Global Jurist

Global Jurist Frontiers Volume 9, Issue 4

2009

Article 6

Dances of Justice: Tango and Rumba in Comparative Criminal Procedure Elisabetta Grande∗

∗

Universit`a del Piemonte Orientale, [email protected]

Recommended Citation Elisabetta Grande (2009) “Dances of Justice: Tango and Rumba in Comparative Criminal Procedure,” Global Jurist: Vol. 9: Iss. 4 (Frontiers), Article 6. Available at: http://www.bepress.com/gj/vol9/iss4/art6 c Copyright 2009 The Berkeley Electronic Press. All rights reserved.

Dances of Justice: Tango and Rumba in Comparative Criminal Procedure∗ Elisabetta Grande

Abstract Different ideas about justice convey different images that can be captured by a dancing metaphor. This paper suggests that the adversary system can be associated with the idea of a ‘tango justice’; the non-adversary one with that of a ‘rumba justice.’ ‘Tango’ can be performed by two dancers and only by those two, acting together in the venture of establishing the adversarial truth. ‘Rumba,’ on the contrary, is performed by a variable number of dancers occasionally alone and occasionally in groups with many shifts and continuous substitutions of dancers and roles. It is a genuinely communal performance in the collective search of an objective truth. The paper shows that the two dances associated with the two systems reflect different notions of ‘truth’ and lead to different procedural arrangements consistent with their underlying tenets. KEYWORDS: comparative criminal procedure, search for the truth, common law, civil law

∗

I wish to warmly thank John Jackson and Maximo Langer for their invaluable help in the preparation of this paper, for which of course I bear full responsibility. This paper is an updated and slightly modified version of a study in honour of Professor Mirjan Damaˇska, published in Crime, Procedure and Evidence in a Comparative and International Context, Essays in Honour of Professor Mirjan Damaˇska (J. Jackson, M. Langer, P. Tillers eds.), Oxford and Portland, Oregon, Hart Publishing, 2008, 145 ff.

Grande: Tango and Rumba Justice

1.

Introduction: Observing procedures from the shoulders of the giants

More than thirty years ago, Professor Damaška offered his seminal contribution to comparative criminal procedure by demonstrating that serious comparative understanding, for the purpose of fruitful communication among legal traditions and of a better grasp of domestic procedural systems, requires a simple analytical tool.1 Damaška moved beyond the old taxonomy based on the over-used dichotomy of ‘accusatorial v inquisitorial’ procedures, which carries with it a multiplicity of referents, and as a result proving itself incapable of a clear contraposition between the two types of procedure. Damaška articulated the core contrast between contemporary common law and continental criminal procedures as involving alternative patterns of distributing procedural control. His observation of the systems in action located the essence of the common law style, ie of the adversary model, in the allocation of control over the proceeding to the conflicting parties of the dispute. He thus pointed to a sharp contrast with the fundamental matrix of the continental style, ie of the non-adversary model, where that same control is allocated to non-partisan officials. Where parties monopolise procedural action, the process takes the form of a contest between the prosecution and the defence; on the contrary, where the judge or some other official is in charge, the process turns into an enquiry into the alleged commission of a crime. Organising the two rival procedural models around the basic idea of a party-controlled contest as opposed to an officially-controlled inquest, provided the intellectual framework for grasping the intimate essence of the two procedural styles and a fresh understanding of their different structural arrangements. In a new light, many features, which according to the old taxonomy were considered as essential characteristics of one of the two contrasting models, proved to be comparatively irrelevant. Thus, many procedural arrangements historically associated with the inquisitorial or the accusatorial models, such as for example — in relation to the former — a career judiciary, secrecy, and written evidence, or — concerning the latter — jurors, publicity and oral testimony, appeared compatible with both models of procedure when approached in practice. Thus ‘[f]orensic contest can’ indeed ‘unfold in secrecy, before career judges, with disputation centring on documentary evidence, while an official inquiry can be conducted in public, by lay persons who rely on oral testimony.’2 The inquisitorial v accusatorial opposition was consequently comparatively sterile; the fundamental difference between common law and civil law procedures had to be grasped 1

MR Damaška, ‘Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study’ (1973) 121 University of Pennsylvania Law Review 506. 2

MR Damaška, ‘Models of Criminal Procedure’ (2001) 51 Zbornik PFZ (Collected Papers of Zagreb Law School) 477, 484. Published by The Berkeley Electronic Press, 2009

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Global Jurist, Vol. 9 [2009], Iss. 4 (Frontiers), Art. 6

elsewhere. In the new alternative perspective, presented by Damaška, the focal point capable of differentiating the common law proceeding from the continental one is the role assigned to the parties as opposed to the officials in the fact-finding process: a common law model of fact-finding managed by two contestants, who shape the extension of their dispute, as opposed to a continental model where factfinding responsibilities are assigned to court officials. At the core of this polarisation lies a very different attitude toward the search for the truth characterising the two procedures. In this paper I submit that, far from one procedural type being more committed to the truth than the other,3 the systemic difference, clarified by using Damaška’s framework, is to be located in the paths that the systems follow in searching for the truth and in the assumptions about what type of truth is deemed discoverable through the criminal process.4 Starting from the idea that a third party ascertainment of the truth is possible, the non-adversary system pursues the discovery of an objective truth (the ‘revered continental concept of substantive truth’5 as opposed to the procedural truth), which I will call ontological truth, based as it is on the belief that an objective reconstruction of reality is attainable. For this purpose, the enquiry is assigned to non-partisan officials. Being responsible for the ultimate decision on the issue of guilt or innocence, they are committed to the completeness of the evidentiary data-base and to the accuracy of factual findings. In this sense, the discovery of the ‘ontological’ truth follows the ordinary patterns of everyday life. As Damaška explains: In their personal and business affairs, people are in the habit of actively taking part in obtaining knowledge about facts on which their decisions turn. As students, they ask questions in wrestling with ideas expressed in professional lectures. And in specialized fields of inquiry — such as history — they cherish their freedom actively to inform themselves about the subject of their study.6

3

For a strong argument in support of the thesis that one procedural type is more committed to the truth than the other, see MR Damaška, Evidence Law Adrift (New Haven, Yale UP, 1997) 120ff and Damaška, above n 1, 578ff. 4

For a deep discussion as to whether aspiring to objective truth is realistic, see MR Damaška, ‘Truth in Adjudication’ (1998) 49 Hastings Law Journal 289. Even if one deems that in the abstract an objective truth is discoverable, it still remains open to question how in concrete terms the objective truth is attainable in the criminal process. However, this chapter does not dare tackle the major philosophical debate about the nature of ‘truth’. 5

Damaška, above n 1, 581, n 199.

