Social Psychology of Punishment of Crime

In recent years, research interest has increased both in the needs of punishment by the public and in the psychological processes underlying decisions on sentencing. This comprehensive look at the social psychology of punishment focuses on recent advances, and presents new findings based on the authors’ own empirical research. Chapters explore the application of social psychology and social cognitive theories to decision making in the context of punishments by judges and the punitiveness of laymen. The book also highlights the different legal systems in the UK, US and Europe, discussing how attitudes to punishment can change in the context of cultural and social development.

• Language: English
• Publisher: Wiley
• Release date: Jun 15, 2015
• ISBN: 9781119161196

Book preview

Introduction

The Social Psychology of Punishment of Crime

Margit E. Oswald, Steffen Bieneck and Jörg Hupfeld-Heinemann

What part is penal law playing in people’s compliance with norms and laws? Is it perhaps only a superstition that people are deterred from breaking the law by the threat of punishment? The answer to these questions would be a resounding no. Rather, it seems, the severity and certainty of punishment contribute to the fact that people comply with the norms and values of their society. This holds in general, despite many exceptions in individual cases, although some studies support the view that mainly those individuals who are socially integrated and characterized by only a small inclination to become a criminal can be impressed by punishment (cf. chapter 22 for a detailed discussion of this argument). However, it is quite a different question as to whether punishment is the best way of proceeding to generate compliance to social norms and values. The present and very expensive model of deterrence can be criticized by stating that long-term compliance is based not on individuals’ fear of punishment but rather on the fact that their personal views about what is right and wrong comply with social norms, and that they often consider something that is accomplished in a fair way as right. The notion that values are rooted in procedural justice and lead to compliance is not a fiction but strongly supported by many studies (cf. chapter 2). However, it remains a difficult yet groundbreaking question as to what extent it would be possible in a pluralistic society to convince a sufficient number of individuals of the correctness of existing norms, and to prompt them to comply with those norms. In this area of conflict between the conventional penal system and more recent restorative approaches based on compensation and conflict resolution (cf. chapter 3), we are urged to question why there seems to be a still undiminished need for punishment among the population, and whether this need has anything at all to do with utilitarian goals of punishment (e.g., deterrence).

The excessive number of prisoners in the USA (Wacquant, 2005), or the continuing demand for an increase in the severity of penalties which can be observed in European countries immediately after the occurrence of spectacular cases of crimes, does not decrease but seems to remain constant, in spite of many arguments that question the value of punishment. For instance, the German public was shocked to hear the news of December 20, 2007, when two youngsters brutally beat up a 76-year-old pensioner in a Munich underground station. The reason for the attack was that the pensioner had asked the young men on the train to extinguish their cigarettes. As a consequence, the attackers went after the old man as he left the train and knocked him to the ground. This incident once more provoked a discussion in society as to whether the options for legal punishment of a perpetrator are sufficient. In fact, society demanded the maximum prison sentence for juvenile offenders in Germany be raised from 10 to 15 years.

This book tries to analyse the phenomenon of the need for punishment from a psychological, and especially from a social psychological, point of view. Leading researchers from all over the world and from different disciplines (criminology, psychology) contributed to this book. Its scope is not primarily on judges and prosecutors but more on laypersons who, as victims or as more or less unaffected third parties, express their very special opinions about how to react to criminal offences. Until recently, researchers in social psychology have shown little interest in the question of whether and why, in the view of the public, violations of social norms should be punished. During the last few years, the situation has changed considerably. An increasing research interest can be observed, both in the need for punishment by the public and in the psychological processes underlying decisions on punishment and sentencing. One of the reasons for the stronger interest in describing and explaining the punitiveness of the public is due to the important knowledge that the willingness of citizens to abide by the law, and to cooperate as witnesses, depends on the extent to which they consider the outcomes as just (cf. Robinson & Darley, 1995; Tyler et al., 1997). Persisting discrepancies between the punitiveness of the public and actual practices in the courts and in the correctional system (cf. chapter 4) might influence not only social cohesion but also crime rates. Another reason for the increasing interest in the social-cognitive processes underlying people’s reactions to violations of norms is due to new approaches in social cognition and moral reasoning. According to these approaches, reactions to violations of norms seem to be more prone to automatic processes and intuitive judgements than considered in the former (more rationalistic) approaches. Finally, the present research is characterized by a growing number of experimental studies, while in the past research was primarily based on the analysis of file records and interview studies.

In the first part of the book, we deal with the social political backgrounds of the need for punishment within societies. We are interested in the degree of need for punishment (chapters 4 and 7), and here above all in the question of whether penal populism does exist, i.e., a call for punishment exceeding the penalties imposed by the courts, as well as the question of what other variables can account for the increasing calls for punishment in society. We consider central aspects such as the role played by mass media (chapter 8), the threat to society perceived by the population (chapter 5) and the diversity of the penal systems in different countries (chapter 1). The last chapter in this part (chapter 7) looks at a special form of sanctioning (the death penalty) and explores public opinions on capital punishment.

