Should We Search For The Truth, and Who Should Do It Should We Search For The Truth, and Who Should Do It
Should We Search For The Truth, and Who Should Do It Should We Search For The Truth, and Who Should Do It
Should We Search For The Truth, and Who Should Do It Should We Search For The Truth, and Who Should Do It
INTERNATIONAL LAW
Winter 2011
Recommended Citation
Thomas Weigend, Should We Search for the Truth, and Who Should Do It, 36 N.C. J. INT'L L. 389 (2010).
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Should We Search for the Truth, and Who Should Do It
Thomas Weigendf
2 See John D. Jackson, Managing Uncertainty and Finality: The Function of the
Criminal Trial in Legal Inquiry, in 1 THE TRIAL ON TRIAL 121, 124-25 (Antony Duff et
al. eds., 2004); Megan Fairlie, The Marriageof Common and Continental Law at the
ICTY and its Progeny,Due ProcessDeficit, 4 INT'L CRIM. L. REv. 243, 248 (2004).
3 Cf MARKUS LOFFELMANN, DIE NORMATIVEN GRENZEN DER
WAHRHEITSERFORSCHUNG IM STRAFVERFAHREN 101 (2008).
4 See Fairlie,supra note 2, at 258-59.
5 Janet Cherry, Historical Truth: Something to Fight For, in LOOKING BACK
REACHING FORWARD: REFLECTIONS ON THE TRUTH AND RECONCILIATION COMMISSION OF
SOUTH AFRICA 134, 143 (Charles Villa-Vincenzio & Wilhelm Verwoed eds., 2000);
Martin Imbleau, Initial Truth Establishment by Transitional Bodies and the Fight
Against Denial, in TRUTH COMMISSIONS AND THE COURTS: THE TENSION BETWEEN
CRIMINAL JUSTICE AND THE SEARCH FOR TRUTH 159, 161 (William A. Schabas & Shane
Darcy eds., 2005); James L. Gibson, On Legitimacy Theory and the Effectiveness of
Truth Commissions, 72 LAW & CONTEMP. PROBS. 123, 124 (2009).
6 See Stephanos Bibas, Bringing Moral Values into a Flawed Plea-Bargaining
2011] SHOULD WE SEARCH FOR THE TRUTH? 391
the same breath declares in open court "I didn't do it," the ensuing
finding of guilt may or may not be technically valid.'3 But the
equivocality of the defendant's declarations and the apparent lack
of a reliable foundation for the court's judgment makes us (and
that means lawyers as well as the non-lawyer public) feel that the
process has not provided a proper resolution to the conflict that
triggered it.' 4 The procedural rules on guilty pleas may permit the
court to ignore the defendant's protest that he was induced to
declare himself guilty only by the fear of the death penalty if he
went to trial, but the judgment remains deficient when there is
reason to believe that it is based on a fiction, or on an assumption
that is equally likely to be true or false.'" In essence, the social
acceptability of the judgment is at issue here. Society tolerates
(because it has to) a margin of error as to the court's findings of
fact and law, but even in common law systems, a judgment that
does not even claim to have a basis in "true facts" will not be
accepted as a just resolution of conflict and instead will appear as
an arbitrary judicialfiat.16
Before taking a closer look at the exact meaning of "truth,"
two caveats are in order with respect to the truth-orientation of the
criminal process. First, even if the establishment of the "truth"
about the relevant events is one of the goals of any criminal
process conducted by the state, this does not mean that every
20 For the ongoing debate in the U.S. regarding the exclusion of illegally obtained
evidence, compare Guido Calabresi, The Exclusionary Rule, 26 HARV. J.L. & PUB. POL'Y
111, 112 (2003) (arguing that the exclusionary rule has actually served to diminish
privacy), and Patrick Tinsley et al., In Defense ofEvidence andAgainst the Exclusionary
Rule: A Libertarian Approach, 32 S.U. L. REv. 63, 72-3 (2004) (arguing that the
exclusionary rules offend sound libertarian philosophy), with Yale Kamisar, In Defense
of the Search and Seizure Exclusionary Rule, 26 HARV. J.L. & PUB. POL'Y 119, 126
(2003) (responding to critics of the exclusionary rule), and Timothy Lynch, In Defense of
the Exclusionary Rule, 23 HARV. J.L. & PUB. PoL'Y 711, 715, 730 (2000) (arguing that
the exclusionary rule is necessary to check the executive branch's power).
