You Believe You May Be Indicted Criminally... Would You (or Should You) Go Inquisitorial or Adversarial?
Guest post by Roger Szajngarten Based on my research, the answer is that if you feel very likely to be indicted and are guilty, but wealthy, you should go for the adversarial system. On the other hand, if you are innocent and poor, you may want to consider the inquisitorial system. The previous statement is based on my research findings regarding the grand jury in the US and the inquisitorial system in France and their respective histories, resulting in my recommendation that one of the inquisitorial system elements be incorporated within the American system.
The origin of the US grand jury can be traced back to the Vikings, the Saxons and the Franks tribes, but most directly to the relationship between King John and the English nobility, which in 1215 resulted in the enacting of the Magna Carta. Over time, the idea that a grand jury is a people’s panel necessary to indict took shape. The grand jury had been part of the American process to render justice prior to the establishment of the Constitution. The grand jury is specifically mentioned in the Bill of Rights, but was not incorporated in the executive, judicial or legislative branches. The original and current independence of the grand jury is in line with the goal to protect the innocent from the excess of the state. The grand jury has been and remains a powerful institution as it can issue subpoenas, question witnesses and prosecutors, but, most importantly, refuse to indict. However, the role of the grand jury has become perverted, and it is questionable as to whether it is still effective in protecting citizens. In effect, the prosecutor is physically present with mostly inexperienced grand jurors, preparing all the (often leading) questions to be asked from witnesses. Furthermore there are reported cases in which the prosecutor did not present all of the exculpatory evidence, used hearsay or excluded evidence not acceptable in a court in order to convince a grand jury. The famous and often quoted statement of Judge Sol Wachtler in 1985 summarizes the current situation as "Any prosecutor, who wanted to, could indict a ham sandwich.”
The U.S. criminal justice system relies on the adversarial trial with all its inherent checks and balances to address the key issue of guilt or innocence. However, since most defendants never reach the trial stage, because of the high rate of the use of plea bargaining, the values of our Constitution, which goes to such great length to protect the rights of individuals, have been weakened.
The French inquisitorial law system, which can be traced back to the Roman-Canonical approach, had been trending toward centralization and powerful judges. While originally there was some sort of jury system to investigate and report on fact, subsequent to the crowning of Napoleon as emperor, the inquisitorial system went further away from the jury system. The Napoleonic Code formally impaneled judges as an elite system constrained by extensive rules and regulations to ensure due process and that laws be promulgated solely by the legislative branch. Accordingly, most of the functions of the grand jury in France have traditionally been fulfilled by an investigating magistrate (juge d’instruction) as opposed to untrained citizens.
However, in contrast to the U.S., significant constitutional rights for the protection of individuals, which are often taken for granted and essential, do not exist in France. For example, there are weak exclusionary rules, police may easily detain a suspect, and only since recently an arrested suspect is immediately entitled to the presence of an attorney. Similar to the adversarial system, the initial investigation is led by the police and the prosecutor. If the prosecutor wants to pursue the case, the investigating magistrate takes over the investigation for serious and complex situations. The investigating magistrate is a professional and independent judge that acts as a neutral party between the state represented by the police and the prosecutor, and the suspect/accused and the defense counsel. The goal of the investigating magistrate is to seek the truth. The investigating magistrate, for instance, can call witnesses, retain independent experts at the cost of the state, organize confrontations, incarcerate or release suspects and he can then either dismiss a case or seek an indictment.
Reforms of the French inquisitorial system are actively being debated, including the role of the investigating magistrate. Some of the challenges originate from the European Court of Human Rights regarding individual rights protections. The reform, partially implemented, as to the role of the investigating magistrate stems from the tension between the strong Executive branch prevalent in France as well as at least one well published failure of the existing system.
I found out that both systems currently suffer from serious weaknesses and challenges in fulfilling their original mandates. For the inquisitorial system, it is the unchecked power of an elite corps of magistrate and limited individual rights, and for the adversarial system the grand jury has become no more than a prosecutorial tool. As I have explained further in my research, the United States should build up on the investigating magistrate concept to rekindle its grand jury. States and the federal government should specifically introduce a professional and neutral judge dedicated to working with the people’s panel to fulfill its original mandate. The presence of a professional judge in grand juries would serve as a deterrent or a filter for any excesses of the state.
Roger A. Szajngarten is a current graduate student at John Jay College of Criminal Justice in the International Crime and Justice Program. Roger is also a financial executive with almost 40 years of experience in more than 35 countries specializing in M&A, Treasury, Insurance and Entrepreneurship. Before that he studied Mathematics in Paris, France, and then earned his BSc in Aeronautical Engineering at the Israel Institute of Technology while also studying Sociology, and lastly an MBA at Columbia University. His specific areas of interest at John Jay are white collar crimes and markets regulation, as well as terrorism.