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The use of simulations and role-playing exercises in the political science curriculum is well established. These experiential techniques allow the instructor to enrich students' learning by stimulating creative and analytical thinking as well as appealing to differing learning styles. In the subfield of public law, these exercises are frequently employed by professors in both curricular and extracurricular formats (Ringel and Fair Reference Ringel and Fair2004; Knerr and Sommerman Reference Knerr and Sommerman2001; Bowers and Daniels Reference Bowers and Daniels1997; Vile and Van Dervort Reference Vile and Van Dervort1994; Pacelle Reference Pacelle1989). That is, judicial simulations may be used as part of a course or may be an extracurricular activity wherein participants travel to tournaments around the country.Footnote 1 Indeed, the very content of public law classes lends itself well to simulations and role-playing exercises—with a little training, it is relatively easy for students to simulate a simplified trial or appellate argument. At the graduate level, law schools have used judicial simulations for decades to train budding lawyers.
At the undergraduate level, legal role-playing exercises come in two forms: moot court, which simulates the appellate court process, and mock trial, which simulates the trial process. However, the constant in both of these configurations is that exclusively American legal procedures are utilized and simulated. Although role-playing exercises in international relations and comparative politics courses commonly require students to simulate foreign processes and institutions,Footnote 2 international legal simulations are virtually unheard of in the area of law and courts. To be sure, it is logical that American students who are most likely planning on attending American law schools should learn American legal procedures. However, it is the contention of this article that there are unique pedagogical benefits resulting from the use of comparative legal simulations. Thus, the purpose of this article is to propose a new judicial role-playing exercise: a mock trial simulation using the European inquisitorial system of trial procedures. It is most likely that the audience for the proposed simulation would be public law courses such as judicial process or introduction to law, because many of these students are probably considering law school after graduation, and so are more likely to be committed to the success of the simulation. However, the simulation could also be used in comparative politics courses, especially courses involving comparative institutions.
There are numerous benefits that can be gained by the use of the inquisitorial trial simulation. Most obviously, ethnocentrism on the part of the students may be diminished by exposure to an alternative method of conducting a trial. Furthermore, the discussion of alternative institutional and political systems can only help to increase students' global and comparative awareness. Also, the use of the inquisitorial simulation may stimulate critical thinking as to the injustices and inefficiencies that may sometimes be present in the American trial model (as well as the potential disadvantages of inquisitorial trial procedures). While many American students will likely remain committed to the adversarial system, exposure to the inquisitorial trial system through the simulation may provoke consideration of possible changes to the American method of conducting trials. For example, it is likely that a demonstration of the method of witness examination in the European process will spark much discussion of the potentially inefficient technique of eliciting oral testimony used in the adversarial trial system. Furthermore, the simulation is almost always enjoyable and fun for the students; their interest and enthusiasm is likely to be much greater when this active-learning technique is employed, and hopefully they will retain more of the material after the course ends. Finally, even if conducting a comparative trial simulation is not feasible for many instructors, it is hoped that the information provided in this article will allow those instructors to engage in class discussions comparing the different trial systems.
The inquisitorial trial simulation, described in detail below, can be used as a stand-alone role-playing exercise, or, the instructor can run both an American adversarial trial simulation and a European inquisitorial simulation.Footnote 3 The advantage of running both simulations is that the students can draw conclusions as to which system of trial they feel is most efficient and just.Footnote 4
THE ADVERSARIAL VERSUS THE INQUISITORIAL SYSTEM
Students are often surprised to learn that the Anglo-American method of conducting a legal trial—the adversarial or accusatorial system—is not the only trial system used in the world. Indeed, the adversarial system is relatively uncommon in the world. In this section, I will present a brief overview of the differences between the adversarial and inquisitorial trial systems and will note the literature regarding inquisitorial trial procedures.Footnote 5 This information can be used to educate the students regarding inquisitorial trials and can also form the basis for class discussions of the two trial systems.
The Anglo-American adversarial system of adjudication can best be described as “lawyer-centered,” while the European inquisitorial system can be portrayed as “judge-centered.”Footnote 6 In the adversarial trial process, the attorneys for the parties select the witnesses and conduct the questioning of those witnesses, while the single trial judge acts as a neutral (and usually silent) referee, and the jury (in felony criminal cases and some noncriminal matters) ultimately decides the issue of guilt or innocence. Jacob (Reference Jacob, Jacob, Blankenburg, Kritzer, Provine and Sanders1996) notes that the two defining features of the adversarial system are “the passivity of the judge (and court) and the activity of the adversaries … While judges wear the robes of state authority, in fact, they are often hostage to attorneys' tactics in American courts” (Jacob Reference Jacob, Jacob, Blankenburg, Kritzer, Provine and Sanders1996, 23–24). The accusatorial process presumes that the truth in a disputed matter will be revealed most efficiently through a quasi-competition between the parties (or adversaries). Thus, a trial in the adversarial adjudicatory process resembles a battle, and indeed, the origins of the common-law jury trial can be traced to the ancient English ordeal by battle (Levy Reference Levy1999).
