A Survey of Comparative Criminal Procedure Through Foreign Films

ISSN: 2281-5147
Opinio Juris in Comparatione

Studies in Comparative and National Law
Op. J., Vol. I, Special Issue, 2014
A Survey of Comparative Criminal Procedure through Foreign

Films
by
Samuel William Bettwy
PREFACE
My appreciation of comparative legal studies began thirty years ago when I studied Comparative
Law under the late Professor John Wolff at Georgetown University Law Center in Washington, DC.
Among many things, he taught me the difference between foreign laws as they appear in writing and as
they are really applied in action.
Twenty years ago, I sought to follow in Professor Wolffs footsteps and began teaching the course,
based on my notes of his lectures, at Thomas Jefferson School of Law (then Western State University
College of Law) in San Diego, California.
During the early years of my teaching the course, I happened to travel as a Judge Advocate in the
U.S. Army Reserve to Japan, Germany, and France where I seized the opportunity to observe courtroom
proceedings. Those experiences reminded me of Professor Wolffs words and provoked me to consider
how I could bring foreign legal systems to life for my students.
Being a long-time film buff, I experimented by showing clips from foreign films in class, with the
reluctant approval of the law school administration. This approach to teaching comparative law took on a
life of its own and after several years I had accumulated over 300 foreign law films and had developed a
film-based syllabus.
Ten years ago, it occurred to me that the vast majority of films in my collection concerned criminal
procedure, so I re-designed the course to focus on comparative criminal procedure.
Ten years of research and experimentation in the classroom have culminated in this textbook
which is like no other. Through a combination of readings from the textbook and the viewing of films in
preparation for class, students see in action, through the mise-en-scne, legal players, and narratives, the
aspects of criminal procedure that matter, both consciously and subconsciously, to filmmakers and their
audiences in other legal traditions. By applying the tools of comparative analysis that are taught in the
course, they gain a better understanding of the policies and traditions that underlie their own legal systems
criminal procedure.

A SURVEY OF COMPARATIVE CRIMINAL PROCEDURE

THROUGH FOREIGN FILMS
by
Abstract:
Constructs of comparative legal analysis are described and then applied to examine the adjudicative process
through foreign films, beginning with police contact with a crime suspect and ending either with a judge or
jurys acquittal of an accused or with execution of sentence. The analytical constructs include the
inquisitorial-adversarial dichotomy, role-specific constructs, and the Civil Law-Common Law dichotomy.
In addition, differences in criminal procedure are examined through the Socialist, Islamic, and indigenous
legal traditions. Role-specific constructs measure the degree to which a suspect is expected to cooperate,
the degree of independence and neutrality of the prosecutor, and the degree of lay participation (jurors) in
adjudication and sentencing. The author concludes that a survey of foreign films confirms that suspects
and accused enjoy greater protection of the presumption of innocence in Common Law, adversarial justice
systems, and that there are several aspects of U.S. criminal procedure that could be changed to further
safeguard the presumption of innocence.
Keywords: Comparative Law, Criminal Procedure, Comparative Criminal Procedure, Constitutional Law,
Film Studies
Adjunct Professor of Comparative Law, Thomas Jefferson School of Law. LL.M. Comparative &
International Law, Georgetown University Law Center
S.W. Bettwy, A Survey of Comparative Criminal Procedure...
OUTLINE
I. INTRODUCTION
II. ANAYLTICAL CONSTRUCTS OF COMPARATIVE CRIMINAL PROCEDURE
A. Inquisitorial-Adversarial Dichotomy
B. Role-Specific Analytical Constructs
C. The Civil Law-Common Law Dichotomy
1. Common Law Traditions
2. Civil Law Traditions
a. French Civil Law Traditions
b. German Civil Law Traditions
3. Other Legal Traditions: Socialist, Islamic and Indigenous
a. Socialist Legal Traditions
b. Islamic Legal Traditions
c. Indigenous Legal Traditions - Aboriginal Australians
D. International Criminal Procedure
III. FILMIC DEPICTIONS OF THE INVESTIGATIVE PHASE
A. Police, Suspects and the Right to Remain Silent
1. Warnings
2. Delayed Legal Representation and Coercion
3. Coercion to Obtain Confessions
4. Confrontation and Reenactments at the Scene of the Crime
B. Prosecutor as Investigator and Charging Authority
1. Probable Cause for Trial (the Screen)
2. Prosecutorial Discretion (Buffer I)
3. The Neutral Investigating Judge (Buffer II)
4. Offers of Leniency and Plea Bargaining
C. Pretrial detention
IV. FILMIC DEPICTIONS OF TRIAL
A. Prosecutors Litigative Role
B. Victims Role at Trial
C. Accuseds Rights at Trial
1. Presumption of Innocence and the Right to Remain Silent
a. Requirement to Take the Stand
b. Evidentiary Rules
c. No Separate Sentencing Hearing
2. Right to Be Present
3. Right to a Public and Oral Trial
a. Inquisitorial Trial by Judge and Dossier
b. Spectator Conduct
c. Media and Community Pressure
4. Right to Call and Question/Confront Witnesses
5. Right to Effective Assistance of Counsel
a. Freedom of Communication (Access)
b. Disagreement between the Accused and Defense Counsel
c. Right to Self-Representation
Opinio Juris in Comparatione, Vol. I, Special Issue, 2014

V. FILMIC DEPICTIONS OF ADJUDICATION AND SENTENCING
A. Judge-Only (No Jurors)
B. Independent Jury
C. Mixed Panel
VI. DEATH PENALTY FILMS
VII. CONCLUSION
APPENDIX A: Films by Legal Tradition and Country
APPENDIX B: Sample Course Syllabus

I. INTRODUCTION
The greatest value of comparative legal studies is gaining insight into the strengths and weaknesses
of ones own legal system. As explained in Comparative Legal Traditions, comparative legal analysis is also
valuable because foreign legal systems (1) provide a living laboratory for law reformers to test their
hypotheses, (2) open up a vast reference world of persuasive precedents for advocates and judges in cases
of first impression, and (3) illuminate the historical development of law and society.1 In sum,
comparative legal studies help us better understand why our laws exist so that we can apply or change them
intelligently. It may be added that the study of foreign legal systems reveals the analytical approaches of
jurists who have been trained in differing legal traditions, enabling us American lawyers to communicate
with them, and even to borrow their ways of thinking.2
One drawback of comparative legal studies is the artificiality of observing a foreign legal system
through books. As Rabel insisted, there is little use in comparing rules as they appear in books,3 and this is
especially true when comparing criminal justice systems. Since, as Glendon et al. write, comparative legal
analysis expands our theater of observation, revealing the stories that foreign legal systems tell and the
visions that they project,4 the benefits of studying comparative criminal procedure through film are
apparent. Like the classical casebook approach, the filmic approach reveals how the law in theory is
actually applied to a set of facts. If we want to see a criminal trial in action in our own countries, we go to
the courtroom to observe one.5 Films have the advantage over books of transporting us to foreign legal
systems in action. Because film is a visual medium, it provides a You are there dimension to learning.
Some films are better made and more critically acclaimed than others, and tastes in films differ.
Many foreign films are an acquired taste. But to the extent that they accurately depict criminal procedure,
all of the films described in this textbook are useful for the comparative study of criminal procedure
because they depict criminal procedure in action. The films were selected on the basis of their accuracy,
Mary Ann Glendon, Paolo G. Carozza & Colin B. Picker, COMPARATIVE LEGAL TRADITIONS IN A NUTSHELL 80, 95-97 (3rd
ed. 2008). The author uses this resource as a textbook in a traditional course on Comparative Law.
2 Comparative law was an integral part of the United States recent rule of law missions in Iraq and Afghanistan. See The Judge
Advocate Generals Legal Center and School, U.S. Army, Center for Law and Military Operations, Rule of Law Handbook: A
Practitioners Guide for Judge Advocates 83-122 (2011), available at www.loc.gov/rr/frd/Military_Law/pdf/rule-oflaw_2011.pdf (last visited Oct. 11, 2014); U.N. Dept of Peacekeeping Operations, Primer for Justice Components in
Multidimensional Peace Operations: Strengthening the Rule of Law 6 (2006) (Legal reforms will only take hold if they are . . .
sensitive to the culture and legal tradition of the host country.).
3 Glendon, et al., supra note 1 at 2.
4 ID. at 7, 13. See also Suzanne Shale, The Conflicts of Law and the Character of Men: Writing Reversal of Fortune and Judgment at Nuremberg,
30 UNIV. SAN FRANCISCO L. REV. 991 (summer 1996) (I had a professor, when I went to New York University. . . . I asked
him, Whats the best way to study to become a writer, [playwright], write movies? And he says, Become a lawyer. Because they
are so meticulous on structure . . . [and] presenting a very dramatic thing.).
5 Nicole Rafter, SHOTS IN THE MIRROR: CRIME FILMS AND SOCIETY 93 (2000) (courts as places where fundamental social and
moral issues are settled..
1

historical significance, critical acclaim, popularity,6 and cinematic quality. Most of the films are fictionbased-on-fact or purely fictional, because a fictional narrative best reveals the truth of a society through
the filmmakers subconscious and cultural background. Documentaries tend to be the product of a
filmmakers conscious effort to build an argument,7 so we should read them with healthy cynicism.
Since the ultimate goal of studying foreign legal systems is to gain greater insight into ones own
legal system, and since films enable us to see foreign legal systems in action, the goal of this textbook is to
enable you to read a foreign law film and recognize the distinguishing features of that foreign legal
systems criminal procedure. With the ability to read foreign law films, you will watch and analyze films to
gain greater insight into your own legal system. You will gain or strengthen your ability to (1) recognize the
distinguishing features of the worlds legal traditions in action, with a focus on criminal procedure, (2)
distill and describe the legal narrative of a foreign film and the legal tradition that is reflected in the film,
and (3) evaluate the strengths and weaknesses of the countrys criminal procedure, from the filmmakers
point of view and from your point of view. With those abilities, you can achieve insight into your own
system of criminal procedure by watching foreign law films.
Because of what is at stake in a criminal case -- property, liberty and sometimes even life -filmmakers and their audiences take great interest in the adjudicative process. And they naturally take
interest in only those aspects of criminal procedure that matter to them. Aspects of criminal procedure that
matter to filmmakers and their audiences are played out and depicted in the mise-en-scne, the characters, and a
narrative that provides even greater insight into the attitudes of filmmakers and audiences toward their own
countries justice systems.8
With reference to filmic examples, the next section explains the tools of comparative legal analysis
and how to apply them to the aspects of criminal procedure that matter to lawyers and their clients, namely
aspects that affect the outcome of the adjudicative process. The traditional tools of comparative analysis
include the inquisitorial-adversarial dichotomy, role-specific constructs, and the Civil Law-Common Law
dichotomy. In addition, differences in criminal procedure can be examined through the Socialist, Islamic,
and indigenous legal traditions and through the evolving international legal regimes.
Nearly all of the films rate well over 50% among critics and/or audiences on www.rottentomatoes.com.
Cynthia D. Bond, Documenting Law: Reality and Representation on Trial, 39 LINCOLN L. REV. 1 (2011-2012) (the viewer, especially a
lay observer, may be tend to trust the truth or accuracy of a documentary over the narrative of a fiction film, and yet
documentaries typically tend to present a competing view of really happened); Taunya Lovell Banks, What Documentary Films
Teach Us about the Criminal Justice System, 8 U. MD. L.J. RACE, RELIGION, GENDER & CLASS 1 (2008). One notable exception is the
French documentary Tenth District Court (France 2 Cinma 2004) (Fr.) which contains no narration whatsoever.
8 Jessica Silbey, Truth Tales and Trial Films, 40 LOY. L.A. L. REV. 551 (2007) (analysis of films Compulsion and Swoon, using the
parameters of the truth tale as a subgenre of courtroom drama that affects a particular kind of popular legal consciousness.).
6
7

Role specific constructs are tools for analyzing the roles of the police, prosecutor, victim,
suspect/accused, defense counsel, judge and jury (if any). Such constructs allow you to measure such
things as the degree to which a suspect is expected to cooperate, the degree of independence and neutrality
of the prosecutor, and the degree of lay participation (jurors) in adjudication and sentencing.
In Sections III through VI, the tools of comparative legal analysis are then applied to examine the
adjudicative process through film, beginning with police contact with a crime suspect and ending either
with a judge or jurys acquittal or with execution of sentence. This textbook then concludes that a survey of
foreign films confirms that suspects and accused enjoy greater protection of their right to remain silent and
to the presumption of innocence in adversarial justice systems.
II. ANAYLTICAL CONSTRUCTS OF COMPARATIVE CRIMINAL PROCEDURE
A. Inquisitorial-Adversarial Dichotomy9
A law school course in comparative criminal procedure could simply proceed chronologically
through the adjudicative phases, noting differences between domestic and foreign procedures along the
way. However, such a tour would not be very insightful without analytical constructs. The inquisitorialadversarial dichotomy is a useful analytical tool, because all criminal adjudicative systems of all countries in
the world can be categorized according to whether they are inquisitorial, adversarial, or in the process of
transforming from the former to the latter.
Traditionally, criminal procedure is inquisitorial in Civil Law, Socialist and Islamic countries, and it
is adversarial in Common Law countries. But there are many exceptions to the rule in Civil Law countries
which are gradually adopting aspects of the adversarial process. Civil Law countries primarily recognize
that the adversarial process promotes judicial efficiency. They also realize that the adversarial process better
protects the presumption of innocence, which is an evolving norm of international human rights law.
Poland for example is a Civil Law country, but films such as Life Sentence10 and No End11 depict
lively participation by the prosecutor and defense counsel before an independent jury. Likewise, France is a
leading Civil Law country, but films such as Law Breakers12 and The Life of Emile Zola13 show that courtroom
action can become quite adversarial. A survey of foreign films reveals that proceedings in countries that use
See generally ERIKA Fairchild & Harry R. Dammer, COMPARATIVE CRIMINAL JUSTICE SYSTEMS 140, 146 (Wadsworth/Thomson
Learning 2001); Philip L. Reichel, Comparative Criminal Justice Systems: A Topical Approach 165-71 (5th ed. 2007).
10 Life Sentence (Blok-Muzafilm 1933) (Pl.).
11 No End (P.P. Film Polski 1985) (Pl.).
12 Law Breakers (Compagnie Franco Coloniale Cinmatographique 1971) (Fr.).
13 The Life of Emile Zola (Range Life Entertainment 1937) (US).
9

independent juries tend to be more adversarial. Emile Zola was tried before an independent jury during the
Belle poque, and a handful of Civil Law countries currently use independent juries in criminal trials,
including Austria, Brazil, Greece, Poland, Spain and Russia. Most Civil Law countries, however, use either
no jurors or a mixed panel of judges and jurors.
There are several characteristics that define differences between inquisitorial and adversarial
processes, and through film, you the educated viewer can recognize the differences in action. Countries
with adversarial systems of justice believe that justice can best be achieved with minimal judicial
participation and competition between opposing parties who have a real stake in the outcome. In such
systems, the judiciary acts more as a referee, ensuring that the evidentiary and procedural rules and other
safeguards of fairness are followed. The prosecutor carries the burden to prove guilt, and many times an
accused prevails by default when the government has breached certain procedural rules or safeguards that
have nothing to do with whether the accused is innocent.
Countries with non-adversarial or so-called inquisitorial systems of justice believe that justice is best
achieved through a search for the truth in an investigative process that is controlled by a neutral judiciary.
The lawyers play a minimal role during the presentation of evidence. In such systems, the suspect/accused
is expected to cooperate first with the police (as a suspect) and then the judiciary (as an accused) in finding
the truth, and evidentiary and procedural rules rarely determine the outcome of a case.
Foreign filmmakers faithfully depict these differing approaches of proving guilt (adversarial) and
finding the truth (inquisitorial) in the narratives of their films. Hollywood dominates the international film
market, so filmmakers worldwide tend to follow the Hollywood narrative structure. That structure is
formulaic, especially in law films, so reading a law film is usually straightforward. The crime is likely the
instigating event, and the arrest is the first turning point. Beyond that, the films story unfolds differently in
adversarial and inquisitorial systems.
Given the battle of the typical adversarial, Common Law trial, the protagonist of a courtroom
drama is usually either the prosecutor or defense counsel, driven by the desire to prove guilt or innocence.
Notable examples of British films in which the barrister struggles against great odds to prove the innocence
of his client are Witness for the Prosecution,14 The Paradine Case,15 The Girl in the News,16 and In the Name of the
Father.17 Examples of Australian films are Black and White,18 The Last Wave,19 and A Cry in the Dark.20
Witness for the Prosecution (Edward Small Productions 1957) (US).
The Paradine Case (Vanguard Films 1947) (GB).
16 The Girl in the News (Twentieth Century-Fox Productions 1947) (GB).
17 In the Name of the Father (Hells Kitchen Films 1993) (US).
18 Black and White (Duo Art Productions 2002) (Au.).
19 The Last Wave (Australian Film Commission 1977) (Au.).
14
15

Examples of Canadian films are Johnny Belinda21 and I Confess,22 and an example of a New Zealand film is
Mesmerized.23
Because of this natural tendency of filmmakers from Common Law countries to depict defense
counsel as the protagonist, U.S. films about foreign trials in Civil Law systems, especially those that purely
fictional, follow this tendency and are therefore culturally biased. As long as we recognize such bias in the
narrative, and filter it out, such films are nonetheless useful in comparative legal studies. U.S. films that
depict the accused and/or defense counsel as the protagonist include Red Corner24 (China), Brokedown
Palace25 (Thailand), Return to Paradise26 (Malaysia), The Trial27 (Czechoslovakia and/or Austria), and Paths of
Glory28 (France). Well-researched U.S. films that are based on fact are naturally forced to depict foreign
criminal procedure more accurately. Examples of such U.S. films are Midnight Express29 (Turkey) and The
Life of Emile Zola30 (France).
In the typical inquisitorial, Civil Law courtroom drama, the protagonist is rarely the prosecutor or
defense counsel, since lawyers play a relatively minor role in the inquisitorial adjudicative process. In a
depiction of the inquisitorial process in action, the protagonist is usually either the victim, the investigating
judge, or one of the judges. In the Dutch film A Question of Silence,31 the forensic psychiatrist appointed by
the investigating judge is the protagonist, driven by the desire to prove that the accused are sane. In the
French film Rape of Love,32 the victim, aided by her counsel and the investigating judge, is the protagonist,
bent on achieving retributive justice against her attackers. In the French film Law Breakers,33 the
investigating judge seeks to prove that the accused are culpable. In the Italian film Open Doors,34 the
protagonist is one of the associate judges, determined to convince other members of the mixed panel to
vote against the death penalty.
The criminal procedure of some Civil Law countries is, however, comparatively adversarial.
Examples mentioned above are Poland and France. As one would therefore predict, many Polish films
depict defense counsel as the protagonist, and many French films depict lively arguments between
A Cry in the Dark (Cannon Entertainment 1988) (US).
Johnny Belinda (Warner Bros. 1948) (US).
22 I Confess (Warner Bros. 1953) (US).
23 Mesmerized (Manchester Productions 1986) (GB).
24 Red Corner (Metro-Goldwyn-Mayer 1997) (US).
25 Brokedown Palace (Fox 2000 Pictures 1999) (US).
26 Return to Paradise (Polygram Filmed Entertainment 1998) (US).
27 The Trial (Paris-Europa Productions 1962) (Fr.).
28 Paths of Glory (Bryna Productions 1957) (US).
29 Midnight Express (Casablanca Filmworks 1978) (US).
30 The Life of Emile Zola, supra note 13.
31 A Question of Silence (Sigma Film Productions 1982) (Nl).
32 Rape of Love (Les Films de lEquinoxe 1978) (Fr.).
33 Law Breakers, supra note 12.
34 Open Doors (Urania Film 1990) (It.).
20
21

opposing counsel during trial. Other countries with comparatively adversarial aspects of criminal procedure
are Austria, Brazil, Greece, Spain and Russia. The films of those countries do not depict defense counsel as
the protagonist, but they do depict strong, competitive players in the conduct of trial. The female presiding
judge is the anti-hero in the Austrian film Scorpion Woman.35 The prosecutor is the protagonist in the Greek
films Women with a Past36 and Maria in Silence.37 And the investigating judge is the protagonist in the Greek
films The Highway of Hate38 and With Fear and Passion.39
The mise-en-scne, including the courtroom layout, the props, and the courtroom attire, also reveals
whether the trial is taking place in an inquisitorial or adversarial legal system. For example, the layout of a
Common Law courtroom is symmetrical, resembling a playing field or battlefield. There is a bench with
one chair for a single judge who referees the contest. The independent jury box is situated to one side,
indicating their participation only as observers or spectators until the adjudicative phase of trial. The tables
of the opposing lawyers, the prosecution and the defense, are side-by-side, facing the judge. The witness
stand faces the lawyers, because it is the lawyers, not the judge, who present and challenge the witnesses
through direct and cross-examination. Likewise, the lawyers, not the judge, determine the timing and
sequence of the presentation of evidence and then argue how the evidence should be interpreted.
By contrast, the layout of a Civil Law courtroom tends to be less symmetrical, because the several
participants are working together, not against each other. The witness chair faces the bench, because the
presiding judge, and sometimes the associate judges and jurors, conduct the questioning. If there are jurors,
they usually sit with the judges, not in a separate box. In such a so-called mixed panel, there is more
participation and collaboration among the judges and jurors. The lawyers participate very little in the
presentation of evidence, so cross-examination is an unknown art in inquisitorial proceedings. The
prosecutors and defense counsels tables are not equidistant from the judge because the prosecutor is
considered to be a non-voting, neutral member of the court. The prosecutors table therefore usually sits
higher than defense counsels table and is usually closer to the bench or even an extension of the bench.
Noting the inquisitorial and adversarial aspects of a film therefore assists you the viewer in
analyzing the dynamics of the participants and their roles in the adjudicative process. Role specific
constructs allow you to analyze more specifically how and why the participants operate as they do.
Scorpion Woman (1989) (At.).

Women with a Past (Finos Film 1966) (Gr.).
37 Maria in Silence (Finos Film 1973) (Gr.).
38 The Highway of Hate (Finos Film 1968) (Gr.).
39 With Fear and Passion (Finos Film 1972) (Gr.).
35
36

B. Role-Specific Analytical Constructs
There are differences among the legal traditions regarding the roles of victims, the suspect/accused,
defense counsel, the prosecutor, and judges and jurors. These roles can be quantitatively or qualitatively
compared in terms of the degree to which a suspect is expected to cooperate, the degree of independence
and neutrality of the prosecutor, the extent of the victims power to bring charges and to participate at trial,
and the degree of lay participation (jurors) in adjudication and sentencing.
Generally, the expectation that a suspect/accused will cooperate is higher in inquisitorial systems,
and the participation of defense counsel is lower. But the degree varies among the legal traditions. For
example, China (Socialist legal tradition) and France (Civil Law tradition) have inquisitorial systems. But as
revealed in films such as Red Corner,40 the expectation of cooperation from a suspect/accused is much
higher in China, and the participation of defense counsel is much lower.41
The difference in expectation of cooperation from the accused is also reflected in the mise en scne of
the courtroom. In inquisitorial systems, there is a separate dock for the accused. Defense counsel does not
sit with the accused, making communications difficult. By contrast, the U.S. courtroom has no separate
dock for the defendant, because the defendant and his or her defense counsel sit together, indicating a
greater respect for the right to remain silent and the assistance of counsel, both of which serve to safeguard
the presumption of innocence.
You can compare the roles of prosecutors by considering their degrees of independence and
neutrality. The inquisitorial-adversarial construct will usually predict the degree of independence and
partiality of a prosecutor. Inquisitorial prosecutors tend to be less independent than adversarial
prosecutors. Many inquisitorial systems apply the principle of legality which means that a prosecutor has
little or no discretion on whether to bring formal charges once the evidence has established likely
culpability. The films Women with a Past42 and Maria in Silence43 show that the principle of legality is strictly
applied in Greece.
Inquisitorial prosecutors also tend to be more neutral than adversarial prosecutors, and this
difference is reflected in the mise en scne. In inquisitorial proceedings, the prosecution table usually sits
closer to the bench than does the defense table, indicating that the prosecutor is a non-voting, neutral
member of the court. In theory, the prosecutor is expected to present both incriminating and exculpatory
Red Corner, supra note 24.

See Ira Belkin, China, in CRIMINAL PROCEDURE: A WORLDWIDE STUDY 101 (Craig M. Bradley ed., 2d ed. 2007).
42 Women with a Past, supra note 36.
43 Maria in Silence, supra note 37.
40
41
10

evidence to the adjudicators. It is not uncommon for an inquisitorial prosecutor to appeal from a
conviction.
Victims play a greater role in inquisitorial criminal procedure. Their claims for relief are joined with
the criminal proceeding, and they may participate in the trial through counsel. As revealed in the mise en
scne, there is usually a separate table in the courtroom for victims counsel. Although the United States is a
pioneer of restorative justice, it has not adopted the practice of permitting victims to participate in the
criminal adjudicative process as secondary prosecutors.
To compare the roles of judges and jurors, Reichel has developed an adjudication continuum to
compare the degree of lay participation and judicial control in the adjudicative process.44 The continuum
helps to explain the relative degree to which a country relies on professional judges and lay people to
adjudicate the guilt or innocence of an accused. The continuum reveals that inquisitorial systems rely more
heavily on professional judges to adjudicate guilt or innocence. Quantitatively, the degree of lay
participation in mixed panels can be measured by considering the ratio of judges to jurors and the number
of votes needed to reach a verdict.
The degree of lay participation and judicial control is also reflected in the mise en scne. In
inquisitorial courtrooms, the witness stand faces the presiding judge, not the lawyers, revealing much
greater judicial participation in the evidence-presenting phase of the trial. The presiding judge controls the
questioning of the witnesses and the order in which they are called. In adversarial courtrooms, the witness
stand faces the lawyers, revealing a lesser degree of judicial control over the questioning of witnesses.
The degree and manner of lay participation and judicial control vary from country to country
within each legal tradition. For example, among Civil Law countries, Germany uses a mixed panel of judges
and jurors who deliberate together, whereas Austria, Brazil, Greece, Poland, Spain and Russia use
independent juries. And the United States and England are Common Law countries, but English judges
give jurors much more guidance than do American judges.
It is also important to note a films historical context since criminal procedural rules are constantly
changing in all countries. For example, The Life of Emile Zola45 depicts a French trial using an independent
jury of twelve lay jurors, similar to the jury used in Common Law countries today. The trial of Emile Zola
took place in 1898 when France was still using an independent jury. Today, however, a mixed panel of
three judges and nine lay jurors hears serious felony cases in France.
44
45
See Reichel, supra note 9 AT 165, 253.

The Life of Emile Zola, supra note 13.
11

In
sum,
then,
the
inquisitorial-adversarial,
accused-cooperation,
defense-participation,
prosecutorial-independence-partiality, victim-participation, lay-participation and judicial-control constructs

are analytical constructs that can be used to compare the treatment of a suspect/accused from one
jurisdiction to the next.
After applying these analytical constructs, we can make better-informed value judgments about a
countrys criminal procedure. It is evident, for example, that the accused in an adversarial system enjoys
more procedural advantages than an accused in a traditional inquisitorial system. The former enjoys, for
example, the right to an attorney at an earlier stage of investigation, a better-respected right to remain
silent, and a greater opportunity to call and question witnesses. Many of these differences can be explained
by the underlying fact that the presumption of innocence is an inherent component of adversarial systems,
but does not traditionally exist in inquisitorial systems.
The traditions of inquisitorial systems, insofar as they are inimical to the presumption of innocence,
are giving way to universally accepted principles of criminal procedure. In Europe, these changes are
occurring through the jurisprudence of the European Commission and the Court of Human Rights and
their interpretations of the European Convention on Human Rights. Many countries with inquisitorial
justice systems, notably Italy and Chile, are therefore adopting aspects of adversarial criminal procedure. As
a practical result, for example, their advocates are developing cross-examination skills as they participate
more in the questioning of witnesses.
C. The Civil Law-Common Law Dichotomy46
The classic construct in the field of comparative law is the Civil Law-Common Law dichotomy. By
way of brief background, Civil Law is code law that has been distilled over the centuries since 450 BCE,
from Roman Law, Canon Law, the Napoleonic Code and German Law under the Bismarck. Common Law
is judge law that began in twelfth century England, starting with King Henry II, the so-called Father of
Common Law. The most notable developments of the Common Law tradition are the jury system and
the adversarial (or accusatorial) process. The vast majority of countries in the world have adopted features
of either Civil Law or Common Law traditions or both, so the Civil Law-Common Law analytical model
helps to explain the reasons for distinctive features of their criminal procedure.
U.S. Supreme Court Justice Warren Burger recognized the difference between the two traditions,
remarking that if he were innocent, he would prefer to be tried in a civil law court, but . . . if he were
46
See generally Glendon, et al., supra note 1.
12

guilty, he would prefer to be tried by a common law court.47 Justice Burgers comment is probably based
on the fact that Civil Law courts use an inquisitorial process that is aimed at determining the truth, whereas
Common Law courts use an adversarial process that burdens the prosecutor with satisfying a high standard
of proving guilt. Justice Berger may also have been expressing his lack of confidence in independent juries,
which are found mostly in Common Law courts and rarely in Civil Law courts.
1. Common Law Traditions
Most U.S. rules of criminal procedure, including those that are indelibly etched in the Fourth, Fifth,
Sixth and Eighth Amendments of the U.S. Constitution, derive from Common Law rules and English
parliamentary decrees. In the view of foreign jurists, especially Civil Law jurists, the United States has gone
too far with procedural rules designed to protect the suspect/accused.
Although U.S. law shares a close Common Law tradition with England,48 several noteworthy
differences in criminal procedure have evolved, and those differences are depicted in film. The differences
can be attributed to a strong U.S. commitment to safeguards that ensure that the innocent are not
convicted. Those safeguards include a suspects right to counsel, the right to remain silent, the Miranda
warning and the Exclusionary Rule, the prosecutors burden and high standard of proof, and lay factfinding. By contrast, in England, prosecutors exercise less prosecutorial discretion; juries are selected more
quickly and therefore less carefully; defense counsel has much less communication with the accused during
trial; the judge is allowed to comment on the evidence to the jury; and the jury verdict need not be
unanimous.
In the United States, prosecutors enjoy and exercise broad prosecutorial discretion on whether and
what to formally charge. Prosecutorial discretion is so highly protected that U.S. prosecutors are absolutely
immune from tort liability for the mistakes that they make. By contrast, under the principle of legality, Civil
Law prosecutors have little discretion. They are expected to pursue the prosecution of all crimes. This
expectation is especially strong in Greece, as seen in the films Women with a Past49 and Maria in Silence.50
Perhaps the most distinctive feature of the adversarial process is the art of cross-examination. As
the U.S. Supreme Court stated in 1992, cross-examination is beyond any doubt the greatest legal engine
Warren Burger, Adversarial and Nonadversarial Systems. Presented at a conference at the Center for the Study of Democratic
Institutions, Washington, D.C. (November 1968), quoted in Fairchild & Dammer, supra note 9 at 146.
48 See generally David J. Feldman, England and Wales, in CRIMINAL PROCEDURE: A WORLDWIDE STUDY 149-200 (Craig M. Bradley
ed., 2d ed. 2007).
47
13

ever invented for the discovery of truth.51 As depicted in countless films, however, an especially artful
barrister can use searing cross-examination to discredit the testimony of a witness who is telling the truth.
In the Indian film Kasoor,52 female defense counsel on cross-examination obliterates the direct testimony of
the prosecutors witnesses, obtaining an acquittal for her guilty client. And in In the Name of the Father,53 the
prosecutor on cross-examination completely discredits the testimony of the accused Gerry Conlon who is,
in reality, innocent. The prosecutor puts it to Conlon: You expect this jury to believe that decorated police
officers would risk their careers and their reputations by threatening your father? And Conlon responds:
I dont expect em to believe that by the time you finish with em, but it happens to be the truth.
England and other Commonwealth countries are also distinctive in the manner in which a barrister,
especially the prosecutor, may put the question to a witness during cross-examination, as depicted in The
Paradine Case,54 confronting a witness with an accusation or submission. Such an approach is
objectionable in the United States for being argumentative, prejudicial and harassing.
The United States also stands apart with its procedure of allowing the prosecutor to speak last in
rebuttal during summations.55 In every other country in the world,56 defense counsel speaks last in
summation. At the same time, however, the English judge has greater authority to comment on the
evidence, and it is said that this judicial prerogative serves to balance against an unduly persuasive
summation by defense counsel.
For U.S. lawyers, it is unsettling to watch the English judge in summation as he or she advises the
jury on how to interpret and weigh the evidence that has been presented by both sides. That would never
happen in a U.S. courtroom where fact-finding is strictly the domain of the jury. U.S. judges give juries
guidance only on the law, not the facts. As shown in films such as Let Him Have It57 and Provoked: A True
Story,58 the English judge has the power to sway the jury to convict an innocent person. The power and
sway of the judge over the jury is further enhanced by his or her exalted position in the courtroom. In the
Crown Courts (felony courts), the judge wears a ceremonial red robe and long wig, sits much higher than
all other participants, and the attorneys refer to him or her as My Lord or My Lady.59
United States v. Salerno, 505 U.S. 317, 328-29 (1992).
Kasoor (Mukesh Bhatts Vishesh Entertainment Ltd. 2001) (In.).
53 In the Name of the Father, supra note 17.
54 The Paradine Case, supra note 15.
55 See John B. Mitchell, Why Should the Prosecutor Get the Last Word?, 27 AM. J. CRIM. L. 139 (Spring 2000).
56 Gordon Van Kessel, Adversary Excesses in the American Criminal Trial, 67 NOTRE DAME L. REV. 403, 424 n.24 (1992) (German
prosecutors may reply to the defenses summation, but rarely exercise that power).
57 Let Him Have It (British Screen Productions 1991) (GB).
58 Provoked: A True Story (Sunanda Murali Manohar 2006) (GB). See Jeannette Catsoulis, Revisiting the True Story of a Battered
Wifes Revenge, N.Y. Times, May 11, 2007 (film review), available at www.nytimes.com/2007/05/11/movies/11Prov.html?_r=0
(last visited Oct. 11, 2014).
59 Many British films depict criminal trials in the Central Criminal Court of the Old Bailey in London. See generally The
51
52
14