6

Damaška , above n 3, 90.

http://www.bepress.com/gj/vol9/iss4/art6

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Consequently, justice in the non-adversary model is believed to be served when the ascertainment of the objective, substantive, ontological, truth has been accomplished. By way of contrast, the adversary system adopts the perspective that there is no such ontological truth that can be ascertained by a neutral party, because neutrality is simply impossible to achieve. Even genuinely disinterested third parties inevitably form early hypotheses of the reality they seek to reconstruct. ‘Because people assimilate information selectively’,7 their initial hypothesis makes them more receptive to evidence confirming it. Consequently, they will interpret in an unconsciously biased way the information they assume in order to ascertain the truth. As a result of the recognition of these cognitive limitations, adversary systems deem any third party reconstruction of the facts as biased and non-objective and a truly non-partisan approach in searching for the truth as unachievable in the human world. The search for the truth in a legal process needs therefore to depart from ordinary cognitive practices, and has to be pursued through a fair confrontation of two parties, each one promoting her side of the story in front of a passive adjudicator. What results is a different notion of truth that, short of being ‘ontological’, is indeed the product of a contest between two interpretations of reality 8. In this paper I will call this conception of truth interpretive truth to point to its scepticism towards an objective reconstruction of reality. In this perspective, the only realistically discoverable truth is a ‘second-best’ one, compared to the ‘ontological’ truth pursued by non-adversary systems. This ‘interpretive’ truth emerges from the parties’ opposing views of reality, provided — of course — that fair rules are established and respected. Justice and fairness are thus inevitably strictly equated in the adversary model because only a fair contest can bring about just results.9 The ‘relational’ nature of the truth-discovering enterprise in an adversary system produces what I would call a ‘tango’ idea of justice. As in tango, where it takes two — and only two — to dance, in an adversarial conception it takes two to produce a reconstruction of reality that can be equated to truth.10 I will later develop an alternative notion of justice based on the metaphor of the rumba dance. As in the dance, in ‘rumba justice’ a variety of dancers (the parties, 7

Ibid 95.

8

For a more nuanced view on the search for the truth in the two systems, see T Weigend, ‘Is the Criminal Process about Truth?: A German Perspective’ (2003) 26 Harvard J.L.& Pub. Pol’y 157. 9

For a philosophical point of view on the subject, see J Rawls, A Theory of Justice (Cambridge, Mass, Harvard University Press, revised ed. 1999). 10

In this sense, the dispute-solving goal does not seem at odds with a truth-finding goal. In fact, the former is the essence of the latter, because in the adversary system solving the dispute is the method to ascertaining the truth. Published by The Berkeley Electronic Press, 2009

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the victim, and the officials) perform together in a collective search for the ‘ontological’ truth. To sum up and restate my argument, the historical truth that the two models assume is discoverable through the criminal process is different: an ‘ontological’ (or ‘objective’, or ‘substantive’) as opposed to an ‘interpretive’ truth. I argue that the continental idea of justice, or ‘rumba justice’, reflects the notion of an ‘ontological’ truth, while ‘tango justice’ reflects the notion of an ‘interpretive’ truth. This is not an essay on the relationship between justice and truth in general. Rather, I wish here only to show that discrete notions of truth might carry different notions of justice. When justice is located within an adversary framework of ‘interpretive truth’ it equates to fairness. When on the contrary it locates within a continental idea of ‘ontological truth’ it differs from the notion of fairness being a thicker concept. 2.

The recent roots of interpretive truth in the common law

The divergence between non-adversary and adversary models outlined above, ie between non-partisan and dialectical searches for the truth in the criminal process, does not reach far back into the history of legal systems. On the contrary, as with many relevant systemic differences, it is relatively recent. According to John Langbein, its origins can be traced back to the end of the eighteenth and the beginning of the nineteenth centuries.11 After the abandonment of trial by battle, as early as the thirteenth century, common law lawyers deployed a criminal procedure system where the search for the truth was largely entrusted to a trier of fact who actively intervened in the factfinding process. This was so, not only during Angevin times, when juries were self-informing,12 but also until much later. To be sure, by the late fifteenth century, ‘it had become expectable that jurors would be ignorant of the crimes they denounced and determined’.13 But still well into the end of the eighteenth century, despite the celebrated ‘altercation’ 11

JH Langbein, ‘The Criminal Trial before the Lawyers’ (1978) 45 University of Chicago Law Review 263, 316. (‘Adversary procedure cannot be defended as part of our historic common law bequest.’)

12

‘In the thirteenth century “it is the duty of the jurors, so soon as they have been summoned, to make inquiries about the facts of which they will have to speak when they come before the court. They must collect testimony; they must weigh it and state the net result in a verdict.” Medieval juries came to court more to speak than to listen’: JH Langbein, ‘The Origins of Public Prosecutor at Common Law’ (1973) 17 The American Journal of Legal History 313, 314 quoting F Pollock and FW Maitland, The History of English Law before the Time of Edward 1 vol 2 2nd edn, (Cambridge, Cambridge UP 1898) 624-25.

13

Ibid 315.


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between citizen accuser and citizen accused described by Sir Thomas Smith,14 the normal absence of prosecution and defence counsel (except than in cases of treason) pressed the judge, as a third party, to assume an active role in the factfinding process. As Langbein explains, reporting on the unfolding of the Old Bailey trials, ‘To the extent that evidence was not adduced spontaneously in the altercation of accuser and accused, it was the trial judge who examined the witnesses and the accused, and it was he who, like the modern Continental presiding judge, dominated the proceedings.’15 ‘It was the task of the trial judge to help the accuser establish the prosecution case as well as to be “counsel for the defendant”.’16 ‘The common practice clearly was for the judge to take the victim and any accusing witnesses through their testimony line by line, acting as both examiner and cross examiner, until he was satisfied that the fullest possible case had been presented.’17 The trial judge, moreover, relentlessly questioned the accused, who was urged to speak, in a truth finding effort that mirrored ordinary cognitive practices.18 Throughout the eighteenth century, consistent with the goal of the criminal process being to discover the ‘ontological’ truth, guilty pleas were virtually non-existent and judicially rejected on the grounds that they were not voluntarily given.19 In common with both the old and the modern Continental judge, the common law trial judge before the late eighteenth century combined the task of fact-finding with the task of fact adjudication: ‘The Old Bailey judge was a real participant in adjudication, and in this sense his role was closer to that of the Continental judge than to that of the passive traffic controller who presides over modern Anglo-American adversary system.’20 14

T Smith, De Repubblica Anglorum (Mary Dewar, ed, Cambridge, Cambridge University Press, 1982, 1st ed, 1583), bk 2, ch 23.