The inquisitorial trial process, by contrast, relies upon the judge(s) to control the proceedings, call and question the witnesses, and ultimately make the determination as to guilt or innocence, as well. So, the role of the lawyer in the inquisitorial adjudicatory system is greatly diminished, in comparison to the adversarial trial system. The entire process is not confrontational as in the accusatorial system, but instead resembles an investigatory proceeding (Diehm Reference Diehm2001; Fairchild and Dammer Reference Fairchild and Dammer2001; Pizzi Reference Pizzi1999; Terrill Reference Terrill1999).
Although the inquisitorial system of trial varies considerably in practice around the world (as does the adversarial system), certain general differences between the two systems can be noted:
1. Most crucially, the role of attorneys is greatly diminished in inquisitorial systems and the influence of the judge is correspondingly increased. In most inquisitorial systems, there are no opening statements by counsel at the beginning of the trial. Rather, the presiding judge outlines the major legal issues and facts of the case. Furthermore, the judge may call certain witnesses if the witnesses have been identified by the parties (Langbein Reference Langbein1977), whereas, in adversarial systems, the witnesses are always decided by the attorneys.
Most importantly, the judge in inquisitorial systems is the primary person who asks questions of the witnesses during the trial, not the attorneys. The attorneys in an inquisitorial system do have the right to ask questions of the witnesses after the judge has concluded questioning, but this inquiry is usually limited, because witness interrogation at trial is considered to be the court's responsibility. Furthermore, there is generally no right to cross-examination of witnesses by counsel in inquisitorial trial systems.
2. The testimony of witnesses in inquisitorial systems is generally not constrained by rules of evidence and little evidence is excluded based on technical or constitutional grounds (Pizzi Reference Pizzi1999).
3. In general, there is no trial jury in inquisitorial legal systems.Footnote 7 However, there may be citizen participation in the form of lay judges in some countries (Reichel Reference Reichel2005). For example, in Germany, the presiding judge at the lower-level court is accompanied by two lay judges that have “full powers of interrogation, deliberation, voting, and sentencing” (Reichel Reference Reichel2005, 262).Footnote 8
4. In most inquisitorial trial systems, there is no plea bargaining in criminal cases (Pizzi Reference Pizzi1999).
5. In inquisitorial systems, the prosecutor in criminal cases is viewed as an neutral investigator, not an advocate for the state (Reichel Reference Reichel2005; Terrill Reference Terrill1999; Mack Reference Mack1996). The prosecutor investigates the crime and prepares the dossier, a thorough report of the investigation and pre-trial proceedings, which is used heavily by the judge during the trial (Fairchild and Dammer Reference Fairchild and Dammer2001).
In some nations, the investigation of a criminal matter is conducted by the procurator. The procurator is an investigating judge, a mixture of functions that is not seen in Anglo-American common-law legal systems. Terrill notes in regard to procurators that “their responsibility is not to secure a conviction; it is to assure that justice is done and that society's interests are served” (Terrill Reference Terrill1999, 229).
6. In criminal cases, the accused in an inquisitorial system is expected to cooperate with the investigators. This includes answering the questions of investigators and also testifying at trial (Mack Reference Mack1996). By contrast, defendants in the American system have a constitutional right to remain silent and refuse to cooperate with prosecutors. This reflects the fundamental ideological difference between the adversarial and inquisitorial systems: common law/adversarial trial systems emphasize individual rights through the due process of law. By contrast, inquisitorial trial systems de-emphasize the rights of the individual and focus instead upon the importance of determining the truth in a legal matter (Mack Reference Mack1996).