The second part of the book is concerned with the need for punishment of laypersons from a social psychological point of view. Punishing norm-deviating behaviour seems to be an elementary human reaction that we apparently feel, even if we do not profit from the potential success of the punishment. Fehr and colleagues (Fehr & Fischbacher, 2004a, b), for instance, were able to demonstrate that the punishment of norm violations is a strong need not only for those individuals who are directly affected by the norm violation, but also for unaffected third parties. Although this finding is not particularly new, the authors impressively demonstrated that this need for punishment exists for third parties, even if the enforcement of social norms is personally costly for them. In a similar way, other studies could show that punishment demanded by the public is determined not so much by preventive goals but rather by retribution, and thus corresponds to the need to restore an equilibrium that was disturbed by the offence in the first place (cf. Darley, Carlsmith & Robinson, 2000). However, are sentences based on elaborated moral reflections, scarcely influenced by emotions like fear or anger, and clearly distinct from reactions of revenge? In a systematic attempt to differentiate between just sentences, on the one hand, and revenge, on the other (chapter 8), it becomes obvious that this differentiation is not as easily made as it might first appear. The attribution of responsibility, the influence of emotions and personal concern and the adherence to general principles do not seem to be reliable discriminating criteria, as postulated by Nozick (1981). Perhaps the adequacy of penal reactions and the degree of influence of extralegal factors upon the sentence could be more valid and important criteria to differentiate between revenge and fair punishment. The role of emotions in terms of how people derive their judgements has gained increasing attention, particularly during the past 20 years. This has led to the insight that social judgements are coloured by emotions, and that it is almost impossible to exclude emotions from the decision-making process (cf. Bornstein & Wiener, 2006; Ito & Cacioppo, 2001). Thus, rather than considering emotional responses as detrimental to social judgements, it might be worth taking into account that they are necessary ingredients in reaching a judgement (cf. chapter 9). Several studies were able to demonstrate that penal judgements are clearly influenced by incidental affects, i.e., by emotions that are elicited by situations unrelated to the actual stimulus or context (cf. Lerner, Goldberg & Tetlock, 1998; Mazzocco, Alicke & Davis, 2004; Rucker et al., 2004). Sentences are influenced not only by the respective amount of sympathy for defendant and victim or by the accidental amount of damage caused by the offence, but also by the group affiliation of the defendant (chapter 12). Above all, in a clear situation of guilt the defendant may question the positive status of his or her own group, and instead of favouritism towards this member of one’s own group (ingroup bias) it may occur that a defendant of one’s own group will be more severely punished than members of an outgroup (black sheep effect). In a similar fashion, Catholics in Canada recommended a harsher sentence to a member of a Catholic order who was accused of sexual abuse than Protestants did (cf. Vidmar, 2002). However, such automatic influences caused by emotional responses may be corrected. In addition, more controlled processes may enable subjects to correct or even over-correct biasing influences that may colour their judgements (chapter 10). This raises the question of whether laypersons, such as those in mock juries, differ from professional judges. It may well be that professional judges are less influenced by emotional reactions because they have become more accustomed in handling their responses, i.e., have become professional with respect to making decisions on affect-provoking matters. In addition, they are much more accountable for their judgements than lay judges are, a fact that in turn further facilitates controlling processes (cf. Tetlock & Boettger, 1989). Unfortunately, very little research has been done with professionals in criminal as well as civil justice (chapter 11). Most of the studies that were conducted with laypersons used short descriptions of criminal cases (vignettes) and measured the participants’ intentions to punish. Chapters 13 and 14 critically discuss methodological problems of experimental studies in psycholegal research.

The third part of the book deals with a basic distinction in social cognition research: the differentiation between theory-driven and data-driven information processing (Kunda, 1999). In theory-driven processing, perceivers interpret incoming social stimuli based on schematic, i.e., abstracted, knowledge structures, and assimilate the specific stimulus information into that pre-existing knowledge structure. In data-driven processing, perceivers exclusively rely on the information provided by the stimulus in their impression formation. This distinction between schematic and data-driven information processing is immediately relevant to legal information processing and decision-making. Whereas data-driven processing should predominate in the legal context, social psychological research convincingly demonstrated that processes and decisions are much more guided by so-called cognitive shortcuts and biases than has been assumed so far, and that this holds true not only for laypersons, but also for judges. Consequently, the chapters in the third section focus on the impact of cognitive shortcuts (i.e., heuristics; cf. Tversky & Kahneman, 1974) on information processing and decision-making. Chapter 15 provides an overview of different models of decision-making on guilt and sanctions that have recently been discussed in social psychology, and summarizes under what circumstances decision-making in criminal law is primarily based on deliberative, controlled processes, and when it is instead dominated by simple heuristics. During the last years, one specific heuristic has received exceptional attention: the anchoring effect. This phenomenon describes a general cognitive shortcut whereby individuals gauge numerical size by starting from an initial arbitrary or irrelevant value (an anchor), and adjust it during the subsequent course of decision-making to arrive at their final judgement. However, the adjustment of the judgement typically remains insufficient, thus leading to judgements that are biased in the direction of the starting value. Chapter 16 explains in detail the mechanisms of the anchoring effect and several other heuristics in the courtroom and illustrates their impact on verdicts with examples from empirical studies.

As mentioned above, legal decisions should primarily be based on the facts associated with the case. Still, there is an influence of so-called extralegal factors on verdicts. Research has shown that juror judgements rest upon a retrospective analysis of the complex evidence presented during the trial proceedings. However, jurors are unable to successfully encode, comprehend and retrieve all of the information. Therefore, they must rely on biased and imperfect memories. Chapter 17 presents a theoretical framework allowing a better understanding of how different memory effects can lead to biased verdicts.

While heuristics and memory distortions may lead to decisions that are based on irrelevant or misleading information, social psychology could show yet another important source for biased information processing: pre-existing stereotypical knowledge structures. Chapter 18 exemplifies the impact of stereotypical knowledge structures in cases of sexual assault, showing how socially shared beliefs about real rape that are at odds with reality affect both the victims’ interpretation of their experiences and the response of the criminal system.

Research has shown that all of the factors mentioned above can lead to biased decisions. However, sometimes it is still not quite clear what information judges and jurors actually should use and what information should be ignored. For example, is information about the defendant’s prior convictions relevant with respect to decisions on guilt, or may this information only be used when considering decisions on sanctions? Chapter 19 discusses this problem from different theoretical perspectives and presents empirical results regarding the influence of knowledge about previous convictions.