21 See Tinsley, supra note 20, at 68.
22 Examples of extraordinary situations could be: the defendant has obtained an
exonerating document by robbery or extortion (simple larceny should be a borderline
case); the defendant has used illegal threats to make a witness come forward and testify
(truthfully) on his behalf See generally Celia Goldwag, The Constitutionality of
Affirmative Defenses-After Patterson v. New York, 78 COLUM. L. REv. 655, 670 (1978).
23 See Michael S. Moore, The Plain Truth About Legal Truth, 26 HARV. J.L. & PuB.
POL'Y 23, 24 (2003) (discussing different definitions of "truth").
2011] SHOULD WE SEARCH FOR THE TRUTH? 395
30 Id.
31 See Damaika supra note 17, at 581 ("Almost imperceptibly, the emphasis shifts
here from problems of cognition to the concern that parties abide by the rules regulating
their 'battle."'). For a subtle and profound analysis of this issue, see ANTONY DUFF ET
AL., 3 THE TRIAL ON TRIAL 62 (2007).
32 See GERSON TROG, LOSUNGSKONVERGENZEN TROTZ SYSTEMDIVERGENZEN IM
DEUTSCHEN UND US-AMERIKANISCHEN STRAFVERFAHREN 59-70 (2003). For an analysis
of the philosophical background of the two systems, see King, supra note 28, at 193-207.
An affirmative state interest in determining the truth also comports with the ideal type of
an "activist" state in the typology developed by Mirjan Damaika. MIRJAN DAMASKA,
THE FACES OF JUSTICE AND STATE AUTHORITY 47-56 (1986). In a "reactive" state, the
judge would typically wait for the parties to present their cases and would decide their
dispute on the basis of what facts and legal propositions have been presented to him or
her. However, in the criminal process even the "reactive" state is engaged as a party, so
that Damaika's model does not quite fit.
33 See Mirjan Damaika, Epistemology and Legal Regulation of Proof 2 LAW,
PROBABILITY & RISK 117, 120 (2003).
34 See id; Damaika, supra note 17, at 525; Grande, supra note 24, at 147.
2011] SHOULD WE SEARCH FOR THE TRUTH? 397
35 I leave aside rules on the burden of proof, including the rule that the defendant
can be convicted of a crime only if the prosecution has proved his guilt beyond a
reasonable doubt.
36 See Grande, supra note 24, at 146-47.
37 See Damaika, supra note 33, at 120; see Hodgson, supra note 24, at 223-24;
see also Stefan Kirsch, Verteidigung in Verfahren vor dem Internationalen
Strafgerichtshoffjir das ehemalige Jugoslawien (JStGH), 2003 STRAFVERTEIDIGER 636,
638 (2003), regard this as the distinctive difference between the two types of process.
38 Damaika, supra note 33, at 120.
39 For example, in the Dutch system, the defense can request before trial that the
investigating judge interrogate certain witnesses with a view toward saving their
testimony for the trial phase. WETBOEK VAN STRAFVORDERING [Sv] [CODE OF CRIMINAL
PROCEDURE] art. 226a-226s (Neth.). In Germany, both the defense and prosecution can
demand that the court hear certain witnesses in addition to those the presiding judge had
subpoenaed on his own motion. Strafprozessordnung [StPO] [Code of Criminal
Procedure] Apr. 7, 1987, Bundesgesetzblatt Teil I [BGBI. I] VI, as amended §244 1 3.