It should come as no surprise that a variety of scholars have criticized the Anglo-American adversarial trial system on a number of grounds and extolled the virtues of the inquisitorial trial model (Lerner Reference Lerner2001; Pizzi Reference Pizzi1999; Strier Reference Strier1996; Mack Reference Mack1996; Moskovitz Reference Moskovitz1995; Strier Reference Strier1992b). Again, these criticisms can form the basis for a class discussion of the merits of the two systems. First of all, trials under the inquisitorial system are definitely shorter in length (Pizzi Reference Pizzi1999). Because the judge in an inquisitorial system controls the questioning of witnesses and because there is typically no cross-examination, these trials are usually far shorter than trials in the accusatorial process. Also, advocates of the inquisitorial trial process claim that this system produces far more reliable evidentiary results. Put another way, it is asserted that the inquisitorial trial system does a better job at uncovering truth. The reasons for this are several. As noted above, the judge, who is not biased as are the advocates, controls the primary questioning of witnesses. Contrast this with the aggressive partisan approach of American attorneys. Furthermore, because the judge (or judges) determines guilt or innocence in inquisitorial systems, the biases and inherent limitations of juries are avoided. Finally, supporters of the inquisitorial trial system note that their process is less dependent upon the skill of the attorneys involved in the case, as may sometimes be the case in adversarial trials. That is, litigants with superior resources who can afford to hire a legal dream team would not be significantly advantaged in inquisitorial trial systems, because these procedures are not as lawyer driven. In summary, advocates for the inquisitorial adjudicative trial process contend that this system is not only more efficient, but also more reliable and just (Mack Reference Mack1996; Strier Reference Strier1992b). Of course, the inquisitorial trial model is subject to its own criticisms, primarily that too much power is placed into the hands of the judge, who may be subject to personal biases, and that the elimination of the jury also decreases the protection of individual rights from the state.
For those instructors who are seeking further information regarding the inquisitorial trial system, the following resources may be helpful. Pizzi (Reference Pizzi1999) is a provocative examination of the adversarial and inquisitorial systems, and is probably the best book-length introduction to the subject of comparative trial procedures. Strier (Reference Strier1992a) is a much shorter and equally useful introduction to the differences between the accusatorial and inquisitorial trial systems, while Spader (Reference Spader1999) discusses pedagogical techniques and strategies regarding comparative trial procedures. Cavise (Reference Cavise2006) and Cavise (Reference Cavise2007) present a useful introduction to inquisitorial procedures, especially in Latin American countries, while Diehm (Reference Diehm2001) discusses inquisitorial trial procedures in the former Soviet Union. Langbein (Reference Langbein1977) is one of the best analyses of German trial procedures, and Lerner (Reference Lerner2001) provides a very readable discussion of the French trial process. Reichel (Reference Reichel2005), Fairchild and Dammer (Reference Fairchild and Dammer2001), and Terrill (Reference Terrill1999) provide general reference works regarding the inquisitorial system in criminal cases, while those seeking a casebook presentation of comparative criminal procedures should look to Thaman (Reference Thaman2002). Frase (Reference Frase1998) also discusses the inquisitorial trial system in criminal matters, and legal analyses of continental trial procedures are found in Mack (Reference Mack1996) and Moskovitz (Reference Moskovitz1995). Finally, those interested in experimental research into the merits of the two trial systems should peruse Block and Parker (Reference Block and Parker2004) and Block et al. (Reference Block, Parker, Vyborna and Dusek2000; see also Deffains and Demougin Reference Deffains and Demougin2008).
THE INQUISITORIAL SIMULATION
In this section, I present the procedures necessary in order to run an inquisitorial trial simulation. It is worth repeating that the role-playing exercise described herein is a trial, not appellate, simulation. The inquisitorial simulation described here is an amalgam of inquisitorial procedures from various nations and represents an ideal type of inquisitorial trial procedures. Obviously, there is a considerable amount of variation in civil-law legal systems and trial procedures, and this simulation has been greatly simplified to facilitate student participation. It is estimated that a typical simulation can be run in two to three one-hour class sessions, depending upon the complexity of the mock-trial case that is being used.Footnote 9 As for the content of the trial simulation, either a criminal or non-criminal case can be used, but it is this instructor's experience that students tend to become more engaged with criminal-law simulations.
Roles
The basic simulation can run with as few as five students or as many as 12. There is a minimum of 10 roles: six witnesses, one defendant, one judge, and two lawyers. If the instructor wishes, just one student can play the part of all of the witnesses, reducing the number of students needed to five. The number of roles can also be increased, if necessary: two lay judges can be added, increasing the number of roles to 12. Of course, in larger classes, the number of roles can be expanded even further by adding witnesses and increasing the number of lawyers.