The admissibility of information about prior convictions is only one example of the fundamental problem of distinguishing legal from extralegal factors in sentencing decisions. This problem is, to some extent, a consequence of the extensive differences between jurisdictions. Chapter 20 focuses on a more psychological perspective with regard to extralegal factors in sentencing decisions and gives an extensive review of unconscious influences on sentencing in terms of characteristics of the decision makers (e.g., sentencing philosophies), the case (e.g., the offender’s attractiveness, unintended consequences of the criminal conduct) and the victim (e.g., gender).

In the fourth and final part of the book, we come back to our initial question of which role the penal law plays in the perpetuation of norms and laws. Chapter 21 examines the empirical results concerning the impact of a prison sentence on the defendant. In chapter 22, the focus is eventually laid on the victims of assaults and the ways they are affected through their legal involvement. Relevant decision criteria are provided as to whether or not victims should be advised to report the assault to the police.

The aim of this book is to provide the reader with an overview of the ongoing social psychological research as applied to punishment and sanctioning. The success of this book depends entirely on the authors, who volunteered their time and expertise. We are grateful to all our authors, for they provided us with excellent chapters in a timely fashion. We are especially grateful to Pascal Biber and Cornelia Stauffer for their efficiency and support during the preparation of the manuscript. Thanks are also due to Irène Gonce, Nick Emler and the Wiley psychology team for their help and encouragement. And last but not least, we would like to thank the anonymous reviewers for their valuable comments on earlier drafts of the chapters. We hope that this book stimulates future research.

References

Bornstein, B., & Wiener, R. (2006). Introduction to the special issue on emotion in legal judgment and decision-making. Law and Human Behavior, 30, 115–118.

Darley, J. M., Carlsmith, K. M., & Robinson, P. H. (2000). Incapacitation and just deserts as motives for punishment. Law and Human Behavior, 24, 659–683.

Fehr, E., & Fischbacher, U. (2004a). Social norms and human cooperation. Trends in Cognitive Sciences, 8, 185–190.

Fehr, E., & Fischbacher, U. (2004b). Third-party punishment and social norms. Evolution and Human Behavior, 25, 63–87.

Ito, T. A., & Cacioppo,J. T. (2001). Affect and attitudes: A social neuroscience approach. In J. P. Forgas (Ed.), The handbook of affect and social cognition (pp. 50–74). Hillsdale, NJ: Erlbaum.

Kunda, Z. (1999). Social cognition. Making sense of people. Cambridge, MA: MIT Press.

Lerner, J. S., Goldberg, J. PL, & Tetlock, P. E. (1998). Sober second thought: The effects of accountability, anger and authoritarianism on attributions of responsibility. Personality and Social Psychology Bulletin, 24, 563–574.

Mazzocco, P. J., Alicke, M. D., & Davis, T. L. (2004). On the robustness of outcome bias: No constraint by prior culpability. Basic and Applied Social Psychology, 26, 131–146.

Nozick, R. (1981). Philosophical explanations. Cambridge, MA: Harvard University Press.

Robinson, P. H., & Darley, J. M. (1995). Justice, liability and blame: Community views and the criminal law. Boulder, CO: Westview.

Rucker, D. D., Polifroni, M., Tetlock, P. E., & Scott, A. L. (2004). On the assignment of punishment: The impact of general-societal threat and the moderating role of severity. Personality and Social Psychology Bulletin, 30, 673–684.

Tetlock, P. E., & Boettger, R. (1989). Accountability: A social magnifier of the dilution effect. Journal of Personality and Social Psychology, 57, 388–398.

Tversky, A., & Kahneman, D. (1974). Judgment under uncertainty: Heuristics and biases. Science, 185, 1124–1131.

Tyler, T., Boeckmann, R. J., Smith, H. J., & Huo, Y. J. (1997). Social justice in a diverse society. Boulder, CO: Westview.

Vidmar, N. (2002). Retributive justice: Its social context. In M. Ross & D. T. Miller (Eds.), The justice motive in everyday life (pp. 291–313). Cambridge: Cambridge University Press.

Wacquant, L. (2005). The great penal leap backward: Incarceration in America from Nixon to Clinton. In J. Pratt, D. Brown, M. Brown, S. Hallswort & W. Morrison (Eds.), The new punitiveness (pp. 3–26). Cullompton, UK: Willan.

PART I

Attitudes towards Punishment and Legal Sanctions in a Changing Society

CHAPTER ONE

The diversity of nations and legal systems – contrasting the Dutch and the Americans

Peter J. van Koppen

Introduction

If someone from abroad sought to understand the Dutch and to this end attended a Dutch criminal trial, one single emotion would dominate: boredom. Formally, Dutch trials do not differ that much from those in other countries. The judge, or in more serious cases a panel of three judges, is supposed to examine evidence and witnesses in the course of a courtroom trial. Dutch practice, however, has become a form of trial that consists merely of examining documents. Police officers write up statements by witnesses and suspects in documents that are called proces-verbaal. Likewise, whoever has examined anything, such as crime scene investigators, police officers and experts, produces reports. Together these and other papers form the dossier that is the central core of the criminal trial. All professional participants have studied the dossier before the trial proper. At trial, these documents are mentioned, sometimes discussed, and commonly nothing else happens except closing arguments by prosecution and defence and the traditional last word for the defendant.

Those in the public gallery are often left flabbergasted. Trials are over in a jiffy. In fact, trials that last longer than a day are very rare indeed. Sometimes those in the public gallery who do not know any of the participants may leave afterwards without knowing what really happened at trial or what was supposed to have happened during the crime. Dutch lawyers call this efficiency and professionalism (De Roos, 2000; Maisch, 2003).

