Legal Transplants and the Inoculation Effect. How American Criminal Procedure Has Affected Continental Europe

This article is a critique to the broadly held idea that European criminal procedures have been “Americanized”. During the last few decades, European continental criminal procedures underwent extensive reforms and the American adversary system often became in continental Europe the reference model for the overhaul. Nevertheless, this Article demonstrates that the transfer, short of producing the actual diffusion of American legal institutions in Europe and of making the European criminal procedure systems more adversarial, has resulted instead in its opposite: i.e. in the fortification of the civilian non-adversary structure and of its tenets. This phenomenon, that I propose calling “the inoculation effect” in the law, is theoretically explainable as “counter hegemony” in the Gramscian sense. To prove my argument I discuss the impact of some transferred features of American criminal procedure on the receiving European context. Such features, that students of legal transplants have claimed making the civilian procedures more “adversarial”, are: pre-trial investigations conducted by (the police and) the public prosecutor -in lieu of the investigating judge classical of the civilian tradition-, exclusionary rules, cross examination and jury trial. My critique of the commonly held vision shows that the imported adversarial legal arrangements were not simply reinterpreted according to the non-adversarial style of the recipient systems, therefore that they were not “lost in translation”. To the contrary, they effectively worked as improving factors of the most essential feature of a liberal non-adversary procedure, i.e. the impartiality of a third party official search for the truth. This is why the injection of a small portion of the American adversarial procedure into the body of the Continental European procedure looks like inoculation. Indeed just like a vaccination would do, it seems to have generated the antibodies able to make the latter more resistant against any future effective Americanization, i.e. against any future transplantation of an adversarial party controlled contest system.