15

Langbein, above n 10, 315.

16

JH Langbein , ‘The Historical Origins of the Privilege against Self Incrimination at Common Law’ (1994) 92 Michigan Law Review 1047, 1051.

17

Ibid n 16, quoting JM Beattie, Crime and the Courts in England:1600-1800 (Princeton, Princeton UP, 1986) 342.

18

‘[T]he very Speech , Gesture and Countenance, and Manner of Defense of those who are Guilty, when they speak for themselves, may often help to disclose the Truth, which probably would not so well be discovered from the artificial Defense of others speaking for them’: W Hawkins, 2 A Treatise of the Pleas of the Crown (Garland Publishing, 1978, London 1721) ch. 39, §2 as quoted by Langbein ibid 1053.

19

JH Langbein, ‘The English Criminal Trial Jury on the Eve of the French Revolution’ in Antonio Padoa Schioppa (ed), The Trial Jury in England, France, Germany 1770-1900 (Berlin, Duncker and Humblot, 1987) 29.

20


Published by The Berkeley Electronic Press, 2009

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The judge used to maintain an informal communication with jurors, which enabled him to control their deliberations. The close interaction between judge and jury ‘allowed the trial judge to get some insight into jurors’ thinking before they left for deliberations; further, the judge could also discover the reasons for a proffered verdict when the jury returned from deliberations, because in many cases the jury either volunteered the information or supplied it under questioning by the judge’.21 In fact, ‘If the jury attempted to return a verdict (whether of guilt or innocence) that displeased the judge, the judge had the power to reject it provisionally. He would then question the jurors about their thinking, explain to them why he differed with them (be it on matters of law or fact), and require them to deliberate and decide again. It took a determined jury to resist such pressure.’22 Jury verdicts were in sum, ‘collaborative products, impounding deep judicial involvement on the merits’23 and the pursuit of the truth was very much a matter of judicial enquiry.24 Common law and continental proceedings were consequently not distinguishable at this time along the lines of the party-controlled contest \ officially-controlled inquest alternative suggested by Damaška, although there were a number of contrasting features between them, many of which were associated with the repressive arrangements of the continental criminal procedure prior to the French revolution. The revolutionary change that accounts for the modern polarisation between non-adversary and adversary models has its roots in more than one factor. What made the common law depart from a searching style for the ontological truth, which was up to then shared with its continental counterpart? Certainly, the lawyerisation of the proceedings, ie the advent of an era in which lawyers both for the prosecution and the defence became the main actors in the common law criminal process, can be held accountable for the rise of the new 21

JH Langbein, ‘Historical Foundations of the Law of Evidence: A View from the Ryder Sources’ (1996) 96 Columbia Law Review 1168, 1190.

22


23


24

Even before John Langbein’s research, conducted on the Old Bailey Session Papers, produced strong evidence of it, Professor Damaška pointed out how common law criminal proceedings before the nineteenth century were fundamentally non-adversary. ‘The adversarial style of processing criminal matters is largely a product of the early 19th century. Until the middle of that century, the pretrial phase of the process was essentially a type of judicial investigation along inquisitorial lines conducted by justices of the peace. Nor was the trial an adversary battle of counsel. Lawyers would seldom appear for the prosecution and defense counsel were not admitted in ordinary felony cases until 1837. In this situation the judge called witnesses and examined them, and in the century prior, had also interrogated the defendant.’: MR Damaška, ‘Structure of Authority and Comparative Criminal Procedure’ (1975) 84 Yale Law Journal 480, 542, ft. 156. http://www.bepress.com/gj/vol9/iss4/art6

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style. Prosecuting counsel had always been permitted, but rarely employed until the early eighteenth century. English courts allowed felony defendants to have the assistance of counsel as early as the 1730s but solely for the purpose of examining and cross-examining witnesses. In 1836 a statute finally allowed defence counsel to make a closing address to the jury. Beginning in the 1780s, defence representation at trial became the rule. By the end of the eighteenth century, the regular presence of opposing counsel pressed the judge to become passive while counsel conducted the trial.25 The novel posture of the trial judge as a mere umpire of the forensic contest was certainly made easier by the very fact of the existence of the jury as a separate body accountable for fact determination. Released from the ultimate decision on the issue of guilt or innocence — a task that jurors now exclusively had to bear on their shoulders — the trial judge could easily divest himself of the authority over the fact-finding process. The absence of a bureaucratic pre-trial procedure, of the sort that was in place on the Continent with its emphasis on a judicial search for the truth as opposed to the English system of private prosecution, helped the transition to the adversarial style as well.26 Another important factor accounting for the common law adversarial style was the strong impact of laissez-faire Lockean values on English institutional arrangements in general and, for the purpose of the present argument, on procedural choices in particular. The narrowing of judicial functions was indeed germane to the ambition of classic English liberalism to limit state intervention. The government was to be kept out of the citizen’s life as much as possible and the role of the judge was to be limited in the criminal process. The classic liberal urge to keep the state at arms length required the restructuring of the criminal process as a dispute between two sides — the prosecution and the defence (very much conceived as private parties) pursuing their opposing interests in front of a passive state official who was given virtually no involvement in the investigation of the actual facts. In the classic liberal framework, any intervention of the judge in shaping the proceeding — by raising matters, adducing or supplementing parties’ evidence, examining or cross-examining witnesses, raising ex officio questions of admissibility or inadmissibility, rejecting parties’ stipulations, and so forth — was 25

For bibliographical support on all these points see JH Langbein, ‘The Historical Origins’, above n 15, 1048,1057ff. The regular presence of opposing counsels is postponed by almost a century in S Summers’ anaysis, Fair Trials. The European Criminal Procedural Tradition and the European Court of Human Rights, Oxford and Portland, Oregon, Hart Publishing, 2007, 80 ff.