I must admit that this picture is an exaggeration, but only a little. Indeed, sometimes witnesses and experts are called at trial and, indeed, sometimes trials do last longer than a single day. The trial, however, demonstrates that the Dutch criminal legal system is at one extreme of the adversarial–inquisitorial dimension.

In its basic form, an inquisitorial system is a legal system in which the trial is modeled as an inquest, an inquiry by judges directed at establishing the truth. The court-controlled pursuit of facts cannot be limited by the mutual consent of the participants. Once a case is brought before the court, the court takes its own responsibility for finding the truth (Damaška, 1973, p. 564). An adversarial system is modeled as a contest between equivalent rivals, where fair behaviour is an essential feature. Please note from the outset that inquisitorial systems do also differ considerably from country to country, as do adversarial systems. Beyond this, systems are changing all the time in a very dynamic manner. And in truth, pure inquisitorial and pure adversarial systems do not in fact exist. They can and should be considered to be on a dimension.

At the opposite extreme from the Dutch on this dimension are the Anglo-Saxon systems, especially those in the United States. Many Dutchmen think that all criminal cases in these systems are tried in front of a jury, and many also think that these jury trials are always as exciting as the common court case movie. Every few years, the discussion flares up in the Netherlands around the proposition that we should introduce lay juries in Dutch criminal trials (for instance, Van Eenennaam, 1995; Zijderveld, 1994). Usually, the two main arguments are that this would take away problems of legitimacy from the judiciary and this would bring law closer to the people (Bovend’Eert, 2001; Cleiren & De Roos, 2002; Tak, 2002; Van Koppen, 2003). Perhaps some lawyers also have a hidden agenda to make Dutch criminal law more fun and exciting, while the less hidden agenda is that it would force the professional participants to start talking in terms understandable to ordinary people. Besides this, many are aware that the Netherlands also had criminal juries for a few years, during the French occupation at the beginning of the nineteenth century (Bossers, 1987). Nobody realizes that juries have their downsides too. I return to that later.

In these discussions, it remains routinely unnoticed that adversarial and inquisitorial systems do not just differ in the absence and presence of juries. In fact, this is not even the most important difference, since many inquisitorial systems have some form of lay participation in decision making in criminal cases (Kaplan & Martin, 2005). On the contrary, these systems differ on many significant and interrelated aspects. This chapter is meant to demonstrate that these systems differ and to demonstrate why they differ.

I am aware that the criminal legal system of the Netherlands and the criminal legal system of several American states are at opposite extremes of the inquisitorial–adversarial dimension (Nijboer, 2000). Most other systems are somewhere in between and also invariably have their own peculiarities. Discussing other legal systems than the Dutch and the American, however, will not add anything to my demonstration. Besides that, I know too little of most of these systems to write about them with any authority. So, let the limited demonstration begin.

Thibaut and Walker

If we were to follow Thibaut and Walker’s (1975) analysis, our demonstration could be very short. In their experiments, they found that subjects in several different countries have a preference for a trial in which the role of the judge is limited to that of an arbiter for instances where the two parties cannot agree. The parties control the presentation of the facts of the case, reassuring both parties that the trier of fact becomes aware of all the facts each party deems relevant. That is considered a form of trial that serves justice best, not just in countries with this form of trial, but also by subjects in countries with inquisitorial arrangements. The conclusion that is drawn from these studies is simple and straightforward: the common law tradition produces more justice and these inquisitorial countries should therefore adopt the American system as soon as possible.

Such a conclusion would be premature (Crombag, 2003). Thibaut and Walker, and those who endorse their conclusions, forget that the form of trial is just one of the many differences between the Anglo-American adversarial tradition and the continental European inquisitorial systems. Let me mention just one, but an important one. In most systems where criminal trials are held without a jury, full appeals of the decisions of the lower court are possible. In the Netherlands, for instance, both parties can appeal any final decision by the lower court, taking it to the Court of Appeals where a trial de novo is held. Such an appellate trial is more detached from the daily pressure of handling many cases. Also, since many of the issues have been discussed at the trial court, the Court of Appeals can itself focus on the important issues in dispute, both on matters of fact and on matters of law.

In the same vein, there are many further differences between adversarial and inquisitorial systems that make comparisons difficult. These systems are dynamic entities that are formed by statutes, judicial decisions and traditions, which too are changing all the time. Recently, for instance, both the American and the Dutch systems changed in response to the 11 September attack in the United States and the assumed general threat of terrorism. In the Netherlands, major changes have recently taken place in the operations of the police and the prosecution in the aftermath of a single, but very dramatic miscarriage of justice (Van Koppen, 2008). In Belgium, to give an example from another country, a trial by jury is necessary if the prosecution seeks a life sentence and for several other reasons. So, some 50 times a year, the Court d’Assisen sits in Belgium. Italy even changed camps in 1989, when it introduced a quite adversarial Code of Criminal Procedure, although mostly for practical reasons (Van Cleave, 1997). In the following pages, I will draw pictures that are, in the sketched sense, limited and temporary.

The aim of the criminal justice system

The primary aim of any criminal justice system is to end a social problem and restore a form of peace. Having said that, it should be noted that, in the classical form of the rechtsstaat, judges, juries and the legal system are also meant to protect the suspect from revenge from his victims and from the unrestrained power of government in ending social problems and restoring peace. The criminal legal system is thus essentially connected to the operation of society in general. I will demonstrate that the American and the Dutch systems differ because they stem from widely divergent societies. To understand the legal systems, it is necessary to understand a little more of these societies.

