I just returned from Valdivia, Chile, where I taught a semester of criminal law at the Austral (Southern) University Law School. Chile is changing its criminal justice system to be more like ours in the United States. Specifically, instead of having one judge determine guilt or innocence based on the written police reports and witness statements, they will have oral, adversarial, public trials like we do. Instead of a jury, three judges will decide the cases here.
This has led me to ask myself why they would want to emulate our system, which is far from perfect âˆš we have innocent people who get convicted and guilty people who go free (though neither is common). How will oral, adversarial, public trials be an improvement?
First, why an oral trial? Based on the common-law experience in England, Canada and the United States, we believe this to be the best method for determining the truth. The fact-finder can evaluate the witnesses, look at them face-to-face and decide on their trustworthiness.
But the oral trial does not work well unless the lawyers, both prosecutors and defense attorneys, have the skills to properly present their cases. A strong defense helps free the innocent, of course, but also makes the police and prosecutors work within the law.
Lawyers who rely on intuition and talent to try to improvise on the march, usually lose their cases. A large part of the “art” of litigating involves techniques that can be learned in the same manner one can learn any other discipline. These techniques can be acquired and transmitted and that is what I am attempting to do in the course I am teaching here.
Second, why an adversarial trial? One of the principal reasons for the oral trial, with live witnesses, is the right to cross-examine each witness. Our Bill of Rights does not specifically mention this right, but the courts have always ruled it is part of the “due process” to which every defendant is entitled under the 5th and 14th Amendments. John Henry Wigmore, the great American legal scholar, said “beyond all doubt, cross-examination is the best legal machine ever invented to discover the truth.” Judge Cory of the Supreme Court of Canada said “the opportunity to cross-examine witnesses is fundamental to providing a fair trial to the accused.”
Third, why a public trial? Clearly, it is important in a democracy that the citizens have confidence in their courts, and that they can see that the system delivers justice. In addition, defendants as well as victims of crimes are entitled to know the public is keeping an eye on the courts; so corruption and mismanagement are less likely.
In the United States, we take these rights for granted, but here in Chile they are new. Now that General Pinochet is gone, it is important for the rest of the world to see there is justice in Chile. The fact that they are adopting our system of oral, adversarial, public trials of criminal cases is a big step in that direction.
**James H. Manahan has been certified by NBLSC as both a Civil and Criminal Trial Specialist since 1982. He practices law in Mankato, Minnesota, with the firm of Manahan, Bluth & Kohlmeyer Law Office, Chartered.