COURT SYSTEMS AND LAWfeeling he would be caught and so offering confes-
sion at once), had the virtue that they brought the
conflict to an end, and prevented further acts of
vengeance that would disturb the peace of the
community. With the accusatory practice, presum-
ably conflict would also be terminated but might
go on if each party felt justice had not been done.
The inquisitorial model introduced the state
as an active participant in the trial. Now the judge,
who is after all a representative of government, is
in a coalition with the prosecution against the
third party, the defendant. Although this biases
the process, in practice, the introduction of the
jury, the fact that proceedings are oral, as well as
limitations on the power of the judge all combine
to make the system fair, though excesses did and
continue to exist.
The criminal trial is in three parts: the investi-
gative phase, with the public prosecutor assuming
an active role; the examining phase, presided over
by a judge who assumes an active role in examin-
ing the evidence; and preparing a record and the
trial. Judges may, if warranted, end the proceed-
ings if they feel the evidence is not conclusive, or
they may decide the case should go to trial. The
accused is entitled to legal representation as well
as the right to inspect the material the judge has
collected. He can be questioned, but not sworn,
and he or she may refuse to answer. Unlike the
American system in which a defendant, if sworn,
may then be cross-examined, no comparable pro-
cedure exists, though a refusal to answer by the
accused may be taken into account by the jury.
British judges assume a more active role in the trial
process than is the case in the United States.
However, this is not ‘‘inquisitorial’’ in a narrow
sense but rather a reflection of the fact that in the
English procedure the judge determines the rele-
vancy of evidence, rather than the strict exclusion-
ary and other rules emphasized in American courts.
To do their jobs, English judges are much more
willing to question witnesses or even raise issues
(Glendon et al., 1982, ch.. 10).
Until the 1980s, plea bargaining was consid-
ered to be undesirable practice, only possible in
America. But judicial scholars increasingly asked
how could civil law jurisdictions possibly handle all
the criminal cases they had to decide without some
form of plea bargaining? After a spirited debate
and careful research, it was finally concluded that
plea bargaining, though not exactly like that used
in America, was in fact being used in European
countries. In the case of Germany, Hermann (1991)
reports that some kind of plea bargaining takes
place in from 20 to 30 percent of all cases. While
far from the American percentage of 90 percent,
that is still considerable, particularly since it is
accompanied by other forms of sentence reduc-
tion and mitigation of offenses. It is widely em-
ployed in complex cases, such as white-collar crimes,
tax evasion, and drug offenses, which present
nearly impossible evidentiary problems, as well as
less serious crimes, which are settled with a fine. It
is rare in cases involving violent crimes, however.
Bargaining occurs at all stages of a criminal pro-
ceeding, often with the active participation of the
judge, who may even take the initiative. A settle-
ment may take the form of the accused agreeing to
pay a sum of money to a charitable organization.
Other alternatives include penal orders that are
similar to nolo contendere pleas in which the ac-
cused agrees to a fine—usually for minor misde-
meanor cases, such as traffic cases. Pleas also occur
if the accused makes a confession. Normally, a
confession does not lead to avoidance of a trial, as
is the case in America. Instead, it usually leads to a
reduction in the sentence. Other countries are
also beginning to allow plea bargaining as many
had been doing, but are now doing more openly.
The most striking example is that of Italy, which
even uses the term patteggiamento, the Italian word
for bargain (Piazzi and Marafioti 1992; Merryman
et al., pp. 1100 ff). However, there is no reduction
of the charge, as in the American system, but there
is a maximum reduction of one-third of the nor-
mal sentence, which may not exceed two years,
which has the effect of limiting the practice to
cases with shorter normal sentences. In Italy, as is
the case in other civil law countries, the trial
decision is made by a panel of judges, a practice
which, however costly, is defended as superior to
the American practice, which places what is felt to
be excessive power in the hands of a single judge.WILL COMMON LAW AND CIVIL LAW
SYSTEMS PERSIST?Although we have focused on differences between
the two systems, and the differences are indeed
substantial, there is considerable movement to-
ward the convergence of common and Civil law
systems. The attempts to severely limit the power