Introduction: The Clash of Legal Cultures
The structure of contemporary legal systems is characterised by a major philosophical divergence, a clear dividing line between the Anglo-Saxon tradition of Common Law and the Romano-Germanic tradition of civil law. At the heart of this debate lies a crucial stage, though one often invisible to the general public: the administration of evidence. This clash pits two radically different models against one another: American Discovery and the Swiss system of access to case files.
This contrast raises a question that goes beyond mere procedural technique: how do these two approaches reflect a divergent vision of the role of the lawyer and the very purpose of justice? Should the law aim to establish a material truth under the sovereign control of the state, or should it promote the search for a consensual truth arising from the fair confrontation between two adversaries? By analysing the mechanisms of discovery and its safeguards, this article explores the tensions between the effectiveness of private investigation and the imperatives of a fair trial.
- Discoveryin the United States: a power of private investigation
Discovery constitutes an essential phase of the American legal process. It takes place before the trial (pre-trial) and allows the parties to exchange the information and evidence they intend to use in court. Unlike systems of an inquisitorial tradition, the search for evidence does not rely primarily on a state authority, but on the parties themselves. This mechanism reflects the adversarial logic of the American system, in which each party is responsible for building its own case.[1]
In this context, lawyers play a central role. They have extensive powers to obtain information from the opposing party or third parties. The judge generally intervenes only to resolve disputes regarding the scope of requests for evidence. Thus, a large part of the evidential work takes place outside the courtroom, which explains why the bulk of the case file is compiled even before the trial begins.[2]
To carry out this task, lawyers have a highly effective toolkit at their disposal. They can organise depositions, i.e. filmed witness hearings conducted under oath without a judge present. They also use interrogatories—a series of written questions to which the other party is obliged to respond—as well as document production. This last rule is particularly powerful: it forces the parties to ‘empty their drawers’ by handing over all relevant contracts, emails or reports, even those that might be detrimental to them.[3]
Finally, to ensure balance and fairness, particularly in criminal cases, the US Supreme Court established a crucial safeguard with the 1963 ruling in Brady v. Maryland. This rule obliges the prosecution to disclose to the defence all ‘exculpatory’ evidence, i.e. material that could exonerate the accused or reduce their liability.[4] By prohibiting prosecutors from withholding information favourable to the defence, US law seeks to ensure that the search for truth is never sacrificed for the sake of a legal victory, thereby preserving the integrity of justice.
- Access to the case file in Switzerland: a right to scrutinise the state investigation
The Swiss system is based on the monopoly of criminal prosecution exercised by the Public Prosecutor’s Office. This is known as the monopoly of criminal prosecution: it is not for lawyers to act as private detectives, but for the prosecutor to direct operations with the assistance of the police. Within this framework, the accused and the victim are not the ‘drivers’ of the process; they participate in a procedure orchestrated by the public authority. Their role is to observe, suggest evidence or ask questions, but always under the supervision of the magistrate.
The cornerstone of this system is Article 101 of the Code of Criminal Procedure (CCP). It guarantees the parties the right to consult the case file, which is, in a sense, the ‘memory’ of the investigation. However, this right is not unconditional. To prevent the disclosure of information from compromising the investigation (for example, to prevent witnesses from colluding with one another), the prosecutor may delay access to the documents until the first significant hearings.[5]This principle ensures that, at the latest upon the conclusion of the preliminary proceedings, i.e. at the time of committal for trial, the parties have unrestricted access to the case files. This transparency is an essential condition of the right to be heard, enabling everyone to prepare their defence on the basis of all the evidence gathered during the investigation.[6]
The Federal Supreme Court has, moreover, enshrined this principle in a famous judgment (ATF 137 IV 172).[7] In that judgment, the High Court confirms that a defendant cannot demand to read the case file before their first police interview. Why? Because the system prioritises the spontaneity of initial statements. This ‘relative transparency’ marks a clear break with American Discovery: in Switzerland, we do not seek a truth negotiated between two adversaries, but a centralised material truth, where the State retains control over the timing of information disclosure to ensure the efficiency of justice.
III. Comparative analysis: two philosophies of evidence
The divergence between the American and Swiss models is not limited to a procedural rule; it pits two worldviews against each other: the “adversarial theory” versus the public service mission.
- The “Master of Evidence” versus the “Master of Investigation”
In the United States, the system is based on total individual responsibility. The defence lawyer is the true master of the evidence. In this culture, the state does not intervene to help the defendant establish the facts: it is up to the lawyer to conduct an exhaustive private investigation. As Judge Jerome Frank explained, the trial is a duel, a ‘battle’ where the truth is not a disinterested quest by the administration, but the product of a head-on clash between two strategies.[8] In this context, Discovery is a vital weapon: it forces the prosecution to lay its cards on the table to compensate for the absence of an impartial state investigation.
Conversely, Swiss procedure entrusts the public prosecutor with the role of master of the investigation. According to Article 6 of the CPP, the prosecutor has a legal obligation to investigate ex officio ‘both incriminating and exculpatory evidence’. [9] Here, the criminal lawyer is not a private investigator but, as Gérard Piquerez emphasises, the guardian of legality.[10]
Their role is not to extract evidence ex nihilo, but to cast a critical eye over the single file compiled by the public authority. The challenge is no longer to wrest evidence from the opponent, but to challenge the neutrality and exhaustiveness of the state’s work.