398 N.C. J. INT'L L. & COM. REG. [Vol. XXXVI
A. HybridSystems
The landscape of international procedural systems has shifted
from a stark division between codified and common law, to what
looks more like a checkerboard of individual approaches and
solutions. Each country's rules of criminal procedure do not
depend so much on its "legal culture,"" its national heritage, or its
adherence to one great scheme ("inquisitorial" or "adversarial").
Rather, they have been shaped by political and pragmatic
preferences that can change over time and are subject to transfers
(2) Measures which impair the accused's memory or his ability to understand
shall not be permitted.
(3) The prohibition under subsections (1) and (2) shall apply irrespective of the
accused's consent. Statements which were obtained in breach of this
prohibition shall not be used, even if the accused agrees to their use.
Id. By contrast the Police and Criminal Evidence Act , leaves it to the judge's discretion
to accept or reject illegally obtained evidence. Police and Criminal Evidence Act, 1984,
c. 60, § 78 (U.K.).
56 German courts hold illegally obtained evidence to be inadmissible only if a
statute demands this result or if higher-ranking reasons exist to exclude the evidence.
See Federal Constitutional Court, Judgment of Oct. 15, 2009, 2010 NEUE JURISTISCHE
WOCHENSCHRIFT 287; 44 BGHST 243 (249) (Ger.); 51 BGHST 285 (290) (Ger.).
57 See Federal Constitutional Court, Judgment of March 16, 2006, 2006 NEUE
JURISTISCHE WOCHENSCHRIFT 2684 (holding that evidence obtained through an arbitrary
warrantless search was inadmissible); Judgment of 18 April 2007, 2007 NEUE
JURISTISCHE WOCHENSCHRIFT 2269. See also Judgment of the State Court of Appeals of
Oldenburg of 12 Oct. 2009 NEUE JURISTISCHE WOCHENSCHRIFT 3591 (holding that a
blood sample taken without judicial warrant was inadmissible).
58 See Tatjana Htrnle, Unterschiede zwischen Strafverfahrensordnungenund ihre
kulturellen Hintergriinde, 117 ZEITSCHRIFT FUR DIE GEsAMTE
STRAFRECHTSWISSENCHAFT 801, passim (2005) (discussing cultural backgrounds of
various criminal procedure systems).
402 N.C. J.INT'L L. & COM. REG. [Vol. XXXVI
and transplants.5 9
It is indeed becoming more and more difficult to place some of
today's legal systems in the inquisitorial or adversarial box.
During the last few decades, a number of "mixed" legal systems
have developed which are faithful to their inquisitorial origins in
some respects, but also display distinct adversarial features. o
6
Italy," Japan,6 2 and Spain "-although differing from each other in
many respects-are examples of this type of procedural
arrangement. Typically, in these hybrid systems there exists a
unilateral pretrial process, often conducted by the police under the
guidance of the public prosecutor.' The parties present evidence
at the trial, but the court retains a residual right (and obligation) to
ensure the relevant issues are covered at the trial. 65 Hybrid
for relief to the European Court of Human Rights; Convention for the Protection of
Human Rights and Fundamental Freedoms art. 34-35, June 1, 2010, Eur. Ct. H.R. The
Court can declare that the petitioner's rights under the ECHR have been violated and can
oblige the state in question to pay the petitioner financial damages. Id. art. 41.
81 See, e.g., Unterpertinger v. Austria (No. 9120/80), Eur. Ct. H.R. 28-30 (1986);
Doorson v. Netherlands (No. 20524/92), Eur. Ct. H.R. 66-80 (1996); Van Mechelen v.
Netherlands (No. 21363/93), Eur. Ct. HR. 1 46-65 (1997); Romanov v. Russia (No.
41461/02), Eur. Ct. H.R. 97-106 (2008).
