On The Adversarial Criminal Trial

This Ph.D. dissertation has four chapters besides an introduction, and each chapter consists of an introduction of itself, the main part and a conclusion.On the basis of western scholars' writings, the introduction of the dissertation analyses the meanings and characteristics of adversary criminal trial in different contexts. There are at least four different explanations of adversary criminal trial: sporting theory of justice from the perspective of wording, Anglo-American criminal trial from the perspective of comparative law, adversary principle trial and party-dominated trial from the perspective of trial proceeding art, and conflict-solving trial from the perspective of ideal type. Sporting theory of justice is a vivid rhetoric of adversary criminal trial and can give us an unforgettable impression, but it cannot be used as a research tool because of its inexactness and misleading effect. Because the common dominator of common law and civil law system in criminal trial cannot correctly be summarized easily today, looking adversary criminal trial as Anglo-American criminal trial was old-fashioned and lost accuracy. Considering adversary criminal trial as adversary principle trial can generalize the common feature of modem trial in western countries that rule of law, but it cannot be used as a tool for comparative research and neglects some different characteristics between common law system and some continental Europe countries. Party-dominated trial and conflict-solving trial are two ideal models, they have the advantages of disentangling in law systems and being scientific. Party-dominated trial is generalized from common law's criminal jury trial, though it has some reasonableness it can not justify the phenomenon of guilty plea or plea bargain. Conflict-solving trial can make up such deficit, but it too swiftly makes one-way relation between system and its aim. Considering the afore-mentioned last two definitions, the dissertation defines adversary criminal trial as a trial ideal that strictly regulated by procedural rules and dominated by parties, the role of fact-finder in such trial is to adjudicate whether the fact indicted is true or not.Chapter one explores the origin and development of adversary criminal trial in England and its transplantation in Italy. It is proclaimed that although judicial duel had some similarities with adversary trial it had no direct relation with the origins of adversary criminal trial in England. Jury trial system gave England a new choice to select its path of trial, but the real incentive that caused the appearance of adversary criminal trial was not jury but lawyerization of courtroom. Until the end of 17 century, the trial model in England was still lawyer-free accused-speaks trial. The defects in such trial were appearing in a series of treason cases between 1678 and 1688, which made legislature in England to enact Treason Trial Act of 1696. Thus, adversary criminal trial was established in treason cases. By the 1730s, prosecution was becoming ever more the province of lawyers and of a questionable corps of reward-seeking thief-takers. By allowing defense counsel to cross-examine prosecution witnesses, the judges attempted to correct for the imbalance that had opened between the unaided accused and the professionals. In addition to allowing felony defendants to have the assistance of counsel, the judges created the law of criminal evidence to provide safeguard at the trial level. As lawyers took increasing command of the conduct of the trial, they diminished the courtroom roles of both the accused and the trial judge which made adversary criminal trial established in felony cases. There were three conditions which helped adversary criminal trial finally erected in England but not continental Europe: liberalism politics and ideal of remedies proceed rights and developed lawyer system. After mid 20th century, the government and legislature of England made rapid strides to reform criminal justice system in order to facilitate crime control and reestablish public confidence in judicial system and protect vulnerable victims and witnesses. The adversary criminal trial wan on the wane which embodied in following phenomena: the prosperousness of plea bargain and marginalized adversary trial, decline of trial-centered system, relaxation of criminal evidence rules, restriction of jury trial and right to silence and right to confront and examine hostile witnesses. In order to promote efficiency and elevate democracy, Italy transplanted adversary system in 1988. Because of rampancy of organized crimes and compulsory prosecution system and material truth ideal, reformer's effort was nibbled away by constitutional court of Italy. In 1999, the legislature of Italy amended Article 111 in constitution which formed the constitutional basis of adversary system. Until now the reformers win.Chapter two compares the trial system between England and US. Comparing with civil law countries like France and Germany, these two countries' jury trial has four common features: bifurcation of court and two-steps proceeding, the focus of trial is to test prosecution's case, dominating role of prosecution and defense at trial, strict differentiation of prosecution's case and defense's case, using cross-examination as the most important method to find the truth. There are some difference in contesting level between these two countries, while US can be labeled as Supra-Adversary-System and England as Mild-Adversary-System. In US, prosecutors and defense lawyers could manipulate the trial proceeding and result more heavily than their Britain counterpart. The judges in England are more actively participating in truth finding process and influencing the result than American ones. Except having the right to say the last word, the defendants in Britain criminal court cannot have protection such as non-reference when proclaiming their rights to silence and the rights to choose when to testify etc. which American defendants could have. The reason that causes these differences is that there is some distinctness in their own lawyer system and law culture.Chapter three analyses the value and legitimacy of adversary criminal trial. Truth finding value of adversary criminal trial lies in that on one side it can effectively prohibit the judicators from forming prejudice that disadvantage the defendant on the other side it can give parties enough incentives to find most beneficial information. Procedural value of adversary criminal trial lies in that it could realize the truth-finders disinterestedness and fully participation of parties. Rights protection value of adversary criminal trial lies in that it could strongly protect the citizen's freedom from government invasion. But the values of adversary criminal trial are relative and not absolutely better than non-adversary system. Because the economy and politic system and culture in Anglo-American law were not same with Continental Europe in history, Anglo-American chose the path of adversarial system. The basis of adversary system was classical liberalism which was embodied in laissez-faire economy and limited government and political pluralism and the culture of power distrust. As classical liberalism was replaced by new liberalism, adversarial criminal trial slowly evolved from classical adversarialism into modern adversarialism. Modern adversarialism not only provided welfare treatment to indigent defendants through legal assistance system and emphasized collaboration of parties though evidence disclosure system, but also reshaped the roles in courtroom which highlighted the prosecutor's duty to do justice and judge's obligation to moderately intervene into trial matters and appropriately restricted the self-autonomy of defendant.Based on 40 courtroom records, chapter four empirically studies Mainland China public-prosecutor-and-defense-dominated trial. Although in 1996 the legislature of our country absorbed some adversary system elements into trial, reformer's aim had not realized in reality. In fact, the criminal trial in our country is non-adversarial accused-speaks trial, which is embodied in more passive and un-neutral judges and one side dominating role of public prosecutor and treating the accused as main actor in courtroom and sentence defense lawyer with limited speaking-rights and fact investigation in written form. Non-adversary accused-speaks trial caused two phenomena in China: high efficiency and high conviction rate. There were a lot of reasons which can explain this trial system reform failure. Quickly climbing crime rate and high hazards of defense lawyer's work and judge-ability law education model are social reality reasons. Dossier-dependant adjudication model and confession-centered proof verification mode and weak defense rights and administrative-style judicial process are judicial system reasons. The cultural reasons are trust of power and social harmony. We should not negate the aim of reformers because of these problems, strengthening antagonism of criminal trial and establishing appropriate adversary system that is suited in our country's conditions not only are necessary but also feasible. In order to realize our aim, we should not put emphasis only on trial proceeding but need to reform corresponding system and change the ideals of judicial staff, etc.