Like the prologue in a Shakespearean play, I am here to set the stage for the conflict to follow. My limited role is to introduce you by way of background to pretrial and trial proceedings in the common and civil law legal systems so that Professors Freedman and Weinreb may verbally spar over the merits of the so-called adversarial and inquisitorial methods of truth-finding. Before turning to this task, however, I must sound a warning or two. First, pressed by the twin necessities of brevity and clarity, my descriptions will be stark. I have abolished nuances from my discourse and deliberately elected to script my remarks with a sweeping cadence. I will not depart from the traditional canons of comparative law scholarship, although the field is currently enjoying a renaissance. Second, my description will suggest two fixed and isolated systems, devoid of internal evolution and without interaction. Both suggestions are misleading. Responding to the globalization of capital and industrial markets and the incipient globalization of the legal profession, the two legal systems are separately undergoing a remarkable transformation in which the influence of each on the other is substantial.
To facilitate my description, I would like to tap into our shared legal subconscious and bring three high-profile events to the fore: the California trial of O.J. Simpson, the Massachusetts trial of Louise Woodward, and the French investigation into the death of Princess Diana. These events, I submit, are handy tools for exploring the way the two systems search for justice in criminal proceedings. Of course, they are not perfectly suited for this task. The civil law system is neither uniform in its procedures nor homogeneous in substantive law content. Consider, if you will, that the geographic mass of "the civil law system" stretches over Spain, Portugal, Germany, Italy, Belgium, and the countries of Latin America as well The Netherlands and the Scandinavian countries. Moreover, the three events are, or have been, the subject of intense media scrutiny and two of the participants, O.J. Simpson and Princess Diana, were public celebrities in their own right before the legal proceedings began. I am quite sure that the conduct of the proceedings is not truly representative of the ordinary, day-in, day-out operations of either the French or U.S. courts. Nonetheless, I am hopeful that an examination of the two trials and the investigation will illustrate the enormous differences in structure and culture that separate the common and civil law systems.
Daly, Mary C.
"Some Thoughts on the Differences in Criminal Trials in the Civil and Common Law Legal Systems,"
Journal of the Institute for the Study of Legal Ethics: Vol. 2, Article 6.
Available at: https://scholarlycommons.law.hofstra.edu/jisle/vol2/iss1/6