By: Ralph G. Smith and Daniel Smith

Most of us who practice law, or sit behind the bench, firmly believe that the common-law system of criminal justice, with its juries, its openness, and its reliance on oral courtroom combat, is the best in the world. It may well be the best, but the fact is that most of Europe and substantially all of the Western Hemisphere countries outside of the United States and Canada rely upon what is commonly known as the “Roman civil law” or simply “civil law” system.

American lawyers and judges, particularly those in the Southwest, should know more about it than they do. We border upon one of the largest civil law countries, Mexico, and we have within our borders a great number of immigrants and refugees from Latin America who have known no other law. Just as we may be mystified by some of their procedures, they are puzzled by ours. Spanish-speaking defendants appearing before our courts may have only the foggiest idea of what is happening to them, and are just as apprehensive as we would be, were we arrested and jailed in, say, Guatemala.

I have had the opportunity to observe at close range the criminal legal systems of various countries of Central America and of Ecuador, working as a consultant on projects sponsored by the U.S. Agency for International Development (AID). In El Salvador I assisted in an assessment of the work of the Revisory Commission engaged in drafting legislation to modernize the administration of justice. In Guatemala, I headed a team which made a study of the Ministerio Publico, which is the equivalent of the office of the Attorney General. In other countries I participated in evaluations and planning of programs designed to improve the administration of justice, particularly in the criminal area. These assignments provided a fascinating view of the administration of criminal justice under the civil law system.

The following is a somewhat random series of observations gained from talking with legal practitioners in the countries mentioned; from study of the criminal procedure codes of those countries; and from diverse reading, observation and conversation with civil lawyers. I do not claim any great scholarly expertise, so there are no footnotes or citations. What I say should be regarded as legal reading, not legal authority. I do, however, hope that it may whet the curiosity of some readers to learn more about a very interesting subject.