26

On this point see more extensively JH.Langbein, ‘The Criminal Trial’ above n 10, 316. Professor Langbein’s thoughts on the origins of the adversarial style in criminal matters are to be found in JH Langbein, The Origins of Adversary Criminal Trial (Oxford, Oxford University Press, 2003). Published by The Berkeley Electronic Press, 2009

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perceived as an unacceptable invasion of individual freedom by the state. As a result any official control over fact-finding had to be removed. Henceforth, the search for the truth was assigned to the battle between the adversaries and, in order to make the battle a fair contest, the law of evidence, only applicable on request by the parties, was developed. Underlying the new procedural style was a general attitude of scepticism toward objectivity: ‘Since no belief or idea regarding human affairs’ was considered ‘exclusively or demonstrably true’,27 a third party factual enquiry was regarded as an imposition upon the parties of an arbitrary single-sided reconstruction of reality. Thus, according to classical liberal ideology, neutrality and objectivity, viewed as unattainable in the human world, were even more suspect if vested in the much distrusted state officials. In the common law perspective, a change of view of what promoted veracity occurred. The new order substituted the previous reliance upon a third party factual enquiry with the faith in the truth-detecting efficacy of a fair contest between two parties. An ‘interpretive’ truth, stemming from an equally-balanced confrontation between two one-sided accounts of reality (neither one of them possessing the complete truth), took the place of the ‘ontological’ truth as ascertained through a neutral enquiry. In light of this transformation, fairness became the cipher of justice, substituting the ‘impossible’ discovery of the ‘objective’ truth. To borrow from Damaška’s words: Transplanted to America, the classic liberal ethos fell upon fertile soil (…) such circumstances as the frontier society, the natural abundance of resources, and the religious legacies of 17th century Protestantism, facilitated the introduction of liberal disposition toward authority into the American political culture to an extent astonishing even to English 19th century liberals.28 3.

The confirmation of the ontological truth in continental Europe

To be sure, the attack launched by the classic liberal credo against the very idea of a ‘neutral’ enquiry in the search for the truth did not spare the Continent either. Over time, changes in continental procedural arrangements show the desire of continental systems to cope with the ‘lack of neutrality’ problem. Nevertheless, they never went so far as to provoke the Copernican revolution that occurred in the common law world. Continental lawyers refused in fact to renounce the idea of searching for a ‘substantive’ (or ‘objective’ or ‘ontological’) truth in the criminal process. 27


28

Ibid 542.


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Starting from the beginning of the nineteenth century, the secret, unilateral, and official enquiry that had dominated previous continental criminal proceedings for more than half of a millennium came increasingly under attack. Over the next 200 years, continental criminal procedure was relentlessly modified in order to make its features compatible with the changed political and social climate that followed the French Revolution. Continental systems seeking to protect defendants against governmental oppression abandoned for good negative features like the absence of specific charges, unlimited pre-trial detention, the presumption of guilt, coerced and unreliable confessions, unbridled searches and the absence of right to defence counsel. Changes in continental procedural arrangements were also aimed at coping with the problem of the possible lack of neutrality of the official truth seeker. It became clear that the more the enquiry was unilateral, the higher the risk of undermining the truth seeker’s impartiality. From this perspective, the introduction in the French Code d’instruction criminelle of 1808 of two additional figures — the prosecutor and the defence counsel — within the new, so-called, ‘mixed’ system of criminal procedure was the first step in the move towards making the official enquiry more pluralistic and unbiased overall. The prosecutor was given the novel function of limiting the power of the investigative judge in setting the boundaries of his inquiries in the investigative phase and the defence counsel became entitled to participate in proof-taking and to offer through argument and debate a contrasting point of view to the inquirer in the trial phase29. After World War II, many changes aimed at increasing the official truth seeker’s neutrality occurred in the various continental criminal procedures. The traditional investigative monopoly of state officials was everywhere abandoned for a multilateral approach. In this spirit, defence attorneys were granted a role in the investigative phase of the proceeding, acquiring the right not only to inspect the dossier freely but also to be present when many procedural activities were taking place and to offer counter-proof and counter-arguments. Moreover, in many countries the defence (and in some countries, like France and Italy, also the victim), were allowed to ask for the performance of investigative steps and in case of refusal were entitled to a formal reply subject to review30. By granting the defence (and sometimes the victim) a greater input into officially conducted investigations, European systems transformed the search for the truth from unilateral inquiries into a sort of collective enterprise. They increased the plurality 29

Damaška above n 23, 535; F Cordero, Procedura penale (Milano, Giuffré, 1998) 64.

30

See generally, M Chiavario (ed.), Procedure penali d’Europa (Padova, Cedam, 2002). Regarding France, see ibidem, 148; regarding Italy, see O Vannini, G Cocciardi, Manuale di diritto processuale penale italiano (Milano, Giuffré,1986) 368. For Spain see R Vogler, ‘Spain’, in Criminal Procedure. A Worldwide Study (CM Bradley ed), Durham,N.C., Carolina Academic Press, 1999, 383. Published by The Berkeley Electronic Press, 2009

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of perspectives and as a consequence the impartiality of the official in charge of the enquiry. Italy went even further legitimating, after December 2000, a system of two parallel (but interrelated) investigations, an official and a private one, the latter conducted by the defence.31 The enhanced right of the defence to oppose all incriminating evidence in the trial phase and to have exculpatory evidence produced also provided for a more serious pluralistic approach to the overall official search for the truth. In the same effort to enhance the neutrality of the official search for truth, other reforms took place in continental European countries. The prohibition against the investigative judge also being a member of the trial court panel (eg in France) helped to fragment the official authority in charge of the enquiry and led to a plurality of perspectives within the very decision making process (internal perspective)32. The sharp severance of the investigative and judicial functions, achieved by abolishing the investigating judge altogether in Germany in the 1970s and in Italy after 1988, served the same goal. Other reforms limiting the use of evidence from the official file of preliminary investigative activities favoured a fresh understanding of the facts by the trial judge. The strongest severance between investigation and adjudication in order to safeguard the truth seeker’s impartiality was accomplished by the Italian system in 1988. In order to insulate the trial judge completely from the approach taken by the public official during the pre-trial phase, the Italian Code does not permit the previously gathered investigatory product to be made available to him. Thus the Italian trial judge today approaches the case as a tabula rasa 33. In continental systems the old tradition of appellate supervision of criminal trial courts provides, moreover, for a further fragmentation of the official authority in charge of the enquiry, enhancing the internal plurality of perspectives. The transformation of continental procedure from an official unilateral enquiry into a pluralistic one, accomplished by increasing the plurality of 31

See Law of December 7, 2000 ‘Disposizioni in materia di indagini difensive’, Gazzetta Ufficiale n 2, January 3, 2001. The defence, conducting her own investigation, is still allowed to be present when most prosecutorial activities are under way. Freely permitted to contact ‘her own’ witnesses in the pre-trial phase, the defence may make the prosecutor interview potentially favourable witnesses on her behalf or seize materials in her interest (thus obtaining help from him with her own investigation). In the same vein the defence can also ask the prosecutor, at the end of the prosecutor’s investigation, to gather new exculpatory evidence. Both parties, moreover, are allowed to freely inspect each other’s dossiers before the trial begins.