82 See, e.g., McEwan supra note 12, at 59 ("Defendants in continental trials are at
the mercy of the presiding judge, lacking the protective shield of the Anglo-American
exclusionary rules about bad character."); Gerald Walpin, America's Adversarial and
Jury Systems: More Likely To Do Justice, 26 HARv. J.L. & PUB. POL'Y 175, 177 (2003)
("In the adversarial system, the lawyer for a party has the duty to act zealously and
faithfully for his client .... That is simply not the obligation of an inquisitorial judge.").
See also CRAIG M. BRADLEY, CRIMINAL PROCEDURE: A WORLDWIDE STUDY XXi-xxii
(Carolina Academic Press 2d ed. 2007).
83 In some countries, the fact alone that the adversarial system is practiced in the
United States may make it more attractive than one's own procedural arrangements
associated with authoritarian political regimes of the past. See Grande, supra note 61, at
231 ("Being associated with Lockean liberal values, distrust of the state, restraint of state
power, and freedom from the state's intrusion in private lives, adversary criminal
procedure symbolizes the procedural model that would appear to best safeguard the
individual against state abuses."). See also Ellen E. Sward, Values, Ideology and the
Evolution of the Adversary System, 64 IND. L.J. 301, 302 (1989).
2011] SHOULD WE SEARCH FOR THE TRUTH? 407
84 See Damaika, supra note 17, at 563; Trtig & Kerner, supra note 32, at 192.
85 See Walpin, supra note 82, at 180.
86 See BRADLEY, supra note 82, at xviii-xix; Grande, supra note 61, at 161-62;
Hrmle, supra note 58, at 833.
87 See John D. Jackson, Finding the Best Epistemic Fitfor InternationalCriminal
Tribunals, 7 J.INT'L CRIM. JUST. 17, 24-25 (2009).
88 Cf Albin Eser, Reflexionen zum Prozesssystem und Verfahrensrecht
internationaler Strafgerichtsbarkeit, in STRAFRECHT UND WIRTSCHAFTSSTRAFRECHT.
FESTSCHRIFT FOR KLAUS TIEDEMANN 1453, 1459-60 (Ulrich Sieber et al. eds., 2008).
89 See ANTONIO CASSESE, INTERNATIONAL CRIMINAL LAW 410 (2d ed. 2008).
90 See Roberts & Zuckerman, supra note 44, at 215-217; Spencer, supra note 44,
at 629. One further drawback of the adversarial mode is that it tends to consume
408 N.C. J.INT'L L. & COM. REG. [Vol. XXXVI
significantly more trial time because every witness is examined by two parties who often
go over the same issues; moreover, bench conferences deciding difficult procedural
issues prompted by complicated rules of evidence also draw out adversarial trials. See
CASSESE, supra note 89, at 365.
91 See Hdmle, supra note 58, at 829; Francoise Tulkens, Negotiated Justice, in
EUROPEAN CRIMINAL PROCEDURES, supranote 17, at 677.
92 See Tulkens, supra note 17, at 675-76.
93 Roberts & Zuckerman, supra note 44, at 348.
2011] SHOULD WE SEARCH FOR THE TRUTH? 409
110 See id. at 598-600 (proposing that discovery rules should allow for early defense
access, and also that discovery should be completed before a trial date is even set).
Ill For a discussion of the importance of full discovery, see id. at 557 ("[lIn 95% of
criminal cases, evidence is not evaluated by a jury, witnesses are not subjected to cross-
examination, and the prosecution is not put to its proof. Because the evidence available
at the time of many pleas is the evidence that the prosecution has chosen to disclose,
prosecutors end up being the fact-finders, rather than juries.").
112 See id. at 578 (acknowledging that in many states, the defense cannot compel the
prosecution to disclose its witnesses and their statements prior to trial).
113 The German Code of Criminal Procedure provides a general right for defense
counsel "to inspect the file that has been presented to the court or would have to be
presented to the court in case charges are filed." STRAFPROZESSORDNUNG [STPO] [CODE
OF CRIMINAL PROCEDURE], April 7, 1987, BUNDESGESETZBLATE I [BGBL] 1074, as
amended, § 147, 1 (Ger.) [hereinafter STPO]. This refers to the case file of the
prosecutor, who is obliged to turn the file of the investigation over to the trial court when
he has filed charges. The defense inspection right applies, in principle, at all times
during the investigation. Id. 3. However, the prosecutor can (and often does) deny
defense inspection as long as the investigation continues (i.e., as long as charges have
not been filed) if inspection might "jeopardize the purpose of the investigation." Id. 1 2.
