An introspective view of the inquisitorial trial

The day I stumbled on "A Trial in Germany," I felt a call to arms. The piece of incriminating evidence was there. Time and again, common law lawyers observe the civil law system with the curiosity of tourists who visit the Tower of Pisa. Eventually, they offer advice on how we could straighten it up. In the present case, an American professor witnesses a criminal trial under German law. His reflections also encompass the court dynamics. This approach is original for Europeans, strangers to the concept of Court TV or "gavel to gavel" media reports. The commentary unfolds on three levels. The criminal trial becomes the bridge to a "trial" of the German judiciary and the German code of penal procedure. The author's conclusions are somewhat less than favorable, both on the outcome of the case and its technicalities. Under the circumstances, offering a European perspective appears the natural thing to do. A long-time adept of comparative law, I thrive on opportunities to referee legal systems in a fair and square confrontation. In the gladiatorial contest between the common law system, with the United States on one side, and the Continental system, with Germany on the other side, the stakes are high. To be totally honest, it is not solely the desire for equilibrium that motivates me. The deeper reason goes back to my experience as a law student in the United States. I remember comparative law classes as exercises in great frustration. A fervent believer in the values of the continental system, I felt under constant attack from my American colleagues. Discussions appeared to me to be a pretext for emphasizing the superiority of my guest country's legal accomplishments. You need only mention adversarial versus inquisitorial proceedings to feel a chilling breeze on the back. Every reasonable person chooses an encounter of equals over a rerun of the Spanish Inquisition. When I came out of the closet not solely as a sitting judge in the civil law tradition, but also as one who practiced during a dictatorship, I became a downright outcast. Professors seemed oblivious to the cold war unraveling under their very eyes. The only comment I received on my exam paper read: "Why are you so angry?" Subsequent exposure to the French press shook away some of the victim status in which I was self-righteously indulging. To provide a glimpse of the bitter taste of European prejudice, consider an interview of Daniel Zagury, an expert psychiatrist at the Appeals Court in Paris, offering explanations on "why the majority of serial killers are American." His first argument is geographical: large spaces encourage serial criminals. His other argument--of questionable historical merit--follows these lines: In the United States, the historically recent conquest of the New World rendered precarious the passage from a state of wilderness to civilization and a reversal remains always possible. Puritanism and sexual hypocrisy probably also pay an important role: they provide a permanent manichean confrontation of good and evil.(1) The casual manner in which personal fantasies stand for expertise made me aware that when it comes to legal issues, we would rather be patriots than scientific researchers. Language bears witness to such internalized biases. Take, for instance, the antonyms domestic and foreign law. In common language "domestic" suggests the family realm or things we know and control. The opposite is the unexplored, the dangerous, the threatening. Following this line of thought, a domestic animal may be contrasted with a wild beast. Remembering the times when crossing the ocean was an adventure, we can detect the opposition between domestic and international flights. We might now live in the era of the global village, but language still preserves the memory of ancient fears. As it happens, fear of the unknown leads to prejudice. The same seems true in comparative law. When emotions trump reason, the expectation of a reciprocal profitable exchange is eluded. …