32

See Procedure penali d’Europa above n 29, 118; see also art. 61 of the previous Italian Criminal Procedure Code (1930) and, for the reform that took place in Portugal in 1988, see J de Souto de Moura, ‘The Criminal Process in Portugal’ in The Criminal Process and Human Rights. Toward a European Consciousness (M Delmas-Marty ed), 1995, The Hague,Kluwer Academic Publisher, 48.

33

Art. 431 of the current Italian Criminal Procedure Code.


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perspectives upon which judgments could be based, made continental justice — in a dancing metaphor — resemble the ‘rumba’ dance, in which many dancers in different capacities dance together in the common enterprise of discovering the truth. This was the reply to the ‘lack of neutrality’ problem raised since the end of the seventeenth century by English classic liberalism. Therefore, in the continental world neutrality is still considered attainable in the criminal process, and the search for an ‘objective’ truth has never been replaced with a search for an ‘interpretive’ truth. Officials, made as impartial as possible, are still charged with the task of searching for it, and this is so even in Italy (the most ‘revolutionary’ country among all European continental countries) where the convergence toward the adversary model has reached a highpoint. In the continental criminal process, justice — never equated to fairness — continues to be associated with the neutral search for a substantive, ‘ontological’ truth. 4.

‘Tango’ and ‘rumba justice’

Different ideas about justice convey different images that can be captured by a dancing metaphor. The adversary system can be associated with the idea of a ‘tango justice’; the non-adversary one with that of a ‘rumba justice’. ‘Tango’ can be performed by two dancers and only by those two, acting together in the venture of establishing the adversarial truth. ‘Rumba’, on the contrary, is performed by a variable number of dancers occasionally alone and occasionally in groups with many shifts and continuous substitutions of dancers and roles. It is a genuinely communal performance in the collective search of an objective truth. The two dances associated with the two systems lead to different procedural arrangements consistent with their underlying tenets. Let me point to some of them. As already mentioned, the different role assigned to the adjudicator as an active searcher for the ‘ontological’ truth, as opposed to a passive spectator of a dialectical confrontation producing the ‘interpretive’ truth, provides for the most obvious clash of procedural arrangements. An adjudicator’s ‘neutrality’ acquires a different meaning in the two systems. In the adversary system, neutrality is synonymous with passivity; in the non-adversary one, the same concept is equated to impartiality. This in turn implies that in the continent the adjudicator, as a super partes (as much as possible non-biased) agent has the duty to conduct his factual enquiry both against and in favour of the accused, raising matters and adducing evidence whenever this initiative appears to him important to the discovery of ‘objective’ truth. As the truth seeker, the impartial adjudicator in continental criminal procedure needs control over the fact-finding process and even where — as in Italy — the legislator attempted to limit his factual enquiry powers, in a very short


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period of time he regained full authority.34 Continental faith in the ‘ontological’ truth, discoverable by a neutral, ie impartial, adjudicator, therefore prevailed in Italy over the adversarial approach toward an ‘interpretive’ truth. In order to discover the ‘ontological’ truth, it is essential to ensure that the evidentiary material is as complete as possible. The completeness of the evidentiary material is, however, irrelevant to the ascertainment of an ‘interpretive’ truth; what matters is that procedures are fair, the only device capable of bringing about just results within that conception of truth. This is why, provided that fair rules are established and respected, parties in the adversary system are allowed to dominate the fact-finding process and freely determine what facts shall be presented and be subject to proof at trial, as well as what sources of information will be produced as evidence. This is so, even if their choices — as is very often the case35— produce a limited picture of reality. Through an adversarial lens, the full picture that emerges from the completeness of the evidentiary material available is in fact as illusory as the existence of the ‘ontological’ truth. Differently stated, in the adversarial perspective, a broader picture, attained through the activity of a third party, will not necessarily be more accurate. This attitude is explained by an underlying scepticism towards the notion of third party neutrality. In the search for an interpretive truth, the adversary system gives the defendant a monopoly over most defence issues and permits him to discharge them whenever he so decides. In contrast, ‘as part of his official duties the continental judge must raise all defense issues for which there is some support in the case. Any other arrangement is viewed as risking the conviction of an innocent person’,36 and therefore inherently unjust37. Provided they are voluntary and knowingly given, guilty pleas (even if they are the result of a bargain) are accepted in the adversarial perspective as consistent with the parties’ freedom to shape proceedings and to establish the 34

See, more extensively, E Grande, ‘Criminal Justice: the Resistance of a Mentality’ in JS Lena and U Mattei (eds), Introduction to Italian Law (The Hague, Kluwer Law International, 2002), 181, 201ff.

35

As extensively demonstrated by Professor Damaška: see above n 3, especially 92 and 100.

36

Damaška , above n 23, 535, n 137.

37

“ For example, if the defendant suffers from a mental disease, he may not wish to introduce that fact because of its stigmatizing effect, and the prosecutor may not wish to raise the issue because it could lead to the defendant’s acquittal on the ground of insanity. In an adversarial system, this will normally be the end of the matter, and the defendant’s insanity will not be part of the ‘truth’ of the case. In an inquisitorial system, by contrast, the court must (and will) explore the issue of the defendant’s mental state on its own initiative. Thus, the court strives to paint a complete picture of the ‘substantive truth’ even if it is against the wishes of the parties”, explains T Weigend, above n. 8, 170 f. http://www.bepress.com/gj/vol9/iss4/art6

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existence and the borders of their contest. They are part of the tango of justice, which can be danced by two and only those two together, as much as any other fair adversarial posture. The adjudicator’s passivity in watching this tango justice accounts for the regular acceptance of party stipulations as well. With no duty and willingness to intervene in the fact-finding enterprise, should the trial judge reject the stipulation ‘the resulting procedural action (would be) bound to be lifeless or anemic.’38 On the contrary, guilty pleas and plea bargaining are in principle extraneous to continental legal consciousness. The achievement of justice through the discovery of the ontological truth requires the adjudicator to proceed in his enquiry even if the defendant declares that he is guilty; the prosecutor in the same vein can be judicially obliged to prosecute. Judicial activism will compensate for both parties’ inactivity.39 To be sure, the trend to converge towards the adversary model, recently experienced by some continental systems (for example in France, Italy, Spain and Portugal), pressed them to introduce a very limited sort of plea bargaining. Justified on efficiency grounds, this new kind of ‘bargained justice’ is, however, very much at odds with the continental idea of achieving justice; rather perceived as a dismissal of justice, it has consequently been adopted with a limited scope.40

38

Damaška, above n 3, 104.

