Prosecutorial Ethics in Inquisitorial Systems…April 2012 Thoughts….

Anyone who does innocence work in the U.S. is familiar with prosecutorial tunnel vision, stiff prosecutorial resistance to innocence claims, and all the nasty and unreasonable responses we often get from prosecutors that we tend to chalk up as a by-product of our adversarial system of justice.

After reading Huff and Killias’ book Wrongful Convictions:  International Perspectives on Miscarriages of Justice, I became very interested in prosecutorial training and ethics in the inquisitorial justice systems of Western Europe.  Many of the articles in the book depict the inquisitorial systems of justice as ones in which prosecutors take very seriously their duty to remain neutral and seek justice over victories.  Anyone interested in this issue should read the Huff and Killias book, as they do a convincing job of highlighting some strengths in the inquisitorial systems.  This book, and conversations with some of the authors in the book, caused me to say in a forthcoming article:

In recent years, I have spent quite a bit of time outside of the United States helping attorneys and scholars set up the framework for innocence organizations in their home countries.  In Western European countries, where the systems are inquisitorial rather than adversarial, scholars tell me that the prosecutors are trained early on to seek the truth and to be as objective as possible.  This responsibility is taken seriously.  Objectivity and fairness are part of the prosecutorial culture, and it is ingrained in these attorneys from the start.  Even defense attorneys from these countries tell me that when they hear or read stories of prosecutorial resistance to post-conviction innocence claims in the United States, they cannot fathom such behavior.  Western European defense attorneys have told me repeatedly that prosecutors in their home country typically do not act that way.

Although I would not depart from the adversarial system for reasons too complicated to elaborate on here, I have come to conclude that our system needs to adopt some aspects of the inquisitorial system.  Most notably, we need to do a better job of enforcing the duty of the prosecutor to remain objective and seek justice first and foremost.

I just returned for a trip to Europe, where I spoke in the Netherlands and Italy, and met with criminal law professors who study wrongful convictions in France.  When I asked about the behavior of prosecutors in their inquisitorial systems, I got a very strong response from attorneys in 2 of the 3 countries (Netherlands and France) that can be paraphrased as follows:  “It used to be the case that prosecutors were perhaps more fair and neutral than in the U.S. and UK, but this has really changed in recent years.  Now we often see the same type of unreasonableness that attorneys in adversarial systems complain about.”  The lawyers in these countries described their inquisitorial system as having all the power concentrated on the prosecutors side of the table, and the defense lawyers, in contrast, having their hands tied behind their backs.  Because the prosecutors and judges are supposedly neutral in these systems, there is no independent right for the defense to investigate or put forth their own competing expert witnesses, for example.  Many of these scholars and lawyers in Western Europe longed for a more adversarial approach, where at least the defense would have something approaching equal rights.

I believe each system has a lot to learn from the other.  Studying comparative systems of justice always leads to greater insights at home.  And it seems there are still some places in Europe where the inquisitorial systems appears to work as they should, and  places in the U.S. where the adversarial system works as it should.  How to bring the best of both systems together is something that I will continue to think about and struggle with…As attorneys with experience in inquisitorial systems find this post in the future, please add your thoughts to help enlighten us…

3 responses to “Prosecutorial Ethics in Inquisitorial Systems…April 2012 Thoughts….

  1. Docile Jim Brady – Columbus OH 43209

    OPINION 94-10 ♦ Issued August 12, 1994

    [CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]

    SYLLABUS: When a prosecutor becomes aware that a criminal action lacks merit, it is improper under DR 1-102(A) (5) and DR 7-105(A) of the Ohio Code of Professional Responsibility for the prosecutor to offer to dismiss the criminal charge in exchange for the defendant’s promise to sign a release of all civil claims against an arresting police officer, other officers at the scene, and the city.

    A prosecutor’s duty is to see that justice is done. A prosecutor “may prosecute with earnestness and vigor–indeed he [she] should do so. But, while he [she] may strike hard blows, he [she] is not at liberty to-strike foul ones.” Berger v. U.S., 295 U.S. 78, 88 (1935).

    In this Board’s view, a prosecutor’s offer to dismiss a criminal charge that the prosecutor considers to lack merit in exchange for a civil release from a defendant is a foul strike. Such conduct offends several rules within the Ohio Code of Professional Responsibility, in particular, DR 1-102(A) (5) and DR 7-105(A).

  2. This is a perceptive analysis. I agree that there are benefits to both the adversarial and inquisitorial justice systems and that a blending of the two makes sense.

    I had lunch last week with C. Ronald Huff, co-author of the book you cite, “Wrongful Convictions: International Perspectives on Miscarriages of Justice.” Ron told me they are putting the finishing touches on a second book on this topic. From what Ron told me, the book should add more good insight on what we are all learning is a worldwide problem. I plan to post more about the book when it is published.

  3. Pingback: Role of Prosecutors in Postconviction Proceedings | Wrongful Convictions Blog

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