Since the defense lawyer can pass on to his client any information gleaned from the file,
denial can be based on the fear that the defendant might abuse such information, for
example to intimidate or otherwise improperly influence witnesses.
114According to Section 68, paragraph 4 of the German Code of Criminal
Procedure, information concerning the name and address of a witness can be removed
from the file if there exists a risk that the witness could be intimidated or harmed. The
government can also deny access to documents if their disclosure could jeopardize the
well-being of the state. See STPO § 96 (1987) (Ger.).
2011] SHOULD WE SEARCH FOR THE TRUTH? 413
115 Cf Prosser, supra note 105, at 611-12 (discussing provisions for protective
orders and limitations during depositions, which embody this compromise).
116 In Italy, defense lawyers can even conduct searches themselves; they only need
the owner's consent if the search involves a home. See C.c.p. art. 38 (It.).
117 Cf John D. Jackson, Making Juries Accountable, 50 AM. J. CoMP. L. 477, 477-
82 (2002) (describing the possibility for mistake with juries, coupled with the jury's lack
of accountability to the legal system); see also Prosser,supra note 105, at 547 (noting
the "scores of exoneration[s]" based on actual innocence, which has "taught us that juries
sometimes convict [the] innocent .... ).
118 See Austrian Code of Criminal Procedure (Strafprozessordnung, STPO), at §§ 31
(2), 32.
119 See 1994 CONST. art. 150 (Belg.).
120 See, e.g., FED. R. CluM. P. 23(a).
121 On the requirement of a reasoned judgment under Article 6 of the European
Convention on Human Rights, see Janatuinenv. Finland,judgment of 8 December 2009,
App. No. 28552/05, 1 64; Garcia Ruiz v. Spain, judgment of 21 January 1999, App. No.
30544/96, T 26 with further references.
414 N.C. J. INT'L L. &COM. REG. [Vol. XXXVI
mixed bench.'22
In summary, a "compromise" model that combines the features
that may be best suited for a determination of the truth could
consist of:
* a thorough pretrial investigation guided by a
state agent (judge or prosecutor) but with an
option for the defense to participate and to
obtain access to the results of the investigation;
and
* a trial before a court that consists at least partly
of professional judges, where the evidence is
initially presented by the prosecution and the
defense, but where the judges can question
witnesses and introduce additional evidence on
their own motion. 12 3
IV. Conclusion
Inquisitorial and adversarial models of trying criminal cases do
not differ so much in their aim-the finding of the "truth"-but in
the allocation of responsibility for reaching it.'24 While it remains
an open question as to which mode is, in general, better suited to
reach the goal of truth-finding, there are strong indications for a
convergence of the two models toward shared responsibility, with
judges becoming more active in adversarial systems and parties
obtaining greater participation rights in inquisitorial systems. 125
The trend of the future may be the recognition of responsibility for
truth-finding as a task to be shared by the prosecution and the
court, with the defense free to join or to remain passive, relying on
the presumption of innocence.126 If that holds true, the question of
"adversarial" or "inquisitorial" presentation of evidence loses
much of its theoretical significance and becomes an issue of mere
trial technique.
122 See Spencer, supra note 44, at 622 (stating that requiring judges to provide a
reasoned decision acts as a reasonable safeguard against negligence and arbitrariness).
For a discussion of the difficulties of holding juries accountable, see Jackson, supra note
117, at 517-24.
123 See supra Part III(C).
124 See supra Part II.
125 See supra Part III(A).
126 See supra Part III(B).
2011] SHOULD WE SEARCH FOR THE TRUTH? 415