The Netherlands is a small country at the borders of the North Sea. In fact, much of the country is below sea level and many of the lower parts of the country are polders, land taken from the sea and land that needs constant protection from the sea. The maintenance of dikes, repairing broken dikes and pumping away water used only to be possible if the whole of the community undertook a common effort.

Undertaking a common effort, however, is not automatically given in a society such as the Dutch. From the days of old, Dutch society consisted of groups of people – called zuilen or pillars – that were incompatible and would not mix: Catholics, Protestants, humanists and, from the end of the nineteenth century, socialists (Kossmann, 1978). Political life, a stable society and, more generally, the constant effort of the struggle against the sea were only possible if these pillars were prepared to set aside their incompatible beliefs (Lijphart, 1975, 1988). This has led to two typical characteristics of Dutch society: a high tolerance for people with different beliefs and ways of life and a tendency to solve issues by compromise. This takes the form of a pacificatory democracy, in which many denominations are represented in parliament (usually some 10–15 different parties) and governments are always coalition administrations (Andeweg, 2000; Lijphart, 1975). It also leads to a tendency to depoliticize hot political issues. Compromise is the key word in Dutch society.

The struggle against the sea that leads to compromise is the romantic version of Dutch society. A less romantic one is that, being a small nation with few natural resources, Dutch economy has always rested on trade and fighting wars. Warriors and tradesmen are not the kinds of people with a lot of principles. They prefer compromise, as long as business is flowing. Before I discuss the consequences for the legal system, let me sketch American society.

In the United States, the legal culture is much more based on emphasis of and protection of individual legal rights against the government. That government is best, which governs least is a nice characterization of this attitude (Thoreau, 1849/1964; the citation is often attributed to Jefferson). Contrary to the Dutch, in American society, values are core moral elements. Holland describes this phenomenon as follows:

Ideas of constitutionalism, individualism, liberalism, democracy, and egalitarianism are no monopoly to Americans. In some societies, some people subscribe to many of these ideas and in other societies many people subscribe to some of these ideas. In no other society, however, are all of these ideas so widely adhered to by so many people as they are in the United States. (Holland, 1988, p. 105)

According to Huntington (1981), this has had a decisive influence on American society. In contrast to other Western democracies, Americans have a widely shared passion and that passion has changed remarkably little since it was described by Alexis de Tocqueville in 1835 (De Tocqueville, 1835). Bryce (1891) called this the American Creed:

(1) the individual has sacred rights; (2) the source of political power is the people; (3) all governments are limited by law and the people; (4) local government is preferred to national government; (5) the majority is wiser than the minority; and (6) the less government, the better.

These values point to the primacy of the rule of law in the United States, which governs conflicts, social behaviour and the limited role of government. Bryce states that

Americans had no theory of the State and felt no need for one [...]. The nation is nothing but so many individuals. The government is nothing but certain representatives and officials. (Bryce, 1891, pp. 417–418)

In terms of the three principles of justice – need, equality and equity (Berkowitz & Walster, 1976; Cohen, 1987; Walster, Walster & Berscheid, 1978) – the first two more suit Dutch legal culture and the last more the American. Divisions according to need or equal divisions do represent a better fit with the compromise character of Dutch society, while dividing according to everyone’s input is closer to American culture.

To show how these different social arrangements led to different criminal law systems, I turn to the elegant description given by Hans Crombag (2003). He observes that under the adversarial system, both parties are deemed to be equal and their inherent inequality – the state against the individual defendant – is compensated by the judge who, during arguments, is an umpire who sees to it that the parties abide by the rules regulating their contest (Damaška, 1973, p. 563). Damaška makes a distinction between the essentialia of the adversarial tradition and its naturalia. Some elements are essential to the functioning of the legal system. Others are not, but elements like being judged by one’s peers or oral presentation of evidence in court are matters of natural choice (Damaška, 1973). Crombag adds that plea-bargaining is also a naturalia since it follows decision making by juries. I return to this later.

Under the inquisitorial model, criminal procedure is not a contest, but an inquest. It is an official inquiry into the truth. The inquiry is under the control of the court; finding the truth is also the court’s responsibility (Damaška, 1973). Whatever gets in the way of finding the truth is usually put aside, like technicalities or fair play. They are, according to Damaška, the essentialia of the inquisitorial system. Plea-bargaining does not fit into the inquisitorial system since it is alien to a search for truth (Van Cleave, 1997). And presentation by way of documents can be regarded, Damaška proposes, as one of the naturalia of the inquisitorial system.

Crombag (2003) argued that the two procedural models have the same ultimate goal, serving justice, but do this by serving different proximate goals:

The tradition is not indifferent to the truth, but it adheres to a particular way of establishing the truth, a way best described by the well-known French dictum du choc des opinions jaillit la vérité. Fair play is the proximate goal of the adversarial model. Because fair play is the proximate goal, the tradition occasionally appears willing to compromise its search for the truth in order to uphold the rules of fair play.

In the inquisitorial model truth itself is the proximate goal of the system. The tradition is not indifferent to fair play, but on occasions may appear willing to sacrifice fair play to the uninhibited pursuit of the truth. The parties themselves, blinded by their emotions, are considered incapable of pursuing the truth. A detached and wise adjudicator, using whichever method he or she deems fit, is much better placed to do so. (Crombag, 2003, pp. 23–24)

Following Damaška (1973), each system has a different commitment to the discovery of truth. The differences reflect the differences of states as discussed above. In the same manner as I described the United States, Damaška describes it as a reactive state that exists to help citizens to pursue their own goals. The law, in such a state, comes from private agreement, because self-management is highly valued. A typical inquisitorial state is an activist state, where law springs from the state and its policies. Legal procedure is in fact meant to implement state policy.

