an investigating judge. This exhaustive pretrial looks very undramatic; much of its is just a public checking of the written records already gathered. The Americans adopted the British system lock, stock and barrel and enshrined it in their constitution. But, while the basic features of our systems are common, there are now significant differences in the way serious cases are handled. First, because the USA has virtually no contempt of court laws to prevent pretrial publicity in the newspaper and on television, Americans lawyers are allowed to question jurors about knowledge and beliefs. In Britain this is virtually never allowed, and a random selection of jurors who are presumed not to be prejudiced are empanelled. Secondly, there is no separate profession of barrister in the United States, and both prosecution and defense lawyers who are to present cases in court prepare themselves. They go out and visit the scene, track down and interview witnesses, and familiarize themselves personally with the background. In Britain it is the solicitor who prepares the case, and the barrister who appears in court is not even allowed to meet witnesses beforehand. British barristers also alternate doing both prosecution and defense work. Being kept distant from the preparation and regularly appearing for both sides, barristers are said to avoid becoming too personally involved, and can approach cases more dispassionately. American lawyers, however, often know their cases better. Reformers rightly want to learn from other countries' mistakes and successes. But what is clear is that justice systems, largely because they are the result of long historical growth, are peculiarly difficult to adapt piecemeal. |