Civil Law judges have even greater authority to guide jurors, as seen in the Austrian film Scorpion
Woman60 in which the judge gives such biased instructions to the independent jury that the prosecutor
storms out in protest. On mixed panels in Civil Law countries, judges and jurors deliberate together, as
shown in the Italian film Open Doors61 in which one of the jurors defies the presiding judges instruction to
apply the death penalty.
2. Civil Law Traditions
The history of substantive Civil Law can be found in any comparative law or comparative criminal
justice textbook or online,62 but knowing that the substantive rules of Civil Law are derived from Roman
law, canon law, the Napoleonic Code and German codifications explains little about the criminal procedure
of modern Civil Law countries. To be sure, criminal procedural rules are codified, just as all Civil Law
needs to be. However, criminal procedural rules in Civil Law countries exist for the purpose of establishing
order and efficiency in a search for the truth, whereas they exist in Common Law countries for the express
purpose of safeguarding the rights of suspects and accused at the expense, in many cases, of impunity for
the culpable.
Civil Law jurists therefore find that Common Law criminal procedural rules, especially those found
in the United States, unnecessarily impede efforts to find the truth.63 Civil Law criminal trials can be
characterized as fact-oriented, while Common Law criminal trials are more procedure-oriented. In Civil
Law countries, judges are free to hear wide-ranging testimony with little lay participation, and there is no
presumption of either guilt or innocence. In Common Law countries, the right to remain silent, strict rules
of evidence, and lay participation by an independent jury limit the fact-finding process. Thus, in the United
States, an accused is much more likely to be set free on emotional or technical procedural grounds that fly
in the face of obvious culpability. Hence Justice Burgers remark that, if guilty, he would rather be tried in a
Common Law court.
The two primary Civil law traditions are the French and German traditions. Both of these countries
developed sophisticated legal codes which reflected their own unique customs, and neighboring countries
adopted them. Neighboring countries that adopted the Napoleonic Code include Spain, Portugal and The
Netherlands. Also, due to French and Spanish influence in Latin America, Argentina, Chile, and Mexico
Proceedings of the Old Bailey, 1674-1913, www.oldbaileyonline.org (last visited Oct. 11, 2014).
60 Scorpion Woman, supra note 35.
61 Open Doors, supra note 34.
62
See,
e.g.,
Glendon,
et
al.,
supra
note
1;
LSU
Law
Center,
Civil
Law
Online,
https://www.law.lsu.edu/index.cfm?geaux=clo.whatis (last visited Oct. 11, 2014).
63 SEE Fairchild & Dammer, supra note 9 at 53 (The concern in U.S. courts with criminal procedure . . . often seems excessive
to people in Civil Law countries.).
15

adopted the Napoleonic Code. Neighboring countries that adopted the German code include Austria,
Poland, Greece and Italy.
a. French Civil Law Traditions64
France has a relatively adversarial adjudicative process compared with other Civil Law countries
that follow the French tradition, but its procedures are otherwise classically inquisitorial. In general, crimes
are investigated by the police or the investigating judge, and the prosecutor supervises their work.
Although French prosecutors tend to be adversarial in their approach, they are supposed to be guided by
the principle of fairness, searching for and presenting all evidence, exculpatory as well as incriminating, so
they are less adversarial than U.S. prosecutors. Because the prosecutor plays a role that is secondary to the
judges, French films do not feature the prosecutor as a main character.
France follows the principle that the investigation must be thoroughly documented in reports
(proces-verbal) that are mantained in a dossier.65 The dossier is always available for examination by defense
counsel, and it will be presented to the judge and jury at trial. For particularly serious crimes, the neutral
investigating judge (juge dinstruction) often plays a central role in the development of the dossier. The
investigating judge is therefore often a main character in French films. Examples of the French
investigating judge in action are Law Breakers,66 Rape of Love67 and The Judge and the Assassin.68
Before recent changes in French criminal procedure, the suspects depicted in many French films
described in this textbook could be held in investigatory detention (garde vue) for up to forty-eight hours
without probable cause, judicial approval, or a mandatory court appearance. And the accused could not
even consult an attorney.69 The risk that this procedure can result in unreliable confessions is depicted in
the film Garde vue.70 Today, a suspect has a right to see a lawyer for 30 minutes within the first hour, for
30 minutes after 20 hours, and another 30 minutes after 36 hours.71
See generally Richard S. Frase, France, in CRIMINAL PROCEDURE: A WORLDWIDE STUDY 201-42 (Craig M. Bradley ed., 2d ed.
2007); New Zealand Law Commission, French Criminal Procedure, in Alternative Pre-Trial and Trial Processes: Possible Reforms
109
(NZLC
IP30,
Wellington,
2012),
available
at
www.lawcom.govt.nz/sites/default/files/publications/2012/02/alternative_trial_processes_nzlc_ip30_-1.pdf (last visited Oct.
11, 2014); Henri de Larosire de Champfeu, Some Aspects of French Penal Procedure 59-67, The Asia and Far East Institute for the
Prevention of Crime and the Treatment of Offenders, Resource Material Series No. 53 (1998), available at
www.unafei.or.jp/english/pdf/RS_No53/No53_00All.pdf (last visited Oct. 11, 2014).
65 The dossier is also called an expediente or el sumario in Spanish. It is referred to generically in this textbook as the dossier since
most countries use the French word.
67 Rape of Love, supra note 32.
68 The Judge and the Assassin (Lira Films 1976) (Fr.).
69
C.
pr.
pn.
arts.
63-65
(describing
garde
vue
procedures),
available
at
www.legifrance.gouv.fr/content/download/1958/13719/.../Code_34.pdf (last visited Oct. 11, 2014).
70 Garde vue (Les Films Ariane 1981) (Fr.).
71 See C. pr. pn., supra note 69, art. 63-4.
64
16

In the French Civil Law tradition, there is no presumption of innocence or guilt. The French
Constitution provides that there shall be a presumption of innocence, but the safeguards are weak. There is
no right against self-incrimination, and the right to remain silent is not respected. The primary goal of a
French investigator is to obtain a confession, which is difficult to obtain without free access to a suspect.
Although a suspect must be informed of the right to remain silent and has a limited right during garde vue
to the presence of counsel during questioning, he or she is expected to respond to questioning, as depicted
in Law Breakers.72 After a suspect is formally charged and becomes an accused, all questioning must be done
in the presence of the accuseds counsel, but the accused is still expected to respond to questioning in socalled confrontation sessions before the investigating judge, as depicted in the film Rape of Love.73
There are three levels of crimes and corresponding levels of courts. Dlits are punishable by
imprisonment of up to ten years, so they include many crimes that are classified as felonies in the United
States. The correctional courts (tribunal correctionnel) decide delit cases, as seen in the documentary Tenth
District Court.74 A correctional court is composed of one or three judges. Crimes are punishable by
imprisonment for more than ten years and are decided by mixed panels of the assize courts (cour dassises).
The mixed panel is composed of three judges and nine lay jurors as depicted in Law Breakers75 and Two Men
in Town.76
After the 1789 revolution, France instituted many criminal procedure reforms, most notably
introduction of a jury system. Initially, as seen in the films Violette77 and The Life of Emile Zola,78 three judges
presided over an independent jury of twelve. Then, during the German occupation of World War II, the
jury was converted to a mixed panel, composed of three judges and nine jurors who deliberate together,
thus eliminating the risk of a runaway or nullifying jury. After World War II, France did not return to the
concept of an independent jury.
In the French Civil Law tradition, an alleged victim (partie civile) may initiate a prosecution or join in
one that has already commenced and may demand an award of damages, as depicted in Law Breakers.79 The
partie civile may sit with counsel at a separate table at trial. If the case ends in dismissal or acquittal, the court
may assess a fine and order payment of damages to the accused.
Law Breakers, supra note 12.

Rape of Love, supra note 32.
74 Tenth District Court (France 2 Cinma 2004 (Fr.).
76 Two Men in Town (Adel Productions 1973) (Fr.).
77 Violette (Filmel 1978) (Fr.).
72
73
17

As depicted in all modern French courtroom dramas, the presiding judge, who controls the
conduct of the proceedings, wears a traditional red and black robe, and the other two judges (assesseurs) and
the lawyers all wear black robes with the appropriate accessories, including a white pleated jabot (rabat) and
a black epitoga or tail (epitoge) that is buttoned at the left shoulder of the robe and flows down the back.
When appearing before the cour dassises, the epitoga must be trimmed with ermine fur. Also, in some
jurisdictions, such as Paris, the epitoga must always be ermine-trimmed.
The presiding judge begins the courtroom proceedings by questioning the accused who is not
placed under oath and cannot be compelled to respond. The accused must take the stand, however, and
adverse inferences may be drawn from the failure to respond. During trial, the accused sits in a dock either
behind or in front of defense counsel, which makes communicating awkward, but not as difficult as in
Italian or British courts.
Since the presiding judge controls the proceeding, there is no need for rules of evidence. Most
notably, in the United States, character evidence of the defendant is generally inadmissible, but in France,
one judges the man, not the acts.80 Therefore the accuseds criminal record is always admissible.
Then witnesses are called and questioned by the presiding judge. Witnesses may not assert a right
against self-incrimination. The lawyers may pose questions, with the courts permission, but they usually
play a passive role during the presentation of evidence. As depicted in many films, inquisitorial Civil Law
courts have a long tradition of relying on affidavits of previously obtained testimony and police reports
that are contained in the dossier. This tradition of relying on the dossier is at odds with Article 6.3.d of the
European Convention on Human Rights which provides that the accused has a right to call live witnesses
for questioning.81 Such a right is consistent with the Common Law principle of orality which means that
all evidence against an accused should be presented in open court.
In most Civil Law countries, the trial is really an inquest comprised of a series of hearings,
culminating with a courtroom hearing, so the adjudicative process can last several months. In France, the
final, courtroom phase, once started, must continue until completed (the principle of immediacy). After all
evidence has been presented, the attorneys make their closing statements, as depicted in several French
films, including Law Breakers82 and Tenth District Court.83 The victims attorney speaks first, followed by the
prosecutor
who
presents
the
indictment
(rquisitoire),
namely
observations
and
sentencing
recommendations. Defense counsel then presents a plea (plaidoirie) for acquittal or leniency. In jury trials,
See Pugh, The Administration of Criminal Justice in France: An Introductory Analysis, 23 LA. L.R. 1, 10 (1962).
Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 Nov. 1950, 213 U.N.T.S.
221 (1955) (as amended by protocols), available at www.echr.coe.int/Documents/Convention_ENG.pdf (last visited Oct. 11,
2014).
83 Tenth District Court, supra note 74.
80
81
18

French lawyers are less flamboyant than American lawyers and British barristers, probably because French
juries are tightly controlled by the judges throughout trial, including deliberation. Defense counsel is,
however, portrayed as exceptionally animated in the film Law Breakers.
After the lawyers argue, the presiding judge then gives the defendant a chance to have the final
word as seen in The Life of Emile Zola.84 The judges and jurors (if any) then depart to deliberate together and
return for announcement by the presiding judge of the verdict and, if guilty, the sentence. Sentencing is not
a separate phase, so the accused is compelled not to remain silent during trial.
As films depict, there has been little progress toward safeguarding the presumption of innocence in
France, as well as countries that follow its tradition. Mexico is an example of a Latin American country that
adopted the French Civil Law tradition. Its criminal adjudicative process85 suffers most from a lack of
transparency that has evolved into a number of incongruous practices, some of which ignore written
requirements and others of which follow the rules too rigidly. Its 1917 Constitution provides for an
adversarial model, but its 1934 criminal code is derived from the 1808 Napoleonic Code dinstruction criminelle
which provides for a largely inquisitorial approach to criminal trials. The primary distinguishing feature of
the Mexican criminal justice system is the expansive roles of the prosecutor and the trial judge, as shown in
the films Esmeralda Comes by Night86and Presumed Guilty.87
When the attorneys who narrate the documentary Presumed Guilty are retained to represent Jos
Antonio Ziga Rodriguez, he has already been convicted and sentenced to 20 years in prison, and he has
exhausted his appeals. He has served 182 days of his sentence. As a documentary, Presumed Guilty is edited
to present an argument against the Mexican criminal justice system, and all indications are that the system
is in significant need of reform. Ironically, the documentarists end up proving that justice prevails in the
end, when the case is properly defended. Rodriguez gets a re-trial due to ineffective assistance of defense
counsel, and he prevails after winning his case on re-trial and appeal, thanks to the relentless efforts of his
new, much more capable defense counsel. There are ongoing efforts in Mexico to transform its
inquisitorial justice systems to an adversarial one, but there is no current effort to institute a jury system.88
The Netherlands is another example of a country that follows the French Civil Law tradition. It
was one of the first countries to adopt Frances Napoleonic Code. In 1838, the Netherlands adopted the
See generally Miguel Sarr & Jan Perlin, Mexico, in CRIMINAL PROCEDURE: A WORLDWIDE STUDY 351-96 (Craig M. Bradley ed.,
2d ed. 2007); William Hine-Ramsberger, Drug Violence and Constitutional Revisions: Mexicos 2008 Criminal Justice Reform and the
Formation of Rule of Law, 37 Brook. J. Intl L. 291 (2008).
86 Esmeralda Comes by Night (Esmeralda Producciones 1997) (Mx.).
87 Presumed Guilty (Abogados con cmara 2008) (Mx.).
88 Mximo Langer, Revolution in Latin American Criminal Procedure: Diffusion of Legal Ideas from the Periphery, 55 AM. J. COMP. L. 617
(2007).
84
85
19

French Code of Criminal Procedure and then tailored it to reflect Dutch custom. Dutch trials are heard by
three-judge panels, and the presiding judge conducts the questioning. The attorneys are allowed to ask only
supplementary questions. Cross-examination does not exist.
The Dutch film A Question of Silence89 depicts both the investigative and adjudicative phases of
Dutch criminal procedure. While the film is ostensibly a feminist attack on male chauvinism in the
Netherlands in the early 1980s, it reflects the view of Dutch society that a Dutch trial is a mere formality at
which the accused and defense counsel are not expected to participate. Everything that the judges need to
decide the case is contained in the dossier.
In sum, the presumption of innocence is not well-protected in countries that follow the French
Civil Law tradition. In France, the police procedure of garde vue still gives a suspect inadequate access to
defense counsel, the suspect is expected to cooperate with the police, and the triers of fact continue to rely
heavily on the dossier which is compiled by the police, the prosecutor and/or an investigating judge. This
failure to adequately protect the presumption of innocence is present as well in other countries that have
adopted the French Civil Law tradition, as depicted in film.
b. German Civil Law Traditions90
Germany exemplifies a unitary Civil Law system. This presents no real difference regarding
criminal procedure, however, because federal law governs criminal procedure throughout Germany, even
though all criminal trials occur in the state (Laender) courts. Nearly 100 years after France led the modern
Civil Law tradition with its Napoleonic Code, Germany under the Bismarck implemented its own version
of codified law in 1877.
Legal periods of German criminal procedure depicted in film include the constitutional democracy
of the Weimar Republic after World War I,91 the breakdown of justice under the Third Reich after 1933,92
the post-World War II democracy of the Basic Law after 1949,93 and reunified Germany.94 German law
films reveal a number of distinguishing features of the German justice system. Unlike the French legal
tradition, the investigating judge (untersuchungsrichter) has been eliminated, and the police have de facto
power to interrogate a suspect without counsel present.
A Question of Silence, supra note 31.

See generally Thomas Weigend, Germany, in CRIMINAL PROCEDURE: A WORLDWIDE STUDY 243-72 (Craig M. Bradley ed., 2d ed.
2007).
91 Love in Thoughts (X-Filme Creative Pool 2004) (De.); M (Nero-Film AG 1931) (De.).
92 Sophie Scholl - The Final Days (Broth Film 2005) (De.).
93 The Reader (The Weinstein Co. 2008); Devil in Silk (Fono Film 1956) (De.); The Baader Meinhof Complex (Constantin Film
Produktion 2008) (De.).
94 After the Truth (Edward R. Pressman Film 1999) (US-De.).
89
90
20

Suspects in police custody may, however, assert a right to remain silent and may, in effect, negotiate
with police, offering to answer questions if defense counsel is allowed to be present. If counsel is not
readily available, the police are not prohibited from encouraging the suspect to waive the right to remain
silent. They may engage in lengthy informal interviews before informing suspects of their rights. And
they may detain a suspect until the end of the following day before either release or presentation before a
judge to determine whether further detention is warranted. On the other hand, unlike American police,
Germany police are discouraged from using deception (tuschung) to trick suspects into confessing.
Pursuant to the equal rights provisions of the German Basic Law, once a suspect becomes an
accused, prosecution is mandatory, and the prosecutor is regarded as a neutral officer of the court. This
requirement is known as the legality principle in the Civil Law tradition, and it is followed more strictly
in the German tradition than it is in the French tradition. German prosecutors therefore generally err in
favor of bringing charges since there is no shame attached to losing a case. At trial, however, the
German prosecutor tends to behave in an adversarial manner, especially if the accused is represented by
counsel. Still, it is not uncommon for a prosecutor to ask the court to acquit an accused after presentation
of the evidence at trial. And the prosecutor may even appeal from a panels decision to convict.
Among Civil Law systems, Germanys is the most heavily code-based, which is a reflection of the
German mind-set that all problems can be rationally contemplated in a set of rules. Following this way of
thinking, German lawyers have earned a reputation for being especially rigid and methodical in their legal
reasoning. Although their presentations at trial may be just as flamboyant as those of American trial
lawyers, they appeal more to rational thinking and less to sympathy. An excellent depiction can be found in
the hard-to-find film Devil in Silk95 when the accuseds lawyer (played by Helmuth Rudolph) delivers his
closing argument with inescapable German logic to convince a mixed panel to acquit his client (played by
Curt Jergens) of a murder charge.
Germany instituted a jury system in the middle of the nineteenth century, but lay participation has
fluctuated, and decreased overall, over the years.96 German jurors are educated citizens who are specially
selected to serve on the bench for extended periods of time to hear cases. They sit at the bench with the
judges, and they deliberate with the judges who hold considerable sway.
The German ratio of jurors to judges is low compared with panels of the French legal tradition,
and verdicts require a two-thirds super-majority. The composition of the mixed panel of judges and jurors
Devil in Silk, supra note 93.

Markus Dirk Dubber, The German Jury and the Metaphysical Volk: From Romantic Idealism to Nazi Ideology, 43 AM. J. COMP. L. 228
(1995); Gerhard Casper & Hans Zeisel, Lay Judges in the German Criminal Courts, 1 J. LEGAL STUD. 135, 136-41 (1972).
95
96
21

varies, however, depending on the seriousness of the crime. In murder trials, for example, the panel
consists of two judges and two lay jurors, thereby giving lay jurors greater say over the fate of the accused.
In the Civil Law tradition, German trials are managed by the presiding judge who controls the
sequence of presentation of the evidence and the questioning of witnesses. The German prosecutor and
defense counsel ask more questions than lawyers do in courts of the French legal tradition, but their
primary role is making speeches in summation for the panel members.
The managing role of the presiding judge-turned-tyrant under the Nazis is dramatically depicted in
Sophie Scholl-The Final Days.97 The managing role is also depicted (pre-WWII) in Fritz Langs M98 and
Werner Herzogs Invincible99 and (post-WWII) in the Council of the Gods100 and The Reader.101 The Baader
Meinhof Complex102 shows the chaos that ensues if the presiding judge is not an effective manager of accused
who are intent on derailing a trial.
Germany also has many characteristics of adversarial legal systems. With Germanys defeat in
World War II and the ensuing American occupation and military tribunals, it took on some of the
characteristics of the U.S. legal system. For example, it is experimenting with plea bargaining, and the
lawyers participate increasingly in the questioning of witnesses. This tendency to gravitate toward an
adversarial model is present as well in other countries that have adopted the German Civil Law tradition, as
depicted in film.
In 1989, Italian criminal procedure was significantly changed with enactment of a new Code of
Penal Procedure which transforms the inquisitorial system to an adversarial one.103 Rather than having the
judges rely on written summaries of testimony or live testimony that is directed by the presiding judge, the
prosecutor, defense counsel and victims counsel are expected to present oral testimony (the principle of
orality), and the trial is supposed to continue over consecutive days until completed (the principle of
immediacy). Consistent with reliance on oral testimony instead of a dossier of summarized testimony, the
investigating judge has been eliminated. As experienced in Germany, adversarial trials are more timeconsuming, so Italy has also begun the formerly unheard of practice of plea-bargaining to resolve cases
more quickly.
Sophie Scholl - The Final Days, supra note 92.
M, supra note 91.
99 Invincible (Werner Herzog Filmproduktion 2001) (De.).
100 Council of the Gods (Deutsche Film 1950) (De.).
101 The Reader, supra note 93.
102 The Baader Meinhof Complex, supra note 93.
103 President of the Republic Decree, Sept. 22, 1988 n. 447, in ordinary supplement no.1 to the Official Gazette of the State,
general series no. 250, Oct. 24, 1988. See generally Rachel A. Van Cleave, Italy, in CRIMINAL PROCEDURE: A WORLDWIDE STUDY
303 (Craig M. Bradley ed., 2d ed. 2007); Elisabetta Grande, Italian Criminal Justice: Borrowing and Resistance, 48 AM. J. COMP. L. 227
(2000); William T. Pizzi & Luca Marafioti, The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial
System on a Civil Law Foundation, 17 YALE J. INTL L. 1 (1992).
97
98
22

The Sicilian Girl104 is based on the true story of seventeen-year-old Rita Atria (played by Veronica
DAgostino) who was a key witness against the mafia in a 1992 trial in Palermo, Sicily, and of Paolo
Borsellino (played by Grard Jugnot), the anti-Mafia crusader. The film provides a close look at the
criminal justice system at the time, including Borsellinos investigation, first as an investigating judge and
then as a lead prosecutor, and several authentic courtroom scenes in the maximum security court in
Palermo which is also depicted in the film Il Divo.105
The trial took place only a few years after Italys enactment, in 1989, of a new Code of Penal
Procedure which transformed the inquisitorial system to an adversarial one. Consistent with this
transformation, Borsellino made the transition from investigating judge to prosecutor with the elimination
of the position of investigating judge. The courtroom scenes depict a mixture of inquisitorial and
adversarial processes. The presiding judge controls the questioning, but defense counsel is very
participatory, often raising objections to evidence proffered by the prosecutor. The witness chair still faces
the judges, but now at a 45-degree angle, allowing a view of the attorneys as well.
Austrian criminal procedure is also based on the German model,106 but it has retained the position
of investigating judge which is featured prominently in Kafkas novel The Trial,107 which Orson Welles
adapted to film. More remarkable, however, is Austrias independent jury system which is depicted in the
film Scorpion Woman.108 The presiding judge of a three-member panel in the trial of a serious crime directs
the questioning of witnesses while an independent jury of eight members listens.109
Austria first established its jury system in 1848, emulating the then-existing French revolutionary
system of a separate, independent jury. During the Austrofascist dictatorship, which began in 1933, the
jury was first changed from an independent jury to a mixed panel and then abolished altogether and not
restored until after the war,110 despite strong governmental and professional opposition which continues to
this day.
The Sicilian Girl (R&C Produzioni 2008) (It.).

Il Divo (Indigo Film 2008) (It.).
106 See generally Herbert Hausmaninger, THE AUSTRIAN LEGAL SYSTEM (2d ed. 2000); Greg Taylor, Jury Trial in Austria, 14 NEW
CRIM. L. REV. 281 (2011); New Zealand Law Commission, Austrian Criminal Procedure, in Alternative Pre-Trial and Trial
Processes:
Possible
Reforms
71
(NZLC
IP30,
Wellington,
2012),
available
at
www.lawcom.govt.nz/sites/default/files/publications/2012/02/alternative_trial_processes_nzlc_ip30_-1.pdf (last visited Oct.
11, 2014).
107 Franz Kafka, The Trial (Edwin Muir & Willa Muir trans., Vintage Classics 2001).
109 Less serious crimes are heard by a mixed panel of one judge and two jurors or by judge alone.
110 Article 91(2) of Austrias Constitution of 1920, restored in 1945, provides: In cases of felonies inclining heavy punishment,
which are to be prescribed by law, and in all political felonies and misdemeanors, jurors must determine the guilt of the
accused.
104
105
23

Remarkably, Austrian jurors are permitted to question witnesses.111 Also, the judge also has
authority to discuss the facts of the case with the jury in a private session, outside the hearing of the
attorneys, and no record is made of that discussion. This unique aspect of Austrian criminal procedure
gives the presiding judge considerable sway over the jury, nearly as much as a presiding judge has during
deliberation with a German mixed panel. Also, sentencing is a collaborative process in which jurors and
judges decide the sentence together.
Greek criminal procedure is also based on the German model, but has developed its own unique
features.112 For one, it is among a small minority of Civil Law countries, including Austria, with an
independent jury system. Many people believe that the jury system was invented by the English, but the
notion of a jury began in ancient Greece with the dikasteria under Solon in 700 B.C. The Romans borrowed
the idea and called their jury the judice, which was a group of senators that resolved important disputes and
decided criminal cases.113
The composition of the Greek panel of judges and the independent jury fluctuates as seen in The
Highway of Hate (1950)114 (fives judges and twelve jurors decide a manslaughter case), Women with a Past
(1966)115 (three judges and ten jurors decide a murder case) and With Fear and Passion (1972)116 (four judges
and ten jurors decide a murder case). Today the Greek felony trial court consists of three judges and four
independent jurors.117
The unique role of Greek prosecutors is also depicted in film. Even more than their Italian and
German counterparts, Greek prosecutors have no discretion to drop the prosecution of a case,118 as
dramatized in Women with a Past119 and Maria in Silence.120
Nigel Foster, Austrian Legal System and Laws 97 (2003).
The Greek civil code of 1946 replaced the Byzantine-Roman Civil Law that had been in effect since Greeces independence.
The Penal Code and the Code of Penal Procedure were enacted in 1950 and have remained in force. All of the codes were much
influenced by the German civil code of 1900 (Brgerliches Gesetzbuch). Simply stated, Byzantine Law was canon-law-flavored
Roman law. See generally Introduction to Greek Law (Konstantinos D. Kerameus & P. John Kozyris eds., Kluwer Law and
Taxation Publishers, 2d ed. 1993).
113 During the late 19th and early 20th centuries, several European countries adopted a jury system (following Frances lead):
Rhenish Germany (1798); Luxembourg (1814); Spain (1820); Belgium (1831); Portugal (1832); Greece (1834); Portugal (1841);
Geneva (1844); Bavaria and Hesse (1948); Prussia, Wurtemberg and Baden (1849); Austria (1850); Russian Empire (1864); Italy
(1865); Romania (1866); Hungary (1869); Norway (1887); Serbia (1892); Denmark (1919); and Poland (1921). However, most of
the jury systems were abolished or modified during anti-democratic reforms of the 20th century in Europe. The following Civil
Law countries still have a jury system that is modeled on the classic Common Law jury: Austria; Belgium; Denmark; Malta;
Norway; Russia; Spain; Sweden; and some Swiss cantons. See John D. Jackson & Nikolay P. Kovalev, Lay Adjudication and Human
Rights in Europe, 13 Colum. J. Eur. L. 83 (2006-2007).
114 The Highway of Hate, supra note 38.
116 With Fear and Passion, supra note 39.
117 Francis Pakes, Comparative Criminal Justice 115 (2d ed. 2010).
118 Dionysios D. Spinellis, Recent Trends in the Greek Criminal Proceedings: Limiting or Expanding the Rights of the Accused?, 62 TEMP. L.
REV. 1261, 1262 (1989) (The criminal proceedings begin when the public prosecutor presses charges. From this moment the
prosecution cannot be dismissed or disposed of in any way other than by the decision of a court or a judicial council).
111
112
24

By contrast, consider Polish criminal procedure which began in the German legal tradition and
then borrowed from other legal traditions, including the French and Socialist legal traditions. As a result,
there is relatively less judicial participation in the adjudicative process. The Polish mixed panel consists of
only one judge and two jurors, and a simple majority decides the verdict, so the adjudicative power of
jurors (lay participation) is especially high.121
Also, Poland is unique among Civil Law countries in that it follows the principle of orality, relying
on live oral testimony rather than a written dossier.122 Courtroom action is therefore remarkably adversarial.
Although the presiding judge controls the questioning, and the prosecution and defense do not present
their evidence separately,123 the lawyers engage in lively cross-examination as shown in the film Ghetto
Queen.124
Because Polish criminal procedure is remarkably adversarial, Polish criminal law films often portray
defense counsel as the hero. For example, in Life Sentence (1933),125 a female defense attorney successfully
defends a nave female who is seduced, abandoned and wrongly accused of murder, and in Ghetto Queen
(1937), a humble female barmaid is acquitted of murder and escapes the ghetto. No End (1985)126 provides
a behind-the-scenes view of defense counsels litigation strategy to save a political criminal from a long
prison sentence, and A Short Film About Killing (1989)127 depicts defense counsels anguish over his inability
to save his client from the death penalty.
As listed above, Polish law films cover the 1930s (inter-war), 1980s (post-Solidarity) and 1990s
(post-Cold War). It is remarkable to see that, throughout, the layout of the courtroom and courtroom
procedure have remained the same despite tumultuous times in Poland, including German and Soviet
occupation in 1939 and Soviet domination until 1980s Solidarity and the eventual fall of communism in
Poland in 1989. It is also remarkable that, throughout Polish law film history, females have been depicted
as equals to men in the criminal justice system,128 and judges have been depicted as fair arbiters of criminal
justice.
Women with a Past, supra note 36.
Maria in Silence, supra note 37.
121 Shannan C. Krasnokutski, Human Rights in Transition: The Success and Failure of Polish and Russian Criminal Justice Reform, 33 CASE
W. RES. J. INTL L. 13, 25-28 (2001) (citing Kodeks Postepowania Karnego (Code of Criminal Procedure) art. 28, 1 (Pol.)).
122 Stephen M. Ryan, Out from under Soviet Rule: With Help of Ceeli, Former Satellites Rebuild a Legal System, 11 CRIM. JUST. 11, 17-18
(fall 1996).
123
Andrzej
Adamski,
Poland,
WORLD FACTBOOK OF
CRIMINAL JUSTICE SYSTEMS,
available
at
bjs.ojp.usdoj.gov/content/pub/ascii/WFBCJPOL.TXT (last visited Oct. 11, 2014).
124 Ghetto Queen (Eksplo-Film 1937) (Pl.).
125 Life Sentence, supra note 10.
126 No End, supra note 11.
127 A Short Film About Killing (Zespol Filmowy Tor 1988) (Pl.).
128 Ewa Mazierska, Elzbieta Ostrowska and Joanna Szwajocowska, WOMEN IN POLISH CINEMA 117 (Berghahn Books 2006).
119
120
25

Coup dtat129 (1980) is a thorough history lesson of Poland under Marshall Pilsudski from 1926 to
1932. Nearly one hour of the film is devoted to a thorough re-enactment of the open trial before the
district court in Warsaw, which lasted about two and one-half months, from October 26, 1931, until
January 13, 1932. Coup dtat also provides a rare behind-the-scenes view of the judges deliberation.
In sum, films show distinctive features of the German Civil Law tradition compared to the French
Civil Law tradition. In the German Civil Law tradition, the right of the suspect to remain silent is better
respected, the prosecutor enjoys less discretion, courtroom action is more adversarial, and there is more lay
participation in adjudication. It is therefore arguable that the German Civil Law tradition better protects
the presumption of innocence.
3. Other Legal Traditions: Socialist, Islamic and Indigenous
The Civil Law-Common Law dichotomy is a classical analytical construct of comparative law
studies, but it should be supplemented by consideration of the distinctive features of the Socialist, Islamic
and indigenous legal traditions. In the Socialist legal tradition, which began in the former Soviet Union, law
is merely a policy tool of the state, used to educate the populace. In the Islamic legal tradition, all aspects of
life are governed by the writings of the holy book of Islam (Quran) and the statements and deeds of the
prophet Muhammad (Sunna). And indigenous legal traditions can be found in isolated areas, such as the
South Pacific Islands, the African bush, the Mexican mountains, the reservations of American Indian tribes
and aboriginal lands in Australia. The criminal procedure of many of these traditions has also been
depicted in film.
a. Socialist Legal Traditions130
Socialist law is historically grounded in Civil Law. However, when Joseph Stalin rose to power in
the late 1920s, he decided to use the law to consolidate his power. During a period of Socialist legalism in
the Soviet Union, rules were adopted to govern all aspects of citizens home and work life. The legal
system became a policy tool of a huge Soviet bureaucratic apparatus designed to control the populace.
Under Soviet influence, Socialist law was adopted in Soviet bloc countries such as East Germany, Poland
and Czechoslovakia. Today, Socialist law is still practiced in China which was directly influenced by the
Soviet Union under Vladimir Lenin.
Because the function of Socialist law as a policy tool is to educate the public, judges have very little
power, and it is the procurator, as agent of the state, who has very broad authority. For example, the
129
130
Coup dtat (Film Polski 1981) (Pl.)

