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accusatorial process can become "over-lawyered." 20 proceed to trial, there is neither arraignment nor formal
c. The inquisitorial model. On the other side, the civil pleadings. The dossier is delivered to the judge who then
law proceeds from a quite different perspective. In the civil convenes the trial in open court where the parties have an
law the processing of a criminal case is not viewed as a dis- opportunity to present their arguments.
pute but rather as an inquiry to find out if an offense has c. The Judge.
occurred, who committed it, and whether punishment
The prevailing contemporary continental system is that of a unified
should be imposed. Since the process is one to find out bench in which the professional judge or judges are flanked by lay
what has happened, it is inconsistent that the parties (i.e., assessors. Even in France, after the reforms of 1941, the 'jurors'
the government and the accused) may limit the sqpe of deliberate and vote with the professional judges, so that the system re-
inquiry. Determination of the facts is unfettered by rules mains that of 'jury trial' in name only. Adjudication solely by profes-
sional judges, while not unkown . .. is usually employed in the disposi-
of evidence. The factfiinder seeks out allsources of reliable
tion of minor offenses and is deffitely not representative of the modem
information, to include questioning the accused. Under continental style. In sum, the continental law of evidence is most prof-
such a system fewer technicalities arise and the role of the itably examined against. the background of trial by a mixed tribunal. 24
lawyer is reduced. 21
d. Unfortunately, the contrast between the accusatorial In theory, the evidence produced by the investigation
(adversary) and the inquisitorial (nonadversary) must be reexamined by the presiding judge who takes an
procedures raise in the mind of a person accustomed to active role in questioning witnesses and raising all inqu-
the common law, visions of the unfamiliar (i.e., the civil iries relevant to the charge. He may even solicit evidence
law system) at its historical worst. The civil law system is not previously requested by the parties. 25
an alternative to the common law concept of due process d. Exclusionary Rules. Under the civil law system evi-
and it should not be assumed that it necessarily must be dence is generally not excluded because its credibility
based on might be in doubt. Exclusionary rules which attempt to
the
[tlhe horrors of a procedural system where charges are not S~IC, protect the factfinding process against potentially welia-
accused is not accorded the benefit of doubt, his confession is coerced, ble sources (e.g., heresay) are almost unanimously re-
his detention before trial is unlimited, he has no right to counsel, and is
jected by civil law countries. Civil law factfiinders, whether
not advised of his constitutional rights. 22
lay or professional, give different weight to the evidence
11-5. The Civil Process. a. Investigation. What occurs according to its credibility. 26 Thus, rules agairist hearsay,
when there is reason to believe that an offense has taken inflammatory, or gruesome evidence, and other rules of
place? An investigation, requested by an "accuser" (nor- "auxilary probative policy" 27 are not found in most civil
mally the public prosecutor), is conduted by an impartial law systems. The defendant may also be freely ques-
official. Some civil law countries (e.g., France and Ger- tioned, although he is not sworn prior to his testimony. 28
many) make a distinction between the initial investigation Devices do exist, however, which allow ajudge to exclude
and the special investigation, the former being conducted evidence from the factfiiding process "even though it ap-
by the police, and the latter by an investigating judge. In pears logically relevant and there is no specific exclusion-
modem civil law systems, some of the inquisitorial ary rule in point." 29 For example, a judge may refuse to
features of investigation have been deleted from the hear evidence which he considers to be repetitious, and he
process and the accused is aware of all evidence before the may require the original source of the evidence to be
trial begins.23 brought before the court rather than re!ying on the sec-
b. The Role of the Prosecutor. Once the investigation ondary source contained in the dossier. 30 Further, the
has been completed and the dossier compiled, the evi- judge may refuse to allow evidence of uncharged crimes
dence is forwarded to the public prosecutor for a decision or prior convictions of the defendant to be heard unless
whether to prosecute or not. If the decision is made to the prior criminal conduct establishes a modus operan-

20. Id. 24. Id. at 510, n. 4.
21. Id. at 564. 25. Id. at 559.
22. Id. at 569. These are what Mr. Justice Frankfurter listed as the 26. Id. at 514.
indicia of an "inquisitorial" procedure in Watts v. Indiana, 338 U.S.49, 27. J. Wigmore, Evidence, 5 1171 (Chadboume ed. 1972).
54-55 (1949). For a response to Mr. Justice Frankfurter's characteriza- 28. This has given rise to the observation that the defendant
tion, see Kunert, Some Observation on the Origin and Structure of Evi- therefore has a "right to lie" since few, ifany, legal consequences occur
dence Rules under the Common Law System and the Civil Law System of' if a defendant does so. See Damaska, supra, note 18, at 528, n. 4.
"Free Proof' in the German Code of Criminal Procedure, 16 Byffalo L. 29. Id. at 516.
Rev. 122 (1966) [hereinafter referred to as Kunert]. 3Q. Damaska refers to this as the "principle of immediacy" which
23. For example, some evidence is gathered in the presence of the may be viewed as a type of best evidence rule. Id. at 517. However, a
accused; the importance of confessions has decreased, the accused is no precise def~tion of the concept is not possible as the principle varies
longer required to answer questions; and the accused with counsel (if from civil law system to civil law system. See H. Jescheck, Germany, in
not before the investigation is completed at least at its conclusion) is en- The Accused: A Comparative Study, 246, 247 (J. Coutts ed. 1966) for a
titled to review the entire file (or dossier) that has been compiled. discussion of the concept of the "principle of immediacy" and the prob-
Damaska, supra, note 18, at 558-59. lems that it raises.