Via Michael Bohlander’s page at Durham University, a PDF file of a paper on Basic Concepts of German Criminal Procedure – a modified version of a chapter of his forthcoming book Principles of German Criminal Procedure, Hart Publishing 2011.
One of the major distinctions often heard about the German as a member of the family of continental legal systems is that its procedure is inquisitorial as opposed to the common law adversarial model. But what does that really mean? Is it all encapsulated in the role of the judge, or are there other features that define the character of the German procedure as inquisitorial? Is it actually still useful to use the terminology of “inquisitorial vs. adversarial”? Does “inquisitorial” not tend to convey connotations that remind us of medieval practices involving dungeons, torture, extorted confessions, draconic punishments and the personal union of prosecutor, judge and executioner in the figure of the inquisitor, or a burden on the defendant to prove their innocence etc.? Is the standard of proof in the continental systems, sometimes called intime conviction according to its
French variant or freie Überzeugung in German, really lower than the “beyond reasonable doubt” standard that common lawyers tend to be so proud of? A quick look at the law will teach us that none of these worrisome features are part and parcel of the German approach, and indeed any modern continental procedure, even if some very high level common law practitioners and academics that I have met over the years seem to think that, for example, continental inquisitorial systems do not have an equivalent to the 5th Amendment in the US Constitution and that an accused has to cooperate with the prosecution in her own trial and prove her innocence.
I must admit I have no problems with the term inquisitorial, but I remember Sharon Byrd introducing an alternative term – she refuses to call the continental system inquisitorial, and instead calls it accusatorial (I had to look that up). I see no reason why a word shouldn’t have a variety of meanings. (Where did I see a cartoon this week with the caption ‘Nobody ever expects the Spanish revolution’?) In a footnote, Bohlander suggests the term judge-led.