See generally, Reichel, supra note 9 at 115, 140, 187; Fairchild & Dammer, supra note 9 at 54.
26

Chinese procurator has the power to investigate crimes, prosecute violators, and supervise the entire
criminal justice system.131 As such, the procurator is responsible for ensuring that all citizens adhere to the
laws and policies of the state, and he or she has broad authority to carry out that responsibility. Because the
well-being of the collective and primacy of the Communist state are more important than the needs of the
individual, prerogative law or political justice may supersede normal rules of criminal procedural in
Socialist law countries. Given the primacy of the Communist state over the needs of the individual, judges
have little power and independence. A judge who makes a decision that is not in the best interest of the
state can easily be replaced.
The Confession132 exposes the behind-the-scenes making of a Soviet-styled show trial. The trial of
Gerard Ludvik (played by Yves Montand), a high-ranking civil servant, is fully-scripted and rehearsed to
show the public that espionage and treason do not go unnoticed or unpunished, while at the same time
giving the appearance of affording due process to the accused. This is a film that demonstrates the
disparity between law on the books and the law in action. Although the defendants of this legal story are
entitled to a state-appointed attorney and an open trial, those rights are provided only in form, not in
substance. This occurs when the political ends of those in power trump the law. The result is politicized
justice, which is a perversion of the criminal justice system, in this case to punish the perceived enemies of
the regime in power and deter others from committing treasonous acts.
The Confession takes place in Prague, Czechoslovakia, from 1951 to 1952.133 The film is based on the
autobiography134 of Czech Communist Artur London who was the Czechoslovakian Under Secretary for
Foreign Affairs in the Communist Government of President Klement Gottwaldof. He was prosecuted in
the so-called Slansky trial135 for treason and espionage under Czech criminal codes which were modeled
after Soviet criminal codes. London, like Gerard in the film, was one of three defendants sentenced to life
imprisonment and later released. The other 11 accused were hanged.
Although Red Corner136 is U.S.-made, it does accurately reflect many aspects of Chinese criminal
procedure.137 Chinas legal system exemplifies the Socialist law tradition. Independence of the judiciary is
See Guan Fujin, The Position and Role of Chinese Procuratorial Organs in Criminal Justice 29, in The Asia and Far East Institute for
the Prevention of Crime and the Treatment of Offenders, Resource Material Series No. 53 (1998), available at
132 The Confession (Les Films Corona 1970) (Fr.). See Vincent Canby, Costa-Gavras Depicts a Believers Betrayal by His Belief: Montand
and
Signoret
Star
in
Confession,
N.Y.
TIMES,
Dec.
10,
1970
(film
review),
available
at
www.nytimes.com/movie/review?res=9B06E1D6143BEE34BC4852DFB467838B669EDE (last visited Oct. 11, 2014).
133 In the opening scene, APrague 1951 appears on the screen as Gerard exits the building where he works. Otherwise, there is
no indication of the location of the story.
134 Artur London, The Confession (Alastair Hamilton trans., William Morrow & Co. 1970).
135 One of the defendants was Rudolf Slnsk, one of the founders of the communist party in Czechoslovakia and secretary
general of the party at the time that he was arrested.
136 Red Corner, supra note 24.
131
27

not valued, and Chinese political culture encourages behavior that satisfies the needs of the collective and
discourages independent individual action. The police, procurators and courts are obliged to exercise their
discretion subject to political guidance.
In Red Corner, a U.S. businessman (played by Richard Gere) on a business trip to China is framed
for murder. He stands trial in the Peoples Court where he is represented by appointed counsel, a young
female Chinese lawyer Shen Yuelin (played by Bai Ling) who advises him to plead guilty to avoid the death
penalty. He eventually convinces her of his innocence, and she decides to defend him despite pressure
from the judiciary and, especially, from the procurator general.
b. Islamic Legal Traditions138
In its purest form, Islamic law (or the Sharia) originates only from divine revelation, and it governs
all aspects of a legal system, including private transactions, criminal law, commercial law and international
law. Islam governs all rules regarding appropriate behavior in any sphere of life. The most important
source of Islamic law is the Muslim holy book, the Quran. Other sources include the Sunnah (or Hadith)
which contains decisions of the prophet Muhammad. Islamic law may be further amplified by recognized
Islamic jurists such as Abu Hanafi, Shafia, Hanbal and Malik. The consensus of jurists is known as ijma
and the use of analogical reasoning is qiyas.
Islamic law distinguishes between crimes against God (Hudud), which are punishable by the state,
and wrongs against others (Quesas and Tesar) for which damages or blood money must be paid to the
victim or the victims family. The state prosecutes Hudud, and the victim prosecutes Quesas and Tesar.
This distinction is analogous to the distinction between crimes and torts in Common Law systems.
However, in Islamic law both are criminal proceedings brought before the quadi.
Under Islamic criminal procedure, justice is dispensed on a case-by-case basis by a single Islamic
judge (quadi), without a jury, so Islamic justice has been referred to as quadi justice.139 The mediating role
of the quadi is realistically depicted in the Iranian films Close Up140 and A Separation. 141 Close Up is based on a
real petty theft trial and contains footage from the actual trial. The crime itself is re-created using the actual
victims and accused, and the filmmakers obtain permission from the quadi to film the actual trial
proceedings. A Separation provides a close look at the resolution of a victims prosecution of the alleged
See Belkin, supra note 41.

See generally Reichel, supra note 9 at 123, 142, 170; Fairchild & Dammer, supra note 9 at 60.
139 Max Weber, RECHTSSOZIOLOGIE (Hermann Luchterhand Verlag 1985).
140 Close Up (Kanoon 1990) (Ir.).
141 A Separation (Asghar Farhadi 2011) (Ir.).
137
138
28

crime of murdering her fetus. Both the petty theft in Close Up and the murder in A Separation are classified
as Quesas or Tesar, not Hudud.
The quadi is bound to follow the Quran and Islamic jurisprudence. The concept of individual
rights of the accused is not highly developed in Islamic law, and criminal procedure differs from
jurisdiction to jurisdiction. The presumption of innocence is protected by a high standard of proving guilt
which varies depending on the nature of the crime. In general the standard of proving Hudud is higher
than the standard of proving Quesas and Tesar. For example, the standard of proving the Hudud of
adultery requires a confession or the testimony of four male Muslims. Proving apostasy or theft requires a
confession or the testimony of two witnesses.
A confession is not heavily weighted in Islamic law, and it can be easily retracted. A confession has
less meaning because a trial is more like a negotiation in Islamic law. A confession is therefore regarded
more like an offer that tests the waters. The accused is not required or even expected to tell the truth, and
he or she is not placed under oath before testifying. Likewise, witnesses are not required to take an oath
before testifying, and perjury is not a crime. Given the negotiating nature of the trial, and given that an
oath carries much greater significance in Islamic culture, it is not lightly administered. In fact, the oath is
taken so seriously in Islamic law and culture that charges against an accused will be dismissed if he or she
denies allegations under oath.
Consistent with the Islamic tradition, the accused in A Separation is not placed under oath before
testifying before the quadi. Both the accused and the alleged victim lie to the quadi who never places them
under oath. The film reaches a climax when the accused offers to pay damages to the alleged victim in
exchange for her oath that he caused her miscarriage. She refuses to take the oath out of fear that her
daughter will somehow suffer for her sin.
Under Islamic evidentiary rules, the testimony of the accuseds family members and hearsay are not
reliable, so they are not admissible. Furthermore, the testimony of women is either inadmissible or given
half the weight of a male testimony, depending upon the nature of the crime. This evidentiary rule of
Islamic law exemplifies the inequality of women in Islamic societies, as harshly depicted in the U.S. film The
Stoning of Soraya M.142 Director Cyrus Nowrastehs drama, which is set in 1986 Iran at the start of
Khomeinis post-revolutionary reign, tells the true story of Soraya Manutchehri (played by Mozhan
Marn), whose husband Ali plots to have her falsely accused of adultery so he can divorce her and marry a
fourteen-year-old girl.143
THE STONING OF SORAYA M. (Roadside Attractions 2008) (US). See also the documentary DISHONORED (Icarus Films 2007)
regarding Pakistani criminal justice.
143 The film is based on the book Freidoune Sahebjam, The Stoning of Soraya M.: A Story of Injustice in Iran (2013).
142
29

Because of the dominant role of the quadi and the minimal role of defense counsel, Islamic criminal
procedure is more inquisitorial than adversarial. Yet, the mediating role of the quadi and the process of
negotiating with the truth defy the inquisitorial goal of finding the truth.
c. Indigenous Legal Traditions - Aboriginal Australians144
Indigenous cultures, including indigenous legal traditions, by their very nature are found in isolated
areas and are generally misunderstood by the host country, specifically in the context of the host countrys
legal system. Most systems of indigenous customary laws include customs and principles which may seem
more like rules of etiquette or religious beliefs to an outside observer.145 This is especially true of the
indigenous people of Australia known as Aboriginal Australians, as portrayed in The Last Wave.146
The Law of the Ancestral Beings governs all aspects of Aboriginal life.147 While there are common
threads that unite Aboriginal laws across Australia, there is no single system of customary law that applies
to all Aboriginal people.148 As anthropologist Elizabeth Eggleston describes, Law and religion are
intimately bound up in Aboriginal society . . . and any attempt to identify certain segments of Aboriginal
life as legal involves the imposition of alien categories of thought on the tribal society.149
The Last Wave shows the clash between Aboriginal and Australian criminal procedure when five
Aboriginal men are charged with murdering another Aboriginal man. Sydney-based lawyer, David Burton
(played by Richard Chamberlain) takes on the pro bono defense of five Aboriginal Australians and eventually
discovers that the victims death was a tribal killing, based on customary law and rituals. One of the
defendants explains to David that the victim stole a sacred tribal object in a desire to become a member of
the tribe. The victim was therefore executed pursuant to the law of the tribe. It is a valid defense if he can
prove the Aboriginal men were meting out tribal law in a tribal area.
As depicted in The Last Wave, the mere observation of sacred objects, places or ceremonies by an
individual who is restricted from such observation is a gravely serious offense and one that is
committed even if the viewing was wholly unintended.150 Likewise, divulging sacred secrets to another
Former Thomas Jefferson School of Law student Lauren Hebl is recognized for her contribution to this section.
Australian Law Reform Commission, THE RECOGNITION OF ABORIGINAL CUSTOMARY LAWS (ALRC Rep. No. 31) (1986)
[hereinafter ALRC 31], available at www.alrc.gov.au/publications/report-31 (last visited Oct. 11, 2014).
146 The Last Wave, supra note 19.
147 Stephanie Fryer-Smith, AUSTRALIAN ABORIGINAL BENCHBOOK FOR WESTERN AUSTRALIAN COURTS, Ch. 2, 2.2.1 (2002),
available at www.aija.org.au/online/ICABenchbook.htm (last visited Oct. 11, 2014).
148 Kathryn Trees, Contemporary issues facing customary law and the general legal system: Rebourne a case study 65, in LAW REFORM
COMMISSION OF WESTERN AUSTRALIA, ABORIGINAL CUSTOMARY LAWS (2006).
149 ELIZABETH M. EGGLESTON, FEAR, FAVOUR, OR AFFECTION: ABORIGINES IN THE CRIMINAL LAW IN VICTORIA, SOUTH
AUSTRALIA AND WESTERN AUSTRALIA 278 (1976).
150 Fryer-Smith, supra note 147 at 2.7.3.
144
145
30

who is not permitted by customary law to know such secrets is punishable by death.151 A customary form
of punishment is death by sorcery or incantation with a pointing-bone, as depicted in The Last Wave.152
Such punishment is generally used where physical vengeance is appropriate but not practicable.153 The
offender will be identified during a ritual ceremony and a sorcery rite performed . . . [If] the identified
person becomes ill, insane, or dies, the sorcery has succeeded.154
For minor offenses, traditional Aboriginal communities mediate a resolution between the
perpetrator and the victim.155 The punishment depends on locality, the sex, status and previous history of
the wrongdoer, the sex, status and conduct of the victim and of the person(s) required or expected to
respond, the communitys perceptions of the seriousness of the offense and the surrounding
circumstances, and the extent of (and concern about) external intervention.156
David, the defense attorney in The Last Wave, it turns out, has spiritual powers and sees the sacred
object in one of his dreams. He later finds it among the victims belongings. The spiritual worldview
known as Dreamtime is the basis of Aboriginal spirituality and is the source of sacred traditional
Aboriginal rules of human social life and culture.157 Aboriginal law is passed on to future generations
through the oral tradition of Dreaming Stories through which Ancestral Beings hand down the Law to the
Aboriginal people through Dreaming Tracks.158
D. International Criminal Procedure159
Criminal procedure is a fast-growing subject of international human rights law, culminating with
the International Criminal Court,160 established in 2002. Instruments such as the Universal Declaration of
Human Rights and the International Covenant on Civil and Political Rights lay out some basic principles of
criminal procedure for governments to follow, most notably the presumption of innocence.161 More
Id. (citing Traditional Aboriginal Society and Its Law in Australian Law Reform Commission, TRADITIONAL ABORIGINAL SOCIETY
189, 195 (WH Edwards ed., 1987)) [hereinafter ALRC].
152 Id.
153 Fryer-Smith, supra note 147 at 2.7.4.
154 Id. (citing ALRC, supra note 151 at 199).
155 Id.
156 ALRC 31, supra note 145 at 500.
157 Fryer-Smith, supra note 147 at Ch. 2, 2.2 (2002).
158 Id. at 2.2.1
159 See generally Robert Cryer, Hkan Friman, Darryl Robinson & Elizabeth Wilmshurst, An Introduction to International
Criminal Law and Procedure (2d ed. 2010).
160
International
Criminal
Court,
Rules
of
Procedure
and
Evidence,
www.icccpi.int/en_menus/icc/legal%20texts%20and%20tools/official%20journal/Documents/RulesProcedureEvidenceEng.pdf (last
visited Oct. 11, 2014).
161 Universal Declaration of Human Rights, G.A. Res. 217, U.N. GAOR, art. 11(1), U.N.Doc. A/811 (1948); International
151
31

detailed procedures have been established by modern-era ad hoc international war crimes tribunals, starting
with the Nuremburg trials.162 Films that depict these tribunals in action include Judgment at Nuremberg163
(Germany), Council of the Gods164 (Germany), Best Wishes for Tomorrow165 (Japan) and Pride166 (Japan).167
Recent war crimes tribunals include the International Criminal Tribunal for the former
Yugoslavia,168 the International Criminal Tribunal for Rwanda,169 and the Special Court for Sierra Leone.170
The work of the latter is depicted in the documentary War Don Don.171 The documentary Rule of Law: Justiz
im Kosovo172 depicts a national tribunal in which criminal procedure has been borrowed from international
tribunals.
Judgment at Nuremberg173 is based on the actual prosecution of German judges and prosecutors for
furthering Hitlers program of racial purity in the courts of Nazi Germany. In the real trial, seven judges
and prosecutors were tried in 1947 in the case of The United States of America v. Josef Altsttter, et al.174 Judgment
at Nuremberg is U.S.-made and concerns a U.S.-styled prosecution before a U.S. military tribunal consisting
of three American judges (presiding judge played by Spencer Tracy).175
The Nuremberg court was an international tribunal established by the victors of World War II and
nine of the formerly occupied countries. Judges and prosecutors were provided by the French, Soviets,
British and Americans. Most of the defense counsel were German. The tribunal heard twelve trials which
Covenant on Civil and Political Rights, Mar. 23, 1976, 14(2), 999 U.N.T.S. 172.
162 Yale Law School, The Avalon Project, Nuremberg Trial Proceedings Vol. 1
Rules of Procedure, avalon.law.yale.edu/imt/imtrules.asp (last visited Mar. 22, 2014).
163 Judgment at Nuremberg (Roxlom Films Inc. 1961) (US).
164 Council of the Gods, supra note 100.
165 Best Wishes for Tomorrow (Ace Productions 2007) (Jp.).
166 Pride (Toei Company 1998) (Jp.).
167 These are not to be confused with war crimes trials before military tribunals and domestic courts. For trials before domestic
courts, see The Reader, supra note 93 (based on the 1963-1965 Frankfurt Auschwitz Trials of 22 defendants under German penal
law for their roles in the Holocaust); The Specialist (Amythos Productions 1999) (Il.) (documentary) (Israeli Mossad members
capture Adolf Eichmann in Argentina and try him in Israel in 1961 for war crimes and crimes against humanity). For trials
before military war crimes tribunals, see Breaker Morant (South Australian Film Corp. 1980) (Au.) (1902 British court-martial of
three Australian officers of the special forces unit during the Second Boer War (18991902)); Prisoners of the Sun (Blood Oath
Productions 1990) (Au.) (Australian war crimes trial of three Japanese naval officers for the murder 800 Australian prisoners of
war between 1942 and 1945 at the Tan Toey camp on the Indonesian island of Ambon).
168 United Nations, International Criminal Tribunal for the former Yugoslavia, Rules of Procedure and Evidence,
www.icty.org/sid/136 (last visited Oct. 11, 2014).
169
International
Criminal
Tribunal
for
Rwanda,
Rules
of
Procedure
and
Evidence,
www.unictr.org/Portals/0/English/Legal/ROP/100209.pdf (last visited Oct. 11, 2014).
170 Statute of the Special Court for Sierra Leone (adopting the Rules of Procedure and Evidence of the International Criminal
Tribunal for Rwanda), www1.umn.edu/humanrts/instree/SCSL/statute-sierraleone.html (last visited Oct. 11, 2014).
171 War Don Don (Naked Edge Films 2010) (US).
172
Rule of Law: Justiz im Kosovo (Josef Aichholzer Filmproduktion 2006) (At.).
173 Judgment at Nuremberg, supra note 163. See Shale, supra note 4; Bosley Crowther, Judgment at Nuremberg, N.Y. TIMES, Dec. 20,
1961 (film review); The 12 Best Trial Movies, 75 ABA J. 96 (Nov. 1, 1989).
174 The United States of America v. Josef Altstotter, et al., 3 T.W.C. 1 (1948), 6 L.R.T.W.C. 1 (1948), 14 Ann. Dig. 278 (1948).
175 Evan J. Wallach, The Procedural and Evidentiary Rules of the Post-World War II War Crimes Trials: Did They Provide an Outline for
International Legal Procedure?, 37 COLUM. J. TRANSNATL L. 851 (1999).
32

were collectively known as the Subsequent Nuremberg Trials. The so-called Judges Trial, which is
depicted in the film, was the third of twelve trials held in the U.S.-occupied zone.176
The judges in the Judges Trial were American civilians Carrington T. Marshall from Ohio
(presiding judge), James T. Brand from Oregon, Mallory B. Blair from Texas and Justin Woodward
Harding from Alaska (alternate judge). The Chief of Counsel for the Prosecution was Telford Taylor; his
deputy was Charles M. LaFollette. The indictment was presented on January 4, 1947, and the trial lasted
from March 5, 1947, to December 4, 1947. Ten of the defendants were found guilty, four received
sentences for lifetime imprisonment, and the rest received prison sentences of varying lengths. Four
persons were acquitted of all charges.
Council of the Gods depicts the I.G. Farben or chemical trial which was the sixth of the twelve war
crimes trials heard by the Nuremberg tribunal.177 I.G. Farben was a colossal German industrial corporation
that helped supply Hitlers war effort and manufactured the gas used in the Nazi death chambers. 178 The
indictment against the former I.G. Farben directors was filed on May 3, 1947, and the trial lasted nearly a
year, from August 1947 until July 1948. Thirteen of the 24 defendants were convicted, but they received
light sentences and early release from prison. In the film, the directors of the company call themselves the
Council of the Gods in reference to a painting that is displayed in the room where they meet. The
painting depicts Greek gods who give counsel to Zeus in the clouds as a violent battle ensues among the
mortals below them on Earth.
This German film, which is based on the 1947 book I.G. Farben by American author Richard
Sasuly179 and records from the Nuremberg trial, is a Cold War, anti-American, propaganda film, depicting
collaboration between the Nazi regime and international corporations to produce the poisonous gases that
were used to murder millions in the Holocaust. Sasuly had chaired the Kilgore Committee, which
investigated I.G. Farben on behalf of the American military, and his book was based largely on his own
experiences.
Best Wishes for Tomorrow,180 adapted from Shohei Ookas novel Nagai Tabi, depicts the real-life
Yokohama war crimes trial of Lieutenant General Tasuku Okada (played by Makoto Fujita) who
commanded the Tokai Army in defense of Honshu. General Okada ordered the execution of 38 captured
U.S. Holocaust Memorial Museum, Holocaust Encyclopedia, Subsequent Nuremberg Proceedings, Case #3, The Justice Case,
www.ushmm.org/wlc/en/article.php?ModuleId=10007073 (last visited Oct. 11, 2014).
177 See Doreen Lustig, The Nature of the Nazi State and the Question of International Criminal Responsibility of Corporate Officials at
Nuremberg: Revisiting Franz Neumanns Concept of Behemoth at The Industrialist Trials, 43 N.Y.U. J. Intl L. & Pol. 965 (2011).
178 Zyklon-B was produced by I.G. Farben subsidiary German Pesticide Systems (DEGESCH), based in Frankfurt.
179 Richard Sasuly, IG Farben (1947).
180 Best Wishes for Tomorrow, supra note 165.
176
33

American fliers a few weeks before World War II ended on August 15, 1945. General Okada and 19 of his
subordinates are charged with summarily executing the American airmen without a fair trial.
At his trial before the International Military Tribunal for the Far East, Okada and his American
defense counsel argue that the Americans were executed as war criminals for the indiscriminate bombing
of Japan that killed hundreds of thousands of innocent civilians. Okada is sentenced to death, and his
subordinates are sentenced to ten years to life. The filmmaker argues that all participants in WWII engaged
in war crimes, so it is hypocritical for the victors to try and punish the vanquished for war crimes. General
Okada asks: Why should the losing side be held solely responsible for crimes committed?
Okadas trial is one of the so-called Yokohama war crimes trials which ended in 1948. His trial is
conducted by a panel of five military officers, whereas the Nuremberg trials were conducted by three
civilian judges as depicted in Judgment at Nuremberg. The war crimes tribunals were convened after WWII
under U.S. occupation by General Macarthurs forces. The accused were divided into classes, A, B and C.
The class-A war criminals were tried in Tokyo in widely publicized trials. The class-B and class-C
defendants were tried in the Yokohama trials, which is the setting of this film.
Pride181 is about one of the Tokyo war crimes trials of class-A defendants in which American
prosecutor Joseph Keenen seeks the convictions of Japanese General Hideki Tojo and 27 of his
subordinates. Tojo is the main defendant because as former Prime Minister, he was instrumental in
designing Japanese national strategy which began with the bombing of Pearl Harbor. Pride is told through
Tojos wife Katsuko. The defense argues that the Allied court lacks jurisdiction to prosecute Japanese
officials and that the Allies are even more culpable for dropping the atomic bomb over Hiroshima.
War Don Don182 documents the prosecution of Issa Sesay, the commander and subsequent interim
leader of the Revolutionary United Front (RUF) during the 1991-2002 armed conflict in Sierra Leone.183
The RUF, led by Foday Sankoh, sought to overthrow the Joseph Momoh government. The RUF fought
under the auspices of Charles Taylors National Patriotic Front of Liberia, committing gross human rights
violations and leaving over 50,000 dead.184 In 2002, the Special Court for Sierra Leone (SCSL) was
established to prosecute those responsible.185
Pride, supra note 166.

War Don Don, supra note 171. Former Thomas Jefferson School of Law student Bradley Sorrentino is recognized for his
contribution to this section.
183 Rebecca Richman Cohen, War Don Don, New Day Digital (March 2010), www.newdaydigital.com/War-Don-Don.html (last
visited Oct. 11, 2014) (contains footage of the SCSL trial of Sesay).
184 Lansana Gberie, A Dirty War in West Africa: The RUF and the Destruction of Sierra Leone (2005).
185 Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for
Sierra Leone (Jan. 16, 2002), S.C. Res. 246, U.N. SCOR, 57th Sess., U.N. Doc. S/2002/246, appended to Letter dated 6 March
2002 from the Secretary-General Addressed to the President of the Security Council, app. II (2002).
181
182
34

Unlike ad hoc international criminal tribunals, such as the International Criminal Tribunal for the
Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), the SCSL is a
hybrid tribunal, created pursuant to a treaty between the United Nations and Sierra Leone. 186 It consists of
a mixed panel of both local and international judges,187 and it sits in Freetown, Sierra Leone.188 The
participation of local judges is intended to promote the legitimacy of the tribunal, which Sierra Leoneans
tend to perceive as an imposition of Western dominance.189
The documentary War Don Don depicts an adversarial proceeding in which the judges are referees,
and the attorneys engage in lively direct and cross-examination. Still, inquisitorial aspects are present. First,
the principle of opportunity (prosecutorial discretion) was compromised by the political purpose of
satisfying victims and their families.190 In addition, the accuseds right to confront prosecution witnesses
was limited by protective measures,191 and out-of-court statements were admissible against Sesay.
The documentary Rule of Law: Justiz im Kosovo192 depicts footage of a Kosovo murder trial overseen
by Austrian U.N. Judge Claudia Fenz. She and two associate judges hear a murder case in which a group of
ethnic Albanian men are accused of killing a Serbian woman. In contrast to the procedure depicted in the
films described above, the film shows a procedure that is more inquisitorial than adversarial. In 2008,
Kosovo became the seventh new nation to emerge from the break-up of Yugoslavia after the ethnic wars
of the 1990s. In 1996, the United Nations took administrative control of Kosovo,193 and in early 2000,
international judges and prosecutors began handling criminal cases that involved war crimes and ethnic
violence.
International jurists assisted local judges and prosecutors with reform of Kosovos criminal justice
system194 which culminated with Kosovos declaration of independence on February 17, 2008, and
ratification of its constitution on June 15, 2008. Although much of Kosovos criminal procedure has been
adopted in the spirit of international conventions, distinctive features of Kosovos criminal procedure
William R. Slomanson, Fundamental Perspectives on International Law 426 (Carolyn Merrill, 6th ed. 2011)
The judicial composition at the ICTY, ICTR, and the SCSL consists of a three-judge panel. None of the judges are nationals
of the former Yugoslavia or Rwanda, respectively.
188 Id.
189 Rebecca Cohen, supra note 183.
190
Julie
Simeone
&
Rebecca
Richman
Cohen,
War
Don
Don
Teaching
Resources
(2011),
www.wardondonfilm.com/media/WarDonDon_Teaching_Materials_2011Jan10.pdf (last visited Oct. 11, 2014).
191 Under Rule 69, the court may [choose not to disclose] the identity of a victim or witness who may be in danger or at risk
SCSL R. Crim. P. 69. Additionally, Rule 75 provides several methods of preventing identity disclosures.
192 Rule of Law: Justiz im Kosovo, supra note 172.
193 S.C. Res. 1244, 5, U.N. Doc. S/RES/1244 (June 10, 1999); U.N. Mission in Kosovo, On the Appointment and Removal
from Office of International Judges and International Prosecutors, U.N. Doc. UNMIK/REG/2000/6 (Feb. 15, 2000), available
at www.unmikonline.org/regulations/2000/re2000_06.htm (last visited Oct. 11, 2014); U.N. Mission in Kosovo, On
Assignment of International Judges/Prosecutors and/or Change of Venue, U.N. Doc. UNMIK/REG/2000/64 (Dec. 15, 2000),
available at www.unmikonline.org/regulations/2000/reg64-00.htm (last visited Oct. 11, 2014).
194 Elena A. Baylis, Parallel Courts in Post-Conflict Kosovo, 32 YALE J. INTL L. 1 (2007).
186
187
35

remain. The result is a hybrid adversarial-inquisitorial system. As found in adversarial systems, prosecutors
have discretion to decide whether to prosecute or mediate a resolution of minor crimes (punishable by fine
or imprisonment up to three years),195 and the accused has a right to question witnesses. As found in
inquisitorial systems, prosecutors are required to prosecute when reasonable grounds exist to believe that a
crime has been committed, and an investigating judge may be appointed. The presiding judge conducts
most of the questioning of witnesses, the accused are expected to testify, and there is no separate
sentencing hearing.
All of these films that depict international tribunals in action reveal that, apart from the lack of
jurors,196 international criminal procedure has been mostly adversarial.197 This is due in great part to the
influence of the United States and the United Kingdom in the formation and conduct of ad hoc
international criminal tribunals. It also happens to jibe with developing international norms of human
rights which call for recognition and protection of the presumption of innocence.198 As explained further in
the next section, the adversarial process more naturally protects a suspects and an accuseds right to due
process and the presumption of innocence.
III. FILMIC DEPICTIONS OF THE INVESTIGATIVE PHASE

Americans commonly complain that obviously culpable defendants are set free due to legal
technicalities. Such legal technicalities are purposefully designed to protect the wrongly accused, not the
culpable. Although Americans complain about the social cost, their strong tradition holds that it is better to
free a culpable person than it is to punish an innocent one. This tradition is especially needed in a country
that applies the death penalty. Indeed, U.S. criminal procedure may be the most liberal in the world, with
an over-abundance of safeguards to prevent wrongful prosecutions and, worst of all, wrongful executions.
As the investigating judge Fanariotis states in the Greek film With Fear and Passion,199 recalling advice that
was given to him when he first became an investigating judge: Better to have 100 guilty set free than to
Provisional Criminal Code of Kosovo, art. 3(1), U.N. Doc. UNMIK/REG/2003/26 (July 6, 2003), available at
www.unmikonline.org/regulations/2003/RE2003_25_criminal_code.pdf (last visited Oct. 11, 2014).
196 Given the passionate post-war desire of victims and their families to obtain retributive justice, it would not be feasible to
impanel an unbiased jury whose verdict would be regarded as legitimate.
197 See Hague Institute for the Internationalisation of Law, General Rules and Principles of International Criminal Procedure and
Recommendations
of
the
International
Expert
Framework
(Oct.
2011),
available
at
www.hiil.org/data/sitemanagement/media/IEF_Brochure_241011.pdf (last visited Oct. 11, 2014).
198 Id. at 59; International Covenant on Civil and Political Rights, supra note 161, art. 14(2); Universal Declaration of Human
Rights, supra note 161, art. 11(1).
195
36

have one innocent in jail. It should therefore come as no surprise to learn that the Greek system of justice
is one of the most adversarial of the Civil Law countries.
A. Police, Suspects and the Right to Remain Silent
At the investigative phase of criminal procedure, the competition begins between the power of the
government and the rights of the suspect. During this phase, the unrepresented suspect is most vulnerable,
not only because he or she has not yet been advised by counsel, but also because at this phase, he or she
has no right to the presumption of innocence and has no right to counsel at the governments expense.
Such rights do not come into play until after the filing of formal charges.
Since the suspect has no right to a presumption of innocence during the investigative phase, police
and prosecutors have the freedom to follow their tendency or bias to investigate by seeking incriminating
rather than exculpatory evidence. Although the police will rule out suspects in a genuine attempt to find
the true perpetrator, they expect persons of interest, otherwise known as suspects, to provide
exculpatory evidence. The failure to offer up exculpatory evidence tends to increase police suspicions.
The police tend to confront anyone who is the least bit suspicious, hoping to elicit an incriminating
statement or, better yet, a confession. The police are therefore on the low end of the scale of neutrality in
the United States and in most other countries. From their point of view, the most direct, accessible and
inexpensive evidence of guilt is the perpetrators confession. Many aspects of criminal procedure during
the investigative phase are therefore directly or indirectly related to the efforts of the police to obtain a
confession. From the point of view of the suspect, regardless of culpability, the most valuable right is the
right to remain silent and to consult legal counsel.
To the inquisitorial mindset, culpable persons have a natural motivation to remain silent, whereas
innocent persons have a natural incentive to speak up and provide the police with exculpatory information.
Innocent suspects are expected to cooperate, so the right to remain silent and the right to consult counsel are
relatively weak compared to adversarial systems of justice.
Today, there is an internationally recognized right to remain silent, as expressed in Article 14.3.(g)
of the International Covenant on Civil and Political Rights (everyone shall be entitled. . . [n]ot to be
compelled to testify against himself or to confess guilt.).200 The right to remain silent in the United States
derives from the Self-Incrimination Clause of the Fifth Amendment which provides that no person . . .
200
International Covenant on Civil and Political Rights, supra note 161, art. 14.3.(g).
37

shall be compelled in any criminal case to be a witness against himself.201 This right means nothing,
however, without safeguards such as the Miranda warning202 and the Exclusionary Rule,203 which are U.S.
inventions.
The right of a suspect to remain silent is a Common Law invention that initially had little to do
with the presumption of innocence. It derives from a distrust of government that dates back to religious
conflicts in England in the sixteenth and seventeenth centuries. The right to remain silent evolved in
response to the use of torture and other severe punishment to obtain the cooperation of suspects and
accused. The right protects the individual against abusive, intrusive governmental tactics. For example, the
films The Passion of Joan of Arc,204 Anne of the Thousand Days,205 and Artemisia206 depict torture as an accepted
procedure of eliciting confessions in medieval investigative and trial procedure.
The Passion of Joan of Arc closely follows the actual transcript of the trial of Joan of Arc (1412-1431),
a French heroine who led the French army to key battle victories during the Hundred Years War against
English occupation forces (1337-1453). In a trial that follows canon law procedures, Joan of Arc is
interrogated by a panel of several judges. The trial takes place in a series of four hearings convened in a
single day: in a chapel, her cell, a torture chamber, and back in her cell. In actuality, Joan of Arc was
subjected to 22 interrogations, some of which included torture, by over fifty judges over several weeks.
Anne of the Thousand Days depicts the brief (approximately 1000-day) marriage, from 1532 to 1536,
of Anne Boleyn to King Henry VIII of England. After Anne fails to give birth to a son, Henry VIII
pursues Jane Seymour. To dispose of Anne, Henry VIIIs chief minister Thomas Cromwell obtains
evidence of Annes adultery with several others including her own brother and her daughters music
teacher. The music teacher is tortured with a cranium-wrenching device to elicit his confession.
Artemisia is about Italian Baroque painter Artemisia Gentileschi (1593-1653), one of the first
well-known female painters.207 She is depicted as the victim of statutory rape by Agostino Tassi.208 Her
father brings charges against him, but during the trial Artemisia remains loyal to Tassi and refuses to testify
against him. She is therefore tortured with a finger-wrenching device, which elicits a confession from Tassi
U.S. Const. amend. V.

