Is the criminal process about truth?: A German perspective.

• Author: Weigend, Thomas
• Position: Panel III: Truth, the Jury, and the Adversarial System - Federalist Society 2002 Symposium on Law and Truth

1. INTRODUCTION: THE IMPORTANCE OF KNOWING THE TRUTH II. ADVERSARIAL AND INQUISITORIAL SYSTEMS: HISTORICAL FAILURES III. COMPROMISE SOLUTIONS IV. TRUTH AND THE JURY V. WHY CARE ABOUT THE TRUTH? VI. TOWARD A DEFINITION OF PROCEDURAL TRUTH I. INTRODUCTION: THE IMPORTANCE OF KNOWING THE TRUTH

   Finding the troth is a difficult task under any set of circumstances, but finding the truth in the context of crime and punishment is almost impossible. Even if we assume that an objective "reality" exists and that human beings are generally able to determine and to describe it in some adequate form so that we can reasonably distinguish between truth and falsehood, there is hardly an arrangement less likely than the criminal process to bring out the "truth." The reasons are obvious: crime is not something the culprit or the victim has reason to brag about (and if either does, he is unlikely to say the truth), and the impending consequences of an emergence of the truth are (at least for one party) quite unwelcome. The result is a strong incentive for passively or actively concealing relevant facts. The difficulty of determining the truth about crime stands in marked contrast with society's strong interest in doing so: crime, especially serious crime, disturbs the peace of the community and, if unresolved, raises the threat of repetition. Knowing exactly what has happened, who the culprit is, and why he committed the offense, is a necessary prerequisite for any attempt to re-establish social peace through justice. The determination of truth is indispensable for yet another reason--criminal sanctions are society's most severe expression of moral blame. (1) It is therefore imperative that criminal sanctions be imposed (only) upon those who are in fact guilty.

2. ADVERSARIAL AND INQUISITORIAL SYSTEMS: HISTORICAL FAILURES

   The above-described dilemma explains why legal systems throughout history have struggled so hard to devise methods of getting at the truth in criminal matters. Traditionally, two basic approaches to resolving the problem of truth-finding have been distinguished: the adversarial system, which relies on opposing parties coming forward with their competing versions of the truth, challenging each other's accuracy, and thereby ultimately bringing about a composite picture of (or approximating) the truth; and the inquisitorial system, which entrusts an authoritative, neutral law officer with collecting relevant evidence, a process that includes the interrogation of suspects and witnesses. (2)

   For different reasons, neither of these approaches has been particularly successful in reaching its goal. The adversarial system has been based on too many unrealistic assumptions; the inquisitorial system lost much of its efficiency when physical coercion of suspects became unfashionable.

   Let me begin with the adversarial system. (3) Without a doubt, the partisan approach to gathering and presenting evidence is attractive, but its attraction lies on the surface rather than in its effectiveness at finding the truth. Ask any criminal lawyer worth his salt, and he will tell you that he prefers the adversarial mode because it permits him to actively help his client by digging up exonerating evidence and presenting it in court, as well as by challenging the evidence presented by the prosecution. Moreover, the adversarial trial gives him a much greater opportunity to demonstrate his prowess as a lawyer in open court. On a more theoretical level, the adversarial process places the defendant on an equal footing with the prosecutor and protects the defendant's autonomy by allowing him the same freedom of action in conducting his defense as the prosecutor enjoys in presenting the state's case. Finally, nothing can compare with the adversarial trial in demonstrating the importance of getting at the truth. The judge admonishes witnesses to be truthful, and they solemnly swear to say the truth. Lawyers bring their skill to bear to expose falsehood, lies and inaccuracies; they bring up overlooked details and build and shatter hypotheses about what the "true" facts of the case may be.

   Yet this spectacular show of searching for the whole truth and nothing but the truth cannot conceal the adversarial system's deficiencies with respect to truth-finding. This system is built on the theory that two halves (of the truth) make one whole, that the truth will appear like a bright streak of light born of the tension between opposite poles. (4) In this system, the truth ideally is discovered by testing differing versions of the relevant facts through cross-examination of the respective proponents, each side striving to present the facts favorable to its case in the best light possible while disparaging the opponent's version. (5) The neutral trier of fact, so the theory goes, needs only sit back and watch the spectacle unfold in order to be able to determine, when everything has been said and done, who is right and who is wrong.

   This theory rests on a number of assumptions: first, each side (i.e., in criminal cases, the prosecution and the defense) presents part of the truth, and neither has it all; second, each side has a genuine interest in bringing out the truth; third, each side has equal opportunity to convince the trier of fact of the accuracy of its version. Obviously, these assumptions are not always justified. First, it may well (and often will) be the case that the allegations made by the prosecution are consistent with the objective facts, at least in relevant part, and that the defense is reduced to throwing smoke bombs in order to confuse matters. If that is the case, the innate tendency of the adversarial system to balance the competing versions will run the risk of diverting from the truth rather than establishing it. Second, it is a typical feature of the criminal process that at least one party has a vested interest in concealing the troth; this party (most often the defendant) will thus not cooperate in the truth-finding process but try to obstruct it. Third, the reliability of the adversarial process is based on its fairness, especially on each party's equal access to evidence and on an equal distribution of competence and means to present evidence in court. Equality of this kind, more often than not, exists on paper only. Poor defendants must rely on underpaid and overworked public defenders or legal aid lawyers, whereas the state has at its disposal legal powers as well as sufficient means and expertise to make sure that evidence is collected and presented effectively in court--perhaps not in every single case, but whenever the public prosecutor sees fit to take a case to trial. In criminal matters, the "sporting theory of justice," which assumes that justice will emerge from a fair fight between equal partners, is hence more myth than reality.

   Another feature of the adversarial system further reduces the chances of finding the truth--because this system concentrates on the trial as the relevant locus for fact-finding, only facts presentable at the time of the trial can contribute to the effort of determining the "truth." Because the system excludes from the court's view everything that cannot be introduced as evidence on the day set for trial, the "truth" is based only on the relatively small array of material then available, and valuable information will be ignored because one or both parties cannot present it at the right time in the legally prescribed manner. The adversarial system, at least in the form practiced in the Anglo-American world, therefore does not lead to the discovery of "true" truth but of an artificially generated set of facts euphemistically called "procedural truth."

   Does the inquisitorial system fare better? The historical record does not so indicate. Although the inquisitorial system introduces the inquisitorial magistrate, a professional third party officially interested in determining the truth, and thus avoids the party-motivation problem that characterizes the adversarial system, this system also suffers from a psychological flaw--it overlooks the fact that truth cannot reliably be extracted from a person unwilling to reveal what he knows. Even torture, the most extreme form of overpowering the resistance of a recalcitrant witness or suspect, turns out to be less than effective in producing the truth. (6) In the age of human rights, when concerns of individual autonomy and freedom preclude any recourse to measures of crude coercion, an inquisitorial judge is left with empty hands in his quest for the truth if those who possess relevant information refuse to cooperate. Today, the end result of the search for the truth in inquisitorial systems will often be strikingly similar to that of the adversarial process--a half-truth based on what the defendant and more or less interested third parties are willing to disclose.

3. COMPROMISE SOLUTIONS

   Given the gradual assimilation of the two historical opponents, it is not surprising that several legal systems have adopted procedural arrangements that combine adversarial and inquisitorial features.

   The first "reform" models of this kind were introduced on the European continent in the 19th century in the wake of the French Revolution. (7) The figure of the inquisitorial judge was retained, but he had to share his authority and his fact-finding role with other agents--most importantly, the public prosecutor (who moved a case from the investigatory stage to the trial stage) and the trial jury (which...