39

For a historical review of different attitudes toward plea bargaining in continental and common law traditions and for an analysis of negotiated justice in the International setting, see MR Damaška, ‘Negotiated Justice in International Criminal Courts’ (2004) 2 Journal of International Criminal Justice 1018. 40

The Law of March 9, 2004 which introduces in France the ‘procédure de comparution sur reconnaissance préalable de culpabilité’ limits the applicability of the procedure to crimes (délits) punishable with a maximum of 5 years of imprisonment, permitting a ‘bargained sentence’ not heavier than 1 year of imprisonment (and in any event not heavier than half of the sentence statutorily provided). In Italy the heaviest ‘bargained sentence’ was 2 years of imprisonment before the Law of June 12, 2003 was enacted. Today it is 5 years of imprisonment. In Spain the Ley de Enjuiciamiento Criminal (LEC), as amended in 2003, admits a bargained sentence up to 6 years of imprisonment; while in Portugal the heaviest bargained sentence, according to the amended art. 344 of the Código de processo penal ( lei n.48/2007 de 29 de agosto), has been increased from 3 to 5 years of imprisonment. For an account of the informal plea bargaining mechanisms in the German system, usually within a very much limited maximum penalty, see MD Dubber, ‘American Plea Bargains, German Lay Judges, and the Crisis of Criminal Procedure’ (1997) 49 Stanford Law Review 547, 558ff. See also T Weigend, ‘The Decay of the Inquisitorial Ideal: Plea Bargaining Invades German Criminal Procedure’, in Crime, Procedure and Evidence in a Comparative and International Context. Essays in Honour of Professor Mirjan Damaška (J Jackson, M Langer, P Tillers eds), Oxford and Portland, Oregon, Hart Publishing, 2008, 39 ff and B Huber, ‘Germany’, in Criminal Procedure in Europe (R Vogler,B Huber eds), Berlin, Ducker and Humbolt, 2008, 352. Published by The Berkeley Electronic Press, 2009

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The law of evidence in the adversary system plays the key role of establishing the rules that provide for a fair contest, allowing the tango to be successful in its production of the ‘interpretive’ truth. This law evens the playing field of the dispute by assuring the balancing of advantages between litigants in proof-taking activity, thereby giving the parties equal opportunities to present their view of reality. Should parties not be granted even chances in presenting their side of the story, a neutral — ie passive in the adversarial perspective — adjudicator would not be able to ascertain the ‘interpretive’ truth. Therefore, adversarial fairness underlies the truth-discovery process in the Anglo-American perspective. Cross-examination, hearsay prohibition, corroboration rules, the privilege against self-incrimination, compulsory process and many exclusionary rules are all designed to such an end. Consistent with the tenets of an adversarial approach, most evidence law is, however, only conditionally applicable: it comes to life only if the parties invoke its rules.41 Since litigants are presumed to know what is best for them, and since no one else can establish better knowledge, no one, and especially not the distrusted state official, can impose his view on the parties.42 The dancers draft their own script. Even intrinsic exclusionary rules which exclude material of dubious probative value apt to mislead the fact-finder43 and thus serving the purpose of safeguarding the accuracy of factual determination can normally be displaced by unilateral waiver, or party stipulations. This strikes the continental observer as a perversion of justice. In non-adversary systems by and large, evidentiary regulation is the province of the judge not of the parties, and this is especially so with regard to evidence rules meant to protect the accuracy of fact-finding.44 The duty to search for an ‘ontological’ truth prevents the adjudicator from taking into consideration information deemed to be insufficiently reliable. Such unreliable information is expunged from the evidentiary material that is used as the basis for the judgment, irrespective of whether or not the rule is invoked by the side adversely affected by the production of the prohibited material. Even in the Italian system, where the convergence toward the Anglo-American procedure has reached its zenith among all continental countries, parties do not have control over the application of 41


42


43

Such as for example, rules excluding gruesome or inflammatory evidence, or prohibiting character evidence or excluding certain types of statistical and scientific information. 44

Like for example rules prohibiting a testimony obtained in a way likely to modify the declarant’s self-determination (via lie detectors, narco-analysis, and so forth), that one finds in a variety of civil law jurisdiction. For a further discussion: see Damaška, above n 3, 87 and G Aimonetto, ‘L’acquisizione della prova dichiarativa nei principali sistemi processuali europei: riflessioni di sintesi’ in Bologna Conference Proceedings, ‘La prova dichiarativa nello spazio giudiziario europeo: mutuo riconoscimento e prospettive di armonizzazione’ 18-19 april 2007. http://www.bepress.com/gj/vol9/iss4/art6

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exclusionary evidence rules; their violation can in fact always be officially raised at any stage or level of the proceedings.45 In non-adversary systems the desire to meet the adjudicator’s investigative needs is a priority. Consequently, even if non-adversary systems have gradually implemented the parties’ right to confront all adverse evidence, these systems still permit the admission of both hearsay evidence and out-of-court secretly gathered declarations of witnesses, whenever they are not available in court because of intervening death, mental illness, or some other reason that makes their previous declaration impossible to repeat.46 This would probably strike the common law observer as a perversion of justice. Yet in the continent, where justice and fairness do not overlap, the former can be preferred to the latter in order to enable the fact-finder to consider the broadest picture of reality. In non-adversary systems, the fact-finder has to provide a fully reasoned judgment in writing which is always subject to supervision by an appellate court. This prevents the fact-finder from overweighing the value of the evidence that the parties have not confronted. Thus, from a continental jurist’s perspective, the sacrifice of fairness — brought by the use of written testimony that the parties have not confronted — does not preclude a just decision by the trial fact-finder. It is obvious at this point that these divergent conceptions of justice and their implementation lead to contrasting procedural arrangements that are occasionally shocking from the opposite perspective. An additional example can illustrate the issue. The conception that equates justice to fairness assumes that fair trial adjudication is final. The limited scope of appeals in common law jurisdictions — particularly in the United States, where appeals are restricted to questions of law47 and only against convictions — can thus be explained as a consequence of the internal logic of the adversarial system. True, since the jury’s verdict gives no reasons for its conclusions, there is little to review in appeal. But we can offer another explanation which is consistent with the adversarial ‘interpretive’ conception of truth: whenever fair rules have been applied in the trial contest between adversaries, the result is necessarily just. In America today, as with the appeal of felony of medieval times, when a fair battle is over, rien ne va plus. In many American jurisdictions this is the case to the great astonishment of the continental observer, even when a review of the 45

Art 191 n 2 of the Italian Code of Criminal Procedure. For a more extensive treatment: see E Grande, ‘Criminal Justice’, above n 28, 203 ff.