Miranda v. Arizona, 384 U.S. 436, 457-58 (1966).
203 Weeks v. United States, 232 U.S. 383 (1914) (applicable in federal prosecutions); Mapp v. Ohio, 367 U.S. 643 (1941)
(applicable to states).
204 The Passion of Joan of Arc (Socit gnrale des films 1928) (Fr.).
205 Anne of the Thousand Days (Hal Wallis Productions 1969) (US).
206 Artemisia (3 Emme Cinematografica 1997) (It.).
207 See Stephen Holden, Artemisia: Agony and Ecstasy, Especially Ecstasy, N.Y. TIMES, May 8, 1998 (film review) (Critics Pick).
208 On statutory rape, see Rachel A. Van Cleave, Rape and the Querela in Italy: False Protection of Victim Agency, 13 MICH. J. GENDER
& L. 273 (2007).
201
202
38

who has been forced to watch the ordeal. The real Artemisia testified against Tassi, and she was tortured
with thumbscrews to verify her testimony.209
In inquisitorial systems of criminal justice, a suspect is expected to cooperate, so such systems do
not cater to a suspect who wishes to remain silent. Devices of criminal procedure that promote
cooperation, and hopefully confessions, in inquisitorial systems include little or no warning of the right to
remain silent or the right to counsel, delayed access to legal counsel, confrontations, reenactments at the
scene of the crime, and offers of leniency. All of these devices work together to coax a suspect into
speaking up and, hopefully, confessing. And all of these devices are depicted in film.
1. Warnings
A suspects decision to remain silent often depends on whether counsel is present to ensure that he
or she is not tricked into speaking. In The Paradine Case,210 an adaptation of the novel by Robert Hichens,
the hauntingly beautiful Mrs. Paradine (played by Alida Valli) is accused of poisoning her much older, blind
husband. The film opens with Mrs. Paradines arrest by the chief inspector of police. He arrests her at her
home pursuant to an arrest warrant and warns her that she need not say anything. She is taken to the police
station where her solicitor (played by Charles Coburn) is waiting. Privately, he advises her to say nothing.
In the charge room, in the presence of her solicitor, the police formally charge her with murder and ask
if she has anything to say in response to the charge. According to her solicitors advice, she replies that she
has nothing to say. Her solicitor then helps her to retain barrister (trial lawyer) Anthony Keane (played by
Gregory Peck) as her trial defense counsel.
Strict U.S. safeguards include the Miranda warning which the police give to a suspect to ensure a
knowing waiver of the right to remain silent and the early right to counsel.211 The Fifth Amendment of the
U.S. Constitution provides that [n]o person . . . shall be compelled in any criminal case to be a witness
against himself.212 As the U.S. Supreme Court stated in the Miranda case, the current practice of
incommunicado interrogation is at odds with one of our Nations most cherished principles -- that the
individual may not be compelled to incriminate himself.213 The rule of Miranda therefore derives from the
due process clause of the Fifth Amendment and not from the Sixth Amendment right to counsel, which is
a right that is enjoyed by an accused, not a suspect.
Valeria Finucci, A Portrait of the Artist as a Female Painter: The Kunstlerroman Tradition in A. Bantis Artemisia, 8 QUADERMI
170 (1987).
211 Miranda v. Arizona, 384 U.S. 436, 457-58 (1966).
212 U.S. Const. amend. V, 2.
213 Miranda v. Arizona, 384 U.S. 436, 457-58 (1966).
209
DITALIANISTICA
39

The U.S. exclusionary rule has helped to ensure that the police give the warning as required.214
Under the exclusionary rule, evidence obtained in violation of a suspects constitutional rights may not be
used (is inadmissible) for criminal prosecution. There are a few exceptions, such as the narrow public
safety215 and the English warning216 exceptions. Under the English warning exception, the failure to
raise an alibi or other exculpatory information while in custody, after being warned of the consequences of
such failure, can be used against the suspect in court.
There is no general Miranda rule and no exclusionary rule in traditional inquisitorial systems. Even
in Civil Law countries where the police are now required to advise a suspect of the right to remain silent, it
is not followed very closely in practice. It is therefore common to hear the Miranda warning read to a
suspect in U.S. films, but such a warning is only occasionally uttered in the films of other countries.
When counsel is present in a U.S. film, he or she will normally tell the client not to talk to the
police.217 In many films of Civil Law countries, however, the police are shown freely questioning suspects,
even with their defense counsel present. The usefulness of a warning is therefore of little use in a legal
tradition where the police and even the suspects attorney expect the suspect to cooperate. Even in the
United States, statistics show that a majority of suspects agree to talk to the police, even after being warned
of the right to have counsel present. The suspect may believe that he or she can provide exculpatory
evidence that will satisfy the police or the suspect may wish to avoid the cost of hiring an attorney. A
suspect is not entitled to government-provided counsel.
2. Delayed Legal Representation and Coercion
Informing a suspect of the right to remain silent is a hollow safeguard if the suspect is unaware of
his or her right to consult counsel or if the right to consult counsel is limited or non-existent. Miranda
therefore provides that, in the United States, suspects in custody shall be informed of their right to remain
silent and the correlative right to have an attorney present. If not so informed, elicited confessions shall
automatically be inadmissible in criminal prosecutions under the so-called Exclusionary Rule.
See Weeks v. United States, 232 U.S. 383 (1914) (applicable in federal prosecutions); Mapp v. Ohio, 367 U.S. 643 (1941)
(applicable to states).
215 See New York v. Quarles, 476 U.S. 649 (1984). See also Charlie Savage, Holder Backing Law to Restrict Miranda Rights, N.Y.
TIMES, May 10, 2010, at A1, available at www.nytimes.com/2010/05/10/us/politics/10holder.html (last visited Oct. 11, 2014);
Micah Cohen, Small Majority Approved of Miranda Rights for Terror Suspects, N.Y. TIMES, Apr. 21, 2013, available at
fivethirtyeight.blogs.nytimes.com/2013/04/21/small-majority-approved-of-miranda-rights-for-terror-suspects/
(Boston
Marathon bombers) (last visited Mar. 22, 2014).
216 See South Dakota v. Neville, 459 U.S. 553 (1983) (admissibility of a suspected drunk drivers failure to submit to a bloodalcohol test).
217 As the character Saul Goodman advises his client in the U.S. television series Breaking Bad: Whatd you say to [the police
detective]? Huh? Did you say anything stupid? By anything stupid, I mean anything at all. Breaking Bad (Season 2, Episode 8.1,
Apr. 26, 2009).
214
40

As mentioned above, the U.S. Supreme Court recognized in 1984 a narrow public safety
exception to the right to early counsel.218 Since 9/11, there have been efforts to expand the exception in
investigations of suspected terrorists.219 Also, in reaction to 9/11, Congress and the President enacted the
USA PATRIOT Act of 2001 which authorized the detention of suspected terrorists for up to seven days
without filing formal charges.220
The U.K. film In the Name of the Father221 shows explicitly how seven days of relentless interrogation
and psychological torture caused Gerry Conlon (played by Daniel Day-Lewis) to confess to crimes that he
did not commit. His confession and the confessions of three others result in the conviction of eleven
members of the Conlon family, and Gerry Conlon is sentenced to a minimum of thirty years in prison. The
film is loosely based on the real-life prosecution of the Guildford Four and seven others for the October
5, 1974 IRA terrorist bombing of a pub in Guildford, England.222
In the film, Gerry Conlon, his friend Paul Hill, and two roommates in a squatter house are arrested
by the police as suspects in the bombing of the pub. The police use prolonged detention and psychological
torture to extract confessions from all four. The coerced confessions also implicate Conlons father and
members of the Maguire family. All eleven are tried and convicted as co-defendants.
The films story is primarily an indictment of the Prevention of Terrorism Act of 1974 which had
just been adopted by the British Parliament.223 The Act gave the police power to detain and interrogate
suspects for up to seven days without a criminal charge and without an appearance before a judge. That
police power, plus public pressure to find and punish the perpetrators, led to overzealous efforts to convict
the first suspects that were found.
As In the Name of the Father depicts, the heightened motivation of the police to extract confessions
during national security crises, combined with the relaxation of safeguards to protect the rights of suspects,
can easily lead to unjust results. As Carolyn Blum wrote: British horror at the IRAs bombing campaign
outweighed concerns for the protection of the rights of those accused of the bombings.224 The film serves
as a cautionary tale to Americans who have seen their civil liberties compromised in the USA PATRIOT
See New York v. Quarles, 476 U.S. 649 (1984).
See Savage, supra note 215; Cohen, supra note 215.
220 8 U.S.C 1226a(a)(5).
222 For criticism about the accuracy of the film, see Alastair Logan, In the Name of the Father, NEW L. J. 294 (Feb. 25, 1994). The
film is also based on Gerry Conlons autobiography Gerry Conlon & David Pallister, Proved Innocent: The Story of Gerry
Conlon of the Guildford Four (Hamish Hamilton, 1st ed. 1990).
223 James T. Kelly, The Empire Strikes Back: the Taking of Joe Doherty, 361 FORDHAM L. REV. 217 (Nov. 1992). See also President
Lincolns suspension of the writ of habeas corpus during the American Civil War, see Ex Parte Milligan, 71 U.S. (4 Wall.) 2
(1866), and the internment of Japanese-Americans during World War II. See Korematsu v. United States, 323 U.S. 214 (1944).
224 Carolyn Patty Blum, Images of Lawyering and Political Activism in In the Name of the Father, 30 UNIV. SAN FRANCISCO L. REV. 1065
(summer 1996).
218
219
41

Act which permits the detention of suspected non-citizen terrorists for up to seven days without being
formally charged225 and in proposals to expand usage of the public safety exception226 to the Miranda
doctrine.227
Apart from national security crises, there has been a historical tendency in traditional inquisitorial
systems to delay a suspects access to professional legal counsel to give the police more license to extract
information. In all countries, public order and survival of the state are highest priorities. So governments
that are charged with protecting the community and national security would naturally prefer the
cooperation of all citizens, even at the expense of their right to remain silent.
One way to ensure such cooperation during interrogation of a suspect is to deprive the suspect of
professional counsel for as long as possible. The job of the defense attorney is to protect the suspect from
any trickery or coercion that the police might employ to elicit a confession.228 In France, suspects may be
held in investigatory detention for up to forty-eight hours without probable cause, judicial approval, or
mandatory court appearance. And before recent statutory changes, the accused could not even consult an
attorney. The danger of eliciting an unreliable confession during French investigatory detention (garde vue)
was depicted in the 1971 French film Two Men in Town229 and in the 1981 French film Garde vue.230
Two Men in Town is a compelling anti-death-penalty film that was released about eight years before
the death penalty was finally abolished in France, and only four years before Frances last execution by
guillotine. In Two Men in Town, everything seems to work against ex-convict Strabliggi (played by Alain
Delon) and his sincere actions to give up crime and live a normal life when he is released from prison on
parole. As Strabliggi struggles to re-enter society, Goitreau, the detective who put Strabliggi behind bars, is
convinced that Strabliggi is up to no good and is determined to find evidence of a parole violation.
Goitreau relentlessly hounds Strabliggi by tailing him everywhere, holding him for forty-eight hours under
garde vue to force him to sign a statement, searching his house, and repeatedly interviewing his boss and
girlfriend.
In the French film Garde vue, Inspector Gallien (played by Lino Ventura) investigates the rape and
murder of two little girls and targets attorney Jerome Martinaud (played by Michel Serrault), slowly
breaking him down psychologically until he confesses to the crimes, even though he did not commit them.
Unfortunately, Garde vue is available only in French. But fortunately the film was re-made in 2000 as Under
8 U.S.C 1226a(a)(5) (The Attorney General shall place an alien detained under paragraph (1) in removal proceedings, or
shall charge the alien with a criminal offense, not later than 7 days after the commencement of such detention. . .).
226 See New York v. Quarles, 476 U.S. 649 (1984).
227 See Savage, supra note 215; Cohen, supra note 215.
228 For a description of various tricks that are used, see Edward J. Sackman, False Confessions: Rethinking a Contemporary Problem, 16WTR KAN. J.L. & PUB. POLY 208, 221-22 (2007).
229 Two Men in Town, supra note 76.
230 Garde vue, supra note 70.
225
42

Suspicion. In Under Suspicion, set in Puerto Rico, American lawyer Henry Hearst (played by Gene Hackman)
is interrogated at length by police Captain Benezet (played by Morgan Freeman) about the rape and murder
of a 12-year-old girl. Hearst confesses, as did Martinaud in Garde vue, even though he did not commit the
crimes.
In 2001, French procedures were modified to require police to notify a detained suspect of his or
her right to counsel. Today, a suspect in France has a right to see a lawyer for 30 minutes within the first
hour, for 30 minutes after 20 hours, and another 30 minutes after 36 hours.231
Totalitarian regimes such as Nazi Germany, fascist Italy, and the Soviet Union recognized the
importance of obtaining a confession as early as possible, which necessarily meant that the accused had no
right to counsel during custodial interrogation. Coerced confessions in totalitarian systems are depicted in
numerous films including The Confession232 in which Gerard Ludvik (played by Yves Montand) is whisked
away to the Ministry of Justice for interrogation and is not afforded access to counsel until after he
confesses.
3. Coercion to Obtain Confessions
A survey of films worldwide reveals a pattern of police practice to elicit confessions by
psychological or physical coercion. Films demonstrate that when the police are unsupervised by a neutral
party such as a prosecutor or an investigating judge or by an advocate such as the suspects attorney, their
unfettered instinct to obtain a confession easily leads to abuse of a suspects right to remain silent.
As mentioned above, historical examples of the accepted use of torture to elicit a confession
include The Passion of Joan of Arc233 (France), Anne of the Thousand Days234 (England), and Artemisia (Italy).235
Coercion by the police is also state-sanctioned in modern-day totalitarian states, as depicted in The
Confession (Czechoslovakia)236 in which the police torture suspects during prolonged detention to elicit false
confessions.
In The Confession, Ludvik is told early in his brutal interrogation that, if he confesses, he will receive
an open (public) trial. If he does not confess, he will receive a closed trial at which 20 prosecution
witnesses will testify against him, certain to result in his conviction and execution by hanging. It matters
not to the authorities whether the confessions are reliable. In the Socialist legal tradition, the justice system
See C. pr. pn., supra note 69, art. 63-4.
The Confession, supra note 132.
233 The Passion of Joan of Arc, supra note 204.
234 Anne of the Thousand Days, supra note 205.
235 Artemisia, supra note 206.
236 The Confession, supra note 132.
231
232
43

is an educational tool.237 The suspects in The Confession are broken down and then, after they confess,
carefully trained to deliver their scripted confessions in a public trial that is broadcast over the radio as an
example for citizens at large.
Democratic systems of government normally recognize the right of suspects to remain silent. But
when the internal security of a democratic country is threatened by terrorists or other types of subversives,
civil liberties are compromised, and the actions of the police tend to resemble those employed in
totalitarian states. In the film In the Name of the Father,238 British police investigators, who are under public
and political pressure to locate terrorist bombers, obtain unreliable confessions from suspects after
depriving them of sleep over several days and threatening harm against their family members. Consider
also the depiction of torture by the South African police to elicit confessions in the 1989 U.S. film A Dry
White Season.239
A Dry White Season, based on the novel by Andr Brink,240 was directed by Euzhan Palcy, the first
black woman to direct a mainstream Hollywood film.241 Set in June 1976 South Africa, the film focuses on
a White Afrikaner Ben du Toit (played by Donald Sutherland) who comes to realize the injustices of
Apartheid. When the police brutally beat his gardeners son, du Toit finds it difficult to believe. Then,
when they torture to death the gardener himself, du Toit retains an attorney (played by Marlon Brando) to
initiate an inquest.
As discussed above, the films Garde vue242 (France) and its re-make Under Suspicion (Puerto Rico)
concern the use of psychological coercion to obtain an unreliable confession. In Law Breakers,243 French
police detectives physically torture to death a detainee during garde vue in an unsuccessful attempt to
coerce a confession. And in the film Two Men in Town,244 French police detective Goitreau holds the antihero Strabliggi for forty-eight hours under garde vue, without benefit of legal counsel, and coerces him to
sign a statement.
In the United States, the courts have an inherent distrust of confessions obtained by the police. As
Justice Frankfurter stated in Rochin v. California,245 the use of coerced confessions is constitutionally
obnoxious not only because of their unreliability, but because they offend the communitys sense of fair
See Reichel, supra note 9 at 118-22.

In the Name of the Father, supra note 17.
239 A Dry White Season (Davros Films 1989) (US).
240 Rita Kempley, A Dry White Season, WASH. POST, Sept. 22, 1989 (film review), available at www.washingtonpost.com/wpsrv/style/longterm/movies/videos/adrywhiteseasonrkempley_a09fdd.htm (last visited Oct. 11, 2014).
241 Peter Travers, ROLLING STONE MAG., Feb. 6, 2001 (film review).
242 Garde vue, supra note 70.
245 342 U.S. 165 (1952).
237
238
44

play and decency. Such distrust has culminated in the Exclusionary Rule of evidence which deters the
police from obtaining a confession without first Mirandizing a suspect, namely informing the suspect of
his or her right to remain silent and to the presence of legal counsel.
An even more protective exclusionary rule is applied in India where confessions made to the police
are never admissible in court.246 The Indian evidentiary rule virtually eliminates the incentive of police
detectives to use coercion against a suspect. As a result, Indian films rarely depict the use of torture by the
police to elicit a confession or other information. Instead, Indian movies such as Damini-Lightning247 depict
conspiracies between the police and overzealous prosecutors to fabricate evidence and to suborn perjury
from false witnesses.
4. Confrontation and Reenactments at the Scene of the Crime
In the United States, the police might get lucky and obtain a voluntary incriminating statement
from a suspect in the very early phases of an investigation. But when the suspect/accused retains counsel,
the police and the prosecutor have no further contact with the suspect/accused until trial. Not so in
inquisitorial systems. A device that is often employed in inquisitorial systems to encourage a suspect to
confess is confrontation with the victim.
Although a suspect in France must be informed of the right to remain silent and has a right to the
presence of counsel during questioning, he or she is expected to respond to questioning in so-called
confrontation sessions. This explains why, in films such as Rape of Love,248 French defense attorneys do
not stop their clients from speaking freely, even confessing, to an investigating judge -- or why defense
counsel allows his client to be interviewed in private by the investigating judge in the German film Devil in
Silk249 or by the Dutch forensic psychiatrist in A Question of Silence.250 Also, as discussed below, an accused
in inquisitorial systems is expected to take the stand at trial and face questioning by the presiding judge.
The preferred setting for confrontation is the scene of the crime, where the investigator will have
the victim, the suspect and eyewitnesses act out their versions of what happened. Although reenactments
have the benefit of refreshing the memories of the witnesses and refining their testimony,251 the primary
purpose is to create conditions for psychologically pressuring the suspect into confessing.
See Madan Lal Sharma, The Role and Function of Prosecution in [Indian] Criminal Justice 193, in United Nations Asia and Far East
Institute for the Prevention of Crime and the Treatment of Offenders, Resource Material Series No. 53 (1998), available at
247 Damini-Lightning (Cineyugg Entertainment 1993) (In.).
249 Devil in Silk, supra note 93.
250 A Question of Silence, supra note 31.
251 Ross M. Gardner, Practical Crime Scene Processing and Investigation 416 (2D ED. 2012).
246
45

The suspect is expected to participate in the crime scene reenactment. In the French film Rape of
Love, the suspects are transported by the police to the scene of the crime where the investigating judge has
the victim recount what happened.252 With defense counsel present, the investigating judge has the victim
and the suspects act out their parts according to their versions of what happened. As the reenactment
unfolds, and inconsistencies arise, the suspects make self-incriminating statements and then outright
confessions. This technique is also portrayed in Law Breakers253 in which the investigating judge conducts a
reenactment at the scene of the crime with the suspects and eyewitnesses.
In U.S. trials, so-called reconstructions and reenactments are presented in the courtroom, but
actual visits to the scene of the crime are rare. And reenactments at the scene of the crime, especially with
the participation of the suspect or defendant, virtually never occur. No American defense attorney would
allow it to occur, invoking the suspects or defendants right to remain silent.
B. Prosecutor as Investigator and Charging Authority
The U.S. prosecutor is in a position to safeguard against investigative abuses by the police, and
prosecutors are, in theory, more neutral than the police. In reactive cases, meaning cases in which a crime
has already been committed, the police do not consult with the prosecutor before interviewing the victim,
witnesses and suspects. If the police do not handle such cases correctly, however, the prosecutor will likely
decline prosecution. Apart from their professional duty and pride, prosecutors must appear before the
same judges day after day, so they are much more effective advocates if they develop reputations of
trustworthiness. When the police understand that the prosecutor will not accept questionable cases,
especially unreliable or inadmissible confessions, they have an incentive to follow the rules, especially rules
that are designed to respect the rights of a suspect.
Proactive investigations, which concern ongoing or anticipated crimes, more often involve
supervision or advice from the prosecutors office. Such investigations tend to be more intrusive, because
the police use surveillance, informants, undercover officers, searches and seizures. In the proactive mode,
the police have the luxury of time to obtain search and arrest warrants and to consult with the prosecutors
office to ensure that the product of an investigation will be accepted for prosecution.
When the police lack probable cause to obtain warrants, they might turn to the prosecutor to
conduct a grand jury investigation. A grand jury investigation is somewhat analogous to an investigation
See C. pr. pn., supra note 69, art. 92 (the investigating judge may reconstruct the crime scene with the accused, the witnesses,
the victim, and all attorneys present).
252
46

conducted by an investigating judge in Civil Law legal systems, which is discussed in the next section. The
grand jury investigation is typically used to investigate sophisticated and organized crimes.
Although a suspect has rights in theory, those rights will be abused in practice if there are no
safeguards from overzealous police. In England, the prosecutors office tends to let the police develop
investigations and to dictate when suspects shall be charged with crimes. The danger of such a relationship
is depicted in the film In the Name of the Father254 in which police investigators blatantly abuse the rights of
the suspects to coerce confessions and then retain forensics experts who use questionable science to make
the charges stick, all without any supervision or critical scrutiny by the prosecutors office.
A similar relationship between the police and the prosecutors office exists in other
Commonwealth countries with similar results. In A Cry in the Dark,255 the overzealous police retain
forensics experts to build a phony case against Lindy Chamberlain and her husband, again without any
supervision or question by the prosecutors office. The same detachment of the prosecutor from an
overzealous police investigation of a crime is seen in I Confess (Quebec).256 The prosecutors simply take
what the police give them and employ their advocacy skills in the courtroom. In England and other
Commonwealth countries, the prosecuting barrister might not even review the case until the day before
trial.
The role of the prosecutor in a criminal justice system varies depending on the amount of power he
or she is given to investigate a case and how much discretion to decide whether to bring formal charges. In
the Civil Law tradition, the prosecutor is a non-voting member of the judiciary and is expected to play a
neutral role. Under the principle of legality, that neutral role is ensured by giving the prosecutor little
discretion on whether to bring charges once sufficient evidence of culpability has been obtained.
The French and German Civil Law traditions are also responsible for the invention of the
investigating judge whose role is to act as an additional buffer between the suspect and the prosecutor. The
investigating judge decides whether charges should be brought and has a great deal of discretion. Germany
and Italy have eliminated the position of investigating judge, but it still exists in France, Spain, Portugal and
some Latin American countries.
1. Probable Cause for Trial (the Screen)
In the United States, the presumption of innocence is protected at the pretrial phase by the broad
discretion of a prosecutor to decline prosecution and the requirement that, if a prosecutor decides to
A Cry in the Dark, supra note 20.
256 I Confess, supra note 221.
254
255
47

pursue prosecution, probable cause must first be established in felony cases before a grand jury. The Fifth
Amendment of the U.S. Constitution provides that no person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.257 This constitutional
requirement applies in federal courts and not state courts.258 Less than half of states require a grand jury
indictment for the prosecution of felonies.259
The grand jury is considered both a shield and a sword in criminal procedure. As a sword, a grand
jury investigation is somewhat analogous to an investigation conducted by an investigating judge in Civil
Law legal systems. It enables the police, through the prosecutor, to ferret out sophisticated and organized
crimes. As a shield, the grand jury decides whether there exists probable cause to issue an indictment.
In reality the latter, screening role becomes more of a rubber stamp role because the
prosecutor is in a position to exert a lot of influence over the grand jury, especially since there is no judge
or defense counsel present. The Sixth Amendment right to counsel does not apply in grand jury
proceedings, and the suspect has no right to present exculpatory evidence to the grand jury. The grand jury
is required in all federal felony cases, but the suspect may waive the right. The waiver must be made in
open court after the suspect has been advised of the nature of the charge and of his or her rights.
The other form of screening is the preliminary hearing. This is an adversarial hearing at which a
magistrate judge decides whether the prosecutor has probable cause to try the case. The prosecutor begins
the process by filing an information.260 If a grand jury has already issued an indictment, then there will be
no need for a preliminary hearing.261 But the results of a preliminary hearing do not avoid the need to
convene a grand jury.262 Every felony prosecution must therefore be preceded by a grand jurys issuance of
an indictment. Some prosecutions will be preceded by both a preliminary hearing and a grand jury, but only
if the preliminary hearing is convened first. The prosecutor therefore has the option of bringing formal
charges (a criminal complaint) either with a grand jury indictment or with a preliminary hearing ruling,
followed by a grand jury indictment.
Many other Common Law countries provide for a similar screening process. In A Fish Called
Wanda,263 the magistrate judge announces that the charge is armed robbery, and the prosecution presents
his evidence in the form of documents. The magistrate judge then tells the accused that he will stand trial
at the Central Criminal Court at the Old Bailey. Other films of Common Law countries that depict a
See Hurtado v. California, 110 U.S. 516 (1884).
259 Craig Hemmens, David. C. Brody & Cassia C. Spohn, Criminal Courts: A Contemporary Perspective 212 (2010).
260 Fed. R. Crim. Proc., tit. III.
261 Fed. R. Crim. P. 5.1.
262 Fed. R. Crim. P. 6.
263 A Fish Called Wanda (Metro-Goldwyn-Mayer 1988) (US-GB).
257
258
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preliminary hearing include The General264 (Ireland), Black and White265 (Australia), I Just Didnt Do It266
(Japan), A Dry White Season267 (South Africa), Cry Freedom268 (South Africa), A Cry in the Dark269 (Australia),
and Bardaasht270 (India).
Based on the book by Paul Williams, The General is the real-life story of Dublin crime boss and folk
hero Martin Cahill (played by Brendan Gleeson). After Cahills gang successfully robs a jewelry store and a
local art gallery, the police become suspicious and monitor him around the clock. While they are
monitoring Cahill from a neighbors yard, he threatens the neighbor. The police charge him with assault,
and he is taken before a judge of the superior court for a preliminary hearing where the judge determines
that there is enough evidence to sustain the charge for trial.
In Bardaasht, three corrupt police officers senselessly murder law student Anuj. Anujs brother
Aditya (played by Bobby Deol) hires his former girlfriend, valiant female prosecutor Payal (played by Lara
Dutta), to prosecute the three police officers. At a preliminary hearing, she and defense counsel present
their arguments to the judge. The judge is convinced that the physical evidence and the police report are
inconsistent, so he allows the case to go to trial.
Such a screening process is rare in Civil Law countries and other countries with inquisitorial
systems because the trial is, in effect, a protracted inquest. One exception is Mexico where trial must be
preceded by a preliminary hearing (plazo constitucional) at which the accused is represented and gives a
statement to the judge.
2. Prosecutorial Discretion (Buffer I)
The presumption of innocence is protected at the pretrial phase in the United States by the broad
discretion of a prosecutor to decline prosecution. In most Common Law countries and in France, the
prosecutor has broad prosecutorial discretion not to file formal charges, even where there is sufficient
evidence to obtain a conviction. The discretion not to prosecute is known as the opportunity principle in
Civil Law countries.271 The American Bar Association standards for prosecutors specifically suggest that a
The General (Irish Film Board 1998) (Ie.).

