American legal lore would have it that our adversarial (or "accusatorial") criminal justice system is far superior to the "inquisitorial" model of continental Europe-as an engine of truth, as a shield for civil liberties against state power, as an embodiment of the paramount importance of avoiding wrongful conviction of the innocent.

Many of us are taught (erroneously) that, in Europe, defendants are presumed guilty, can be forced to confess, and can be convicted without anything like proof beyond a reasonable doubt.

And something about that word "inquisitorial"-conjuring images of some medieval Grand Inquisitor torturing confessions out of accused heretics-conditions American lawyers (and justices) to recoil from any thought of modifying our adversarial tradition by taking even a tiny step toward the procedures used by the rest of the civilized world.

Evidence is accumulating, however, that our adversarial system has degenerated into a parody of itself-which in many cases seems almost calculated to subvert the search for truth. And there’s much to be said for the European approach, including that of England, where the criminal process has evolved in far less adversarial directions than our own since 1776.

A good case can be made that the procedures used in Germany, Holland, Scandinavia, France, England, and elsewhere do a better job than our own not only in terms of finding the truth and convicting the guilty, but also in terms of protecting innocent defendants-supposedly our forte. Comparative analysis also reinforces the view that some of our vaunted procedural protections not only help the guilty, but also have perverse secondary effects mat hurt the innocent.

Interest in reforming our criminal process, and in learning what we can from the rest of the world, is at a peak because of public outrage at recent circus trials, culminating in the O.J. Simpson spectacle. In the words of Professor Albert Alschuler of the University of Chicago Law School, "[t]he Simpson trial featured a ‘dream team’ of defense attorneys that few defendants could have afforded, the most talented team of prosecutors that a 850-lawyer office could field, the finest expert witnesses that money could buy, and a specially assigned and (until the trial) highly respected trial judge; and still the trial mortified even lawyers."

Of course, for the vast majority of criminal defendants, there is no "dream team"; there are underpaid, overworked, court-appointed lawyers with rushing caseloads, who (according to a study in New York City) don’t even use investigators in 88 percent of their felony cases. Nor is there much of a right to trial by jury: We coerce most defendants (including some innocents) into pleading guilty, by threatening harsher punishment if they insist on their theoretical rights to the sort of elaborate extravaganza that the jury trial has become, and that we can afford to stage in only a tiny fraction of cases.

In most of Europe, by contrast, plea bargaining is virtually unheard of, and almost every defendant accused of a serious crime gets a trial. But it’s not a U.S.-style trial by combat, focused on prosecutors and defense lawyers fighting-and, often, distorting the facts-as though their lives depended on winning.

Instead, most European systems give the leading role to the trial judge, whose job is to bring out the truth. The judge typically receives and studies the prosecution’s entire case file before trial; calls the witnesses and does the initial questioning; and summarizes and comments on the evidence (as English judges do, too) for the trier of fact, which (on the Continent) is usually a mixed tribunal of lay jurors and professional judges.

The judge typically seeks narrative answers from witnesses, and the questioning by judge and lawyers alike is largely free from the highly technical evidentiary rules and objections by counsel that make testimony in U.S. courtrooms-even about something as simple as when a dog barked-such a dragged-out, stilted, lawyer-dominated affair.

And the defendant-who usually knows more than anyone else about the relevant facts-typically plays a central role in the European trial. Although defendants have a right to remain silent, they rarely invoke it, because they have strong incentives both ‘, to talk to police investigators and to testify at trial: Triers of fact can and do draw adverse inferences from a defendant’s silence; the defendant can testify without thereby exposing himself to impeachment by prior convictions; and the defendant is not sworn and thus does not risk a perjury prosecution.

Continental defendants (at least the guilty ones) may envy the expansive judicial gloss on the Fifth Amendment privilege that allows-indeed, encourages-so many U.S. defendants to present a – stone wall of silence at every stage in the process. But that doesn’t mean that U.S. defendants (at least the innocent ones) are better off overall.

First, of course, most defendants are coerced into waiving their right to silence by pleading guilty. Second, while Continental defendants have broad rights to pretrial discovery of essentially all the prosecution’s evidence, U.S. defendants get only the most minimal and grudging discovery. That’s because courts and legislatures in the United States are reluctant to impose on prosecutors alone any discovery obligations that cannot constitutionally be imposed on defendants. Third, Continental defendants get the last word at the trial-a powerful advantage that, in the United States, belongs to the prosecutors.

In addition, prosecutors on the Continent and in England are less powerful-with far less influence over sentencing, for example-and less imbued with adversarial zeal in seeking convictions than those in the United States.

The U.S. criminal process "stands at the extreme end of the adversary spectrum," with "extreme judicial passivism coupled with lawyer domination of the trial process, contentiousness of our lawyers, emphasis on the contest rather than on the discovery of truth,… and formal and technical rules of evidence," in the words of Professor Gordon Van Kessel of Hastings Law School, in a 1992 article in the Notre Dame Law Review entitled "Adversary Excesses in the American Criminal Trial."

This is not to suggest that we should- even if we could without amending the Constitution-junk our adversary system or’ radically overhaul it along European lines.

The European model has its own problems, especially the potential for injustice whenever the judge is not good enough to play the activist, dominant role at trial with energy, skill, wisdom, and impartiality.

And many of our trial judges are not good enough. In contrast to the merit selection and guaranteed tenure that prevail in Europe, most state court judges in the United States are chosen through political patronage and must run for re-election. This degrades the quality of the judiciary, makes judges reluctant to antagonize trial lawyers, and fosters a self-preserving, comfortable passivity on the bench.

Nor could judges in this country emulate the dominant role of the European trial judge unless they also had the opportunity and inclination to study the entire case file before trial. That would require radical changes in U.S. legal culture and procedures.

Still, some incremental efforts to moderate the excessive adversariness of our system-in addition to the jury reforms that 1 discussed in last week’s column, and perhaps some ethical reforms to discourage lawyers from distorting facts-warrant serious consideration:

To prevent lawyers from turning jury selection into a drawn-out search for sympathizers, partisans, and ignoramuses, judges should be required to do all the questioning in voir dire.

Judges should be encouraged to question witnesses about any relevant matters that the lawyers (who rarely have an interest in bringing out the whole truth) have failed to explore adequately; to call their own witnesses when appropriate; to summarize evidence for the jury; and to correct and comment upon misleading advocacy by the lawyers.

The rules of evidence should be liberalized to allow witnesses to testify in narrative form without constant interruptions and objections by counsel.

To encourage defendants to testify both in pretrial depositions and at trial, prosecutors should be allowed to disclose to the jury, and to comment upon, a defendant’s decision to remain silent. This would require overruling some Warren Court case law. But it would not encroach on the defendant’s core Fifth Amendment right not to be "compelled in any criminal case to be a witness against himself." (See my "Rethinking the Fifth Amendment (Again)," July 17, 1995. Page 27.)

Defendants should be given a further incentive to testify by scrapping the current rule exposing them to impeachment by prior convictions when they take the stand.

Defendants should be given broad pretrial discovery of the prosecution’s evidence, conditioned on procedures to protect against witness intimidation.

Such modest steps could begin to make our criminal trials more like investigations focused on finding the truth and less like stylized combat between partisans bent on winning through distortion. They could also make trials shorter, simpler, less expensive, and thus available to more defendants.