46

See arts 512 and 195 n 3 of the Italian Code of Criminal Procedure, or, in Germany, §§ 251 I, 252, 252 II StOP (Strafprozessordnung).

47

Leaving aside cases in which a directed verdict of acquittal is improperly denied.


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factual basis of the judgment would be necessary on the ground that fresh evidence has emerged after the trial is over.48 In 1993 the Supreme Court of the United States affirmed that: ‘a claim of actual innocence is not itself a constitutional claim’ and refused to find in violation of due process the very limited period permitted by one state for appealing a conviction which barred defendants from filing for a new trial based on newly discovered evidence.49 Within a strict adversarial perspective, the legal system is not equipped to redress the actual innocence of convicted defendants. The vindication of innocence based on newly discovered evidence is administered by executive clemency. In this way, the question is assigned to the political domain, rather than to the legal domain. On the contrary, equating justice with the discovery of the ‘ontological’ truth implies the need for direct reconsideration of the trial adjudication by a higher court.50 In this sense, appeal review is part of the ‘rumba justice.’ The review enables the supervision of the trial fact-finder’s use of the evidentiary material, the rationality of his enquiry into the facts, and whether the data that his judgment is based on are complete. This supervision is necessary for the sake of assuring that in the official enquiry, neutrality — in the non-adversarial meaning of impartiality — is respected so that the ‘ontological’ truth is actually discovered. In non-adversary systems written reasons, given in support of the trial adjudicating decision, provide the basis for appellate courts’ supervision. Issues both of law and of fact are subject to appeal and this is normally so — to the bewilderment of the common law observer — even in the case of acquittals,51 although double jeopardy provisions prevent the re-opening of criminal

48

For a vivid description of what this means in real life, see B Scheck, P Neufeld and J Dwyer, Actual Innocence (New York, Doubleday, 2000). For an overview of some recent changes in American law regarding post-conviction DNA testing see http://www.inocenceproject.org/news/National-View.php.

49

Herrera v Collins, (1993) 506 US 390. ‘Claims of actual innocence based on newly discovered evidence have never been held to state a round for habeas corpus relief absent an independent constitutional violation occurring in the underlying state criminal proceeding (…) This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution- not to correct errors of fact’ (400).

50

After 2000, this is so in France even for assize courts’ guilty pronouncements, previously not subject to appeal on any question of fact. However some restrictions still apply in Germany, particularly with regard to ‘mixed’ courts with lay assessors: see § 312 StOP.

51

This is also true in the Italian system after the Italian Constitutional Court held to be unconstitutional a statute (Law February 20, 2006 n 46 art 1) which, in the wake of the American system, provided that acquittals could not be appealed on factual grounds. See Decision no 26/2007 of January 24, 2007. http://www.bepress.com/gj/vol9/iss4/art6

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proceedings against defendants who have been definitively acquitted52. An ideal of justice in search of a ‘substantive’ truth, moreover, forces the legal system to give redress to actual innocence. The extraordinary remedy of re-opening criminal proceedings is always available after the trial to the innocent wrongfully convicted even where the defence were in possession of evidence pointing to innocence during the trial but failed to bring it to the attention of the trial court53. Many other different procedural arrangements in the two systems, mirroring different dances of justice, can be enumerated. Another interesting example is the different approach taken towards the imposition of res judicata upon civil suits arising out of criminal adjudication. In adversary systems the sceptical attitude toward the type of truth attainable in the criminal process (only a second-best, ‘interpretive’ truth) prevents the imposition of res judicata upon civil proceedings that are issued for damages arising out of the offence; whereas it is often the opposite in non-adversary systems, where criminal proceedings are deemed to achieve the ‘ontological’ truth even when the victim did not participate as a ‘civil party’ in the criminal proceedings. 5.

When should ‘tango’ begin?

I hope I have been able to demonstrate that adversary and non-adversary systems reflect two different approaches toward the search for the truth, both equally valid from their own theoretical point of view. I would like to address an additional question regarding the ‘tango’ vision of justice: when should ‘tango’ with its fair rules of the game begin? Differently stated: in which phase of the criminal proceeding should fairness, ie equal opportunities for the dancers to present their view of reality, take place? If we follow Langbein in thinking that ‘in matters of criminal procedure, pre-trial (…) shap(es) trial’,54 we must conclude that offering equal opportunities to the parties in the pre-trial phase is essential for the truth discovery enterprise. Yet, unfortunately this is often not the case in adversary systems, especially in the United States. In the pre-trial phase indeed, disparities of power are very strong between the individual and the powerful state, and the balancing of advantages is far from assured. Only the prosecutor in fact can make inspections, searches and seizures, or intercept conversations and communications 52

See eg arts 629 and 649 of the Italian Criminal Procedure Code. For a limited exception to this principle, see the German system, where the re-opening of a criminal proceeding can take place against the interest of a definitively acquitted person if he/she later confesses to the offense (§362n.4 and §373a).

53

See eg art 630 of the Italian Criminal Procedure Code.

