There are two theories about criminal procedure and the role of the judge and the lawyers. In an adversarial proceeding, as in English common law, the prosecution and the defense are adverse to one another. The judge is a neutral umpire. And the parties are arm's length from the judge. The emphasis in this system is on procedural justice for the defendant. Strict rules of evidence and a clear procedure are designed to protect the defendant from unfair or prejudicial behavior at trial, especially when a jury is involved. That evidence for instance, that could be prejudicial to the jury's opinion is excluded at trial. By contrast, civil law procedure is inquisitorial. That means that the prosecution and the defense are not adverse to each other. They cooperate with each other and with the judge to find the right result. The judge controls the proceedings. The judge directs the presentation of evidence, tours the crime scene, interviews witnesses, and develops the case. The judge's in control. The emphasis in this system is on truth seeking, and therefore, the procedural rules and the evidentiary rules are much more informal and much, much less strictly enforced because they're designed to promote the goal of truth what happened. 

That's all we want to know. And so if evidence happens to be hearsay or if it happens to be cumulative, we still want to know it because it could still prove the truth, even if it means an acquittal. The prosecutor, in this system, is not trying to put the defendant away, isn't even trying to prove the defendant's guilt. The prosecutor only wants to know what happened. Those are the two theories. Civil law trials focus on truth. Common law trials focus on justice. It's often frequently said that if you were guilty, you'd prefer a common law trial. But if you were innocent, you would prefer a civil law trial. This is why. Compared to civil law trials, common law trials are extremely procedure heavy in order to shape the presentation of evidence to the jury. Procedural justice is more important than adjuster fair outcome. It's more important than the truth, following the theory that no one can really know what the truth is in some metaphysical sense. So this is the best we can do is just ensuring that our evidence is reliable, and that a neutral party is able to consider it. Defense common law rights arose over the centuries to prevent prosecutor overreach and jury confusion to prevent, in other words, abuse by the state. These include the right to remain silent, innocent until proven guilty, the right to be confronted with witnesses and not have anonymous witness testimony against you, a prohibition on in absentia trials, the exclusion of improperly obtained evidence, and the right to a lawyer. In a theoretical sense, perhaps you can see how none of those due process rights are necessarily critical to a civil law trial. If truth is your goal and not justice, then maybe in absentia trials are OK because the procurator and the judge aren't adverse to you. They just want to know what the truth is, and they can do that without you present. Improperly obtained evidence-- if evidence is unlawfully seized by police, what difference does it make to the truth? As so long as it tends to prove the truth, it's still helpful. You see the issue. 

That in the English common law, we're more concerned about a defendant's rights. In a civil law trial, we're more concerned about what actually happened, the truth. In the common law, there is a distinction between legal guilt and factual guilt that you're factual guilt is irrelevant. Did you do it or not? We don't really care. What we care about is can the prosecutor prove it beyond a reasonable doubt. Maybe he or she can or can't, but that's separate from did you do it or not. This creates a problem, as we'll see, a problem of wrongful convictions. Wrongful convictions are the biggest downside of the adversarial trial. The procedure, this heavy procedure is designed to solicit the real points of disagreement and draw out the most reliable forms of evidence and the most reliable testimonies and then present it to the neutral umpire for decision. The common law trial is based on the oral presentation of evidence, on the spectacle that occurs in the courtroom. The civil law trial, by contrast, is based on the written evidence in the dossier. There's a fundamental difference between the two systems. In the common law, it's the great oral advocates who are the top of the legal profession. They are the greatest lawyers, the ones who we remember in history for their rhetoric and their diction and their speechmaking, their oratory. The common law trial privileges, this oral presentation of evidence at trial-- typically testimony is developed at trial through yes or no questions in open court. There is something democratic about this versus the bureaucratic nature of a civil law trial, and it reflects a kind of Anglo American skepticism of government whereas in the civil law trial, criminal trials reflect certain trust in the state to figure out what the truth is. A common law trial has a formal structure. There's opening statements, direct examination cross-examination, redirect examination, recross examination, et cetera, et cetera. And then the other side does that too. Then there are closing statements. The judge and the jury look at two separate narratives and come to a value-free judgment, based on empirical common sense observations. What was the demeanor of the witnesses? Do they look like they were telling the truth? Do they have alibis? Does their testimony check out? Was it consistent? If there's a conflict of evidence, who is the more credible party? These are what judges and juries look for when they deliberate. The rules of evidence are designed to raise the level of reliability and the veracity of evidence. That's why we exclude hearsay. It's just not reliable enough. Certainly, confessions procured by torture, for instance, are even more unreliable. 

The emphasis of the emphasis is on relevance is it relevant sometimes evidence could be fascinating. But is it relevant? A jury, we don't want the jury to be confused or distracted or prejudiced by a character evidence, for instance, because we don't care about whether defendant's a bad person. We care about whether they committed the crime. Cross-examination dramatizes that most stories have two sides. And that's the beauty of a common law trial is the fact that it recognizes that reasonable minds can differ. Maybe you're setting a different part, different corners of the intersection. Maybe it doesn't seem like the light is green or yellow or red when the car accident happens. Your memories are faulty. Evidence can spoil. The common law trial reflects those kinds of weaknesses and foibles of mankind, perhaps we might say. It creates a balanced forum in which evidence is presented dispassionately. The two narratives converge during the trial. And one of those narratives will, by the end, appear more likely than the other narrative, and that's the one that the jury and judge chooses. Common law trial reflects certain cultural attributes of the Anglo-American world. The balance of royal power and local sensibility the judge and the jury together. The Americans have a more democratic theory of the trial than the British did. American trials are less aristocratic. British trials had more powerful judges, upper-class lawyers especially in the form of barristers, and excessive formalism. British judges today still wear wigs, for instance, and the barristers also wear robes and sort of the frilly neck piece. The trial in America was a forum where citizens could gather, stand face to face with their fellow citizens, hear evidence limited by rules, which were dictated by common sense, and decide cases based on ordinary community moral judgments. That's the theory of it-- that democratic theory, which was germane to the American trial. And our jury trials still reflects those democratic impulses. In fact, part of the reason we like juries in the United States, even though they're becoming less and less common in criminal trials, is that they educate people about what courts do. They have an educated function, and that's all part of a kind of civil democratic nature of the trial itself. In the common law world, there's a premium on courtroom style, emphasis on oratory and persuasion, greater importance than in the civil law world, abstract law writing, legal scholarship. The writing-- writing is more important in the civil law world, but its oral advocacy is more important. In the common law world, which is why trials in the common law world have been memorialized in pop culture through TV shows and movies. You don't really see movies of civil law trials or the civil law court system. It's much less interesting. It's much less dramatic. And we could point to John Adams, Daniel Webster, or Henry Clay, Abraham Lincoln, Clarence Darrow as some examples of that-- maybe Atticus Finch, although he's a fictional character. Strict procedure is known as due process. It's this belief that are regulated, even, fair procedure will lead to the most just outcome.

1. Describe the American perspective on courtroom proceedings and jury trials. How does it differ from the British perspective?

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The American perspective on courtroom proceedings and jury trials emphasizes procedural justice and democratic participation more than the British per... View the full answer