Black and White, supra note 18.
266 I Just Didnt Do It (Altamira Pictures Inc. 2006) (Jp.)
267 A Dry White Season, supra note 239.
268 Cry Freedom (Universal Pictures 1987).
269 A Cry in the Dark, supra note 20.
270 Bardaasht (Film Folks 2004) (In.).
271 Oren Gazal-Ayal & Limor Riza, Plea Bargaining and Prosecution 146, in 3 Criminal Law and Economics (Nuno Garoupa ed., 2d
ed. 2009).
264
265
49

prosecutor consider noncriminal disposition in appropriate cases such as those involving first offenders,
even though there is probable cause to take the case to trial.272
Under the opportunity principle, prosecutors are in a position to act as a buffer between the police
and courts to protect against the use of prosecutions for political or other unjust purposes. In totalitarian
and racist regimes, depicted in The Confession273 and Sophie Scholl-The Final Days,274 prosecutors are creatures
of the state and powerless to protect against political prosecutions. Politicized justice can occur, however,
in any country where national security or public security is under serious threat, as depicted in A Dry White
Season275 (South Africa), In the Name of the Father276 (U.K.), and Danton277 (revolutionary France).
In England, there unfortunately remains a strong tradition of allowing the police to investigate
crimes and decide whether charges should be brought, as seen in The Paradine Case.278 Until 1985, British
police would hire their own solicitors and barristers to pursue prosecutions. In 1985, an independent
Crown Prosecution Service (CPS) was established, but rather than spearheading investigations and
prosecutions, CPS assumes a more advisory role to the police.279
Although U.S. prosecutors are highly independent, they are also highly adversarial. They therefore
tend to think and act like the police, striving to prove guilt more than to protect the innocent from
improvident prosecution. For this reason, criminal defense attorneys in some jurisdictions jokingly or
derisively refer to U.S. prosecutors as cops with law degrees. In other U.S. jurisdictions, it is not
uncommon to hear criticism of U.S. prosecutors for playing it safe by pursuing only cases that are likely
to result in a conviction. Although this latter tendency might be criticized as laziness or timidity, it can be
praised for focusing only on suspects who are most probably culpable.
By contrast, under the legality principle, found in most Civil Law countries, especially in the
German tradition, prosecutors have much less independence than do U.S. prosecutors. Greek prosecutors,
for example, have little or no discretion to decline prosecution. The frustration of Greek prosecutors,
powerless to prevent improvident prosecutions, is depicted in the Greek films Women with a Past280 and
ABA Criminal Justice Section, Standards, Prosecution Function, Sec. 3-3.38 (Discretion as to Noncriminal Disposition)
(1993), available at www.americanbar.org/publications/criminal_justice_section_archive/crimjust_standards_pfunc_tocold.html
(last visited Oct. 11, 2014).
274 Sophie Scholl - The Final Days, supra note 92.
277 Danton (Gaumont 1983) (Fr.)
279 Fairchild & Dammer, supra note 9 at 17, 194; Julia Fionda, The Crown Prosecution Service and the Police: A Loveless Marriage?, 110
Law Q. Rev. 376, 376-79 (1994) (describing tensions between Crown Prosecution Service and police over prosecutorial
discretion).
272
50

Maria in Silence.281 The prosecutors frustration is also depicted in the Mexican film Esmeralda Comes by
Night282 and the Italian film The Conviction.283
In Women with a Past, a young prosecutor discovers, during the course of a murder trial, that his
own wife, and not the female accused on trial, is the real murderer. In the films climax, he announces
during his summation in open court that the accused is innocent and that his wife is guilty. As a result, his
wife is convicted and faces the possibility of the death penalty.
In Maria in Silence, Maria Lambros (played by Aliki Vougiouglaki) is an adult deaf mute in a small
village who is raped by the club owner Vournas. Maria has the baby and then murders Vournas and his
wife when they try to kidnap the baby from her. During the murder trial, testimony reveals that Vournas
raped Maria, but the prosecutor presses on, noting in his summation that he is strictly bound to ask for a
conviction. The prosecutor nonetheless expresses sympathy for Maria, concluding that it was Providence
who pulled the trigger and proposes full discharge of the accusations. A U.S. prosecutor would have the
authority to bring a motion for dismissal of the charges, but in Greece, as shown in Maria in Silence, the
panel of judges retires to deliberate and decide whether to accept the prosecutors recommendation of
acquittal.
In Esmeralda Comes by Night, Esmeralda Loyden (played by Mara Rojo) is tried and convicted of
bigamy. When her husband Pedro discovers that she is married to four other husbands, he lodges a
victims criminal complaint, and she is arrested and detained at the Mexico City police station for
questioning by a prosecutor of the Public Ministry (ministerio pblico). In the course of his investigation, the
prosecutor falls in love with Esmeralda, and the other four husbands convince Pedro to drop the charges.
The prosecutor has no discretion, however, to drop the prosecution. Esmeralda is tried, convicted and
sentenced to prison, and the prosecutor promises to wait for her.
In The Conviction, the public prosecutor (pubblico ministero) allows his own personal torment over his
sexual inadequacies to interfere with his duty to prosecute an accused rapist.284 The young victim Sandra
(played by Claire Nebout) strays from her art class group during a tour of an art museum in Rome at
closing time to look for something she misplaced and then finds herself locked inside the museum for the
night. Another man is also in the museum, and he pretends that he is locked in as well. He seduces Sandra
and then reveals the next morning that he had keys to the museum all along. Sandra brings criminal and

Esmeralda Comes by Night, supra note 86.
283 The Conviction (Cineuropa 92 1991) (It.)
284 See Art. 112 Costituzione [Cost.] (It.) (public prosecutors duty to adhere to legal principles), available at
https://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf (last visited Oct. 11, 2014).
281
282
51

civil charges against him for rape.285 Because of his own sexual difficulties with his wife, the prosecutor
envies the virility of the accused and delivers a weak summation to the court. During the party after the
trial, the prosecutors supervisor chides the prosecutor, and Sandra throws a piece of cake in his face.
Under the legality principle, prosecutors therefore tend to err on the side of bringing charges since
there is little pressure to win the case. It is arguable that the opportunity principle is more compatible with
the presumption of innocence than the legality principle, because the prosecutor has greater discretion to
prevent the unjust prosecution and conviction of an innocent person, even though guilty people might go
unpunished.
Prosecutorial discretion (and arguably the presumption of innocence) is further compromised in
Civil Law countries by the typical power that a victim has to initiate a prosecution or to challenge a
prosecutors decision not to prosecute. In Germany, for example, the prosecution of certain misdemeanors
such as disturbing the peace, defamation, battery and destruction of property must be initiated by a private
complaint.286 Such private prosecutors must post a bond which will be forfeited in part or whole if the
accused is acquitted.287 For more serious crimes, a victim may appeal a prosecutors decision not to bring
formal charges.288 In Finland, if the prosecutor decides not to prosecute, the victim may bring criminal
charges with no participation by the prosecutor.289 In the Chinese film The Story of Qiu Ju,290 the heroine
pursues a civil tort claim which, against her wishes, automatically ends up as a criminal action that lands the
tortfeasor-turned-accused in jail.
3. The Neutral Investigating Judge (Buffer II)

The risk of overzealous investigations by the police or prosecutors and the drawbacks of the
principle of legality (little or no prosecutorial discretion) are mitigated in traditional inquisitorial systems by
the invention of the investigating judge, also known as an examining magistrate who acts as a neutral
buffer between the police and the prosecutor. The investigating judge is an exceptionally neutral and
independent investigator who is under little or no legal or political pressure to charge a suspect. He or she
Italian law requires rape victims to make a formal request (the querela) that the state prosecute the alleged rapist. Most likely,
the accused in The Conviction was charged with abduction of a female for lustful purposes according to Art. 523 Codice penale
(C.p.) (It.) (crimes against sexual freedom).
286 Sec. 374 Strafprozessordnung [StPO] [Code of Criminal Procedure], APR. 7, 1987, Bundesgesetzblatt, Teil I [BGBl I] 1074,
1319, AS AMENDED BY ART. 5(4), ACT OF 10 OCT. 2013 (BGBl 2013 I P. 3799) (GER.) available at www.gesetze-iminternet.de/englisch_stpo/ (last visited Oct. 11, 2014).
287 Id., Sec. 379.
288 Id., Sec. 172.
289
Ministry
of
Justice,
Judicial
System
in
Finland,
available
at
oikeusministerio.fi/en/index/theministry/thejudicalsystemoffinland.html (last visited Oct. 11, 2014).
290 The Story of Qiu Ju (Sil-Metropole Organisation 1992) (HK).
285
52

is usually depicted in film as an ethically upright player, or even the protagonist. Notable examples are Law
Breakers291 in which the French investigating judge (played by Jacques Brel) stands up to a powerful, corrupt
police inspector, and The Judge and the General,292 a documentary about the courageous investigation of
investigating judge Juan Guzmn Tapia against the Pinochet regime in Chile.293
The position of investigating judge does not exist in adversarial systems of justice. However, in the
United States, an analogous persona would be the fictional police detective Columbo (played by Peter Falk)
who establishes a personal relationship with the suspect for the ulterior purpose of eliciting an
incriminating statement or confession.294 Other American analogies are the grand jury295 and the
investigating officer in military boards of inquiry,296 but neither is a career position and neither is wellknown to the average American, not even to the average American lawyer. Grand juries are criticized in the
United States for being overly influenced by the prosecutors who oversee them. Investigating judges, by
contrast, are legally trained and act under little or no supervision.
Unfortunately, use of the investigating judge is waning in Civil Law jurisdictions including
Germany and Italy, as they adopt adversarial criminal procedures.297 As a result, the police are gaining
power over investigations of major cases. The position may even be headed toward extinction in France as
the police increasingly assume the role of eliciting confessions.298 Still, the investigating judge remains a
defining feature of the inquisitorial system, and it has been depicted in many films both favorably and
unfavorably.
Just as juries are the grist of courtroom dramas in the United States and the United Kingdom, the
investigating judge is a subject of great interest in French literature299 and film. In France and other
countries of the French Civil Law tradition, the investigating judge (juge dinstruction) is regarded as a fairminded, independent inquisitor who is simply looking for the truth by using complex, non-coercive
psychological methods to wheedle confessions from the real perpetrators.
Law Breakers, supra note 12.
The Judge and the General (West Wind Productions 2008) (US).
293 See Missing (PolyGram Filmed Entertainment 1982) (GB), based on the true story of American journalist Charles Horman,
who disappeared after the 1973 U.S.-backed coup that led to Pinochets dictatorship.
294 Columbo (NBC Universal Television 1968-2003).
295 The Hon. Gene D. Cohen, Comparing the Investigating Grand Jury with the French System of Criminal Investigations: a Judges Perspective
and Commentary, 13 TEMP. INTL & COMP. L.J. 87 (1999).
296 See UCMJ, art. 32.
297 See Cristin Riego, Oral Procedures and Case Management: The Innovations of Chiles Reform, 14 SW. J. L. & TRADE AM. 339, 340
(2008); James M. Cooper, Competing Legal Cultures and Legal Reform: The Battle of Chile, 29 MICH. J. INTL L. 501, 525 (2008) (In the
1990s, [with] a focus on new criminal procedures that promoted transparency, participation, and efficiency, Chile began its
reform process to bring about more access to justice.).
298 See Stewart Field & Andrew West, A Tale of Two Reforms: French Defense Rights and Police Powers in Transition, 6 CRIM. L. FORUM
473 (1995); Edward A. Tomlinson, Nonadversarial Justice: The French Experience, 42 MD. L. REV. 131 (1983).
299 See, e.g., Albert Camus, The Stranger (Matthew Ward trans., Vintage Intl 1989).
291
292
53

In the Argentinean film The Secret in Their Eyes,300 Benjamn Espsito (played by Ricardo Darn) is
an investigator on the staff of an investigating judge (juez de instruccin). Espsito becomes obsessed with
solving a brutal rape-murder case. In a pivotal scene, his supervisor Irene Menndez Hastings (played by
Soledad Villamil) who is a judge-in-training, confronts a suspect during the first official interrogation
(declaracin indagatoria) and tricks him into confessing to the murder.
The French film Rape of Love301 is a good portrayal of the unique investigatory techniques used by
the investigating judge in France. A rape victim (played by Nathalie Nell) is convinced by her friends to
break her silence and step forward to bring a criminal complaint against the rapists. Justice is ultimately
achieved due to the methodical investigation of the investigating judge who, incidentally, is played by a
female. Female director Yannick Bellon presents a detailed account of the methodical progression of the
investigating judges techniques such as bringing both the victim and her alleged attackers together, first in
a meeting so that the victim can confront them and then at the scene of the crime where they end up
confessing their crime in the course of acting out their versions of what happened.302
Confrontation, preferably at the scene of the crime, is a method that the investigating judge
typically uses in France to elicit a confession. In the United States, the accused and the victim would not be
interviewed together. American defense lawyers usually advise their clients to say nothing to anyone about
the case, not even at trial. In Rape of Love, the four accused are represented by attorneys at each meeting,
but they speak freely. Other portrayals of confrontation can be seen in Presumed Guilty303 (Mexico) and
Lions Den (Argentina).304
The method of re-enacting the crime at the scene of the crime in the hope of eliciting a confession
is almost never used in the United States, again because an American defense attorney would not allow it,
so it is rarely seen in American crime dramas. In Rape of Love, the accused are transported by police to the
scene of the crime where the investigating judge has the victim Nicole and the accused act out their
parts,305 which causes the accused to make self-incriminating statements and then outright confessions.
This technique of re-enacting the crime at the scene of the crime is also portrayed in Law Breakers.306 Based
on the testimony of an eyewitness to police brutality, Judge Level (played by Jacque Brel) conducts a re-
The Secret in Their Eyes (Tornasol Films 2009) (Es.), based on Eduardo Sacheri, La pregunta de sus ojos (Galerna 2005), is
set in Buenos Aires, alternating in time between 1974 and 1999.
302 See also Devil in Silk, supra note 93 (scene of the German investigating judge interviewing a suspect).
303 Presumed Guilty, supra note 87.
304 Lions Den (Matanza Cine 2008) (Ar.).
305 See C. pr. pn., supra note 69, art. 92 (the investigating judge may reconstruct the crime scene with the accused, the witnesses,
the victim, and all attorneys present).
300
54

enactment at the scene of the crime, but none of the other eyewitnesses will corroborate the one
eyewitness version of what happened.
Because so much independence and power is entrusted to the investigating judge, it is essential that
he or she strictly adhere to high ethical standards. The French film Law Breakers portrays the investigating
judge as a scrupulous protagonist, depicting his heroic yet unsuccessful quest to uncover the truth in a case
of police brutality. Director Marcel Carns film presents a strong argument for preserving the institution
of the investigating judge to protect against abuses of power by the police. Investigating Judge Bernard
Level risks his reputation and his career to prove that the suspected police detectives are culpable. And
even though the culprits are acquitted at trial, he remains true to his profession, telling the victorious
defense counsel Graziani (played by Charles Denner) as they descend the steps of the courthouse after the
trial, There are no lost causes . . . One thing counts, to make a small step, even if a small step.
Although the film depicts the investigating judge as a hero, it also shows the temptation of an
overzealous investigating judge to cross the ethical line. In one scene, Judge Level becomes aggressive with
a reluctant witness at the police station where the homicide occurred, and his faithful greffier (clerk) remarks
afterward, Its maybe because of the dcor [the police station], but you questioned him like a cop, not a
judge. The greffiers remark captures the French publics perception of the persona of an investigating
judge in contrast to the persona of a police detective.
The independence and impeccable ethics of the investigating judge are also portrayed in the Greek
film The Highway of Hate307 in which the investigating judge turns himself in when he discovers evidence that
implicates himself as the one whose car hit the victim in question. And in the Greek film With Fear and
Passion,308 the prosecutor chides the protagonist investigating judge for his failure to avoid a conflict of
interest in one of his investigations.
The Italian comedy Seduced and Abandoned309 also portrays an independent investigating judge who
has the wide-ranging authority of both a police detective and a prosecutor, able to compel witnesses to
appear before him and to bring formal criminal charges on the spot. In the United States, a detective may
pretend to make deals with a suspect in order to elicit a confession, but the power to drop or bring formal
charges lies with the prosecutor, not with the police. The Italian investigating judge in Seduced and
Abandoned is appointed by the prosecutor, so he has the combined power of police investigator and
prosecutor.
The Highway of Hate, supra note 38.

With Fear and Passion, supra note 39.
309 Seduced and Abandoned (Lux Film 1964) (It.).
307
308
55

The French film The Judge and the Assassin,310 set in the 1890s, is unusual because it portrays the
investigating judge in a negative light. Investigating judge Rousseau (played by Philippe Noiret) is arrogant
and overly ambitious, contrary to his sworn selfless and loyal duty to uphold justice. He is driven by the
promise of national recognition if he obtains a confession from a drifter named Bouvier who has
undoubtedly raped and killed two dozen children in the countryside of France. During the course of
obtaining a confession from Bouvier, Judge Rousseau realizes that Bouvier is probably insane. If judicially
found to be insane, he will not be executed, and Rousseau will not get the recognition he seeks. Rousseau
therefore appoints an examining doctor who is likely to declare Bouvier to be sane.311
Other films that do not portray a flattering image of the investigating judge include Orson Welles
1962 film version of Franz Kafkas The Trial which portrays the investigating judge as a bureaucratic tyrant.
In The Trial,312 Josef K. (played by Anthony Perkins) is a 30-year-old bank clerk who awakens one morning
to be arrested and prosecuted, but never charged, for an unspecified crime. While being questioned by an
imperious investigating judge in a surreal scene which includes a large audience, the tragic hero proclaims
to all present, Can there be any doubt that behind my arrest is a vast organization at work, an
establishment which contains a retinue of civil servants, officers, police and others, perhaps even
hangmen.
Although the setting is not identified in either the film or the novel, Kafka was trained in the law at
the Karl-Ferdinand German University in Prague, and he worked as a lawyer for the Workers Accident
Institute of the Kingdom of Bohemia in Prague from 1908 to 1922. The law in Prague at the time was
based on the Austrian codes.313 He was therefore most familiar with the Czech and Austro-Hungarian legal
systems.314
Ingmar Bergmans 1969 Swedish made-for-television film The Rite315 portrays the investigating
judge as a psychologically abusive, petty and prurient busybody. Although Bergman intended The Rite to be
his personal criticism of the Swedish government, he does not identify the setting or the nationalities of the
characters, and the investigating judge did not exist in Sweden at the time. Therefore, Bergman employed
the investigating judge character as a personification of Swedens inquisitorial system of justice, just as
The Judge and the Assassin, supra note 68.

See also A Question of Silence, supra note 31 (psychologist, chosen by the investigating judge, investigates the sanity of four
women who are accused of murdering a shopkeeper).
312 The Trial, supra note 27. Former Thomas Jefferson School of Law student Chris Biagioli is acknowledged for his contribution
to this section. See The 12 Best Trial Movies, 75 ABA JOURNAL 96 (1989). See also The Trial (British Broadcasting Corp. 1993) (GB)
(based on Harold Painters screenplay which is more faithful to Kafkas novel).
313 Douglas E. Litowitz, Franz Kafkas Outsider Jurisprudence, 27 LAW & SOC. INQUIRY 103, 112 (Winter 2002).
314 Kafka was born in Prague in 1883. Until 1918, Prague was part of Austria-Hungary, also called the Austro-Hungarian
Empire. After World War I, Austria, Hungary and Czechoslovakia (with Prague as its capital) became separate republics.
315 The Rite (Svensk Filmindustri 1969) (Se.).
310
311
56

Kafka did of inquisitorial systems in his novel The Trial. Still, Bergmans treatment of the character shows
his disdain for the intrusive psychological methods used by investigating judges.
And finally, Pedro Almodvars 1991 Spanish Film High Heels316 depicts the investigating judge (juez
instructor) as unprofessional and corrupt. It must be concluded that Almodvar was targeting Spains
inquisitorial justice system and used an investigating judge as a personification of his disdain for the system
in general. In reality, Spanish investigating judges are known for their aggressive enforcement of the law
and as a result are often the targets of terrorist threats and attacks.317
The foreign films referenced above provide you a first-hand look at the work of investigating
judges in action, revealing their unique roles, techniques and ethical standards. The role exists only in
inquisitorial systems of criminal justice, and it is being phased out as the police do more evidence-gathering
and confession-eliciting and the prosecutor takes over the neutral investigative function. Although
inquisitorial systems are becoming more like adversarial ones, the prosecutor is still expected to play a
relatively neutral role.318
4. Offers of Leniency and Plea Bargaining
Although the police are authorized to lie to suspects to confuse them and to pressure them into
confessing, they do not have prosecutorial discretion, and the U.S. Supreme Court has ruled that
confessions may not be considered when they are made in exchange for an explicit offer of leniency by
the police to a suspect.319 On the other hand, the practice of negotiated pleas, also known as pleabargaining, between the prosecutor and a defendant, is permissible. Plea bargaining is an American invention
which implicitly or indirectly involves the governments offer of leniency in exchange for a confession
(guilty plea).
In the United States, approximately 90% of criminal cases are settled by plea bargaining in lieu of
trial.320 U.S. defense counsel, often appointed by the government, negotiates with the prosecutor to obtain
a virtually guaranteed sentence or range of sentencing in exchange for the defendants guilty plea. The
negotiated plea and sentence is a compromise that lies somewhere between what the prosecutor and
High Heels (Canal+ 1991) (Fr.).
See Baltasar Garzon: Spains best-known investigating judge has enemies, of sundry sorts. Perhaps including himself, THE ECONOMIST, May
31, 2001 (describing Garzon as having an indisputable record in serving the rule of law.).
318 See Despina Kyprianou, Comparative Analysis of Prosecution Systems (Part II): The Role of Prosecution Services in Investigation and
Prosecution Principles and Policies, 7 CYPRUS & EUR. L. REV. (2008).
319 See Williamson v. United States, 512 U.S. 594, 620 (1994); Lawrence S. Wrightsham & Saul M. Kassin, Confessions in the
Courtroom 81 (1993). Offers of leniency should not be confused with the rule of lenity, also called the rule of leniency,
which is a canon of Common Law statutory construction that applies in criminal cases. According to the rule lenity, ambiguous
statutes should be construed in a defendants favor.
320See Fed. R. Crim. P. 11(c)(1)(B) (not binding on the court) & 11(c)(1)(C) (binding on the court).
316
317
57

defense counsel would hope to achieve at trial. After weighing the known evidence and the risks of losing,
the two arrive at a compromise charge and sentence which they will then propose to the judge for
approval.
But to seal the proposed deal, defense counsel must usually first persuade the defendant to plead
guilty, namely confess, to a crime in exchange for the negotiated sentence. Defense counsel has a duty to
communicate to a client not only the terms of a plea bargain offer, but also its relative merits compared to
the clients chances of success at trial.321
U.S. defendants and their defense counsel understand, through custom and practice, that they are
likely to receive a lower sentence if they plead guilty than they will receive if they plead not guilty and are
convicted by a jury.322 Otherwise, they would not participate in the practice. For that reason, pleabargaining has long been criticized as a threat to the presumption of innocence and the fundamental right
to remain silent.323 The risks of coercing an unreliable confession with an offer of leniency is heightened
when the accused is facing a long prison sentence or the death sentence, and the practice raises a concern
that prosecutors will raise the stakes and enhance their bargaining position by over-charging defendants.324
The right to remain silent in all countries, adversarial and inquisitorial alike, is compromised by the
practice of rewarding suspects and accused who confess and of punishing those who do not. The practice
raises the concern that an innocent person will confess, as depicted in the Japanese film I Just Didnt Do
It.325
In I Just Didnt Do It, a young man, Teppei (played by Ryo Kase), is falsely accused of molesting a
15-year-old school girl on a crowded commuter train. He is arrested, harshly interrogated and then
prosecuted in a grueling series of court sessions, all the while insisting that he is innocent. Given the high
conviction rate (99%), Teppeis own defense counsel recommends that he confess and pay a modest fine.
Teppei refuses to follow that course of action and ends up spending several months in jail during an
arduous trial at the end of which he is found guilty and sentenced to three more months in jail. I Just Didnt
Do It is filmmaker Masayuki Suos indictment of the Japanese justice system which is weighted heavily
against a suspect or accused. The film opened the eyes of many Japanese who learned that their justice
State v. Bristol, 618 A.2d 1290 (Vt. 1992).

Imposition of Death Penalty by Jury, 82 HARV. L. REV. 156, 161 (1968) (Empirical studies have amply demonstrated that, as a
class, those who plead not guilty before a jury receive higher sentences than those who confess their guilt.).
323 See, e.g., Eli Paul Mazur, Rational Expectations of Leniency: Implicit Plea Agreements and the Prosecutors Role as a Minister of Justice, 51
DUKE L.J. 1333 (2002).
324 See Bordenkircher v. Hayes, 434 U.S. 357 (1978) (prosecutor sought a guilty plea on the charge of uttering a forged
instrument in the amount of $88.30, threatening to bring an indictment under the recidivist (three strikes) law which would
carries a life sentence).
325 I Just Didnt Do It, supra note 266.
321
322
58

system is designed to coerce confessions from suspects and that those who do not confess bear a heavy
burden to prove their innocence at trial.
In the Civil Law tradition, offers of leniency are consistent with the cultural expectation of
cooperation from a suspect/accused. And yet Civil Law countries have been slow to accept the practice of
plea bargaining, preferring to find the truth by using psychological maneuvers to elicit confessions from
suspects and defendants. Under the Civil Law principle of legality (also known as the rule of compulsory
prosecution), prosecutors are bound to prosecute all crimes that are supported by the evidence, and plea
bargaining is therefore frowned upon if not outright forbidden as it is in Switzerland. Some Civil Law
countries such as Germany, France, Italy, and Poland, however, have come to realize that plea bargaining
speeds up the adjudicative process and is therefore much more efficient. Plea bargaining is depicted in the
Polish film No End.326
Against the backdrop of post-Solidarity Poland under martial law in the early 1980s,327 the legal
story of No End is a study of the difference between a lawyer who is cause-oriented and one who is clientoriented. Darek Stach (played by Artur Barcis) is a strike organizer who is charged with the crime of
disrupting commerce.328 At first, he is represented by Antek, a young activist lawyer for the union
organization and one of the heroes of the Gdansk shipyard strikes, but Antek suddenly dies of a heart
attack. Dareks wife desperately seeks out Anteks old mentor, Labrador (played by Aleksander Bardini). In
contrast to Antek, Labrador is a shrewd mediator who knows how to operate within the legal system. He
has access to the judges and the prosecutor on a personal basis, and he works with his client and the
complaining party to reach a resolution of the case.
In the Socialist legal tradition, offers of leniency are authorized by explicit policy. The U.S. film Red
Corner329 depicts the Chinese sentencing policy of leniency for those who confess; severity for those who
resist.330 And in the film The Confession,331 the accused are promised that they will avoid a death sentence if
they confess. Several of the defendants who confess are nonetheless sentenced to death and later executed.
No End, supra note 11.
The Independent Self-governing Trade Union (Solidarity) is a Polish trade union federation that was founded in September
1980 at the Gdansk Shipyard as an anti-communist movement, led by Lech Walesa. In 1981, martial law was imposed and
Solidarity was banned. The government eventually negotiated with Solidarity-led opposition, and Solidarity was allowed to
participate in 1989 elections. Walesa was elected President of Poland (1990-1995). After the collapse of the Soviet Union,
Solidarity became a more traditional trade union.
328
See
Polish
Penal
Code
art.
46
(the
victim
may
bring
the
charge),
available
at
https://www.imolin.org/doc/amlid/Poland_Penal_Code1.pdf (last visited Oct. 11, 2014). It is therefore possible to get the
charged dropped by negotiating with the charging party.
330 See Randall Peerenboom, What Have We Learned about Law and Development? Describing, Predicting, and Assessing Legal Reforms in
China, MICH. J. INTL L. 823, 851 (2006).
326
327
59

This practice of making explicit offers of leniency reflects the Socialist legal tradition in which the interests
of the state trump those of the individual, and criminal procedure is a method of rehabilitating and
reeducating.
Countries of the Socialist legal tradition also obtain cooperation from a suspect by appointing
defense counsel who is really a handler whose mission is to extract a confession. In the U.S. film Red
Corner, filmmaker John Avnet depicts such a practice in Chinas modern-day totalitarian regime. In Red
Corner,332 Jack Moore (played by Richard Gere), an American attorney on a business trip in Beijing,
becomes a murder suspect. During Moores initial custody, his state-appointed attorney pressures him to
confess to avoid the death penalty. The film depicts the Confucian role of Chinese lawyers as state legal
workers who are required to owe greater loyalty to the state than to their clients. As depicted in The
Confession,333 state-appointed defense counsel in Czechoslovakia were really handlers or coaches who helped
prepare the accused for a proper performance (confession) during a climactic Soviet-styled show trial.
Such practices of the Socialist legal tradition are, however, arguably comparable to the practice of
plea-bargaining in the United States. Although U.S. defense counsel owe a duty of loyalty to their clients,
the practice of plea-bargaining places them in the awkward position of having to convince their clients to
confess. One might argue therefore that the plea-bargaining system in the United States and other
countries, including Germany, is analogous to the practice in the Socialist legal tradition of using
government-appointed attorneys to elicit confessions from suspects and accused. Defense counsel in the
United States is permitted to exert a fair amount of pressure on a client to accept a deal.334
C. Pretrial Detention
Because the presumption of innocence is better protected in adversarial systems than it is in
inquisitorial ones, one would expect pretrial detention to be more prevalent in inquisitorial systems than it
is in adversarial systems, and films tend to prove the point. As the U.S. Supreme Court stated: In our
society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.335
In the United States, the Bail Reform Act provides that a federal court may order the pretrial detention of a
defendant if the prosecutor demonstrates by clear and convincing evidence at an adversarial bond hearing
Red Corner, supra note 24.

The Confession, supra note 132.
334 See, e.g., Uresti v. Lynaugh, 821 F.2d 1099 (5th Cir. 1987) (the defendant asked for a few days to think over the plea bargain,
but his defense counsel insisted that he decide that very same day).
335 United States v. Salerno, 481 U.S. 739 (1987).
332
333
60

that no conditions of release, such as bond, will reasonably assure . . . the safety of any other person and
the community.336
An accused that is charged with murder, rape or treason will likely be held in pretrial detention in
any criminal justice system, and most courtroom dramas involve serious crimes. And yet, in the Canadian
film I Confess,337 the accused is not detained pending a murder trial. Indeed, pre-trial detention is
discouraged in Canada. And in the Australian films The Last Wave338 and A Cry in the Dark,339 the accused,
which are charged with murder, are not detained pending trial.
By contrast, many films of inquisitorial systems in action depict pretrial detention for less serious
crimes, such as the Japanese film I Just Didnt Do It340 in which the accused is charged with groping a young
female on the subway, the Mexican film Esmeralda Comes by Night341 in which the accused is charged with
polygamy, and the Italian film The Conviction342 in which the accused is charged with seducing a woman
through fraud. Consider also the Iranian film Close Up343 in which the accused, who is charged with petty
fraud, is detained pending trial. Still, it should be noted that there are films of inquisitorial systems in which
the accused is not detained pending trial, such as The Life of Emile Zola344 (France) (criminal libel) and films
of the Nordic legal tradition including June Night345 (Sweden) (aggravated assault) and The Rite346 (Sweden)
(obscenity).
Another concern is the length of pretrial detention. In the United States, the Sixth Amendment
guarantees defendants a speedy trial, and the right has been extended to defendants in state court.347 By
contrast, trials in inquisitorial systems tend to be lengthy and therefore countries such as Mexico, Brazil
and Argentina are criticized for prolonged detention pending trial, as depicted in Lions Den348 (Argentina)
and Presumed Guilty349 (Mexico). India has an adversarial criminal system, but it does not guarantee a speedy
trial. The Indian criminal justice system is notorious for long delays in bringing defendants to trial. Nearly
all Indian films depict pretrial detention and give the false impression that trial occurs rather quickly after
arrest. In reality, Indian defendants spend several years in pretrial detention.
18 U.S.C. 3142(e).
I Confess, supra note 22.
338 The Last Wave, supra note 19.
341 Esmeralda Comes by Night, supra note 86.
342 The Conviction, supra note 283.
343 Close Up, supra note 141.
345 June Night (Svensk Filmindustri 1940) (Se.).
346 The Rite, supra note 315.
347 Klopfer v. North Carolina, 386 U.S. 213 (1967).
348 Lions Den, supra note 304.
336
337
61

IV. FILMIC DEPICTIONS OF TRIAL
Arguably the most significant, overriding aspect of criminal procedure is the degree to which a legal
system respects the presumption of innocence. Although a countrys laws may expressly pronounce that a
suspect or accused has a right to the presumption of innocence, such a pronouncement does not, by itself,
tell us whether the right is guaranteed. The presumption of innocence is a principle that must be
implemented through the enforcement of other rights such as the right to remain silent, through
evidentiary rules such as those concerning the prosecutors burden of proof and the admissibility of
character evidence and confessions, and through trial procedures concerning such things as where the
accused sits and the amount of votes needed to reach a guilty verdict.
A. Prosecutors Litigative Role
The presumption of innocence is a principle of justice that is strongly protected in the United
States,350 largely due to safeguards that protect the right of both a suspect and an accused to remain silent.
Due to the presumption, the U.S. prosecutor bears a heavy burden of proving guilt at trial. In most
jurisdictions, the prosecutor must prove that the defendant is guilty beyond a reasonable doubt,351 and the
jurys verdict must be unanimous.352
At the same time, the U.S. prosecutor enjoys many advantages at trial, including the atmospheric
advantage of representing the government. Despite a strong policy of presumption of innocence in the
United States, jurors cannot help but presume that the defendant must have done something wrong. The
U.S. prosecutor also has a greater opportunity to create rapport with the jury. He or she sits closer to the
jury box,353 speaks to the trier of fact first during opening statements, presents the incriminating evidence
first, and then speaks first and last during summations.
In every other country in the world, defense counsel speaks last, as seen in several films, including
Law Breakers354 (France), Tenth District Court355 (France), After the Truth356 (Germany), Devil in Silk357
See Coffin v. United States, 156 U.S. 432 (1895) (recognized the presumption of innocence of persons accused of crimes).
Id. (the standard is a natural safeguard of the presumption of innocence); In Re Winship, 397 U.S. 358 (1970) (due process
clause requires proof of guilt beyond a reasonable doubt in juvenile cases in state courts).
352 In the United States, unanimity is required in federal prosecutions, and only two states allow for non-unanimous verdicts in
felony prosecutions.
353 As a general rule, the party that carries the burden of proof, namely the prosecutor in criminal cases and the plaintiff in civil
cases, sits closer to the jury box. In Germany, the prosecutor may speak last, but rarely exercises that power.
356 After the Truth, supra note 94.
350
351
62

(Germany), Malna358 (Italy), Scorpion Woman359 (Austria), Life Sentence360 (Poland), Presumed Guilty361 (Mexico),
and Witness for the Prosecution362 (England). It remains perplexing that the U.S. prosecutor should speak last
in a country where it seems that nearly every procedural aspect of trial is designed to favor the accused.
The degree of the prosecutors neutrality also has a bearing on the outcome of the adjudicative
process, and the defined role of the prosecutor differs materially among legal traditions, as seen in film. In
adversarial, Common Law systems, the prosecutors motivation is to prove guilt. In inquisitorial, Civil Law
systems, the prosecutor is a non-voting member of the court and is expected to play a more neutral role,
though the role varies from country to country.
In the American system, the prosecutor is not a member of the judiciary and is expected to be
partial and adversarial in the adjudicative process. There are bright lines between investigation, prosecution
and adjudication. The suspect is investigated by the police, often under the supervision of the government
prosecutor, and once probable cause is established through evidence gathered during the investigation, the
prosecutor brings formal charges and the suspect becomes a defendant. The American prosecutor plays
the role of adversary on behalf of the state, euphemistically called The People in most state- and locallevel prosecutions.
The degree to which a prosecutor is considered to be a member of the court can be seen in the mise
en scne, namely the layout of the court. As seen in the French documentary Tenth District Court,363 the
prosecutor enters the courtroom with the judges, indicating that she is a member of the court. On the
other hand, she seats herself at a separate table, and her robe is different than the judges robes. Her role is
therefore ambiguous; she is a member of the court and occasionally suggests questions that the presiding
judge might pose to a witness. Her primary role is to recommend a sentence and give argument in support
of the recommendation. But, as depicted in Tenth District Court, she first speaks directly to the defendant in
a chiding, adversarial manner. The prosecutors in Tenth District Court consistently make harsh comments
about the veracity or lack of remorse of the accused and recommend rather harsh sentences which the
judges rarely adopt.
Compared to the depiction of the prosecutor in Greek films, the French prosecutor in Tenth District
Court is relatively partial and adversarial. In the Greek film Maria in Silence,364 the prosecutor sits at the same
bench with the judges, and as one would predict, shows no partiality during the proceedings. By contrast,
Malna (Medusa Film 2000) (It.).
Scorpion Woman, supra note 35.
362 Witness for the Prosecution, supra note 14.
358
359
63

in the English film Witness for the Prosecution,365 as in all English courtroom films, the prosecutor is shown
seated next to defense counsel at a table that faces the bench. This layout accurately predicts a partial,
adversarial prosecutor.
The attire of the lawyers and judges also reflects the relationship between the prosecutor and the
judges. In Common Law countries, where the prosecutor is not a member of the judiciary, there is a stark
contrast between the dress of judges and prosecutors, and prosecutors and defense counsel dress alike. In
the United States, the opposing lawyers wear business attire, and the judge wears a black robe. In the
United Kingdom, the barristers and the judge wear expensive horse-hair wigs (perruques), but the
barristers wear plain black robes, whereas the judge wears a luxurious red robe. In Civil Law countries,
where prosecutors are more closely associated with the judiciary, the prosecutors attire often resembles the
judges ornate attire, whereas defense counsels attire is plainer in comparison.
B. Victims Role at Trial
Despite strong policies that favor victims of crimes in the United States, victims play a relatively
minor role in the adjudicative process. They do not sit at the table with the prosecutor, and any civil action
must be brought separately. In the United States, the victim of a crime is just another witness and is
therefore sequestered from the courtroom until it is time to testify. If the defendant is convicted, the victim
may testify during the sentencing hearing under more relaxed evidentiary rules.
Typically, the U.S. victim brings a civil action against the defendant after the conclusion of the
criminal trial because a criminal conviction (for which the prosecutor must prove guilt beyond a reasonable
doubt) assures a civil judgment (for which the victim need prove liability only by a lesser preponderanceof-the-evidence standard of proof) under the doctrine of collateral estoppel (also known as issue
preclusion).
Films reveal that victims are allowed greater participation in other Common Law countries. In the
South African films A Dry White Season366 and In My Country,367 the victims are permitted to retain attorneys
to participate in the questioning of witnesses at inquests into police misconduct. The Canadian film I
Accuse368 is based on the real trial of Dr. John Schneeberger who was charged and convicted in 1999 of
Witness for the Prosecution, supra note 14.

