Is the Criminal Process about Truth?: A German Perspective

By Weigend, Thomas | Harvard Journal of Law & Public Policy, Winter 2003 | Go to article overview

Is the Criminal Process about Truth?: A German Perspective


Weigend, Thomas, Harvard Journal of Law & Public Policy


I.   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.

II. 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. …

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