ABSTRACT
This chapter begins with a discussion on two factors that dramatically distinguish common law from civilian procedures: the jury system and judge's access before the trial, as finder of fact, to a dossier of evidence prepared by the prosection. In common law trials, the jury determines questions of fact, and the judge has no access to the pre-trial findings of the prosecution. In civilian trials, the judge decides questions of fact as well as law and has complete access to the dossier of findings made in the pretrial investigation. For the defendant, the primary advantage of trial by jury over trial by judge may rest not in the decision-making function of the jury, but rather in the implications of the systems for the rest of the trial. One might be tempted to conclude that the presence or absence of an exclusively lay jury is the most significant factor distinguishing the common law adversarial from the civilian accusatorial trial.
