1 Colum. J. Eur. L. 369 (1995)
William T. Pizzi. Professor of Law, University of Colorado School of Law.
As citizens become increasingly frustrated with the American criminal justice system and concerned about a trial system that seems to be more about winning and losing than it is about truth and that seems to place more emphasis on the skill of the lawyers than it does on the evidence, it is only natural to wonder how trial systems work in other western countries. Does a trial system have to be this complicated? Are trials in other countries punctuated with frequent sidebar conferences where subtle points of laws are argued among the lawyers and the judge, out of the hearing of the jury? Do other trial systems place as heavy an emphasis on lawyers and lawyering skills as does the American system?
Unfortunately, it is not as easy to gain an understanding of a foreign legal system as one might think because the foreign system is always filtered through the prism of one’s own legal, political and cultural traditions, making it hard to understand and appreciate the foreign system without patience and effort. Many of the generalizations that are frequently offered to describe continental trial systems – that they have no rules of evidence, that they are not adversarial, that they have no presumption of innocence, etc. – are either inaccurate or misleading. More importantly, saying what continental systems don’t have doesn’t do much to describe the concept of trial that is shared by continental systems or to explain how that concept differs from the American idea of what a trial should be.
In learning to appreciate other trial traditions American lawyers are at a special disadvantage when compared to European lawyers. While European lawyers are constantly exposed to various aspects of our legal system and our legal culture through the many American movies and television shows that center on American trials or other aspects of the American legal system, very few American lawyers know even the most basic rudiments of European trial systems.
This essay is an attempt to introduce American readers to the concept of trial that dominates the so-called civil law countries (which include most European countries) in order to show how the concept of what should occur at a civil law trial differs in important respects from what is considered proper and desirable at American trials. But instead of talking about the two systems directly, the essay approaches the subject of trial systems by approaching the topic through a common passion shared by both Europeans and Americans: a passion for football. But, of course, as the 1994 World Cup games demonstrated to Americans, it is football of a very different type that Europeans love, namely, what Americans refer to, and what I shall refer to in this essay, as “soccer.”
It may seem bizarre as an initial matter to think that there is anything that sport can teach us about trial systems. But, on reflection, I think that it is not surprising that elements of a country’s popular culture, such as the sport it loves, might reflect the legal culture of that country as well and thus help to explain the legal culture. Games of sport are defined by rules and infractions of those rules must be punished by a referee or a judge. But “rules,” “referees,” and “violations of the rules,” are equally part of the vocabulary we use to discuss trials. To the extent that soccer differs conceptually from football in its concept of the need for rules, in its view of the way rules should be enforced, and in its concept of what the game should emphasize on the playing field, it should not be surprising to find that some of these same basic conceptual differences exist in the respective trial systems as well.