Some consequences of the differences

The differences between the Netherlands and the United States are reflected in their criminal justice systems (these differences have been previously examined in Van Koppen & Penrod, 2003a). In general, Dutch courts are more active – as is government in general – than in the United States. Moreover, Dutch judges, following the compromise-oriented nature of the country, strive for compromise. Judges in the United States, by the very nature of being relatively passive arbiters, will more often choose for the position of one of the parties. In this sense, the Dutch seem softer than the Americans. Whether that is really true, I dare not say. The United States is renowned for the heavy punishments of their verdicts. The Dutch had been known for their leniency. In fact, some 15 years ago, the Dutch rendered the most lenient verdicts in Western Europe. This has changed to a position at the very top, right after the British (Grapendaal, Groen & Van der Heide, 1997; Wang et al., 2003).

The prosecution role

The most telling differences between the Dutch and the American versions of justice may be the roles of the participants during criminal proceedings before, at and after trial. Most typical of these differences is the role of the prosecution. In the Netherlands, the public prosecutor (officier van justitie) is a magistrate. The Dutch prosecutor heads all police investigations. For most investigations, that is a formal responsibility, but in major cases the prosecutor indeed may lead the police team on a daily basis. The prosecutor also prosecutes, but with three major differences from his American counterpart.

First, the Dutch prosecutor is responsible for the completeness and integrity of the case dossier. Since the trial is based mostly on documents, this is a central role in the criminal proceedings. In general, the prosecution is trusted, indeed must be trusted, for otherwise the core element of the trial, the dossier, crumbles. In some recent cases, prosecutors have been accused of lying. It can be demonstrated that this causes a real crisis in the criminal justice system (Van Koppen, 2008).

Second, the Dutch prosecutor is not there to prosecute, but is an independent magistrate who has to form his or her own opinion of the merits of the case against the defendant and act on this. Therefore, it can sometimes happen that the prosecutor becomes of the opinion, just prior to or during trial, that there is too little evidence to convict and as a consequence demands an acquittal at trial. More often, this happens at appeal. For instance, the prosecutor appeals against an acquittal by the trial court, but the prosecutor at the Court of Appeal (called advocaat-generaal) agrees with the trial court and thus also demands an acquittal on appeal.

I am aware that the American Bar Association ethical standards governing the function of the prosecutor specify similar behaviour for American prosecutors. They should only prosecute when there is probable cause to do so. The major difference seems to be that, in practice, the criterion for not pursuing a case is that it is a no-win case for American prosecutors, whereas Dutch prosecutors would, if they were themselves judges, acquit. Note, however, that the practice of plea-bargaining, present in the United States and unknown in the Netherlands, may obscure all kinds of differences in reasons for dropping cases.

The third difference also brings to light typical differences in role between Dutch and American prosecutors. This difference concerns the manner in which witnesses are called at trial. Witnesses at trial are rare in Dutch criminal cases; American trials are organized around questioning witnesses. In American cases, the parties call their own witnesses. In Dutch cases, the prosecutor is the one who calls all witnesses. If the defence wants witnesses at trial, it has to ask the prosecutor and has to give reasons to the prosecutor for this request. The prosecution can refuse to summon some or all witnesses, and often does so, sometimes with the argument that calling a certain witness is not in the interest of the defence. Of course this decision can be appealed to the full court and if the court agrees with the defence, the witness in question is summoned for the next session of the court. Because of overloaded court dockets, such a session may take place only after 3 months. In this manner, the prosecutor presents the defence with a dilemma: it has to choose between the gamble that its case is sufficiently strong to convince the court without the witness in question and without therefore awaiting the next session of the court, including an extra 3 months of custody for the defendant.

Changing roles

The roles of prosecution and defence have been changing during the last decade in the Netherlands. Previously, a Dutch criminal trial was indeed inquisitorial and anything but a battle. It took the form more of a polite conversation between men in black robes (judges, prosecutor and attorneys for the defence are all robed) about the best resolution of the case at hand. The conversation was based on mutual trust and respect, and all this happened over the head of the defendant, whose role at trial was marginal. The professional participants together, although each starting from their own point, were searching for the truth. These participants also needed each other; they could expect to encounter each other in the future and if one of them took a too uncompromising position, it could injure future relations and cases. The defendant was indeed the object of the inquisition. He could not give directions to his attorney but rather the attorney held the so-called domus litis: in the end, the defence attorney always decided what procedural strategy should be taken. Finally, attorneys handled few criminal cases compared to their core business, which was civil law. These criminal cases were done pro bono, really for free as a gentleman’s gesture to the public.

In recent years, this picture has changed considerably. This change reflects several causes. One is that a specialized criminal bar now exists. The emergence of this bar has been made possible by at least two developments. First, there now is a state-financed legal aid system under which anyone who earns too little can have his attorney paid by the state. These are not state-employed attorneys; defendants can choose any attorney and can have the bill sent to the state. This system has grown from the desire to finance the liberal bar, which saw being an attorney as part of a quest to better society. The second development was the war against drugs that was forced upon the Dutch by treaties. That war produced a category of clients able to afford high payments to their attorneys. These two forms of finance, state legal aid and drug-generated money, made a specialized criminal bar possible.

This specialized criminal bar takes a different attitude towards its clients than attorneys used to have. They more often follow the wishes of their clients and regard the interest of their clients as the sole legitimate basis for their actions during the proceedings. This change of attorney behaviour has consequences for how prosecutors behave. If one of the gentleman participants stops participating in polite conversation, then there is no conversation left for the other gentlemen. As a result of this development, prosecutors have started behaving less as magistrates and more in the manner familiar to us from the United States. The relation between attorney and prosecution is becoming more and more an antagonistic or adversarial element in the Dutch inquisitorial system, especially in high-profile cases. The Dutch call this kind of antagonistic behaviour, by the way, an American form of trial.