A Dry White Season, supra note 239.
367 In My Country (Chartoff Productions 2004) (US-Za.).
368 I Accuse (Accusatory Productions Inc. 2000) (Ca.).
365
366
64

drugging and sexually assaulting Candice Foley in a Saskatchewan hospital.369 In the film, the victim is
seated at the prosecutors table during trial.
In many Civil Law countries, victims have the power to bring charges or consolidate a civil claim
with the prosecution. Victims counsel sits at a separate table and is allowed to participate by questioning
witnesses and making the first summation at the end of the trial, as shown in the films Malna370 (Italy), Law
Breakers371 (France), The Conviction,372 (Italy), and Seven Beauties373 (Italy).
In Malna, various men in the town of Castelcuto in the early 1940s pursue the voluptuous Malna
(played by Monica Bellucci), one of them being the local dentist Dr. Gaspare Cusimano who falsely brags
that he is having an affair with her. The dentists wife, as victim, brings criminal and civil charges against
her husband and Malna for adultery and alienation of affections. In the French film Law Breakers, the
victims widow requests the appointment of an investigating judge, and she is represented by counsel at the
trial. During trial in The Conviction, the Italian presiding judge introduces victims counsel and invites her to
make a statement. In Seven Beauties, Pasqualino (played by Giancarlo Giannini), murders his sisters pimp,
chops up his body and mails the pieces to different parts of Italy in the 1930s. For his crime, he earns the
moniker monster of Naples. At trial, counsel for the victims sit at a separate table.
In Rape of Love,374 the victim is represented by counsel who appears at hearings before the French
investigating judge. In Tenth District Court,375 the presiding judge of the French misdemeanor court is shown
levying both criminal fines and civil damages in the same case. In Close Up,376 the Iranian judge (quadi) plays
a mediating role in the Islamic tradition and convinces the victims to drop their charges against the
defendant.
C. Accuseds Rights at Trial
1. Presumption of Innocence and the Right to Remain Silent
The presumption of innocence is an essential element of the adversarial system, because in the
Common Law tradition, the government, especially the judiciary, cannot be trusted. The government seeks
Sask.
doctor
sentenced
for
rape,
CBC
News,
Nov.
10,
2000,
available
at
www.cbc.ca/news/canada/story/1999/11/26/saskdr991126.html (last visited Oct. 11, 2014).; Lona Manning, Rapist, M.D.,
CRIME MAG., Feb. 6, 2004, available at crimemagazine.com/rapist-md-0 (last visited Oct. 11, 2014).
370 Malna, supra note 358.
373 Seven Beauties (Medusa Distribuzione 1975) (It.).
369
65

information to prove only the guilt of a suspect or accused and has no interest in proving innocence. The
presumption of innocence was therefore invented in the early development of the Common Law tradition
to counterbalance the governments biased quest for incriminating evidence to support a conviction. The
presumption of innocence is becoming, if not already, an international norm of human rights law. It is
expressed in Article 11 of the Universal Declaration of Human Rights and Article 14 of the International
Covenant on Civil and Political Rights.377
Many would argue that the presumption of innocence in adversarial courtrooms does not really
exist in the minds of judges because they know that probable cause has already been established. Likewise
many would argue that it does not really exist in the minds of jurors because they do not believe that the
state would waste its time and resources prosecuting innocent citizens. Yet, theoretically, as a matter of law,
a U.S. juror could be excused during voir dire for responding I dont know when asked whether the
defendant is innocent. The correct response, strictly applying the presumption of innocence, would be I
assume that the defendant is innocent until it is proven otherwise beyond a reasonable doubt.
The presumption is not expressed in the U.S. Constitution, but it is strongly protected by other
constitutional provisions, including the Self-Incrimination Clause of the Fifth Amendment378 which is the
basis of the right to remain silent. The right to remain silent itself, however, must be complemented by
other safeguards. The presumption can be compromised in a variety of ways at trial, compelling the
accused to waive the right to remain silent and speak out in his or her own defense.
To further protect the right to remain silent (and therefore the presumption of innocence), the
United States has developed extraordinary evidentiary rules at trial, most notably the burden of the
prosecutor to prove guilt beyond a reasonable doubt, the exclusionary rule, and the Griffin rule379 which
prohibits comment (by the prosecutor) on the defendants failure to take the stand to testify on his own
behalf.380 The Griffin rule is extraordinary because it defies common sense and Common Law rules of
evidence regarding inferences that can be drawn from silence. It therefore remains a controversial
evidentiary rule.381
There is no presumption of innocence or guilt in the Civil Law tradition.382 A presumption of guilt
or innocence has no place in the logic of the pure inquisitorial mind, because the entirety of the
See supra note 161.
379 Griffin v. California, 380 U.S. 609 (1965).
380 See supra notes 215 & 216 (public safety and English warning exceptions).
381 See, e.g., Jeffrey Bellin, Reconceptalizing the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants Trial Silence, 71
OH. ST. L.J. 229 (2010).
382 Qanuni Assassi Jumhurii Islami [The Constitution of the Islamic Republic of Iran] art. 37 [1980] (Innocence is the basic
principle No person is considered legally guilty, except in cases where his guilt is established in a competent court.), available at
www.iranchamber.com/government/laws/constitution_ch03.php (last visited Oct. 11, 2014).
377
378
66

adjudicative process constitutes a balanced inquiry into both incriminating and exculpatory evidence, and
the inquiry is conducted and controlled by a neutral judiciary. Therefore, even though French law provides
for a presumption of innocence,383 it is negated in practice by the persistent cultural expectation of
cooperation from a suspect or accused.384
Inquisitorial systems do not respect the presumption of innocence as much as adversarial ones do,
largely due to the expectation of cooperation. Such an expectation is manifested in several traditional Civil
Law mechanisms, discussed below, that are designed to coax an accused to testify at trial. They include the
requirement to take the stand at trial, inferences that may be drawn from the remaining silent, the
admissibility of character and hearsay evidence, and the lack of a separate sentencing hearing. All of these
mechanisms are depicted in action in film.
a. Requirement to Take the Stand
In the United States and other Common Law countries, the prosecution puts on its case, and
defense counsel attempts to discredit it through cross-examination of the states witnesses and by
introducing exculpatory evidence. In the United States, the defendant rarely takes the stand to testify, and
under the U.S. Griffin rule,385 the prosecutor may not comment on the defendants decision not to testify.
The judge also carefully instructs the jury that no adverse inferences may be drawn from the defendants
decision not to testify.
Other Common Law countries do not have anything like the Griffin Rule, and trial is not bifurcated.
There are therefore several films of Common Law countries that depict the defendants taking the stand to
testify on his or her own behalf, even when it is very risky to do so. As depicted in the British films Cause
clbre386 and The Paradine Case,387 defense counsels decision to place his or her client on the stand is a risky
one.
In The Paradine Case, barrister Keanes rash decision to place his client Mrs. Paradine (played by
Alida Valli) on the stand leads to disastrous results. After diverting suspicion of murder from Mrs. Paradine
to a key prosecution witness Latour (played by Louis Jourdan), Keane overplays his hand and has Mrs.
Paradine testify. During her testimony, it is announced in open court that Latour has committed suicide. At
See Universal Declaration of the Rights of Man and the Citizen, art. 9 (1789) (Fr.) (Any man being presumed innocent until
he has been declared guilty.), available at avalon.law.yale.edu/18th_century/rightsof.asp (last visited Mar. 22, 2014); C. pr. pn.,
supra note 69, preamble (any person suspected or prosecuted is presumed innocent for as long as their guilt has not been
established.).
384 See Frase, supra note 64 at 218.
385 Griffin v. California, 380 U.S. 609 (1965).
386 Cause clbre (Anglia Television 1987) (GB).
383
67

that point, the jurors might infer that the suicide is evidence of Latours consciousness of guilt which
would exonerate Mrs. Paradine. But Mrs. Paradine is on the stand at the time of the announcement, and
upon hearing of Latours suicide, breaks down and confesses that she was the one who killed her husband
so that she could be with Latour. She had seduced Latour, and he committed suicide over the revelation,
during cross-examination, of his shameful disloyalty to his employer, the late Mr. Paradine. After Mrs.
Paradines confession in open court, the visibly humiliated and defeated Keane realizes the error of his
overzealousness and hubris and apologizes to the court for his poor performance as defense counsel. He
then relinquishes further representation to his co-counsel and exits the courtroom.
Cause clbre is an exceptionally well-crafted made-for-television film about the real-life 1935 trial of
thirty-something Alma Rattenbury (played by 42-year-old Helen Mirren) and her 18-year-old lover George
(played by David Morrissey) for the murder of Almas much older husband Francis Rattenbury (played by
Harry Andrews).388 Young and nave George kills the impotent Francis in a fit of unfounded jealousy,
without Almas knowledge or encouragement, but she confesses to the crime to protect George. They are
both charged with murder.
Almas defense counsel (played by David Suchet) persuades Alma to take the stand and tell the
truth about her lack of culpability, whereas Georges defense counsel decides not to place George on the
stand and concocts a false defense that George was addicted to cocaine. George is convicted but spared
the death penalty. Although George does not testify to corroborate Almas testimony, the jury believes her
and acquits her.
If convicted, the defendant in Common Law countries will be given an opportunity to speak at a
separate sentencing hearing to seek the courts mercy. By contrast, in inquisitorial, Civil Law countries,
there are multiple facets of the trial that are designed to compel the accused to speak and, if culpable, to
confess. Most notably, the accused is expected to take the stand to undergo scrutiny by the presiding judge,
even though there is a right to remain silent.
The prosecution does not go first. Rather, the presiding judge begins by questioning the accused,
who is not placed under oath. The accused cannot be compelled to respond to questions, but adverse
inferences may be drawn from the failure to respond. This Civil Law tradition of beginning the trial by
having the accused take the stand is depicted in several films, including Two Men in Town389 (France), The
Conviction390 (Italy), Devil in Silk391 (Germany), Lions Den392 (Argentina), and Presumed Guilty393 (Mexico).
TRIAL OF ALMA VICTORIA RATTENBURY AND GEORGE PERCY STONER (F.T. Jesse, 2d ed. 1950).
Two Men in Town, supra note 76.
388
389
68
b. Evidentiary Rules
The evidentiary rules of the United States and other legal systems differ in many ways, but one of
the most defining differences is the treatment of character evidence. In the United States, the admissibility
of character evidence is very limited,394 whereas in other systems, adversarial and inquisitorial alike,
character evidence is of utmost importance to the trier of fact. In The Paradine Case,395 British barrister
Keane has fallen in love with his client and exploits the opportunity to know her better by stressing the
importance of character in her trial. In the Italian adaptation of the French novel The Stranger,396 the story
centers on the French-Algerian investigating judges relentless interest in the suspect Mersaults character.
In France, one judges the man, not the acts.397 In The Widow of St. Pierre,398 therefore, the presiding judge
tests the sincerity of the defendants confessions and probes their character before handing down verdicts
and sentences. Other Civil Law films that depict the consideration of character evidence include Two Men in
Town399 (France), The Trial400 (Austria), Tenth District Court401 (France), and June Night402 (Sweden). Examples
of Common Law films in which the court does not allow consideration of character evidence include Cause
clbre.403
U.S. evidentiary rules are the most stringent because the United States protects the presumption of
innocence with safeguards such as the right to remain silent to a higher degree than all other countries.
Character evidence will be heard only for purposes of sentencing, so the sentencing hearing is conducted
separately, after conviction. In other countries, there is no need to convene a separate sentencing hearing
because character evidence has already been disclosed during trial.
Another difference between the United States and other countries concerns the admissibility of
hearsay evidence such as affidavits and videotaped testimony. In the United States, the defendants right to
confront the accuser and to examine witnesses is a constitutional right, protected by the Sixth
Amendment,404 so hearsay is inadmissible,405 subject to limited exceptions.406 By contrast, inquisitorial
Presumed Guilty, supra note 87.
See Fed. R. Evid. 404(a)(1) (Evidence of a persons character or character trait is not admissible to prove that on a particular
occasion the person acted in accordance with the character or trait.).
396 Camus, supra note 299.
397 See Pugh, supra note 80.
398 The Widow of St. Pierre (Cinmaginaire Inc. 2000) (Ca.).
400 The Trial, supra note 27.
402 June Night, supra note 345.
403 Cause clbre, supra note 386.
404 U.S. Const. amend VI (the accused shall enjoy the right to . . . be confronted with the witnesses against him [and] to have
393
394
69

evidentiary rules allow adjudicators to consider hearsay and character evidence. Allowing such evidence
compels the accused to take the stand on his or her own behalf and therefore compromises the right to
remain silent.
In some countries, evidentiary rules are also designed to protect victim witnesses at the expense of
the accuseds right to confront his or her accuser. In I Just Didnt Do It,407 the defendant is charged with the
relatively minor crime of groping a 15-year-old on the subway. He is detained for several months, however,
until the victim has had a chance to testify. And when she testifies, she is shielded from his view.
In the United States, a judge tends to enforce rules of evidence more strictly in jury trials. There is
little evidence of that, however, in Civil Law countries that have independent juries (Austria, Brazil,
Greece, Poland, Spain and Russia). Hearsay and character evidence are admissible, and the judge instructs
the jury on the meaning of the evidence before they adjourn to deliberate. In countries that use mixed
panels, the judges and the lay jurors deliberate together, so the judges can instruct the jurors on the
meaning of the evidence in closed session.
In inquisitorial systems, the presiding judge has especially broad discretion on what evidence will be
allowed, and objections usually concern only the form of the question and not the substantive information
that is being elicited. Even when France used independent juries, there were no formal rules of evidence in
French courts,408 so objections are rarely seen in French films. One exception is Law Breakers409 in which
the trial, which is held before a mixed panel, is unusually adversarial by French standards.
In the Dutch film A Question of Silence,410 the presiding judge impatiently rejects the evidentiary
objections of defense counsel, except when the prosecutor becomes overly theatrical. In The Reader
(Germany),411 defense counsel makes an objection which the presiding judge ignores. In the Greek film
Women with a Past,412 nearly all of the objections concern attempts by the attorneys to make their own
personal opinions about the evidence or to introduce testimony that is designed to play on the emotions of
the independent jury. In Black List,413 the Quebecois judge sustains the defense attorneys objection that the
prosecutor is leading the witness.
compulsory process for obtaining witnesses in his favor).
405 Fed. R. Evid. 802.
406 Fed. R. Evid. 803.
408 In France, all evidence is admissible as long as the opposing party has an opportunity to challenge it. See Felicity Nagorcka,
Michael Stanton & Michael Wilson, Stranded Between Partisanship and the Truth? A Comparative Analysis of Legal Ethics in the
Adversarial and Inquisitorial Systems of Justice, 29 MELB. U. L. REV. 448, 460 (2006).
411 The Reader, supra note 93.
413 Black List (GPA Films 1995) (Ca.).
70

Like the United States, other Common Law countries, especially those that use independent juries,
have elaborate schemes of evidentiary rules. Therefore, as depicted in film, the lawyers objections can
concern either form or substance. In A Passage to India414 (colonial India), defense counsel objects when the
prosecutor McBryde tries to present argument during his opening statement. In Witness for the Prosecution415
(England), the barristers object to questions that call for speculation on the part of the witness,
argumentative questions, and questions that seek testimony that is more prejudicial than probative. In
Indian films, the attorneys constantly interrupt each other with speaking objections about both form and
substance, as depicted in Waqt416 (objections concerning relevance and leading questions) and Insaf ka
Tarazu417 (objection concerning a prejudicial question). In the Hong Kong film The Unwritten Law,418 the
prosecutor repeatedly objects to questions that call for speculation from the witness, questions that are
argumentative, questions that seek prejudicial testimony, and questions that are designed to badger the
witness.
On the other hand, England and other Commonwealth countries are distinctive in the manner in
which a barrister, especially the prosecutor, may put the question to a witness during cross-examination,
as depicted in The Paradine Case.419 In the United States and most other countries, attorneys (and judges)
must pose questions, not statements, to the witness. Until a question is pending, the witness is not obliged
to respond. Statements would be objectionable as improper argument by the questioning attorney. Because
they are prejudicial, they tend to compromise the presumption of innocence. In the English tradition,
however, a barrister may confront a witness during cross-examination with an accusation or submission.
Such an accusation will generally begin with I put it to you that . . . [you are lying], for example. The jury
then observes the witnesss response, both in substance and in demeanor.
c. No Separate Sentencing Hearing
In the United States and other Common Law countries, most criminal trials are bifurcated so that
sentencing is decided separately, after a determination of guilt.420 The purpose of a separate sentencing
hearing in the United States is to allow the court to hear additional evidence that was inadmissible at trial,
A Passage to India (EMI Films 1984) (GB).
416 Waqt (United Producers 1965) (In.).
417 Insaf ka Tarazu (B.R. Films 1980) (In.).
418 The Unwritten Law (Seasonal Film Corporation 1985) (HK).
420 For U.S. sentencing procedures, see Fed. R. Crim. P. 32; 18 U.S.C. 3593 (1998) (Federal Death Penalty Act); 21 U.S.C. 848
(1998) (Continuing Criminal Enterprise statute). For Canadian sentencing procedures, see Canadian Criminal Code 720 (A
court shall, as soon as practicable after an offender has been found guilty, conduct proceedings to determine the appropriate
sentence to be imposed.). For English sentencing procedures, see Martins Annual Criminal Code (2000).
414
415
71

including hearsay and character evidence.421 In inquisitorial trials, there is no separate sentencing hearing
because guilt and punishment are decided together, and the consideration of character evidence is partand-parcel of deciding both. When all of the evidence has been presented, the judges and jurors (if any)
adjourn to deliberate on the questions of both guilt and, if necessary, the sentence. The judges then return
to hand down both the verdict and, if the verdict is guilty, the sentence.
Because the accused in an inquisitorial trial is not allowed the luxury of seeing whether the
prosecution has proven its case before presenting evidence in mitigation of the sentence, he or she has an
incentive to testify and even to confess at trial to obtain the courts mercy. In the United States, the convicted
defendant, who probably did not testify, has nothing to lose by acknowledging his or her guilt and begging
for mercy. Thus, one will rarely see an accused decline to testify in any film that depicts a trial in an
inquisitorial country. One possible exception is The Conviction422 (Italy) in which the accused answers most,
but not all, of the presiding judges questions.
2. Right to Be Present
The right of a defendant in the United States to be present during trial derives from both the Fifth
Amendment due process right to be heard and the Sixth Amendment right to confront and call
witnesses.423 The U.S. Supreme Court has ruled that a disruptive defendant can lose the right to be present
at trial.424 The Court ruled that a judge has the discretion either to bind and gag a disruptive defendant or to
order his or her removal from the courtroom. As depicted in film in both Common Law and Civil Law
countries, judges are reluctant to use that power.425
In the German film The Baader Meinhof Complex,426 the presiding judge drives on somewhat
helplessly despite the constant haranguing of the defendants. The 1987 U.S. film Conspiracy: The Trial of the
Chicago 8427 depicts a dramatic re-enactment of the real-life trial of the "Chicago 8" and the decision of a
frustrated Judge Julius Hoffman to bind and gag one of the disruptive defendants (Bobby Seale).
A related concern is the use of security measures such as guards or shackles during trial. The U.S.
Supreme Court has ruled that such measures must be used as a last resort because, among other things,
they compromise the presumption of innocence by suggesting to the jury that the justice system itself sees
See Ring v. Arizona 536 U.S. 584 (2002) (If a death sentence is at issue, the jury will also hear the additional evidence).
The Conviction, supra note 283.
423 U.S. Const. amends. V & VI.
424 Illinois v. Allen, 397 U.S. 337 (1970).
425 See also International Covenant on Civil and Political Rights, supra note 161, art. 14 (right to be present).
426 The Baader Meinhof Complex, supra note 93.
427 Conspiracy: The Trial of the Chicago 8 (Inter Planetary 1987) (US).
421
422
72

a need to separate a defendant from the community at large.428 U.S. judges are therefore careful to
eliminate any clues to the jury that the defendant is in pretrial detention. Furthermore, the defendant is
allowed to sit with his or her defense counsel so that they can communicate.
Films show that no other country follows this practice. In Civil Law and Common Law countries
alike, the defendant sits or stands, guarded, in a separate area as often shown in several courtroom films. In
Italy, the accused sit in a cage, as shown in Seven Beauties429 and The Sicilian Girl.430 In England and other
Common Law countries, the accused is led by guards to a separate dock, as shown in many films, including
The Trials of Oscar Wilde431 (England), Johnny Belinda432 (Canada), I Confess433 (Quebec), Mesmerized434 (New
Zealand), Return to Paradise435 (Malaysia), 49 Days436 (Hong Kong), and countless Indian films.
3. Right to a Public and Oral Trial
A public trial is guaranteed in the Common Law tradition, subject to exceptions in cases that
concern national security.437 The Sixth Amendment guarantees the accused a public trial, but the
defendant has no right to request a closed trial.438 The guarantee is considered to be a protection for all
accused because it keeps the criminal justice system under public scrutiny. Article 10 of the Universal
Declaration of Human Rights provides that [e]veryone is entitled in full equality to a fair and public
hearing . . . in the determination of his rights and obligations and of any criminal charge against him.439
And Article 14(1) of the International Covenant on Civil and Political Rights provides that [i]n the
determination of any criminal charge . . . , everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law.440
Deck v. Missouri, 544 U.S. 622 (2005) (quoting Holbrook v. Flynn, 475 U.S. 560, 569 (1986)).
Seven Beauties, supra note 373.
430 The Sicilian Girl, supra note 104.
431 The Trials of Oscar Wilde (Viceroy Films Ltd. 1960) (GB). See Bosley Crowther, Wilde Absolved: Writers Trials Get New
Examination,
N.Y.
TIMES,
June
28,
1960
(film
review),
available
at
www.nytimes.com/movie/review?res=9C0DE7D7123EEF3ABC4051DFB066838B679EDE (last visited Oct. 11, 2014).
432 Johnny Belinda, supra note 21.
434 Mesmerized, supra note 23.
435 Return to Paradise, supra note 26.
436 49 Days (Sundream Motion Pictures 2006) (HK).
437 See, e.g., Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, sec. 401, 502, 110 Stat. 1214, 1258-68
(1996) (codified at 8 U.S.C. 1532) (establishment of the five-judge Alien Terrorist Removal Court); Foreign Intelligence
Surveillance Act of 1978 Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436 (2008) (codified at 8 U.S.C. 1803)
(establishment of the seven-judge Foreign Intelligence Surveillance Court).
438 Singer v. United States, 380 U.S. 24, 35 (1965) (although a defendant can, under some circumstances, waive his
constitutional right to a public trial, he has no absolute right to compel a private trial).
439 Universal Declaration of Human Rights, supra note 161, art. 10. See also id., art. 11.
440 International Covenant on Civil and Political Rights, supra note 161 art. 14(1). See generally Mark S. Ellis, A Training Manual for
the Legal Profession--A Focus on the Judiciary, 43 S. Tex. L. Rev. 355 (2002).
428
429
73

Although courtroom proceedings are public in inquisitorial systems, consistent with the Common
Law principle of publicity,441 the courtroom phase is just a formality that follows a lengthy inquest that is
not public. The irony of the film The Trial442 is that there never is a trial. Or, put another way, the trial is
really the entire investigation, and only the final hearing is public. The final public hearing is, in effect, a
show trial at the conclusion of the investigation. And in many countries, none of the proceedings are
public, as shown in the Mexican documentary Presumed Guilty.443
The Civil Law tradition does not support either the principle of publicity or the related principle of
orality (presentation of evidence through live witnesses) which, in the United States, translates into the
right to call, question and confront witnesses in a public trial. Rather, the investigating judge meets
individually with witnesses and compiles a dossier for later review by the trial court. The trial court may hear
witnesses during the courtroom phase, but it relies heavily on the witnesses affidavits which are contained
in the dossier. Such reliance on the contents of the dossier is depicted in several films, including A Question of
Silence444 (Netherlands), The Conviction445 (Italy), Presumed Guilty446 (Mexico), and Lions Den447 (Argentina).
In the Islamic inquisitorial tradition, there is no right at all to a public trial. The quadi may permit an
open hearing, but is not required to state a justification for excluding the public. Otherwise, virtually all trial
films from all countries depict courtroom proceedings before a crowded gallery of lively and attentive
spectators.
The right to a public and oral trial is perverted, however, in the Socialist legal tradition which uses
the courtroom phase as an opportunity to educate the public. The use of such show trials is depicted in
the films The Confession448 and Danton.449 In The Confession, the defendants are entitled to a state-appointed
attorney and an open trial, but those rights are provided only in form, not in substance. The purpose of the
highly publicized courtroom trial is to stir up anger, fear and loyalty among the populace by having the
traitors shamefully admit their wrongdoings.
Danton is about the hero of the French Revolution who, in 1793, expresses his disagreement with
the Reign of Terror engineered by the Committee for Public Safety under Robespierre. When Danton
begins to acquire support for his criticism of Robespierres methods, Robespierre has him and his
followers tried for treason before a revolutionary tribunal. Danton is afforded all of the legal procedures
See Szonja Navratil, A Comparative Overview of Publicity in the Administration of Justice, 27 IUS Gentium 177 (2014).
The Trial, supra note 27.
449 Danton, supra note 277.
441
442
74

that were adopted in 1790 and 1791 to ensure a fair criminal justice system.450 He is given an opportunity to
be heard before a tribunal of five judges and an independent jury in open court before a large audience. He
openly challenges the authority of the tribunal until he becomes so hoarse he can barely speak. But the
outcome of the trial is pre-determined, so he is convicted and sentenced to death by the guillotine.
Although nearly all countries follow the principle of publicity, differences arise concerning what the
public is allowed to see (the principle of orality v. reliance on the dossier), how readily a judge will remove
them from the courtroom for misconduct, and whether the trial may be broadcast by sound or video.
a. Inquisitorial Trial by Judge and Dossier
The Sixth Amendment of the U.S. Constitution guarantees the accused the right to confront
witnesses against him and to call witnesses in his favor.451 These rights necessarily imply that the
defendant has a right to a public trial that is oral which means that testimony will be presented orally and
not by a collection of affidavits in a dossier. This right is also known as the principle of orality.
The principle of orality does not apply in an inquisitorial system of justice. A trial is just a formality
after which all of the testimony has already been collected by the investigating judge through affidavits. All
of the evidence gathered by the investigating judge is collected in a dossier 452 and then presented to the
court at trial. Live witnesses may be heard by the court as well, but the presiding judge conducts the
questioning, and the lawyers are only there to make their arguments in summation.
As Thaman observes, it is a two-stage, secret procedure in which the first, investigative stage is
decisive.453 The second, courtroom phase is a perfunctory review of the paperwork in the investigative
file or dossier. In the film A Question of Silence,454 the examining psychiatrists husband remarks cynically at a
dinner party that everything is arranged before the trial; defending counsel attends the trial as a formality,
so the Defendant feels hes being defended, but personally I think you can do damn little as counsel for the
defense.
The mise-en-scne of a film reveals whether the judge conducts and controls the questioning of
witnesses. In adversarial, Common Law courtrooms, the witness box faces the lawyers tables, not the
judge. This arrangement reveals that the lawyers, not the judge, question the witnesses. The prosecutor and
See William Savitt, Villainous Verdicts? Rethinking the Nineteenth-Century French Jury, 96 Colum. L. Rev. 1019, 1023 (1996) (in
1791, the National Assembly established a new penal code and code of criminal procedure).
451 U.S. Const. amend. VI.
452 See, e.g., Fairchild & Dammer, supra note 9 at 148-49.
453 Stephen C. Thaman, COMPARATIVE CRIMINAL PROCEDURE 16 (Michael Corrado ed., 2002).
450
75

defense counsel take turns presenting and testing the witnesses testimony through direct examination,
cross-examination, re-direct and so on.
The judges role is managerial, posing questions only to clarify an ambiguous point, not to make a
point. The course of the questioning can be very dramatic, because it reveals weaknesses in the testimony
and, sometimes, in the moral character of the witnesses. Cross-examination is often depicted in Common
Law films, because it pleases audiences with dramatic conflict.
In the courtrooms of inquisitorial systems, the witness stand faces the presiding judge, not the
lawyers, because it is the presiding judge who controls the questioning. Inquisitorial courtroom procedure
therefore competes with the accuseds universally accepted rights to a public and oral trial, to counsel, and
to call and question witnesses.455 Sometimes the prosecutor and defense counsel ask the witnesses no
questions at all, as shown in the Italian film The Conviction,456 the French documentary Tenth District Court,457
and the German film The Baader Meinhof Complex.458
As shown in Tenth District Court, the presiding judge, who is flanked by two associate judges, poses
all questions to the defendants who stand to testify at the witness stand or temoin la barre. The prosecutor
and defense counsel speak only to make their summations to the panel of judges. If they want to ask a
question of the witness, they pose it to the judge who decides whether the witness shall answer it. In the
Iranian film Close Up,459 there are no attorneys or jurors, and the quadi conducts all of the questioning.
The documentary Presumed Guilty460 depicts the lack of a public and oral trial in Mexico. The trial is
an inquest that is conducted, in the traditional inquisitorial manner, through numerous interviews and
hearings over the course of several months. The judges reliance on affidavits, instead of live testimony in
open court, is shown in Presumed Guilty as well as the Italian film The Conviction.461
In the United States, when a defendant pleads guilty, the judge decides whether to accept the plea
in an open hearing which is followed by a separate sentencing hearing, but there is not a full-blown trial. In
Civil Law countries, the courtroom phase is a formality that takes place at the end of an investigation, even
when the accused has already confessed. One might therefore argue that the courtroom trial of an accused
in the traditional inquisitorial system is analogous to a show trial at which guilt or innocence has been
predetermined, regardless of how it has been determined.
But see Gordon Van Kessel, Adversary Excesses in the American Criminal Trial, 67 NOTRE DAME L. REV. 403, 431 (1992).
The Conviction, supra note 283.
458 The Baader Meinhof Complex, supra note 93. See also the U.S. film The Reader, supra note 93 (depicting a German presiding
judges questioning of witnesses).
455
456
76

b. Spectator Conduct
In the United States, the right to an open trial is said to protect the integrity of the criminal justice
system in general by holding it up to public scrutiny.462 The U.S. Supreme Court has held, however that
the trial judge has an affirmative obligation to control the courtroom and keep it free of improper
influence on the jury.463 Examples of films in which disruptions by the gallery are not tolerated include The
Specialist,464 the documentary of the Israeli Eichmann trial during which the presiding judge repeatedly
admonishes the gallery members not to express their feelings in response to Eichmanns testimony. And in
A Dry White Season465 (South Africa), the judge threatens to clear the gallery if the spectators do not behave.
By contrast, in the French tradition, the public in the gallery are free to express their approval or
disapproval of witness statements or attorney comments, even though it may influence the jury. As one
legal commentator observed a century ago, the gallery in a French courtroom is responsible to every
sentiment and emotion caused by a piece of evidence or argument. . . [T]he jury being only human must be
swayed one way or another under the influence of the psychology of the crowd.466 As seen in the films The
Life of Emile Zola,467 Law Breakers468 and Two Men in Town,469 the presiding judge says nothing when the
gallery reacts loudly to evidence and argument. Likewise, in the Italian film Open Doors,470 when the gallery
expresses outrage, the presiding judge says nothing.
Given the greater tolerance for reactions from the gallery, which is depicted in film, it could be
argued that the right to (or tradition of) a public trial is better protected in the Civil Law tradition.
c. Media and Community Pressure
Public trials carry their disadvantages as well, however, because public hysteria, especially when
fostered by the media, often leads to biased results. Article 14(1) of the International Covenant on Civil
and Political Rights provides that [t]he press and the public may be excluded from all or part of a trial for
reasons of morals, public order (ordre public) or national security in a democratic society, or when the
See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982) (public scrutiny of the criminal trial enhances the
quality and safeguards the integrity of the factfinding process, with benefits to both the defendant and to society as a whole); see
also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).
463 Carey v. Musladin, 549 U. S. 70 (2006).
464 The Specialist, supra note 167.
466 Edward Swann, Judge Swann on French Law: Contrasts Rules of Evidence-Too Narrow Here, He Says, N.Y. TIMES (July 27, 1914).
462
77

interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the
court in special circumstances where publicity would prejudice the interests of justice.471
In response to media coverage of the 1935 trial of the accused kidnapper of Charles Lindberghs
infant son, the American Bar Association adopted a judicial canon that prohibited all photography and
broadcast coverage of courtroom proceedings. The U.S. Supreme Court has since held, however, that there
is no constitutional bar to televising courtroom proceedings,472 and states have gradually allowed such
coverage. Federal courts nonetheless continue to ban any photography.
In 1960, India abolished the jury system because of the perceived susceptibility of juries to the
media and public influence in the sensational 1959 Bombay case of K. M. Nanavati vs. State of Maharashtra.473
The Swedish film June Night474 depicts a ban on photography in the courtroom and how its violation results
in injustice to the victim. In the Mexican film Esmeralda Comes by Night,475 the judge closes the trial due to
media attention. The Iranian film Close Up476 begins with the filmmakers requesting permission from the
local quadi to film in the courtroom and, surprisingly, they are granted permission by the quadis superiors.
The adverse effects of a public trial due to public hysteria are depicted in A Cry in the Dark.477 The
film is an adaptation of John Brysons book Evil Angels which is based on the true story of Lindy
Chamberlain who claimed that her baby daughter Azaria was carried off and killed by a dingo while the
family was camping near Ayers Rock in the Australian desert in the Northern Territory. Lindy was tried
and convicted in 1982 for the murder of Azaria whose body was never found. She was released after about
four years in prison because of new evidence and continuing doubts about the reliability of the jurys
verdict. The conviction was formally quashed another two years later, following a Royal Commission
inquiry. Filmmaker Schepisi is an Australian who depicts that Lindy and her husband were denied due
process during the highly publicized criminal jury. It was the first trial ever televised live to the Australian
public.478
International Covenant on Civil and Political Rights, supra note 161. See generally Ellis, supra note 440.
Chandler v. Florida, 449 U.S. 560 (1981).
473 See Ryan Y. Park, The Globalizing Jury Trial: Lessons and Insights from Korea, 58 Am. J. Comp. L. 525, 528 (2010). The K. M.
Nanavati case is the basis of the films Yeh Rastey Hain Pyar Ke (Ajanta Arts 1963) (In.) and Achanak (1973) (In.).
475 Esmeralda Comes by Night, supra note 86.
477 A Cry in the Dark, supra note 20. See Vincent Canby, Meryl Streep in A Cry in the Dark, N.Y. TIMES, Nov. 11, 1988 (film
review), available at www.nytimes.com/movie/review?res=940DE1DF1039F932A25752C1A96E948260 (last visited Oct. 11,
2014).
478 Paul Bergman & Michal Asimow, REEL JUSTICE: THE COURTROOM GOES TO THE MOVIES 9 (1996). Michael Chesterman, OJ
and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury Is Dealt with in Australia and America, AM. J. COMP. L.
(Winter 1997).
471
472
78

