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Class 5: The Trial: Juries, Judges and Plea
Bargaining
Introduction
Phases
A criminal case has two phases:
1. Pre-trial phase
2. Trial phase
Terminology
Pre-trial phase: suspect
o Related to presumption of innocence
Trial phase: accused or defendant
1. Inquisitorial vs. Accusatorial: History
In the early Middle Ages criminal procedure was more or less the same
throughout the whole of Western Europe
Caught red-handed?
o Led to citizen’s arrest → ‘citizen’s assassination’
Not caught red-handed?
o When you were not caught red-handed and didn’t confess, you could
rely on ‘oath helpers’ or ‘trial by ordeal’
Oath Helpers If someone could convince the requisite numbers of neighbours
sufficiently of his innocence, he was acquitted.
Ordeal God decides
There had to be a certain event through which God could give
his ordeal.
Water ordeal, fire ordeal, trial by combat
In the 12th century public faith in ordeals began to collapse due to the influence
of the Church
New approaches:
Continental Method of fact-finding
Europe o Trusted person would hold investigation,
question witnesses, record their statements in
writing and eventually decide the matter (alone
or with others)
= (origins of) inquisitorial system
Class 5: The Trial: Juries, Judges and Plea
Bargaining
Introduction
Phases
A criminal case has two phases:
1. Pre-trial phase
2. Trial phase
Terminology
Pre-trial phase: suspect
o Related to presumption of innocence
Trial phase: accused or defendant
1. Inquisitorial vs. Accusatorial: History
In the early Middle Ages criminal procedure was more or less the same
throughout the whole of Western Europe
Caught red-handed?
o Led to citizen’s arrest → ‘citizen’s assassination’
Not caught red-handed?
o When you were not caught red-handed and didn’t confess, you could
rely on ‘oath helpers’ or ‘trial by ordeal’
Oath Helpers If someone could convince the requisite numbers of neighbours
sufficiently of his innocence, he was acquitted.
Ordeal God decides
There had to be a certain event through which God could give
his ordeal.
Water ordeal, fire ordeal, trial by combat
In the 12th century public faith in ordeals began to collapse due to the influence
of the Church
New approaches:
Continental Method of fact-finding
Europe o Trusted person would hold investigation,
question witnesses, record their statements in
writing and eventually decide the matter (alone
or with others)
= (origins of) inquisitorial system
