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| In Search of a Trial: Sarajevo, Bosnia and Herzegovina: There is a passage in Camus' The Stranger in which the protagonist recounts his trial and sentencing for murder and recalls that the French judge "told me in bizarre language that I was to have my head cut off in a public square in the name of the French people."1 That passage, for me, epitomized the starkness of the Continental legal system. Other than through literature, I hadn't until now been exposed to that system, and had concluded that, in the 19th Century at least, it was fairly draconian -- or, Kafkaesque as undergraduates say. The United States and the European Union have engrafted onto the legal code of this new country a hybrid criminal procedure code that contains the principles of both the Anglo-American adversary system and the European investigative system. The latter brings to common law jurists the sinister connotations of Camus and Kafka. In contrast, the adversary system connotes Texas and "cowboy justice" to Europeans. CONTINENTAL TRADITIONS There is no word for "trial" in the Bosnian law, which until recently was based on the Continental system. When the Bosnian Code is translated into English, where the word "trial" would be used in English, the translator inserts the term "search." The connotation is literally correct. It is the more accurate term to describe the Continental procedure for distinguishing between guilt and innocence. Unlike the Continental system, Anglo-Saxon jurisprudence does not really have a concept of "innocence." To the extent one is "innocent" under the adversary system, it means that the prosecution has not marshaled enough evidence to convince a finder of fact that the accused is guilty of the criminal act or acts charged. Continental courts, perhaps naively, expect to find the actual "truth." They eschew plea-bargaining, in large part because it is too often based upon the fiction that a defendant did something other than what he actually did, and their concern that plea bargains too often minimize punishment. And while the defendant has the right to remain silent, in many European countries there is no express prohibition against judges making an inference of culpability based upon silence. Rationally, if she has nothing to hide, why shouldn't the accused produce what evidence she has? In contrast to the adversary system, Continental law doesn't focus on the trial, but on the investigation (often pejoratively referred to as "the inquisition"). An investigative judge questions witnesses -- including the defendant -- issues warrants, and supervises the collection of evidence prior to a charge or indictment. A number of European parliaments, prodded by The European Court of Human Rights, have enacted progressive measures. These require investigative judges, unlike those of Camus and Kafka, not only to pursue incriminating evidence, but also to affirmatively pursue exculpatory evidence -- to exercise in rem rather than in personam jurisdiction during the investigation. Critics of the system nevertheless comment that under the Continental system the punishment is the investigation, rather than the trial and sentencing. If there's no guilty plea, the trial in the Continental system is largely on paper, and the judges draw their inferences and conclusions from the investigation file. The defendant's attorney can argue the inferences, but no trial is conducted, as we perceive a trial. The defendant can choose whether or not to testify, can introduce documents; ask the court to hear additional witnesses -- including expert witnesses -- or to recall witnesses from whom statements have already been taken. In the event the judges agree to supplement the investigation, which is discretionary under the criminal codes of some European countries, the prosecution and defense attorneys question witnesses only after the panel of judges have done so. No jury stands between the government and the accused, only three judges. But there is something troubling here apart from the absence of a jury. The judges are the finders of fact, and the judges are also the primary interrogators of the witnesses, including the defendant, should the defendant choose to testify. And it is the judges who, without benefit of a formal code of evidence, decide what evidence may be offered.2 If one accepts the proposition that the exclusion of evidence in criminal cases is almost wholly for the benefit of the defendant, the rules of evidence are an attempt to focus the trial not on the defendant's heritage, reputation, and character but upon whether he committed the acts charged. Our rules of evidence are a means to insure that the trial is not about who the defendant is, but what he did or did not do. To let the former influence the latter is a denial of due process and fundamental fairness. The practice of permitting lay jurors to ask questions in a criminal trial has been prohibited in Minnesota,3 and carefully safeguarded in those states where it is permitted.4 Can professional jurors -- three-judge panels -- be relied upon not to allow the character of the accused to determine the outcome of the trial any more than lay jurors? More importantly, can the accused possibly see her inquisitors as impartial? While political scientists may proclaim that an independent judiciary protects the human rights of the accused, it's unlikely that the defendant is likely to see anything except three members of an elite social class who are paid by the same government that has placed him on trial. If the venerable adage that "justice must not only be done, it must also be seen to be done" is to be taken seriously, the extensive questioning by the court of witnesses in criminal trials is a questionable practice. It may also be cynical. Most European codes permit the defendant to choose whether or not to testify, but provide that if the accused chooses to testify, he or she may not be sworn. Why? Because European codes recognize that the defendant's right to testify should be unfettered and should include the right to lie if the choice is made to testify. It brings to mind the old story about the lawyer, who when calling a clergyman to the stand couldn't resist playing to the grandstand by pointing out that the witness was "a man of the cloth," and moving the court to excuse him from the oath. "Why," asked the judge, "is he going to lie?"5 Apparently, European courts recognize as fundamental the principle that criminal convictions exist only in the temporal world and that it would be unjust to require a defendant to endanger her soul by requiring an oath to the Almighty. The more troublesome question, however, is what effect the formal recognition of a defendant's right to lie has on the weight given by professional judges to his testimony? The upside of the Continental "search" is that the process, which in Anglo-Saxon law is called a "trial," is on the Continent more likely to be an exercise in rationality. The downside is that, without the benefits of an adversary procedure, there is no realistic check on the power of the government, save the integrity of the judges.
