March 01, 2015

Global Litigator: Challenges of the Adversary System as a New Idea

A mock trial in Uzbekistan offers new perspective on the U.S. justice system.

Dan Small

As litigators brought up in the U.S. adversarial system, it’s hard for us to imagine these scenarios:

  • prosecutors reluctant to participate in a mock trial—because they might not win and have never faced adversarial opposition before;
  • a defense lawyer with tears of joy over the idea of being able to cross-examine a prosecution witness for the first time—because just maybe that idea, once planted, will grow in the system she works in;
  • a judge shocked to hear that a defendant could come into his courtroom and refuse to answer his questions—because of some strange ideas regarding self-incrimination.

For Uzbek judges and lawyers who spent a week with American counterparts talking about the adversary system, it wasn’t the grand principles that had the most impact. It was individual experiences and reactions like these. Professionals trained and experienced in one system had all the human responses one would expect, and more, when asked to try a new system. But throughout, they shared an encouraging interest and energy to learn, discuss, and try new things. And throughout, they taught us much about our own system by forcing us to reflect on it as a new idea, not a series of givens.

A team of three Americans—U.S. District Judge John Tunheim of the District of Minnesota, Massachusetts Supreme Judicial Court Justice Robert Cordy, and I—traveled to Uzbekistan in November 2013 for a program sponsored by the U.S. State Department and the U.S. Agency for International Development and organized by Regional Dialogue, a nongovernmental organization based in Slovenia. In the course of a very full week, we had a number of events in the capital, Tashkent, including a panel discussion for judges at the Lawyers Training Center and a public forum that received substantial media attention. The highlight of the trip, though, was a three-day workshop on the adversarial system in the mountains outside Tashkent with about 80 participants, including judges, prosecutors, and defense lawyers, discussing processes and issues that are routine parts of our system. Through two mock trials, we felt a little like wilderness guides leading our participants through a strange and terrifying new world.

Uzbekistan’s Inquisitorial System

Criminal justice in Uzbekistan is still largely based on the inquisitorial system. The prosecution puts together the case file and presents it to the judge, who can ask questions or request additional materials. But there is no trial in the adversarial sense, with witnesses called and examined by both sides. The defense counsel’s role is largely a passive one that attempts to critique or add to the prosecution’s case file. If the judge is not satisfied with the prosecution’s evidence, the case can be sent back for further investigation. Cross-examination and other basic adversarial tools are new and strange concepts.

So Regional Dialogue brought together these judges, prosecutors, and defense lawyers in the town of Charvaq, 100 kilometers from Tashkent. Because the three groups rarely interact in their normal lives, the hope was that, at a remote location, they could listen to and learn from each other and experiment with these new concepts in a more focused and comfortable environment. Much of what we found is instructive to all of us as litigators.

We all understand the basic principle that challenge and competition can make everyone better. But when a system cannot directly be challenged, ideas like defense presentation and cross-examination of witnesses raise many questions, such as these:

  • Are they threatening and insulting to prosecution witnesses?
  • Do they diminish the judge and take away his or her control of the case?
  • Are they TV or lawyer “tricks,” as one participant said, that interfere with the prosecutor’s function?

After a day spent discussing the adversarial system and methods, we gave participants a role in one of two mock criminal cases. Both were written to be close, with a number of problems for both sides. However, it quickly became apparent that not only was the trial process new to them, but a close case and active challenges from the defense were also novel experiences for the prosecution. The combination paralyzed them at first. They hesitated to go forward with the exercise because “we may lose.” We fielded a number of questions about the consequences of losing—a real concern there, as prosecutors and investigators can lose their jobs if there is an acquittal. One of the prosecutors quietly asked one of the faculty if they could “make up evidence” to avoid the messy possibility of defeat.

We had to encourage them repeatedly to continue with the exercise as it was given, even though it was a tough case. Finally, after several attempts, they began to accept the possibility of something very different from their past experience and eventually became courageous and enthusiastic participants.

Worries about Adversarial System

By trying cross-examination and other tools we take for granted, the Uzbek lawyers gained a much better understanding of our system. The adversarial process is based on early concepts of “trial” as a means of testing. But Uzbek prosecutors worried about the line between testing and obstructing. Do adversarial practices clarify the information provided to the finder of fact—whether judge or jury—or confuse it, or worse? These are real challenges even we should reconsider from time to time.

Many Uzbek judges also worried that the adversarial system will diminish their authority. The Fifth Amendment compounds those fears. Most countries do not have a right against self-incrimination, and part of that is grounded in—or at least justified by—real concerns. All of them were articulated by the Uzbek judges. Many believe every citizen has a responsibility to cooperate with his or her government in important respects, whether paying taxes or being forthright to investigators. And how can you have effective investigations if you cannot question those most involved? All systems of justice depend on the legitimacy and authority of the judiciary, but if a common criminal can come into court and refuse to answer questions from the judge, doesn’t that diminish the judge’s authority? We had some intense discussions about the competing philosophies.

Because most Uzbeks’ only exposure to cross-examination comes from occasional American movies or TV shows, it comes as no surprise that several Uzbek judges asked us if cross-examination isn’t just a cheap trick to entertain juries rather than a real part of the search for truth. We could tell them its value, but saying won’t make it so. Imagine, though, defense counsel being allowed for the first time to question government witnesses, challenge their credibility, contradict their story, and more. Even in a mock exercise, the initial reaction from several counsel was shock and disbelief. One defense lawyer told us he was nervous that he might say or do the wrong thing and suffer the consequences from the Justice Ministry, whose deputy he was sitting next to. Once they understood they would really be allowed to do this, though, the reaction was excitement and hope. It was a joy to watch.

The search for justice is a never-ending journey, with good days and bad days along the way. There is no perfect system, no perfect answer. We in the United States struggle with these issues every day. In Uzbekistan, a younger generation of judges and lawyers, years removed from their country’s life under Soviet domination, are hungry for knowledge about the adversarial system and eager to explore what might work there. Systemic change rarely happens overnight, but the judges, prosecutors, and defense counsel we worked with in Uzbekistan want to continue on that journey toward justice, even though they are unsure what it should look like down the road. And traveling a small part of that journey with them provided a fascinating reflection on our own struggles too.

Dan Small

The author is a partner with Holland & Knight, LLP, Boston and Miami.