Legal Culture Shock
Even in an era when war crimes tribunals are becoming more commonplace, it was an unusual courtroom scene.
The gallery was crammed with Bosnians wearing translation headphones as they watched the defense attorneys hammer away at a witness with yes-no questions: “Isn’t it true that you’re facing decades in prison if you don’t testify against my client? Isn’t it also true that you’re having an affair with my client’s wife?”
But this wasn’t an actual trial in The Hague or anywhere else. Instead, it was a moot court program presented in January by the ABA to help criminal defense lawyers in Bosnia and Herzegovina learn how to practice under new criminal law rules adopted as part of that war-torn country’s efforts to rebuild its justice system.
The program was organized by the ABA’s Central European and Eurasian Law Initiative office in Sarajevo. CEELI, which supports efforts to establish viable legal and judicial systems in countries throughout that region, has been active in Bosnia and Herzegovina since shortly after the 1995 Dayton Peace Agreement ended years of fighting in that part of the former Yugoslavia.
The Dayton agreement created an Office of the High Representative to oversee efforts to create new structures of civilian government in Bosnia and Herzegovina. About a year ago, High Representative Paddy Ashdown introduced new codes of criminal law and procedure that were adopted by the national assembly.
Ashdown’s office asked CEELI to help Bosnian lawyers understand the new system. “Without the training provided for these lawyers, the system could not have worked and the new codes could not have been implemented,” says Bill Potter, the deputy head of the rule of law section in the Office of the High Representative.
The transition to a new criminal justice system won’t be easy for Bosnian lawyers used to a process in which defense lawyers had little to do because trials were usually brief, judges asked most of the questions of witnesses at trial, and defendants were almost always found guilty.
And while the basics of the new system would be familiar to most U.S. lawyers—and anyone else who has watched even a few episodes of such television shows as Law and Order or The Practice—they can be intimidating to lawyers unfamiliar with that kind of adversarial process.
“They’re terrified that they have to be like that,” says Erik Larson, who recently returned to his practice in San Francisco after serving as a CEELI volunteer training Bosnian defense lawyers for the past year.
The topic of Larson’s workshop was cross-examination. About 70 lawyers attended the four-day program in Mostar, which had been an urban battleground during the Bosnian conflict. So far, some 500 Bosnian defense lawyers have received training in the new criminal procedure code from CEELI, which also is conducting other programs to help lawyers and judges adjust to a wide spectrum of criminal law reforms.
“It’s like you’re a hunter,” Larson explained to his audience about cross-examination. “You’ve got to sneak up on them; you can’t just go rambling through the bushes.” And he told the lawyers they were lucky on the investigation front—digging up adultery or wartime grudges to prove bias against a client can be easy in a country where, as he put it, “If I have a date on Friday, everyone knows about it on Monday.”
Larson recognizes the difficulties Bosnian lawyers face in adapting to the new system.
“It’ll be a rough transition,” he says. So far, “More resources have gone to the judges and prosecutors [than defense lawyers]—my efforts at best make it equal. I believe in this adversarial system. The best way to find the truth is through these checks and balances—to have both sides fight it out.”