The altered role of the prosecution has also been precipitated by some other changes. One hallmark event was a parliamentary investigation on police behaviour at the beginning of the 1990s (Parlementaire Enquêtecommissie Opsporingsmethoden, 1996), which showed that the police conducted investigations in drug cases in an illegal or semi-illegal manner. This was a dramatic shock for the Dutch who, as previously noted, believed in the integrity of the state and its officials. This was also a shock for the prosecution who, although formally responsible for all police investigations, kept a very detached and magistrate-like form of relation towards the police. Subsequently, the prosecutors have become more actively involved in police investigations, especially the larger ones. Extensive cooperation with the police, however, makes the prosecutor less a magistrate in these cases and more of, together with the police, a crime fighter. But this role, again, places them in another kind of relation to the defence: less gentlemen-like, more that of an American prosecutor.

A final influence on the relation between prosecution and defence attorneys in criminal cases comes from Strasbourg, and more precisely the European Court of Human Rights. Its decisions have had a profound influence on criminal procedure in the member states. Note that this court is not a body of the European Union, but of the Council of Europe, a body that has 47 member states, all European except Belarus. This court consists of justices from both inquisitorial and adversarial systems, and this is apparent from its decisions. Although the Court sets the margins within which the national legal systems have to operate, its decisions introduce inquisitorial elements into adversarial systems and vice versa. One important consequence is that witnesses are expected to be summoned to trial more often. Their very presence and the interrogation of witnesses leave less room for a polite conversation of gentlemen.

Different witnesses

Even if witnesses are summoned to a Dutch trial, they are supposed to behave quite differently from American witnesses. There is nothing like an examination-in-chief or cross-examination in Dutch courts. In the American tradition, the cross-examination is considered the best means to arrive at the truth in a criminal trial (Park, 2003). From the antagonistic treatment of witnesses, one expects the truth to emerge. In Dutch courts, following the inquisitorial tradition, witnesses are usually questioned first by the president of the court, then by the other two judges, the oldest first, after which the prosecution, the attorney for the defence and the defendant, in that sequence, can ask additional questions. Harsh questioning of a witness happens, but is quite rare.

The most striking difference between the two systems is probably the manner in which children are treated as witnesses. In the Netherlands child witnesses – often in sexual abuse cases where they are the alleged victims – are interviewed by a specially trained police officer (Dekens & Van der Sleen, 1997). This is almost always done in a specially designed interview room at a police station. The interviews are videotaped from an adjacent room with a view of the interview through a one-way mirror. The colours of the room, the type of furniture and toys are designed to make the child feel as much as possible at ease. In almost all cases, this single interview of the child is the only interview that is held; children are never summoned to court to testify and only rarely is it accepted that they are interviewed on a second occasion. Almost never are the defence attorney or the defendant allowed to pose direct questions to the child. This manner of handling children entails a high degree of trust in those police officers who interview children, a further sign of the traditional Dutch trust in state officers. Also, it demonstrates that protecting these children is valued more highly than such matters as a fair trial or the rights of the defendant.

In contrast, child witnesses in the United States are in principle treated just like any other witness (Cordon, Goodman & Anderson, 2003), although in many courts they can testify via a video link or behind a screen, so that they are not confronted with the defendant directly. This demonstrates that the right to question witnesses and the right of defendants to confront their accusers is valued above the protection of child witnesses. It also introduces a host of additional problems. It becomes important to find out how much knowledge these children have of the court, how they react to interrogators who are not very qualified to question children and, most important, how children are able to cope with testifying in public and in front of the defendant who may have already victimized them.

A comparable difference is found with respect to expert witnesses. In the Netherlands, experts are usually court appointed – in practice in an early stage by the judge commissioner (the rechter-commissaris, the investigating judge, a function somewhat comparable to the French juge d’instruction). If either the prosecution or the defence wants to introduce an expert into the proceedings, this is usually done by asking the judge commissioner to appoint one. For the defence, there are good reasons to do so: if the judge commissioner appoints, the costs are covered by the state. Defence attorneys only hire experts themselves in two circumstances: (1) when the request has been turned down by the judge commissioner and (2) when the defence attorney considers it in the interest of the client to divulge the expert’s report only if it is favourable to the client.

The treatment of experts at trial is maybe the most striking difference. In the United States, one first and foremost tests the credibility of the expert. This may turn into a form of grilling of the expert (see Loftus & Ketcham, 1991 for some excellent examples) that is unheard of in the Netherlands. In this latter system in contrast, experts are taken at face value and their credibility is seldom an issue. If this does arise, the expert is questioned about credentials in a cursory manner and the discussion quickly moves on to the points at issue (Broeders, 2003).

The jury and the rules of evidence

All this is typically done in a Dutch atmosphere of compromise. Foreign colleagues who attend Dutch trials always remark on the rather informal and cordial behaviour of all participants. It still is a gentleman-like – although nowadays most professional participants are female – discussion of the problem at hand. Introduction of a jury would definitely make the trial more formal.

Please note that the basic form of the American trial is trial by jury, even though in most cases defendants waive their right to trial by jury or plead guilty after plea-bargaining and thus never see a jury. Trials are always conducted by a single sitting judge, at least at the trial level. The basic model of the Dutch legal system is a bench trial – three judges – but minor cases can be handled by a single judge. The Dutch seem to have no jury because so much trust is placed in the state and in its professional officers. The Americans do have a jury because they do not trust their government (Hans & Vidmar, 1986). The resulting difference is much more than just a difference in atmosphere at trial.