- Strategic Pragmatism versus Material Truth
This division of roles determines the very purpose of the judicial process. In American law, evidence is a tool for negotiation. The Pre-Trial phase allows the parties to assess their respective strengths. This pragmatism leads, in over 90% of cases, to a plea bargain (agreement on the sentence). The truth is often consensual: the aim is to reach an acceptable agreement to avoid a costly and uncertain trial.[11]
The Swiss system rejects this ‘chess game’ logic. The search for evidence, governed by the principle of ex officio,[12] aims at material truth.[13] The objective is not to win a duel, but to establish the reality of the facts in order to deliver a just sentence. Whereas the American model prioritises procedural economy and the speed of the process, the Swiss model favours a thorough, state-led investigation. The quality of the defence in Switzerland therefore does not depend on the financial capacity to conduct an investigation, but on the rigour of the legal analysis of the case file compiled by the Public Prosecutor’s Office.
- Limitations and abuses: between asymmetry of resources and state dependence
American Discovery reveals a major structural asymmetry despite its appearance of transparency. Whilst the prosecution has the vast resources of the state at its disposal, the defence sees its requests limited by materiality criteria (Rule 16) and the prohibition on freely exploring government files (United States v. Armstrong).[14] Although the Brady ruling mandates the disclosure of exculpatory evidence, recent case law on the ‘defendant’s due diligence’ undermines this obligation: the prosecutor may be exonerated from liability if the defence could have discovered the information by its own means. Beyond this residual opacity, the cost of the system is prohibitive. The shift in the burden of proof requires the defendant to fund private experts and complex e-discovery tools themselves to process colossal volumes of documents, making the fairness of the trial dependent on the individual’s financial resources.[15]
Conversely, the Swiss system avoids this economic burden but leaves the defence structurally dependent on the Public Prosecutor’s Office. The concentration of investigative powers in the hands of the prosecutor creates a risk of ‘selective investigation’, where the authority alone decides which evidence to adduce. Unlike the American model, the defence cannot conduct independent investigations and is confined to a role of making proposals. This scope for action is further reduced by Article 108 of the Swiss Criminal Procedure Code, which allows access to the case file to be restricted in cases of suspected abuse of rights or to protect overriding interests (security, confidentiality). Thus, whilst the Swiss defendant is shielded from the costs of investigation by the principle of ex officio investigation, they face a more pronounced imbalance of influence, with the autonomy of their defence remaining subject to the impartiality and discretion of the prosecuting authority.
Conclusion
The choice between American discovery and Swiss access to the case file is above all a societal trade-off: the freedom of private investigation at the risk of financial inequality (USA), or state protection at the risk of structural dependence (Switzerland). Whilst the American model offers unrivalled investigative power, it favours those who can afford it. Conversely, the Swiss system relieves the citizen of the burden of proof but subjects them to the – sometimes selective – impartiality of the prosecutor.
Ultimately, the balance no longer depends on the underlying philosophy, but on the strength of the safeguards (Brady obligation or Article 101 of the Swiss Criminal Procedure Code). In the digital age of big data, the effectiveness of the justice system will be measured by its ability to guarantee transparency in the face of secrecy, whether the evidence arises from a adversarial process or from administrative sources.
Eva LESECQ, Licia FERRON, Leila RICHARTZ, David NGUYEN and Dreni ALIU
[1] CORNELL LAW SCHOOL – LII, « Discovery », in : Wex.; BRACONNAY Nicolas, « Procédure accusatoire/procédure inquisitoire », in : Village de la Justice (2011).
[2] SIMONNET Valentin, « Les étapes de la procédure pénale américaine vs française », in : Village de la Justice (2018).
[3] Fed. R. Crim. P. 16 ; Fed. R. Civ. P. 30, 33 et 34.
[4] Brady v. Maryland, 373 U.S. 83 (1963).
[5] Joëlle Fontana, in: Commentaire Romand, Code de procédure pénale suisse, ad art. 101, éd. 2, Bâle (2019).
[6] Ibid
[7] ATF 137 IV 172
[8] FRANK Jerome, Courts on Trial, p. 80 (1949).
[9] Art. 6 al. 2 du Code de procédure pénale suisse (CPP) du 5 octobre 2007, RS 312.0.
[10] PIQUEREZ Gérard, Manuel de procédure pénale suisse, p. 94-96.
[11] THE LAW OFFICE OF LISA PELOSI, « Understanding Plea Bargaining ».
[12] Art. 6 al. 1 du Code de procédure pénale suisse (CPP) du 5 octobre 2007, RS 312.0.
[13] MOREILLON Ludivine / PAREIN-KREYENBÜHL Anne, Précis de procédure pénale, n° 67 ss.
[14] United States v. Armstrong, 517 U.S. 456, (1996).
[15] WEISBURD Kate, 60 UCLA L. REV. 138 (2012).