ADVERSARIAL ADVANTAGES Continental judges and lawyers gleefully point out the erosion of human rights and the hypocrisy of the adversary system; currently, common targets of Continental criticism are the death penalty and The Patriot Act. Some hypocrisy may be inevitable; in the justice system, as elsewhere, "perfect is the enemy of good." We rely on the adversary procedure to protect human rights and to achieve docket efficiency at the same time. Its speed precludes long pretrial periods of confinement, and competitive prosecution and defense counsel are more likely to find the flaws in each other's positions more often and more quickly than magistrates, however detached they may be. As a practical matter, the adversary system is to law what free enterprise and competition are to economic growth. Bosnia and Herzegovina, devastated by a history of Communist government, ethnic and religious conflict, and a brutal war that has given it an economy and a government that don't work, must have an adversarial legal system to have an effective economic system. Without both, it is in danger of remaining the poor cousin of a progressive European family. The new Criminal Procedure Code, drafted by the European Union with the help of U.S. Department of Justice lawyers, became effective in the State Court of Bosnia and Herzegovina on August 1 of this year. The new Code eliminates the investigative judge and limits the length of pretrial confinement. It also affords the defendant the right of confrontation and cross-examination, the right against self-incrimination, and the right to be represented by an attorney. In deference to the Continental system, it doesn't provide for a jury and it separates the pretrial judges from the trial panel. Hence the judges who make pretrial decisions on the issuance of search warrants, the admissibility of confessions, and other evidence are not permitted to later serve on the trial panel as finders of fact. The compromises between the two systems have kept important elements of each and served to streamline the procedure. The new system, however, requires two to three times the number of judges as does a purely adversary system. More judges are necessary to provide trial panels to substitute for juries as fact-finders and to protect the defendant's fundamental rights by insulating the pretrial proceedings from the trial. There is an essential reason for tampering with the legal system of this country, which has evolved over nearly 200 years from the Napoleonic Code and which has served as the foundation of its government, its legal institutions, and its jurisprudence. Very bluntly, the system doesn't work in a modern industrial state with a free-enterprise economy, which this country aspires to become. There are long backlogs and years of delay in bringing both civil and criminal cases to trial. Unlike Bosnia and Herzegovina, those countries in Western Europe whose legal systems are based on the Napoleonic Code have amended the code countless times over the years and have developed a more efficient, streamlined process in which those who must rely on the law for security -- both personal and economic -- can depend. Banks, investors, corporations, capitalists of every nature, kind and description demand legal stability as well as political and economic security. If there are ample opportunities for investment in fully developed industrial countries with stable political systems that afford protection against street crime, organized crime, and economic crime -- systems that protect the rights of contracting parties and provide prompt judicial remedies -- why would investors allocate resources to a country whose legal system cannot be relied upon? They won't and they don't, and the consequence is that there is little developed infrastructure here. There is not an adequate highway, rail or air transportation system by which goods can be shipped into and out of the country. There is less than ten miles of four-lane roadway in all of Bosnia and Herzegovina; tractor-trailers hauling consumer goods do not congest this country's highways; little moves by rail and the national airline recently went bankrupt (leaving my wife unable to join me here because she had no assurance that she could obtain a connecting flight from Amsterdam to Sarajevo). The blueprint for rebuilding this country requires an efficient and dependable legal system -- one that investors can rely upon to protect their property and their contracts. It must also have a stable political system, which is also dependent upon effective laws and their enforcement. The confidence of the electorate -- both business and consumers -- is essential to economic growth and political stability in a modern, industrial society, and both depend upon an effective legal profession. I had come to a similar conclusion when I first decided to pursue a career in law nearly 35 years ago, but for far different reasons. The law was then the barricade that withstood the ruthless assault on the individual of an industrial economy driven by the insatiable appetite of an overgrown military and an intolerant government bureaucracy. It still is. But it is also the same legal engine that powers modern governments and industrial economies to wage a bloodless war on poverty, disease and political oppression. There have been times that the legal struggle for human rights and dignity has fostered more cynicism than irony, which may be inevitable, but what I've seen in this country, which is now struggling to emerge from the backwaters of Eastern Europe, convinces me that the reasons I chose to go to law school have become more valid than I could have imagined as a college undergraduate. The idealism and the hope that stampeded a generation toward law schools at the end of the 1960s has become a reality, but perhaps in different ways and for different reasons than could then have been imagined. NOTES 2. While there is no formal code as in the United States, European judges are required to explain in detail the reasons why evidence was or was not admitted, and how much weight it was given if admitted. 3. In State vs. Costello, 646 NW2d 204,211 (Minn. 2002), the Minnesota Supreme Court, commenting that the "truth-finding goal [of a trial] is balanced against the rights of the accused and individual freedoms," disallowed juror questioning, and held that no Minnesota court shall permit jurors to question witnesses in criminal cases. 4. See Am Jur2d, Vol. 75B, Trials, Sections 1624 -- 1626. 5. This occurred in the author's practice during a bench trial before Stearns County District Judge Paul Hoffman, who, familiar with the popular fable, instantly responded to the motion with the quoted repartee. HON. BERNARD BOLAND is judge of the 7th Judicial District chambered in St. Cloud. He is currently serving as an international judge and assisting in establishing a new State Court in Bosnia and Herzegovina. |
