3. Common Law v. Romano-Germanic Law

This class will be devoted to distinguishing the common law and Romano-Germanic or continental systems of criminal justice, as they occur both in substantive and procedural criminal law. Due emphasis will be given to difficulties in defining each of these traditions, of finding pure versions thereof in the real world, and of the differences within each tradition. The place of Canadian criminal law and procedure will be located within these broad constellations.

It is generally understood that the common law criminal procedure is accusatorial (and generally adversarial) whilst the continental criminal procedure is inquisitorial. The word "inquisitorial" of course invokes images of the "Holy Inquisition" and may thus be unhelpful. Today, both accusatorial and inquisitorial systems of criminal justice belong to the broad family of liberal criminal justice and it would be difficult to claim that one is inherently better at protecting rights. All kinds of other factors enter into account, and each system may be better designed at ensuring justice in certain cases than others. Moreover, there has been some convergence between systems and a certain tendency of traditionally inquisitorial systems to become more adversarial (Italy, Mexico, etc). 

Still, notable differences in legal philosophy and culture remain, that have considerable implications for legal practice. This is especially evident if you are ever involved in transnational criminal cases such or work with international criminal tribunals. But it may also be visible domestically as systems increasingly borrow from each other. The common law is generally considered to be the more liberal system, and certainly represents a more atomized take on society. For example, the common law typically does not impose punishment for pure omissions, whereas civil law countries are prone to have a délit of "non-assistance à personne en danger." But the common law has its own illiberal tendencies: for example, a keenness to prosecute conspiracies that has no equivalent in the civil law tradition. 

Procedurally, the differences seem to be more systematic and run deeper. Broadly speaking, the adversarial tradition views the trial as a contest between equal parties. Truth may be sought, but it is the particular procedural truth that emerges from that highly regulated contest. Investigations have been undertaken mostly by the police. The judge acts as an impartial umpire ensuring that the contest is fair but does not direct proceedings. The parties are in charge, as seen for example in the mechanism of cross-interrogation. The system relies on highly technical rules of exclusion of evidence to make sure that evidence that would be prejudicial to the accused is excluded.

In the inquisitorial tradition, the pre-trial phase typically involves a magistrate supervising the police investigation with a view to ascertaining whether there is a prima facie case to answer. Her resulting report then provides the basis for the trial. That is why it is sometimes suggested that the defendant is not entirely presumed innocent: if s/he goes to trial it is already that there is an officially sanctioned case against him. Nonetheless, the ensuing trial is a real trial and the presumption of innocence is guaranteed in many continental systems. The judge, however, has access to the pre-trial judge's report, including large amounts of written evidence and transcripts that would not normally be automatically admissible in adversarial proceedings. Moreover, it is the judge who leads proceedings and specifically who questions witnesses.
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