Press coverage can prejudice the judge as well as the jurors as depicted in the film Return to
Paradise.479 A Malaysian judge imposes the death penalty in angry reaction to an editorial in a Western
newspaper about the trial. Other films that depict the influence of the media and public pressure on the
outcome of a trial include In the Name of the Father480 (England), The Life of Emile Zola481 (France), Law
Breakers482 (France) and Superstition483 (Italy).
4. Right to Call and Question/Confront Witnesses
The Confrontation Clause of the Sixth Amendment of the U.S. Constitution provides that, [i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him
[and] to have compulsory process for obtaining witnesses in his favor. The Fourteenth Amendment
guarantees this right in state courts. As a result, the cross-examination of witnesses is a hallmark of the
adversarial trial, and Common Law lawyers are well-known for such skills, as shown in countless U.S.
films.
In inquisitorial proceedings, the investigating judge collects affidavits in a dossier which is presented
to the judges. This is contrary to the principle of orality, and it is the sort of practice that the Confrontation
Clause was designed to prevent. As the U.S. Supreme Court stated in Crawford v. Washington, the principle
evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and
particularly its use of ex parte examinations as evidence against the accused.484
Even when testimony is oral in inquisitorial proceedings, the presiding judge conducts the
questioning. Defense counsel is expected to play a minor, passive role during trial, as is the prosecutor.
Therefore the attorneys do not normally possess strong cross-examination skills. The accused must
therefore depend upon the presiding judge to elicit exculpatory testimony or to discredit adverse witnesses.
Defense counsel may ask questions, either through the presiding judge or with the judges
permission, as depicted in The Life of Emile Zola485 and Tenth District Court.486 But such an indirect method of
questioning is much less effective than a searing cross-examination in which defense counsel directly
confronts a witness on the stand. This inability to conduct cross-examination also compromises the
accuseds fundamental right to call and question witnesses.
Return to Paradise, supra note 26.
483 Superstition (Movie Masters 2001) (Nl.).
484 Crawford v. Washington, 541 U.S. 36 (2004).
479
480
79

Cross-examination by defense counsel is seen in a handful of films from Civil Law countries with
relatively adversarial systems such as the Greek films Maria in Silence487 and Women with a Past488 and the
Polish films Ghetto Queen489 and Coup dtat.490 Also, Chile491 and Italy492 are converting from an inquisitorial
to an adversarial criminal justice system, as depicted in the Italian film The Sicilian Girl.493 The film is based
on the true story of Paolo Borsellino (played by Grard Jugnot), the anti-Mafia crusader, and of seventeenyear-old Rita Atria (played by Veronica DAgostino) who was a key witness against the mafia in a 1992 trial
in Palermo, Sicily. The courtroom scenes depict a mixture of inquisitorial and adversarial processes. The
presiding judge controls the questioning, but defense counsel is very participatory, often raising objections
to evidence proffered by the prosecutor.
5. Right to Effective Assistance of Counsel

In the United States the right to appointed counsel at trial is constitutionally guaranteed. The Sixth
Amendment guarantees that the accused shall have the Assistance of Counsel for his defence. In 1932,
the U.S. Supreme Court held that the accused has a right to appointed counsel in federal cases,494 and in 1963
it held that the accused has the same right in state cases.495 The U.S. Supreme Court has recognized that the
right to defense counsel includes the right to effective assistance of counsel and that a violation occurs when
a court prevents defense counsel from giving effective assistance496 and when defense counsel provides
poor representation.497
As depicted in film, this right to effective assistance of defense counsel applies only in adversarial
legal systems. In inquisitorial criminal proceedings, the lawyers play a minor role. The presiding judge
conducts the questioning, and the lawyers rarely pose their own questions. When they do, they may not
question the witness directly; their questions must be approved by the presiding judge. This form of
indirect questioning is seen in the modern French courtroom (Tenth District Court)498 as well as courtrooms

489 Ghetto Queen, supra note 124.
490 Coup dtat, supra note 129.
491 See Cristin Riego, Oral Procedures and Case Management: The Innovations of Chiles Reform, 14 SW. J. L. & TRADE AM. 339, 340
(2008).
492 See Michele Panzavolta, Reforms and Counter-Reforms in the Italian Struggle for an Accusatorial Criminal Law System, 30 N.C. J. Intl L.
& Com. Reg. 577 (2005).
494 Johnson v. Zerbst, 304 U.S. 458 (1938); Powell v. Alabama, 287 U.S. 45 (1932).
495 Gideon v. Wainwright, 372 U.S. 335 (1963).
496 Glasser v. United States, 315 U.S. 60 (1942).
497 Strickland v. Washington, 466 U.S. 668 (1984); United States v. Cronic, 466 U.S. 648 (1984).
487
488
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of the Belle poque (The Life of Emile Zola).499 The Dutch film A Question of Silence500 provides a rare example
of what happens when defense counsel dares to assert the defendants rights. The presiding judge abruptly
shuts defense counsel down. Likewise, the presiding judge in The Life of Emile Zola501 makes it nearly
impossible for defense counsel to raise an effective defense.
Germanys trial procedure is more adversarial than what is found in other Civil Law countries, so
defense counsel plays a greater role. It is therefore not surprising that defense counsel is depicted as a
heroic figure in the films Devil in Silk502 and, to an extent, M.503 Likewise, Polish criminal procedure is
relatively adversarial, so one finds defense counsel depicted heroically in films such as No End504 and A
Short Film About Killing.505 In most other Civil Law countries, however, defense counsel is depicted in film
as a mere observer who is permitted to make a closing argument or summation.
In the films of Common Law countries, however, the role of defense counsel is much more
prominent, and the story is often driven by the experience or inexperience of defense counsel, because it
matters. The degree of defense counsels effectiveness has a bearing on the outcome of the case in an
adversarial proceeding, whereas it has little or no bearing on the outcome of an inquisitorial proceeding. In
Breaker Morant,506 the British court-martial is a show trial intended to appease the government of Germany
by sacrificing three Australian officers. The British military therefore tries to ensure its intended outcome
by appointing an experienced prosecutor and providing the defendants with defense counsel (played by
Jack Thompson) who has no litigation experience whatsoever. Defense counsel reveals the injustice of the
proceedings by being more effective than expected, making it more difficult for the court-martial judges to
reach their pre-determined verdicts.
Indian films also often portray inexperienced defense counsel as heroic figures against corrupt,
experienced prosecutors. Examples include Waqt507 and Kasoor.508 The entertaining British comedy Trial and
Error509 is noteworthy because the defendants conviction is later overturned due to the ineffectiveness of
his defense counsel (played by Peter Sellers).

A Question of Silence, supra note 31.
503 M, supra note 91.
505 A Short Film About Killing, supra note 127.
506 Breaker Morant, supra note 167. See Janet Maslin, Breaker Morant, N.Y. TIMES, Dec. 22, 1980 (film review); Bridges, Barry,
Lord Kitchener & the Morant-Hancock Executions, 73 J. ROYAL AUSTRALIAN HIST. SOCY 24 (June 1987).
507 Waqt, supra note 416.
508 Kasoor, supra note 52.
509 Trial and Error (Metro-Goldwyn-Mayer British Studios 1962) (GB).
499
500
81

The relationship between defense trial counsel and the accused is especially close in the United
States. The failure of U.S. defense counsel to meet with the defendant to prepare for trial would most likely
result in the reversal of a conviction on appeal due to ineffective assistance of counsel. And yet, it is not
uncommon for an English barrister never to meet with the accused. It is the solicitor who conducts trial
preparation which probably includes meetings with the defendant. The defense barrister might not even
review the file (the Brief) until the day before trial. Therefore, in The Paradine Case,510 the fact that the
barrister meets often with his client is unusual and supports the plot point of his falling in love with her.
The unusually close relationship between barrister and defendant is also depicted in Provoked: A True Story511
and Trial and Error.
a. Freedom of Communication (Access)
The right to defense counsel at trial is less-respected in inquisitorial systems than it is the United
States, especially when the accused is in custody pending the trial. This can be seen by the layout of the
courtroom alone. In the United States, where defense counsels access to the client is heavily protected,512
the defendant and defense counsel sit next to each other. A few other countries, such as India, have this
seating arrangement, as depicted in Kasoor.513 The proximity of the defendant to defense counsel allows
defense counsel greater control over the client defendant, and it gives the defendant greater participation in
the defense.
In inquisitorial system courtrooms, the accused and defense counsel sit apart from one another,
especially when the accused is being held in custody. As discussed above, this seating arrangement also
impinges on the accuseds right to the presumption of innocence. As depicted in the Italian films Open
Doors,514 Seven Beauties515 and The Sicilian Girl,516 the accused sits in a cage, with other accused, like a zoo
animal, unable to speak confidentially with defense counsel. In the French film Law Breakers,517 the accused
are not being held in custody, but they sit in a dock behind defense counsel. The accused and their counsel
are able to converse, but not discretely. Even in England, an accused who is in custody (also called the
prisoner) sits in a separate dock, unable to communicate freely with the barrister who is defending the
The Paradine Case, supra note 15.

Provoked: A True Story, supra note 58.
512 See Geders v. United States, 425 U.S. 80 (1976) (attorney-client consultation restricted during overnight recess).
513 Kasoor, supra note 52.
515 Seven Beauties, supra note 373.
510
511
82

case, as depicted in numerous British films, including In the Name of the Father,518 Witness for the Prosecution,519
White Mischief,520 Cause clbre,521 and Term of Trial.522
b. Disagreement between the Accused and Defense Counsel
As explained in the next section, a defendant has a right of self-representation. The U.S. Supreme
Court has ruled, however, that a represented defendant does not have control over all decisions that are
made in a case. And although the Sixth Amendment guarantees a defendant legal representation by counsel
of choice, defense counsel maintains control over strategic decisions such as what witnesses to call to the
stand and whether or when to conduct cross-examination of a witness.
The accused has control over personal or fundamental right decisions such as whether to take
the stand to testify.523 In general, a disagreement between defense counsel and the accused over a strategic
decision is not grounds for substitution of new counsel.524 In England, the barrister has similar authority to
handle the case as he or she sees fit. This independent authority of English defense counsel is depicted in
The Paradine Case,525 Cause clbre,526 and Witness for the Prosecution.527
In The Paradine Case, defense barrister Keane (played by Gregory Peck) meets with his client Mrs.
Paradine during a recess, and she objects to Keanes stratagem of raising suspicions about her former valet
Latour. Keane insists that he has the final say on how to proceed with the defense. I must go on the way
Ive begun. I must act according to my own view. When Keane resumes his searing cross-examination of
Latour, he elicits Latours confession that he had a sexual liaison with Mrs. Paradine, thereby drawing
suspicion to him, and away from Mrs. Paradine, as the murderer of Mrs. Paradines husband.
In Hostile Witness, the accused (played by Ray Milland) objects to his barristers decision not to call a
particular weak defense witness to the stand. The barrister seeks permission from the judge to consult with
her client. During their discussion, Crawford insists that she call Maitland as a witness, and Larkin refuses:
I must do what I think is right. And to call him now would be utterly wrong. If you insist on calling him, I
shall be forced to withdraw from the case. Crawford fires Larkin and proceeds to defend himself. The

520 White Mischief (Columbia Pictures 1987) (US-GB).
522 Term of Trial (Romulus Films 1962) (GB).
523 See Brookhart v. Janis, 384 U.S. 1 (1966); Jones v. Barnes, 463 U.S. 745 (1983).
524 See Florida v. Nixon, 543 U.S. 175 (2004).
527 Witness for the Prosecution, supra note 14.
518
519
83

overconfident Crawford (who is a barrister himself) conducts direct examination of the witness and, just as
his barrister had predicted, he ends up hurting rather than helping his defense.
c. Right to Self-Representation
In the United States, a defendant has a Sixth Amendment right to free counsel, but also has the
right to proceed in propria persona (also known as pro se or pro per). The U.S. Supreme Court has ruled
that the structure of the Sixth Amendment implies a right to self-representation.528 If the accused does not
agree with his or her defense counsels decisions, and wants the authority to make all decisions on how to
try a case, he or she may elect to proceed pro per. As described above, that is precisely what occurs in the
British film Hostile Witness.529 Likewise, in Red Corner530 (China), the accused disagrees with his appointed
attorney strategy and is allowed by the court to represent himself.
V. FILMIC DEPICTIONS OF ADJUDICATION AND SENTENCING
Lay participation in the fact-finding and sentencing process tends to protect an accused against
politicized justice and the excesses of government that can occur when the government has a stake in the
outcome of the trial and the judiciary lacks independence. The traditions of both Civil Law and Common
Law systems reflect a mistrust of the government, particularly the judiciary. The independent jury was born
of such mistrust in England, and Civil Law countries adopted the invention of trial by independent jury in
the eighteenth century, after the French Revolution. Judicial participation in a criminal trial is especially
minimized in the United States, and most Civil Law countries incorporate or increase lay participation in
trials for more serious crimes.
The degree of lay participation in adjudication and sentencing can be measured by their
independence, the degree to which the presiding judge holds sway over them, and their voting power. The
independent jury, which deliberates without any judges, represents the greatest degree of lay participation,
whereas the judge-only panel represents the smallest degree of lay participation. In-between lies the mixed
panel which is composed of judges and jurors who deliberate together. If the jury is independent, consider
further how many jurors sit on the jury, how much instruction the judge may give them, and whether the
jury decides the sentence. If the panel is mixed, consider further the ratio of jurors to judges and the
amount of votes needed to reach a verdict and sentence.
Faretta v. California, 422 U.S. 806 (1976).
Hostile Witness (Caralan Productions Ltd. 1968) (GB).
528
529
84

No jurors are used in the Islamic and Socialist traditions, and many Civil Law countries still do not
use jurors. Nearly all Common Law countries and a few Civil Law countries (Austria, Brazil, Greece,
Poland, Spain and Russia) use independent juries, and many Civil Law countries use mixed panels of judges
and jurors. The relative voting power of the judges and jurors on mixed panels varies from country to
country. Jurors tend to have more voting power in countries of the French Civil Law tradition than in
countries of the German Civil Law tradition. There is a tendency in countries that follow the German Civil
Law tradition to increase the ratio of judges to jurors on mixed panels for the most serious crimes.
Greece and Austria are among a small number of Civil Law countries in which an independent jury
deliberates on its own to decide guilt or innocence, as shown in the Greek film Women with a Past531 and the
Austrian film The Scorpion Woman.532 In all other Civil Law countries, either there is no jury at all or the
panel is mixed, as shown in many films, including the German films M533 and Devil in Silk,534 the Italian
films Seven Beauties535 and Open Doors,536 the Polish films No End537 and The Consul,538 the Swedish film June
Night,539 and the Spanish film In This Tricky Life.540
The mise-en-scene gives an indication of the judiciarys independence from the political branches of
government. In the United States, courtroom walls are not particularly ornate, and they are free of any
indicia of higher governmental or religious authority. This is consistent with the fact that the judiciary is a
separate and counterbalancing branch of U.S. government. In no other country does the judiciary have so
much independence. In other countries, indicia of higher political and religious authorities are common,
such as portraits of leaders, religious symbols such as crucifixes, and political symbols such as swastikas.
A. Judge-Only (No Jurors)
Not surprisingly, films from countries in which there is no lay participation tend to show a lack of
confidence in the ability of the courts to achieve just results. Nearly all Indian films depict the courtroom
as a place where a clueless judge is hoodwinked by the dirty tricks of prosecutors and defense counsel alike.

Scorpion Woman, supra note 35.
533 M, supra note 91.
534 Devil in Silk, supra note 93. See also the U.S. film The Reader, supra note 93.
535 Seven Beauties, supra note 373.
538 The Consul (Zespl Filmowy Kadr 1989) (Pl.).
540 In This Tricky Life (Avalon Productions 2001) (Es.).
531
532
85

India has no jury system.541 The documentary Presumed Guilty542 depicts a prolonged Mexican murder case in
which the single judge fails to mete out justice. There are also no juries in Socialist legal systems, and films
such as The Confession543 and Red Corner544 depict unjust judge-only trials. A Dry White Season545 depicts
predetermined, politicized justice before a single judge in South Africa during Apartheid. One notable
exception is the Iranian documentary Close Up546 which depicts a fair trial before a single judge (quadi).
B. Independent Jury
Independent juries are used in Common Law countries and several civil law countries, including
Austria, Brazil, Greece, Poland, Spain, Russia and formerly France. The independent jury is depicted in the
Austrian film Scorpion Woman,547 the Polish films Coup dtat,548 Life Sentence549 and Ghetto Queen,550 the Greek
films Women with a Past551 and With Fear and Passion,552 the French film The Life of Emile Zola553 and the
Russian film 12.554 12 is a loose remake of 12 Angry Men, set in a Russia. Twelve jurors struggle to decide
the fate of a Chechen teenager who allegedly killed his Russian stepfather.
The Sixth Amendment guarantees that a criminal defendant shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime shall have been committed.555
The right to a jury trial is not absolute, however. Juries are not required in juvenile proceedings,556 and in
federal court the defendant can waive a jury trial only if the prosecutor agrees.557 Most states, however, do
not give the prosecutor the power to demand a jury trial.
See supra note 473 (India abolished the jury system in 1960 due to the verdict in the sensational 1959 Bombay case of K. M.
Nanavati vs. State of Maharashtra).
548 Coup dtat, supra note 129.
550 Ghetto Queen, supra note 124.
554 12 (Federal Agency for Culture and Cinematography 2007) (Ru.).
555 U.S. Const. amend VI. See Blanton v. City of North Las Vegas, 489 U.S. 538 (1989) (jury required only if the authorized term
of imprisonment is more than six months). Vermont and Virginia provide a defendant with right to jury trial in all cases.
556 See McKeiver v. Pennsylvania, 403 U.S. 528 (1971) (juveniles do not have a right to a jury trial).
557 Patton v. United States, 281 U.S. 276 (1930). See also Fed. R. Crim. P. 23(a); Singer v. United States, 380 U.S. 24 (1965)
(upholding the constitutionality of Fed. R. Crim. P. 23(a)).
541
86

The U.S. Supreme Court has ruled that the right to a jury trial applies if the crime charged carries a
jail or prison sentence of more than six months558 and that the jury must be composed of at least six
jurors.559 It is less clear whether and when unanimity is required. In Apodaca v. Oregon,560 the U.S. Supreme
Court upheld Oregons constitutional provision that ten of twelve jurors (83.3%) could reach a verdict in a
felony case. In Burch v. Louisiana,561 however, the Court struck down Louisianas law that five of six jurors
(83.3%) could reach a verdict in a misdemeanor case. Today, unanimity is required in federal prosecutions,
and only two states allow for non-unanimous verdicts in felony prosecutions.
The U.S. judge is relegated to the role of neutral referee of a battle between the prosecutor and
defense counsel over the minds of a jury which conducts fact-finding with no prior knowledge of the case,
highly filtered facts, no legal training, and little guidance from the judge. Likewise, when it comes to
weighing the evidence and arriving at a verdict, the U.S. judge may not participate whatsoever in the jurys
deliberation of the facts which therefore remains unmonitored and unseen by both the public and the
government.
The separate jury box for the independent jury means that judge and jury do not communicate with
each other. The judge does not deliberate with the jurors and may not attempt to persuade them to vote
one way or the other. Films that provide a glimpse of the deliberative process in action include I Confess562
(Quebec), the English films Murder!,563 The Chatterley Affair564 and King and Country,565 and the Russian film
12.566
In the United States, judges are especially circumspect when speaking to, or in the presence of,
jurors. The judge speaks to the jury only to give carefully worded instructions on the law at the beginning
and end of the trial and when ruling that certain testimony shall be stricken and therefore disregarded.
Because of their inexperience and limited communication with the judge, independent juries are more
easily swayed by emotional arguments and public hysteria, as depicted in The Life of Emile Zola567 and the
Australian film A Cry in the Dark,568 more easily misled by clever counsel as depicted in the Indian film
Blanton v. City of North Las Vegas, 489 U.S. 538 (1989).

Williams v. Florida, 399 U.S. 78 (1970) (six is enough); Ballew v. Georgia, 435 U.S. 223 (1978) (five is too few).
560 Apodaca v. Oregon, 406 U.S. 404 (1972).
561 Burch v. Louisiana, 441 U.S. 130 (1979).
563 Murder! (British International Pictures 1930) (GB).
564 The Chatterley Affair (BBC Wales 2006) (GB).
565 King and Country (BHE Films 1964) (GB).
566 12, supra note 554 .
558
559
87

Kasoor569 and more prone to invent their own, unfounded reasons for finding reasonable doubt, as depicted
in the New Zealand film Mesmerized.570
In England and other Common Law countries, judges are permitted to comment on the evidence
as well as the law as depicted in the films Cause clbre571 and King and Country.572 In A Cry in the Dark573
(Australia), the jury returns a guilty verdict despite the fact that the judge provides commentary on the
evidence that is favorable to the defendants. Excessive commentary on the evidence, depicted in the film
Let Him Have It,574 is known in England as descending into the arena. The judge is not supposed to
become an advocate in the proceeding. Such excessive judicial commentary on the evidence is also
depicted in the Austrian film Scorpion Woman.575
In the United States, jury selection is a time-consuming process in which the prosecutor and
defense counsel conduct thorough questioning of prospective jurors and are given ample opportunity to
exclude prospective jurors for cause as well as for no cause at all (known as a peremptory challenge). This
jury selection process, known as voir dire, is a mini-proceeding by itself in which the attorneys take
advantage of the opportunity to establish a rapport with the eventual jurors and subtly set forth the
arguments of their cases as they decide which jurors to keep and which to exclude.
The voir dire process does not exist in England so there is a higher risk of impaneling biased or
otherwise unacceptable jurors.576 In 1988, England abolished all peremptory challenges. The high risk of
impaneling unacceptable jurors, due to the lack of a voir dire process, is exacerbated by the fact that a
unanimous verdict is not required in England. Although the English judge may require a unanimous
verdict, as seen in the film Murder!,577 only ten of twelve jurors are required to reach a guilty verdict, as seen
in the film Provoked: A True Story.578
Extensive use of voir dire and peremptory challenges distinguishes our jury selection procedure from
the process of selecting the Continental mixed panel or the British independent jury. Historically,
Continental systems have not recognized peremptory challenges to either professional or lay judges. In
Germany, for example, the grounds for challenging professional and lay judges are the same and are limited
to what we categorize as for cause challenges. Lay members of the German mixed panel are not selected
Kasoor, supra note 52.

Mesmerized, supra note 23.
572 King and Country, supra note 565.
574 Let Him Have It, supra note 57.
576 Gordon Van Kessel, Adversary Excesses in the American Criminal Trial, 67 NOTRE DAME L. REV. 403 (1992).
577 Murder!, supra note 563.
578 Provoked: A True Story, supra note 58.
569
570
88

for each case, but are assigned to particular courts randomly for fixed periods of time, and there is no voir
dire or other procedure for challenging the selection of jurors.
C. Mixed Panel
After the French Revolution, all European countries except the Netherlands adopted the Common
Law invention of trial by independent jury. As shown in the film The Life of Emile Zola,579 the nineteenth
century French jury sat in a box, separate from the panel of judges. Independent juries, however, too often
considered irrelevant factors to arrive at legally untenable decisions. As Civil Law governments gained
greater power, independent juries were converted to a mixed or unitary model in which the judge and
jury sit together during the courtroom trial and deliberate together in secret.
Germany invented the mixed panel in the nineteenth century580 and then, under totalitarian regimes
during the twentieth century, other countries followed suit, including Russia under the Bolsheviks, Italy
under Mussolini, Spain under Franco, and Vichy France under German occupation, as depicted in Open
Doors581 (Italy) and Story of Women582 (France).
Jurors on a mixed panel are closely controlled by the presiding and associate judges. The amount of
control varies from country to country. The German model, which is depicted in Devil in Silk,583 is found in
continental countries including the Czech Republic, Hungary, Poland, Serbia, and Switzerland. The typical
German-styled mixed panel consists of one professional judge and two jurors (also known as lay
assessors). Generally, the ratio of judges to jurors is higher in the German model than it is in the French
model.584 The mixed panel hear the evidence together, and they deliberate together to decide both the
verdict and the sentence, as shown in the Italian film Open Doors.585 Open Doors is remarkable for its
portrayal of the deliberation, the give-and-take that occurs behind closed doors among the two judges
and five lay jurors on the panel of the corte dassise.
In the French model, the ratio of jurors to judges is greater than in the German model. Also, jurors
in the French model vote secretly after deliberation. In France, the mixed panel consists of nine jurors and

For a history of the invention of the mixed panel in Germany, see Dubber, supra note 96; Casper & Zeisel, supra note 96.
582 Story of Women (MK2 Productions 1988) (Fr.).
584 Elizabeth R. Sheyn, A Foothold for Real Democracy in Eastern Europe: How Instituting Jury Trials in Ukraine Can Bring About
Meaningful Governmental And Juridical Reforms And Can Help Spread These Reforms Across Eastern Europe, 43 VAND. J. TRANSNATL L.
649, 675-76 (2010).
579
580
89

three judges, and eight votes are required to reach a verdict. This means that eight jurors could overrule the
three judges (and the ninth juror) to reach a verdict.
All mixed panel models are nonetheless heavily compromised versions of the independent jury,
because they give the professional judge voting power and influence over the deliberative process. It also
ensures that, under the Civil Law principle of legality, all violations of the law will be punished. The
presiding judges control over the mixed panel virtually eliminates the risk of a nullifying or runaway jury.
Today, most Civil Law governments that use jurors in criminal trials have maintained the mixed
panel model. Austria, Brazil, Greece, Poland, Spain, and Russia are exceptions, because they have moved
toward a more adversarial system of justice. One might draw the conclusion that lay participation in the
adjudicative process tends to be greater in systems that have adopted the adversarial model. However, the
extent of lay participation is also a function of what the country is willing to spend on a jury system and
whether the public is educated and politically sophisticated enough to participate. India does not have a
jury system because its society lacks pluralism. Indian jurors would tend to be biased toward or against
defendants based on ethnicity, religion and/or social status.
VI. DEATH PENALTY FILMS586
Despite a strong anti-death-penalty movement worldwide,587 death penalty practice thrives in the
United States due to a strong vigilante tradition of retributive justice.588 Fortunately, the United States is
also recognized as a country whose criminal procedure affords ample, even excessive, protections to
criminal defendants. Among countries that have ever applied the death penalty, the United States is the
only one in which the jury, not the judge, decides the sentence.589 By contrast, in the English film Let Him
Have It,590 the judge imposes the death penalty despite the jurys recommendation of mercy.
The death penalty has a profound effect on the adjudicative process, from the prosecutors
charging decisions, to the selection of capable defense counsel, to the course of plea-bargaining, to the
selection of only jurors who are willing to impose it, to law that requires full lay participation in the
decision to impose it, to mandatory appeals which are responsible for prolonged detention and the socalled death row phenomenon.
The author thanks David Shea Bettwy, B.A. Film Studies, Notre Dame University, LL.M. International Human Rights Law,
National University of Ireland, Galway, for the contribution of his scholarship on death penalty films.
587 See ROGER HOOD & CAROLYN HOYLE, THE DEATH PENALTY: A WORLDWIDE PERSPECTIVE 40-50 (2008); Roger Hood &
Carolyn Hoyle, Abolishing the Death Penalty Worldwide: The Impact of a New Dynamic, 38 CRIME & JUST. 1, 10-11 (2009).
588 See SANGMIN BAE, WHEN THE STATE NO LONGER KILLS 93-94 (2007).
589 Ring v. Arizona, 536 U.S. 584 (2002).
586
90

In capital cases, life is at stake, not just liberty, so death penalty films tend to dramatize, more than
other courtroom dramas, the flaws of a countrys criminal procedure and the dire consequences of unjust
results. Films dramatically depict the stark differences in death penalty practice between the United States
and the vast majority of other countries in the world, especially between the United States and Europe
which are the two most divergent and influential advocates on each side of the debate.
As film reviewer Stephanie Goldberg asserts, film has emerged as an important medium for the
portrayal of the death penalty, saying: After public executions fell out of favor in the late 1930s, it was
inevitable that movies would become our window on capital punishment. Film makers have etched on our
brains images of what transpires in this form of ritual death.591 The body of death penalty cinema in the
United States and in Europe is substantial, and its contribution to the discussion reflects the entire
spectrum of points within the death penalty debate.592
U.S. cinema supports all three prongs of the pro-death penalty argument, namely the need for
incapacitation (Executioners Song, In Cold Blood, The Star Chamber, and To Kill a Mockingbird),593 retribution
(Death Wish series, Collateral Damage, The Brave One, and Inglourious Basterds)594 and deterrence (Angels with
Dirty Faces).595 Most of the films reflect a strong vigilante culture and the principle of retributive justice, as
expressed in Gregg v. Georgia.596
Anti-death penalty films in Europe provide responses to the U.S. pro-death penalty argument with
films that depict the realistic hope of rehabilitation (The Widow of St. Pierre),597 the futility and senselessness
of revenge (Irrversible)598 and the danger of the death penalty as a tool of terror in the hands of ruthless
regimes (Sophie Scholl-The Final Days, Open Doors, The Confession and Danton).599
Stephanie B. Goldberg, Walking the Last Mile, on Film, N.Y. TIMES, Dec. 24, 1995, 2, at 9 (film review).
For films depicting incapacitation, see DEAD MAN WALKING (Havoc 1995) (US); EXECUTIONERS SONG (Film
Communications Inc. 1982) (US) (made for television); THE GREEN MILE (Castle Rock Entertainment 1999) (US); TO KILL A
MOCKINGBIRD (Brentwood Productions 1962) (US). For films depicting retribution, see COLLATERAL DAMAGE (Warner Bros.
Pictures 2002) (US); INGLOURIOUS BASTERDS (Universal Pictures 2009) (US). For a film depicting deterrence, see ANGELS WITH
DIRTY FACES (Warner Bros. Pictures 1938) (US). For films depicting the realistic hope of rehabilitation, see LIFE LOVE DEATH
(Les Films 13 1969) and The Widow of St. Pierre, supra note 398. For a film depicting revenge gone wrong, see IRRVERSIBLE
(120 Films 2002) (Fr.) For a film depicting the misuse of the deterrent effect of the death penalty, see A Short Film About
Killing, supra note 127.
593 THE EXECUTIONERS SONG, supra note 592; IN COLD BLOOD (Columbia Pictures Corp. 1967) (US); THE STAR CHAMBER
(Frank Yablans Presentations 1983) (US); TO KILL A MOCKINGBIRD, supra note 592.
594 DEATH WISH (Dino De Laurentiis Co. 1974) (US); DEATH WISH II (Cannon Films 1982) (US); DEATH WISH 3 (Cannon
Group 1985) (US); DEATH WISH 4: THE CRACKDOWN (Cannon Group 1987) (US); DEATH WISH V: THE FACE OF DEATH (21st
Century Film Corp. 1994) (US); COLLATERAL DAMAGE, supra note 592; THE BRAVE ONE (Redemption Pictures 2007) (US); and
INGLOURIOUS BASTERDS, supra note 592.
595 ANGELS WITH DIRTY FACES, supra note 592. See Elisabeth Semel, Reflections on Justice John Paul Stevenss Concurring Opinion in
Baze v. Rees: A Fifth Gregg Justice Renounces Capital Punishment, 43 U.C. DAVIS L. REV. 783, 834-40 (2010).
596 Gregg v. Georgia, 428 U.S. 153, 168-69 (1976).
597 The Widow of St. Pierre, supra note 398.
598 IRRVERSIBLE, supra note 592.
599 Sophie Scholl - The Final Days, supra note 92; Open Doors, supra note 34; The Confession, supra note 132; Danton, supra note
591
592
91

Both U.S. and European anti-death penalty films depict the danger of convicting and executing
innocent persons and the fundamental injustice of the death penalty, but their approaches differ. Whereas
U.S. anti-death penalty films portray fictional characters who are wrongly convicted (The Star Chamber and
The Green Mile),600 some of whom narrowly escape conviction and execution (The Fugitive, 12 Angry Men, and
My Cousin Vinny),601 European films portray real-life cases in which wrongly accused persons were executed
(10 Rillington Place, Let Him Have It and Sacco and Vanzetti).602
Both U.S. and European anti-death penalty films depict the cruelty of the death row phenomenon
and the brutality of executions (Dead Man Walking, The Green Mile, Two Men in Town, A Short Film About
Killing, Let Him Have It, and Dancer in the Dark),603 but European depictions are more disturbing. And
whereas U.S. anti-death penalty films depict real-life murderers who are worthy of sympathy (Dead Man
Walking and A Time to Kill),604 European films characteristically portray fictional, unsympathetic murderers
and successfully equate their executions with the reprehensible acts that they committed (Two Men in Town,
Open Doors, and A Short Film About Killing).605
European anti-death penalty films are arguably more effective than U.S. anti-death penalty films at
conveying a universal message that defeats practical concerns as well as the principle of retributive
justice.606 As Zimring argues, the vigilante ideology is deep-seated in U.S. film, and abolitionist cinema will
require more discursive filmmaking, such as that found in European cinema, to weaken the tradition.607
European anti-death penalty films such as the 1988 Polish film A Short Film About Killing and the
1979 French film The Red Sweater608 may have influenced the abolition of the death penalty in their home
countries.609 An online film review on Films de France suggests that the 1952 French film We Are All
277.
600 THE STAR CHAMBER, supra note 593; THE GREEN MILE, supra note 592.
601 THE FUGITIVE (Warner Brothers Pictures 1993) (US); 12 ANGRY MEN (Orion-Nova Productions 1957) (US); MY COUSIN
VINNY (Palo Vista Productions 1992) (US).
602 10 Rillington Place (Columbia Pictures 1971) (US-GB); Let Him Have It, supra note 57; SACCO AND VANZETTI (Jolly Film
1971) (It.).
603 DEAD MAN WALKING, supra note 592; THE GREEN MILE, supra note 592, Two Men in Town, supra note 76; A Short Film
About Killing, supra note 127; Let Him Have It, supra note 57; DANCER IN THE DARK (Zentropa Entertainments 2000) (Den.).
604 DEAD MAN WALKING, supra note 592; THE EXECUTIONERS SONG, supra note 592; see also David R. Dow, Fictional
Documentaries and Truthful Fictions: the Death Penalty in
Recent American Film, CONST. COMMENT 511, 548-49 (2000).
605 Two Men in Town, supra note 76; A Short Film About Killing, supra note 127.
606 See Christopher J. Meade, Reading Death Sentences: The Narrative Construction of Capital Punishment, 71 N.Y.U. L. REV. 732, 761
(1996) (The Note concludes by arguing that anti-death penalty advocates must focus their attention on telling stories about
guilty defendants -- for only by telling effective stories about guilty defendants can the fight against the death penalty be won.).
607 FRANKLIN E. ZIMRING, THE CONTRADICTIONS OF AMERICAN CAPITAL PUNISHMENT 181 (2003).
608 THE RED SWEATER (Port Royal Films 1979) (Fr.).
609 David Shea Bettwy, The United States-Europe Death Penalty Debate: A Comparison of Filmic Apologists, 17 Sw. J. Intl L. 1, 60-61
(2011).
92

Assassins610 had an impact on public opinion and was perhaps a contributing factor that led to the abolition
of the death penalty decades later.611
In England, three cases involving miscarriages of justice, all of which have been told in film,
eventually led to abolition of the death penalty in 1965 (except for treason, piracy and military offenses).612
The first concerned the conviction and execution of Timothy John Evans in 1950 for the murder of his
wife and daughter, depicted in the 1971 British film 10 Rillington Place613 which is based on the 1961 book
by Ludovic Kennedy.614 In 1953, three years after Evans was convicted and executed, the police discovered
that serial killer John Reginald Christie was probably the real murderer,615 and the public became outraged.
The other two cases concerned the 1953 execution of Derek Bentley, depicted in the 1991 film Let
Him Have It,616 and the 1955 execution of Ruth Ellis, depicted in the 1985 British film Dance with a
Stranger.617 Let Him Have It618 is based on the real-life story of Derek Bentley (played by Christopher
Eccleston), a mentally challenged 19-year-old. Bentley and his friend Christopher Craig are tried for the
murder of a police officer during their attempt to burglarize a warehouse. Bentleys 1953 case coincided
with the discovery that Timothy Evans had been wrongly convicted and executed, so the public was
already in a state of outrage. His case aroused further public sentiment against the death penalty because of
Bentleys limited role in the 1952 murder, his young age, and his mental deficiencies.619
WE ARE ALL MURDERERS (Jolly Film 1952) (Fr.).