In accordance with trial procedures in inquisitorial systems, the instructor should seat the lawyers at the side of the room; they should not be allowed to stand or move about the room. Their questioning and participation must be conducted from their seats. This seating arrangement contrasts, of course, with the adversarial trial system where the lawyers are sometimes allowed to stand and travel about the room while conducting questioning of witnesses or making statements to the bench and jury.
Trial Procedures
The simulation should begin by the presiding judge giving an overview of the case. The judge should prepare a brief statement describing the case and the issues to be discussed at the trial. If there are lay judges used in the simulation, they should remain silent during the initial statement of the case by the presiding judge. There are no opening statements by the attorneys, which again contrasts with the American system.
The presiding judge decides the order of the witnesses, but the defendant should be called first to testify. Following actual practice in inquisitorial trial systems, no prepping or coaching of witnesses by counsel is allowed. The judge has the right to recall witnesses to the stand again. All witnesses (except the defendant) can be given an oath to tell the truth, if the instructor chooses. The defendant is not given the oath.
The defendant will be required to testify, and will usually be called first by the judge. If directly asked about his or her guilt during questioning, the defendant is allowed to stand mute and say nothing, but adverse inferences about the defendant's silence are allowed to be made. That is, the judge and/or attorneys are allowed to comment on the fact that the defendant did not directly answer the question as to his or her guilt.
The most important pedagogical element of the inquisitorial simulation is the questioning of the witnesses. In the inquisitorial system and in the simulation, the presiding judge conducts the questioning of witnesses. Furthermore, the judge is not bound by any type of questioning limitation, as would be the case in adversarial trial procedures. That is, the judge may ask leading questions and can allow hearsay testimony to be made. Generally, the judge should be instructed to use an informal tone during questioning. The questioning of witnesses should follow this order: presiding judge, lay judges (if any are used), prosecuting attorney, defense attorney.
The lawyers in the simulation may conduct limited questioning of the witnesses after the judge has completed the inquiry. But, there is no cross-examination of witnesses by the opposing lawyer. The professor should instruct the lawyers that questioning should not be confrontational in tone but rather informational and short. The professor should also instruct the judge that, if an attorney's questioning becomes confrontational or goes on too long, the judge should be directed to stop the questioning.
The judge is allowed to request any piece of evidence used in the simulation, without waiting for an attorney to introduce it. No evidentiary objections to evidence are allowed in the inquisitorial simulation. Thus, the judge is given nearly total discretion as to the introduction of evidence. After all witnesses have testified and all evidence has been introduced, the attorneys should make a brief final statement to the judge(s). The prosecuting attorney makes the first statement, followed by the defendant's attorney. After these closing statements, the presiding judge, or panel of judges, deliberates and supplies a verdict. The instructor can choose to have the judges deliberate openly, which may be of some benefit pedagogically, or the deliberations may be made privately.
In a criminal case, the legal standard of proof that should be used by the judges in the simulation is the same as in the adversarial trial system: guilt must be proven beyond a reasonable doubt. In civil (non-criminal) cases, the standard of proof to be used is also the same as in the adversarial system: liability must be proven by a preponderance of the evidence. Lay judges, if present, are allowed to vote on an equal standing with the presiding judge. A simple majority vote will suffice for the verdict; unanimity is not required. After the judge or judges make a decision, the verdict is read, and the presiding judge gives the reasons for the verdict.
Assessment
One of the most valuable elements of the inquisitorial trial simulation is student assessment and discussion. Whether the inquisitorial simulation is run by itself or followed by an adversarial trial simulation, it is crucial that the instructor conduct a class discussion wherein the students compare and contrast the advantages and disadvantages of the different systems. The instructor may wish to broach these issues in class discussions:
• Was the inquisitorial trial shorter and more efficient than the adversarial trial (or the typical adversarial trial)?
• Did different actors tend to dominate in the different trial systems?
• Which trial system is better in terms of providing the most accurate picture of the evidence in the case? Put another way, which system does a better job at revealing the facts of the case?
• Which trial system do the students prefer?
• Are there any reforms or improvements that could be incorporated into the American trial system?
It may also be useful to require the students to provide a written assessment of their performance in the simulation, as well as an overall analysis of the merits of the inquisitorial trial system. One approach would be to require a written self-evaluation, wherein each student-participant reflects upon the simulation and the lessons learned from it, and makes suggestions for changes or improvements.
CONCLUSION
The inquisitorial trial simulation described in this article can provide a new dimension to public law and comparative politics courses. Active exposure to the European trial model can not only illuminate the advantages and drawbacks of the American trial system, but can also increase student engagement in the course and create a memorable intellectual and pedagogical experience.
