Copyright (c) 2009 All rights reserved. http://works.bepress.com/jacqueline_ross Recent documents in Jacqueline E Ross en-us Sun, 31 May 2009 06:48:15 PDT 3600 http://works.bepress.com/jacqueline_ross/1 http://works.bepress.com/jacqueline_ross/1 Thu, 15 Mar 2007 07:49:14 PDT Scholars who compare common law and civil law countries have long argued that civil law legal systems like Germany do not employ formal rules of evidence comparable to those which govern American courtrooms. The complex and restrictive nature of American evidentiary rules is said to be an artifact of the adversarial process and lay juries, which the legal system does not trust to evaluate evidence dispassionately. Civil law systems that commit fact-finding to mixed panels of lay and professional judges are said to have less need for formal rules of evidence that withhold information from decision-makers. My essay challenges this widely held view. Existing scholarship overlooks a rich source of evidentiary norms in the criminal process of civil law countries like Germany. Scholars have failed to recognize the dual ways in which evidentiary rules can function: they can restrict the presentation of evidence at trial; and they can shape its acquisition during pretrial investigation. German regulation of police interrogation--particularly its treatment of deceptive stratagems--provides a striking example of how investigative rules can limit and guide the acquisition of evidence. Germany forbids tricks and ruses common in American interrogations of the accused. Interrogation rules that prohibit the police from asking suspects leading questions or from assuming facts not in evidence greatly resemble the evidentiary principles that govern American trials. I will argue that German interrogation norms, like American evidentiary rules, shape the factual record on which the legal system assesses guilt or innocence--though unlike American evidentiary rules, interrogation norms are motivated not by distrust of the fact-finder but by the desire to protect criminal suspects from unfair manipulation. I will also show that American interrogation rules impose no comparable limits on investigative conduct.My essay examines both the institutional presuppositions and the implications of regulating the flow of evidence during acquisition in pretrial investigation rather than during presentation at trial. Filtering the flow of information at so early a stage in the criminal process benefits all criminal defendants, while American evidentiary rules matter to only that small minority of defendants who exercise their right to a trial (rather than negotiate a guilty plea.) Rules that regulate how police may ask questions shift responsibility for applying evidentiary rules from litigators to investigators. This presupposes a greater degree of investigative transparency along with a different system of pretrial discovery from that which governs the more adversarial pretrial process in common law countries. In the end, judicial skepticism about the possibility of constraining investigative practices may be one reason why the American criminal justice system filters evidence primarily at trial, where legal professionals pose questions publicly and under judicial supervision. Jacqueline E. Ross Criminal Law and Procedure Evidence