James
Travers,
Nous
sommes
tous
des
assassins,
Films
De
France
(2004),
filmsdefrance.com/FDF_Nous_sommes_tous_des_assassins_rev.html (last visited Mar. 22, 2014).
612 Murder (Abolition of Death Penalty) Act, available at www.legislation.gov.uk/ukpga/1965/71 (last visited Oct. 11, 2014). The
following year, Timothy Evans was pardoned posthumously. See 734 PARL. DEB., H.C. (5th Ser.) (1966) 38-40 (U.K). The death
penalty was finally abolished entirely in 1998. See Human Rights Act 1998 (UK), ch. 42, sec. 21(5),
www.opsi.gov.uk/acts/acts1998/ukpga_19980042_en_1 (last visited Oct. 11, 2014); Geoffery Bennett, Wrongful Conviction,
Lawyer Incompetence and English LawSome Recent Themes, 42 BRANDEIS L.J. 189, 192 (2004).
613 10 Rillington Place, supra note 602; See Vincent Canby, A Portrait of John Christie, the Murderer: London Crime Recalled in 10
Rillington Place, N.Y. TIMES, May 13, 1971 (film review).
614 LUDOVIC KENNEDY, TEN RILLINGTON PLACE (Littlehampton Book Services Ltd. 1961).
615 Frederick C. Millett, Will the United States Follow England (and the Rest of the World) in Abandoning Capital Punishment?, 6 PIERCE L.
REV. 547, 565 (2008). Christie testified at his own trial that he murdered Evans wife. Id. at 567-68.
617 In 1955, 28-year-old Ruth Ellis became the last woman executed in England, depicted in DANCE WITH A STRANGER (Channel
Four Films 1985) (GB), after a public uproar over her execution. See Brian P. Block & John Hostettler, HANGING IN THE
BALANCE: A HISTORY OF THE ABOLITION OF CAPITAL PUNISHMENT IN BRITAIN 164 (Waterside Press 1997) (Because of her
age -- she was 28 -- her children and the fact that the killing was impulsive rather than planned and, of course because she was a
woman, there was a great deal of public sympathy for Ruth Ellis and many people believed that the home secretary would relent
at the last moment.).
618 Let Him Have It, supra note 57. Former Thomas Jefferson School of Law student Sarah Suskauer is acknowledged for her
contribution to this film summary. See Janet Maslin, Executing a Man in Anger at Another, the Real Killer, N.Y. TIMES, Dec. 6, 1991
(film review). Books, songs, and poetry have been written about the Bentley case, including Elvis Costello, Let Him Dangle
(Warner Bros. Records 1989).
619 Steve Greenfield & Guy Osborn, Pulped Fiction? Cinematic Parables of (In)justice, 30 U.S.F. L. REV. 1181, 1189 (1996); Millet,
supra note 615 at 571.
610
611
93

Despite pressure from Parliament, widespread public sympathy for Bentley, and the jurys
recommendation for clemency, Bentley was put to death by hanging. In 1994, the persistent of his family
members and the work of the newly created Criminal Cases Review Commission culminated with Bentleys
posthumous pardon.620 Bentleys family members believe that the 1991 film helped to influence the
decision to pardon Bentley.621
VII. CONCLUSION
By viewing foreign courtroom dramas, comparatists can reach some conclusions on the pros and
cons of different aspects of criminal procedure found in different countries and their legal traditions. Early
access to counsel is especially important to a suspect, because he or she is vulnerable to police abuse and
trickery. Common Law, adversarial systems tend to protect the suspects right to remain silent more than
Civil Law, inquisitorial systems do. The written laws of Civil Law countries may provide for a right to
remain silent, but the safeguards are missing, and even defense counsel tend to respect the cultural
expectation of innocent suspects to cooperate.
Common Law, adversarial systems tend to safeguard the presumption of innocence more than
Civil Law, inquisitorial systems in other ways as well. Most notably, pretrial detention is less common, and
there are several safeguards to protect an accuseds right to remain silent. In the United States, the right to
remain silent is especially well-protected by the Exclusionary Rule, the Griffin Rule, and the bifurcated trial.
The presumption of innocence is further protected in the United States by rules of evidence that limit
character evidence and by seating the defendant at counsels table.
Common Law, adversarial systems also tend to provide an accused a greater opportunity to
challenge the prosecutions evidence than Civil Law systems do. The principles of orality and publicity
apply, so defense counsel may cross-examine prosecution witnesses. In the United States, the defendant is
seated next to counsel and therefore has a better opportunity to participate in his or her defense. By
contrast, Civil Law judges rely on a pre-prepared dossier and control the sequence and questioning of
witnesses.
See R v. Secy of State for the Home Dept Ex Parte Bentley, [1994] Q.B. 349 (Eng.). In 1998, the Court of Appeal quashed
the conviction as well. See R v. Derek Bentley (Deceased) [2001] 1 Crim. App. 307, 332 (Eng.), available at
murderpedia.org/male.B/images/bentley_derek/BENTLEY_DEREK_-30_7_98.pdf (last visited Mar. 22, 2014); Sarah Lyall,
Briton Hanged in 1953 Is Finally Exonerated, N.Y TIMES, July 31, 1998, at A3.
621 Greenfield & Osborn, supra note 619 at 1196 (Iris Bentley indicated during our interview that . . . overall the film was a
positive force in the fight to clear Dereks name . . . in terms of increasing awareness of the injustice that had been
perpetrated.).
620
94

Still, there are aspects of criminal procedure that the United States could adopt to improve its
protection of a suspects or defendants rights. The power to detain a suspected terrorist for seven days
without benefit of counsel or judicial oversight is an overly vague and overbroad compromise of the right
to remain silent, not to mention liberty interests. Plea-bargaining is an efficient system that other countries
have adopted, but there must also be safeguards against coercive tactics by overzealous prosecutors,
especially in death penalty cases. The strong U.S. tradition of an open trial, without regard to the wishes of
the defendant, has led to unjust results in highly publicized cases. The United States needs to develop
safeguards such as those set forth in the International Covenant on Civil and Political Rights. The United
States is the only country in the world in which the prosecutor speaks last in rebuttal. This is an enormous
advantage that also invites unethical sandbagging, namely saving arguments until rebuttal so that the
defense will not have an opportunity to respond. U.S. jurors are the most independent in the world, which
results in too many misguided decisions, especially in highly publicized, emotional cases. The United States
should consider adopting the British model which permits judges to comment on the meaning of the
evidence as well as the law, especially when the prosecutor speaks last. And finally, despite a strong
tradition of retributive justice, the United States should curtail or even abolish the death penalty. Moral
considerations aside, the death penalty gives the prosecutor too much negotiating power in a pleabargaining system.
APPENDIX A
Films by Legal Tradition and Country
THE CIVIL LAW TRADITION
FRANCE
INVESTIGATORY DETENTION
Garde vue (1981)
THE NEUTRAL INVESTIGATING JUDGE
Law Breakers or Les assassins de lordre (1971)
Rape of Love or Lamour viol (1978)
The Judge and the Assassin or Le juge et lassassin (1976)
The Stranger or Ltranger or Lo straniero (1967)
Violette (1978)
95

FELONY COURT (COUR DASSISES)
Two Men in Town or Deux hommes dans la ville (1973)
Nikita or La femme Nikita (1990)
Confusion of the Genders or La confusion des genres (2000)
MISDEMEANOR COURT (TRIBUNAL CORRECTIONEL)
Tenth District Court or 10e chambre - Instants daudience (2004)
THE LATE MIDDLE AGES / EARLY RENAISSANCE
The Passion of Joan of Arc or La passion de Jeanne dArc (1928)
The Advocate or The Hour of the Pig (1993)
The Return of Martin Guerre or Le retour de Martin Guerre (1982)
THE FIRST REPUBLIC AND THE REIGN OF TERROR (1793-1794)
Danton (1983)
THE SECOND REPUBLIC
The Widow of St. Pierre or La veuve de Saint-Pierre (2000)
THE THIRD REPUBLIC AND THE BELLE EPOQUE
The Life of Emile Zola (1937)
WORLD WAR I
Paths of Glory (1957)
WORLD WAR II
Story of Women or Une affaire de femmes (1988)
TELEVISION SERIES
Engrenages (2005)
Les cordier, juge et flic (1992)
Plac en garde vue (1994)
Matre da Costa (1997)
Avocats & associs (1998)
OTHER FRENCH FILMS
I Have Killed or Jai tu! (1924)
Les misrables (1934)
Justice Is Done or Justice est faite (1950)
A Tale of Two Cities (1935)
Bluebeard or Landru (1963)
The Big Softie or Le Grand Dadais (1967)
96

Risky Business or Les risques du metier (1967)
To Die of Love or Mourir daimer (1971)
Suspect of Murder or Les granges brules (1973)
Jury of One or Il testamento (1974)
Special Section (1975)
The Drummer-Crab or Le crabe-tambour (1977)
Question of Love or L'amour en question (1978)
OTHER COUNTRIES OF THE FRENCH CIVIL LAW TRADITION
ARGENTINA
Lions Den or Leonera (2008)
The Secret in Their Eyes or El secreto de sus ojos (2009)
CHILE
The Judge and the General (2008)
Pinochets Last Stand (2006)
Pinochet Case or Le cas Pinochet (2001)
MEXICO
Esmeralda Comes by Night or Esmeralda de noche (1998)
Presumed Guilty or Presunto culpable (2008)
Legitimate Defense or Legtima defense (1957)
History of a Gangster or Historia de un canalla (1964)
Adolescent Love or Amor de adolescente (1965)
THE NETHERLANDS
A Question of Silence or De stilte rond Christine (1982)
Character or Karakter (1997)
PORTUGAL
Justice of Heaven or Justia do Cu (1952)
Two Cases or Duas Causas (1953)
The Voice of Blood or A voz do sangue (1966)
Vertigo or Vertigem (1992)
SPAIN
High Heels or Tacones lejanos (1991)
In This Tricky Life or En la puta vida (2001)
97

Pinochet Case or Le cas Pinochet (2001)
That Woman or Esa mujer (1969)
GERMANY
PROTESTANT REFORMATION
Luther (2003)
WEIMAR REPUBLIC
Love in Thoughts or Was ntzt die Liebe in Gedanken (2004)
M (1931)
THIRD REICH
Sophie Scholl-The Final Days or Sophie Scholl-Die letzten Tage (2005)
POST-WWII
Judgment at Nuremberg (1961)
Council of the Gods or Der Rat Der Gtter (1951)
Verdict on Auschwitz (1993)
The Reader (2009)
1970s
The Baader Meinhof Complex or Der Baader Meinhof Komplex (2008)
REUNIFIED GERMANY
After the Truth or Nichts als die Wahrheit (1999)
OTHER GERMAN FILMS
Mary (1931)
Children on Trial or Kinder vor Gericht (1931)
I Accuse or Ich klage An (1941)
The Affair Blum or Affaire Blum (1948)
The Debt of Dr. Homma or Die Schuld des Dr. Homma (1951)
The Sergeants Daughter or Der Groe Zapfenstreich (1952)
Devil in Silk or Teufel in Seide (1956)
The House Tyrant or Der Haustyrann (1959)
Roses for the Prosecutor or Rosen fr den Staatsanwalt (1959)
I Cannot Remain Silent or Ich kann nicht lnger schweigen (1962)
The Molesters or Der Sittlichkeitsverbrecher (1963)
The Bachmeier Case: No Time for Tears or Der Fall Bachmeier Keine Zeit fr Trnen
(1984)
98

Man under Suspicion or Morgen in Alabama (1984)
Stammheim: The Baader Meinhof Trial (1986)
The Rose Garden or Der Rosengarten (1989)
Justice or Justiz (1993)
14 Days to Life or 14 Tage lebenslnglich (1997)
Leo and Claire or Leo und Claire (2001)
Baader (2002)
OTHER COUNTRIES OF THE GERMAN CIVIL LAW TRADITION
AUSTRIA
THE INQUISITORIAL PROCESS
The Trial or Le procs (1962)
THE JURY TRIAL
Scorpion Woman or Die Skorpionfrau (1989)
GREECE
The Highway of Hate or I Leoforos Tou Misous (1950)
The Chauffeur Lady or I Soferina (1964)
Women with a Past or Katigoro Tous Anthropous (1966)
Concerto for Machine Guns or Kontserto Gia Polyvola (1967)
Z (1969)
Visibility Zero (1970)
In the Name of the Law or En Onomati Tou Nomou (1970)
What Did You Do in the War, Thanassi? or Ti Ekanes Ston Polemo Thanasi (1971)
With Fear and Passion or Me Fovon Kai Pathos (1972)
Maria in Silence or I Maria Tis Siopis (1973)
The Trial of the Judges or I Diki Ton Dikaston (1974)
ITALY
LATE RENAISSANCE
Artemisia (1997)
WORLD WAR II
Seven Beauties or Pasqualino Settebellezze (1975)
Open Doors or Porte aperte (1990)
99

Malna (2000)
POST-WORLD WAR II
Seduced and Abandoned or Sedotta e abbandonata (1964)
The Conviction or La Condonna (1991)
POST-MILLENIUM
Il Divo (2008)
The Sicilian Girl or La siciliana ribelle (2008)
OTHER ITALIAN FILMS
A Day in Court or Un Giorno in Pretura (1954)
The Immortal Bachelor or A Mezzanotte Va la Ronda del Piacere (1975)
Pasolini, an Italian Crime or Pasolini, un delitto italiano (1995)
Superstition (2001)
The Bankers of God: The Calvi Affair or I Banchieri di Dio (2002)
The Session is Open or LUdienza Aperta (2006)
The Monster of Florence (TBD)
POLAND
THE SECOND REPUBLIC (1918-1939)
Life Sentence or Wyrok Zycia (1933)
Ghetto Queen or Krlowa przedmiescia (1937)
Coup dtat or Zamach Stanu (1981)
POST-WWII
No End or Bez Konca (1985)
A Short Film About Killing or Krtki Film o Zabijaniu (1988)
OTHER POLISH FILMS
Trial or Proces (1957)
The Criminal Who Stole a Crime or Zbrodniarz, Ktry Ukradl Zbrodnie (1969)
Life Story or Zyciorys (1975)
The Consul or Konsul (1989)
The Depths of Hell or Dno Piekla (1989)
The Trial of the Sixteen or Proces Szesnastu (1991)
Silent Harbor or Cicha przystan (1995)
Unprofessional Rope or Niefachowy stryczek (1997)
100

BRAZIL
The Case of the Naves Brothers or O Caso dos Irmos Naves (1967)
Olga (2004)
Justice or Justia (2004)
SOUTH KOREA
A Good Lawyers Wife or Baramnan gajok (2003)
Running Wild or Ya soo (2006)
Parallel Life or Pyeong-haeng-i-ron (2010)
SWITZERLAND
The Molestors or Sittlichkeitsverbrecher (1963)
Anna Gldin, Last Witch or Anna Gldin, letzte Hexe (1991)
The Grninger Case or Grningers Fall (1997)
THAILAND
Brokedown Palace (1999)
TURKEY
Midnight Express (1978)
VENEZUELA
A Question of Justice (2004)
NORDIC CIVIL LAW TRADITION
FINLAND
Beyond the Law or Lain Ulkopuolella (1987)
Eila (2003)
SWEDEN
Perhaps a Poet or Kanske en Diktare (1933)
Genera is the Worst or Slkten r Vrst (1936)
June Night or Juninatten (1940)
In Darkest Smland or I Mrkaste Smland (1943)
Maria of Kvarngrden or Maria p Kvarngrden (1945)
Meeting in the Night or Mte i Natten (1946)
Girl without a Name or Flicka utan Namn (1954)
The Rite or Riten (1969)
Witness for the Crown or Kronvittnet (1989)
101

Illusions or Illusioner (1994)
The Girl Who Kicked the Hornets Nest or Luftslottet Som Sprngdes (2009)
COMMON LAW TRADITION
ENGLAND
SIXTEENTH CENTURY ENGLAND
A Man for All Seasons (1966)
Anne of the Thousand Days (1969)
VICTORIAN ENGLAND
The Trials of Oscar Wilde or The Green Carnation (1960)
Victim (1961)
Wilde (1997)
INER-WAR ENGLAND
Murder! (1930)
The Girl in the News (1941)
Cause Clbre (1987)
COLONIAL ENGLAND
QUBEC
Battle of the Brave (2004)
INDIA
A Passage to India (1984)
COLONIAL KENYA
White Mischief (1987)
COLONIAL SINGAPORE
The Letter (1940)
MODERN (POST-WWII) ENGLAND
The Paradine Case (1947)
Witness for the Prosecution (1957)
Trial and Error (The Dock Brief) (1962)
Term of Trial (1962)
Hostile Witness (1968)
10 Rillington Place (1971)
A Fish Called Wanda (1988)
Let Him Have It (1991)
102

In the Name of the Father (1993)
Some Mothers Son (1996)
The Jury (2002)
Provoked: A True Story (2006)
The Chatterly Affair (2006)
COURTS-MARTIAL
King and Country (1964)
Conduct Unbecoming (1975)
Breaker Morant (1980)
OTHER BRITISH FILMS
The Franchise Affair (1951)
Eight Oclock Walk (1954)
Court Martial (1955)
Brothers in Law (1957)
The Boys (1962)
Dr. Crippen (1964)
Justice (1971-1974) (television series)
See No Evil: The Moors Murders (2006)
Longford (2006)
DOMINION COUNTRIES
AUSTRALIA
The Last Wave (1977)
A Cry in the Dark or Evil Angels (1988)
Prisoners of the Sun (1990)
Black and White (2002)
CANADA
NOVA SCOTIA
Johnny Belinda (1948)
SASKATCHEWAN COURTROOM
I Accuse (2003)
TORONTO COURTROOM
Karla (2006)
103

QUBEC SUPERIOR COURT
I Confess (1953)
COURT OF QUBEC
Black List or Liste noire (1995)
Red Nose or Take Me Home or Nez Rouge (2003)
NEW ZEALAND
Beyond Reasonable Doubt (1982)
Mesmerized (1986)
REPUBLIC OF IRELAND
The General or I Once Had a Life (1998)
UNITED STATES
COLONIAL PERIOD
The Crucible (1996)
RACE
Amistad (1997)
Intruder in the Dust (1949)
To Kill a Mockingbird (1962)
RELIGION
Inherit the Wind (1960)
FREEDOM OF SPEECH
The People vs. Larry Flint (1996)
RAPE TRIAL
And Justice for All (1979)
MURDER TRIALS
Angels with Dirty Faces (1938)
12 Angry Men (1957)
Anatomy of a Murder (1959)
In Cold Blood (1967)
Absence of Malice (1981)
The Star Chamber (1983)
Jagged Edge (1985)
Presumed Innocent (1990)
My Cousin Vinny (1992)
104

A Time to Kill (1996)
Primal Fear (1996)
Double Jeopardy (1999)
High Crimes (2002)
COURTS-MARTIAL
The Caine Mutiny (1954)
A Few Good Men (1992)
SOUTHEAST ASIA
INDIA
Samaj Ki Bhool (1934)
Awra (1951)
Amar (1954)
Ab Dilli Dur Nahin (1957)
Adalat (1958)
Kala Pani (1958)
Anri (1959)
Do Ustad (1959)
Kanoon (1960)
Yeh Rastey Hain Pyar Ke (1963)
Waqt (1965)
Mera Saaya (1966)
Pinjra (1972)
Achanak (1973)
Daag: A Poem of Love (1973)
The Scales of Justice or Insaf ka Tarazu (1980)
Kudrat (1981)
A Passage to India (1984)
Meri Jung (1985)
Pehchaan (1993)
Damini Lightning (1993)
Gupt: The Hidden Truth (1997)
Daag: The Fire (1999)
105

Khauff (2000)
Moksha (2000)
No Silence in This Court (2001)
Kasoor or Blame (2001)
Deewangee (2002)
Bardaasht (2004)
Saatchya Aat Gharat (2004)
Kaydyacha Bola (2005)
Shaurya: It Takes Courage to Make Right . . . Right (2008)
MALAYSIA
Return to Paradise (1998)
SINGAPORE
The Letter (1940)
Korban Fitnah (1959)
HONG KONG
The Unwritten Law or Fat ngoi ching (1985)
49 Days or Sai chiu (2006)
MIXED LEGAL TRADITIONS
EGYPT
Alexandria . . . Why? (1978)
The Trial or Almohakama (1982)
Against the Government or Dedh Elhokoma (1992)
INDONESIA
Ganja Queen (2007)
ISRAEL
The Man in the Glass Booth (1975)
The Specialist (1999)
JAPAN
Gun Crazy: Beyond the Law (2002)
I Just Didnt Do It or Soredemo boku wa yattenai (2007)
PHILIPPINES
Ang Leon at ang daga (1975)
Miguelito: Batang rebelde (1985)
106

Walang piring ang katarungan (1990)
Matud nila (1991)
Wanted: Perfect Father (1994)
Ang ika-labing isang utos: Mahalin mo, asawa mo (1995)
The Marita Gonzaga Rape Slay: In God We Trust (1995)
Ipaglaban mo: The movie II (1997)
Birador (1999)
Suspek (1999)
PUERTO RICO
Under Suspicion (2000)
RUSSIA
The Fixer (1968)
Crime and Punishment or Prestuplenie i nakazanie (1969 & 2008)
12 (2007)
SCOTLAND
Madeleine (1950)
SOUTH AFRICA
Dingaka (1964)
Cry Freedom (1987)
A World Apart (1987)
A Dry White Season (1989)
In My Country (2004)
SOCIALIST LEGAL TRADITION
SOVIET UNION
The Accused or Podsudimyy (1985)
Sedev, Counsel for the Defense or Zashchitnik Sedov (1989)
CHINA
Goddess or Shen Nu (1934)
Stage Sisters or Wutai jiemei (1965)
The Warlord or Da jun fa or Dai gwun fat (1972)
Sworn Brothers or Gan dan xiang zhao (1987)
The Story of Qiu Ju or Qiu Ju da guan si (1993)
107

Red Corner (1997)
CZECHOSLOVAKIA
The Trial or Le proces (1962)
The Confession (1970)
Normal the Dsseldorf Ripper (2009)
ISLAMIC LEGAL TRADITION
IRAN
Close Up (1990)
The Stoning of Soraya M. (2008)
A Separation (2011)
NIGER
Justice at Agadez (2006)
PAKISTAN
Veer-Zaara (2004)
Dishonored (2008)
INDIGENOUS LAW
AUSTRALIA
The Last Wave (1977)
BURKINA FASO
The Law (1990)
INTERNATIONAL CRIMINAL PROCEDURE
KOSOVO
Rule of Law: Justiz im Kosovo (2006)
INTERNATIONAL WAR CRIMES TRIBUNALS
Judgment at Nuremberg (1961)
Pride or Puraido: Unmei no toki (1998)
Best Wishes for Tomorrow or Ashita e no Yuigon (2007)
War Don Don (2010)
108

APPENDIX B
Sample Course Syllabus
The following films are selected because of their relevance to the topic and because they are
available through streaming from services such as Amazon, Netflix, iTunes and Hulu. Films are assigned as
readings in preparation for discussion in class. The students write a paper on a film of their choice and
make an in-class presentation, commencing the third week of the course.
Week No. 1 Common Law Tradition / Foreign Law / Comparative Legal Analysis
Witness for the Prosecution (U.K.)
I Confess (Canada)
Text: I through II.C.1
Week No. 2 Civil Law Tradition
Lions Den (Argentina)
The Sicilian Girl (Italy)
Text: II.C.2
Week No. 3 Socialist Legal Tradition
The Confession (Czechoslovakia)
Red Corner (China)
Text: II.C.3.a
Student Presentations Commence
Week No. 4 Islamic and Indigenous Traditions / International Legal Norms
A Separation (Iran)
The Last Wave (Aboriginals)
Text: II.C.3.b, II.C.3.c & II.D
Week No. 5 Investigating and Charging the Crime
In the Name of the Father (U.K.)
Under Suspicion (Puerto Rico)
Fifth Amendment of the U.S. Constitution
Text: III.A.1 & II.A.2
109

Week No. 6 Investigating and Charging the Crime
The Trial (Austria)
The Secret in Their Eyes (Argentina)
Text: III.A.3 & III.A.3
Week No. 7 Prosecutor
The Judge and the General (Chile)
Spiral (France)
Text: III.B & III.C
Week No. 8 Presumption of Innocence and Associated Rights
M (Germany)
The Baader Meinhof Complex (Germany)
Text: IV.A
Art. 14, International Covenant on Civil and Political Rights
Week No. 9 Victims Role at Trial
A Passage to India (colonial India)
In My Country (South Africa)
Text: IV.B
Week No. 10 Accuseds Participation at Trial
A Cry in the Dark (Australia)
Sophie Scholl - The Final Days (Nazi Germany)
Text: IV.C.1 through IV.C.4
Sixth Amendment of the U.S. Constitution
Week No. 11 Accuseds Right to Effective Assistance of Counsel
Breaker Morant (U.K. Court-Martial)
A Fish Called Wanda (UK)
Text: IV.C.5
Week No. 12 Adjudication and Sentencing
Tenth District Court (France)
12 (Russia)
Text: V
110

Week No. 13 Sentencing / Death Penalty
10 Rillington Place (U.K.)
Let Him Have It (U.K.)
Text: VI
Eighth Amendment of the U.S. Constitution (cruel and unusual punishment)
Week No. 14 International Criminal Procedure in Action
The Reader (Post-WWII Germany)
War Don Don (Special Court for Sierra Leone)
Text: II.D (review)
General Rules and Principles of International Criminal Procedure (Hague Institute for the
Internationalisation of Law)
Arts. 9 & 14, International Covenant on Civil and Political Rights
Arts. 9-11, Universal Declaration of Human Rights
111
Opinio Juris in Comparatione offers the strength of a peer reviewed international publication.
It is an electronic full open access journal devoted to "Studies in Comparative and National Law".
It aims at enhancing the dialogue among all legal traditions in a broad sense. The intend of diffusing
contributions on national law as well and not only to focus on comparative issues, is to expand access to
foreign legal materials and ideas to those who do not already have access to the traditional avenues (such
as journals in the language of the explored legal system). All contributions will be inserted in the Opinio
Juris in Comparatione website.
Opinio Juris offers the benefits of a preliminary and early diffusion of the contributions before the papers
are actually published somewhere else.
The three different languages of preferred submission are English, French and Spanish. The constraints
set out for dealing with purely national law contributions is to give descriptions of domestic law in a
language other than the language of the system itself (please see instructions for the online submission
on Opinio Juris in Comparatione website for further details).
Articles (Opinio Juris will give preference to articles under 25.000 words in length including text and
footnotes);
Essays (8.000 words or less in length, and its primary purpose is to advance an idea, to summarize a
development, or to initiate or engage in discussion);
Case notes (a case note not exceeding 7.000 words will focus on an important decision);
Furthermore Opinio Juris includes Selected Conference proceedings, News and Book reviews
(overview of conference, new books, etc.)
Submission
Manuscripts must be submitted online after registration and login to the section Online submission
on Opinio Juris in Comparatione website or via ExpressO website.
International Advisory Board:

F. D. Busnelli, Scuola Superiore SantAnna; G. Brggemeier, Universitt Bremen; G. Calabresi, Yale Law
School; H. Collins, London School of Economics and Political Science; F. Hinestrosa (late), Universidad Externado
de Colombia; E. H. Hondius, Utrecht University; N. Kasirer, McGill University; D. Lametti, McGill University;
D. Owen, University of South Carolina; V. Palmer, Tulane University; R. Sacco, Universit di Torino; S.
Sugarman, University of California, Berkeley; G. Viney, Universit Paris 1 Panthon Sorbonne.
Editor in Chief: G. Comand
Editorial staff: F. Ferrari, S. Scalzini, C. Bortoluzzi, C. Leone, M. Rocca, , M. Petri, C. Perfumi.

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ISSN: 2281-5147

Opinio Juris in Comparatione

Op. J., Vol. I, Special Issue, 2014

A Survey of Comparative Criminal Procedure through Foreign

Samuel William Bettwy

A SURVEY OF COMPARATIVE CRIMINAL PROCEDURE

S.W. Bettwy, A Survey of Comparative Criminal Procedure...

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Scorpion Woman (1989) (At.).

S.W. Bettwy, A Survey of Comparative Criminal Procedure...

Red Corner, supra note 24.

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See Reichel, supra note 9 AT 165, 253.

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prosecutorial-independence-partiality, victim-participation, lay-participation and judicial-control constructs

See generally Glendon, et al., supra note 1.

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Law Breakers, supra note 12.

S.W. Bettwy, A Survey of Comparative Criminal Procedure...

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A Question of Silence, supra note 31.

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Devil in Silk, supra note 93.

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The Sicilian Girl (R&C Produzioni 2008) (It.).

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S.W. Bettwy, A Survey of Comparative Criminal Procedure...

Coup dtat (Film Polski 1981) (Pl.)

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See Belkin, supra note 41.

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Pride, supra note 166.

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S.W. Bettwy, A Survey of Comparative Criminal Procedure...

III. FILMIC DEPICTIONS OF THE INVESTIGATIVE PHASE

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