54

JH Langbein, ‘The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: the Appearance of Solicitors’ (1999) 58 Cambridge Law Journal 314, 319. Published by The Berkeley Electronic Press, 2009

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or compel participation in line ups. The prosecution, moreover, ‘starts with the great investigative manpower of the police and adds to that the far greater investigative legal authority of the grand jury’s subpoena power’.55 The state is able to force witnesses to speak or third parties to produce documents or accomplices to waive their privilege against self incrimination through the use of the immunity grant. No similar opportunities are given to the defence, ‘who frequently find avenues of enquiry closed by a reluctance of witnesses to assist the accused’,56 and whose chances to obtain a trial court order for the production of documents and other tangible items in possession of third parties is very limited. ‘Prosecution’s investigators usually arrive first at the scene of the crime and begin their investigation when the trail is fresh, whereas defence counsel typically enters the picture at a much later date.’57 Forced by the lack of technical means to renounce a proactive defence (ie a defence aimed at proving innocence), the American defendant generally cannot even effectively engage in a reactive one (ie a defence merely aimed at disproving the inculpatory material gathered and presented in court by the prosecutor). The lack of extensive pre-trial discovery justified on fairness grounds as a correlative of the right to remain silent, gives a great advantage to the only litigant that in the pre-trial phase had the opportunity to gather the evidence, ie the prosecutor. Thus a principle grounded in fairness even precludes the preparation of a defence which is merely aimed at disproving the charge. In addition to the lack of technical means, almost 90 per cent of American defendants are disadvantaged by a lack of economic means.58 ‘The financial advantages of the State will overpower’ irreparably the defendant, ‘and leave (him) effectively at the mercy of prosecutorial whim’.59 With no means to pay investigators, forensic experts, or skilful counsel to search for the evidentiary material, and to sift it and prepare it, the defendant is deprived of a level playing 55

Y Kamisar, WR Lafave, JH Israel, NJ King, Modern Criminal Procedure (St. Paul Minn., West Group, 2005), 1221 quoting Justice Brennan, ‘The Criminal Prosecution: Sporting Event or Quest for Truth?’ (1973) 1963 Washington University Law Quarterly 279.

56

Ibid.

57

Ibid.

58

Innocence Project, Subcommittee on Crime, and Homeland Security Advancing Justice through the use of Forensic DNA Technology 2003, “Testimony of Peter Neufeld” in http://www.inocenceproject.org/docs/Neufeld_Congressional_Testimony.html, 3.

59

JH Langbein, ‘Money Talks, Client Walks’ (1995) Newsweek, April 17, 33. For a critique of the imbalance of power between the parties, see also among many others RA Kagan, ‘Adversarial Legalism and American Criminal Justice’ in The Japanese Adversary System in Context (MM Feeley,S Miyazawa eds), Houndmills, Basingstoke, Hampshire, Pagrave Mac Millan Ltd, 2002, 24. http://www.bepress.com/gj/vol9/iss4/art6

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ground with the prosecution in his trial contest. The strong disparity of power between litigants in the pre-trial phase then runs over into their battle at trial, severely undermining the trial’s fairness, as well as its capability of discovering the truth, if only an interpretive one. As Damaška observes: Two one-sided accounts can be expected somehow to cancel out and expose the truth only on condition that the contestants can disburse roughly equal resources in readying their cases for trial. Absent this condition, the resultant force of the two partisan vectors, so to speak, is likely to deviate from the correct view of reality.60 Even judging the system in its own terms, the comparativist can observe that the tango of justice must start before trial in order that trial parties have more equal opportunities to ‘dance’, ie to prepare their trial case. Otherwise, the adversary system’s ideological tenets of justice, fairness and the search for an ‘interpretive’ truth are at risk of being seriously undermined together with their democratic image of an arms length model.61 6.

Conclusion

A final observation needs to be stated in the conclusion to this paper. To the extent that fairness and justice are equated to each other in adversary systems, but remain two different concepts in non-adversary ones, their alternate use in the context of legal transplants and legal translations poses a challenge to the study of comparative law.62 Notions of fairness and justice, when used outside the common law world, assume a different meaning from the one assumed at home which is consistent with the new institutional context. Lack of

60


61

See also Rudolf Schlesinger’s observation that at the end of the day as a guilty defendant he would prefer to be tried under the common law system, but as an innocent one he would much rather be tried under a civil law one. See RB Schlesinger, HW Baade, PE Herzog, EM Wise, Comparative Law, Cases-Text-Materials 6th edn (New York, Foundation Press, 1998) 531.

62

On legal transplants and on the need to take into consideration the different institutional context of the system of production from that of destination, see MR Damaška, ‘The Uncertain Fate of Evidentiary Transplants: Anglo-American and Continental Experiments’ (1997) 45 American Journal of Comparative Law 839. On legal transplants and legal translations, see M Langer, ‘From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure’ (2004) 45 Harvard International Law Journal 1. Published by The Berkeley Electronic Press, 2009

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awareness of this transformation can bring about ambivalence and confusion.63 As an example, when the notion of fairness is adopted in the continental world — as in the case of Article 6 of European Convention on Human Rights which introduced the concept of ‘procès équitable’ — its deep meaning seems to be that of justice in a continental perspective, therefore implying the view of a search for the ‘substantive’ truth, rather than that of fairness in an adversarial perspective. This is why, for instance, procedural arrangements incompatible with the adversarial idea of fairness, such as the admissibility of anonymous witnesses declarations, can be to some extent congenial with the European notion of a ‘fair’ trial. In the new setting — characterised by a rumba idea of justice — the notion of fairness, as the European Court of Human Rights noticed, involves in fact not only a fair treatment to the defendant and to the prosecutor, but also to the victim and to the witnesses.64 Moreover, this is why decision such as Giles v. California, disallowing -in the name of the right of confrontation- evidence of a murder victim’s complaints to the police before she was killed, grounded on the (American) common law notion of fairness, would be extraneous to the European idea of ‘fair trial’ ex art. 6 of European Convention on Human Rights65. In sum, legal translations pose to comparative lawyers the problem of adjusting legal language to the cultural specific legal values of the context in which the language is used, and for the accomplishment of this task a deeper understanding of the fundamental matrix of each system, following Professor Damaška’s lesson, is essential.

63

For a deep exploration of the connection between language and legal thought, see GP Fletcher, Basic Concepts of Legal Thought (New York, Oxford University Press, 1996); GP Fletcher, Loyalty: An Essay on the Morality of Relationships (New York, Oxford University Press, 1993). 64

‘(…) principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify’: Doorson v. Netherlands, ECtHR, March 26, 1996, § 70.

65

Giles v. California, 128 S.Ct. 2678 (2008). For a thorough discussion on the point, see DA Skalanski, ‘Anti-Inquisitorialism’, (2009) 122 Harvard Law Review 1634, 1693. On the meaning assigned by the European Court of Human Rights to the notion of “adversarial proceedings” in connection with art. 6 of European Convention on Human Rights, not necessarily corresponding with the one assigned to it in common law countries, see extensively JD Jackson, ‘The Effect of Human Rights on Criminal Evidentiary Processes: Towards Convergence, Divergence or Realignment?’, in (2005) 68 (5) Modern Law Review 737-764, in part. 757. http://www.bepress.com/gj/vol9/iss4/art6

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