An important resulting difference concerns the rules of evidence. In the United States, it follows from the jury model that the judge has to decide on the admissibility of evidence, that is to say, what can and cannot be presented to the jury and in what form. This has led to an extensive body of rules of evidence. In the Netherlands, there are very few rules of evidence and the rules that do exist concern the manner in which evidence can be used in decision making. There is a simple explanation for this difference. In the United States judges are gatekeepers; juries are decision makers. Dutch judges are both gatekeepers and decision makers. It does not make sense that these functions are kept apart because deciding on admissibility would require the court to evaluate the evidence anyway. Dutch judges are thus inclined to have all evidence introduced at trial via the dossier, and then at the decision-making stage decide which pieces of evidence have probative value and will be used for the decision and which will not. Only in a few cases is the admissibility of evidence an issue, and these are usually related to questions of police misconduct or failure to follow proper procedure.

A second consequence is that under a system of jury trials, the oral character of the trial is a necessity. Everything has to be presented to the jury during trial. In the Netherlands, the revision of the Code of Criminal Procedure in 1926 also strongly favoured trial orality. This mode of trial was, however, thrown out by the Dutch Supreme Court in the very same year in which it allowed police proces-verhaals of witness and suspect statements – and thus hearsay evidence – as modes of evidence. This was the start of trial by documents alone in the Netherlands. If parties wish to introduce some form of orality at trial, it always has to be asked for. This holds in particular for the defence, since the prosecution controls the calling of witnesses. If the defence wishes to call a witness or to show a video of police interrogations or to introduce some other form of live demonstration, it always has to fight against the argument that all this is in the dossier anyway, so what purpose does the demonstration serve? The natural state of affairs under the Dutch form of inquisitorial procedure is towards reliance on the documents; orality is the exception. In the American system, the natural state is orality. If documents do have to be introduced at trial, the preferred form is reading them aloud to the judge and jury, even if it would be preferable to examine these documents.

A third resulting difference – there are others that I will not discuss – is that in one system all cases are treated the same but not in the other. In a jury system, such as that in the United States, a lot of time and effort is devoted to each case. It would be impossible to devote such time to every case and, if all defendants chose to exercise their constitutional right to trial by jury, the whole criminal law system would collapse. Consequently, there has to be a means to divert most cases away from the jury. This means is plea-bargaining (Gorr, 2000; Micelli, 1996; Palermo et al., 1998). At any point during pre-trial procedures or even after trial, before the jury has reached a verdict, the prosecution and the defence can come to an agreement as to the precise nature of the crime and the sentence it merits. This agreement is then reviewed by the judge in a marginal fashion and is usually reflected in the judge’s decision.

In the Netherlands, all cases go to a full trial. In most cases, defendants make a pre-trial confession and maintain that confession at trial. Note that this is something different from the formal trial position taken by an American defendant who either pleads guilty or not guilty. The confession in the Netherlands is related to the material truth, but of course also gives an indication of what trial position the defendant may take. In most cases, there is not just the confession, but also much evidence pointing at the guilt of the suspect. In these cases, discussion at trial focuses on the sentence, and discussion of the evidence remains limited. This means that in all cases, even in those that are clear-cut, evidence is discussed.

If one compares a system like the Dutch to a system like the American, one should not compare the Dutch procedure to a jury trial, but to a system in which the decision is reached through plea-bargaining. In the majority of these cases, all the highly praised advantages of a jury trial are absent. A negotiated arrangement is reached in closed chambers. Such an arrangement is usually made so that nobody really evaluates all the evidence in the case, and under such an arrangement, all kinds of unwanted elements that may be alien to a fair administration of justice could play a role. It can pose dilemmas for defendants that are not relevant to Dutch defendants. For instance, an innocent defendant must choose between a jury trial concluding with the death penalty and a negotiated agreement in which he or she gets life in prison. Alternatively, suppose you are an innocent defendant confronted with a fair amount of damaging evidence (a good example is the case of Paul Ingram; see Olio & Cornell, 1998; Wright, 1993a, b). You are faced with the decision during plea-bargaining either to cut your losses or to take your chance with an unpredictable jury. Dutch defendants do not face such a dilemma (Gross, 1996). Each case goes to trial and in each case, the court reviews the evidence. This at least gives the innocent defendant a second chance to have the damaging evidence reviewed in court, without being posed with plea-bargaining dilemmas, and this may, at least in some cases, afford extra protection to the innocent defendant.

Conclusions

In the present chapter, I have tried to demonstrate that differences in the structure of nations produce differences in the operation of their legal systems. I have done so using a comparison between the Netherlands and the United States as my example. I could have used other countries but did not because I know less about their systems. I am well aware that these various systems differ from one another in many respects. For instance, even the Netherlands and Belgium, countries that shared a common legal history until very recently, differ from one another. I am also aware that legal systems within the United States itself display many differences among themselves. In addition, all these legal systems are dynamic, even to the extent that, like the Italian system, they can entirely swap places and change from one system to the other. My comparison between the Netherlands and the United States, therefore, must be seen as an idealized version of such a comparison.

I deliberately evaded one question: what system produces better justice, whatever the definition of justice may be in this respect (see about such matters in Van Koppen & Penrod, 2003b, passim)? This would have led us into an extensive discussion of what can be considered better justice, but more importantly, also into a fruitless discussion as to what effects on actual cases all these and indeed other undiscussed differences may have. This is a discussion with too many degrees of freedom, so many indeed that it would serve no useful purpose. Therefore, in the final analysis, there is just one way for me to decide what is better and that is follow my own judgement and gut feeling. Let me draw the final conclusion on this basis: the Dutch criminal legal system is of course the better one.

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