CRIM 405.003Prof.Andrew Novak

INTERNATIONAL AND COMPARATIVE

CRIMINAL PROCEDURE

Adversarial system (UK) Inquisitorial system (France, Germany, China) Islamic system (Saudi Arabia)Hybrid system (Japan)Comparative Judicial ReviewComparative Convergence and Introduction to

International Criminal Procedure

AGENDA

Police and Criminal Evidence Act of 1984 Police need reasonable suspicion for stopping and searching Search may only be conducted with consent, warrant, or

exigent circumstances Strict time limits on police custody; must charge or release Right to remain silent (but may be used to infer guilt after

1994) Entitled to be released on bail except where danger to

evidence or other witnesses, prior convictions, or risk of another crime

No public defender system, but legal aid exists Judge and jury trial system with speedy appeals90% of cases handled in summary proceedings

ADVERSARIAL SYSTEM (UK)

Preliminary investigations, limited police custody permitted

Procurator acts as “junior judge” with both investigatory and adjudicatory duties

Investigatory judge and a procurator may interrogate the suspect and witnesses, with counsel from both defendant and victim present

Pretrial detention and supervision during course of investigation (may be lengthy) permitted, as is bail

No plea bargaining in France; yes in GermanyVictims may bring simultaneous civil claims for

damages, and if so their lawyers may make presentation at trial

Limited role for juries to decide smaller questions

INQUISITORIAL SYSTEM (FRANCE)

Like France, Offi ce of People’s Procuratorate mirrors court system, and procurators act as quasi-judges and quasi-investigators

Trials conducted before three judges, or a judge and two citizen assessors

Trials usually public unless state secrets involved

SOCIALIST VARIANT (CHINA)

Siyasa Sharia: Administration of justice in conformity with Islamic law

State initiates criminal actions for hudud off enses (crimes against God), while victims may initiate actions for off enses against individuals

Recognizes presumption of innocence and right to remain silent; forced confessions not permitted in pure Sharia law though they exist in some Islamic countries

Hudud crimes: higher evidence thresholds, including two eyewitnesses (four for unlawful sexual intercourse), hearsay unacceptable, witnesses must possess moral integrity

Saudi Arabia: Law of Criminal Procedure (Western-style); experiments with public defenders

Convictions not in accordance with the Quran will be reversed

ISLAMIC LAW (SAUDI ARABIA)

In Japan, off enders more likely to feel sense of shame rather than guilt; 95% plead guilty and seek forgiveness

Offi ce of procurator, like France, Germany, and China; viewed with trust and deference, perceived as authority figures

Supreme Court acknowledged existence of exclusionary rule in 1978 (where search and seizure is illegal, evidence excluded)

Trial system is adversarial, with public oral presentations by prosecution and defense

HYBRID (JAPAN)

American “invention” with Marbury v. Madison – ability of highest court to declare laws “unconstitutional”

Most countries have some judicial review today, and many have separate constitutional courts

Alternatives: France, advisory constitutional review of legislation before

it is passed Legislative or parliamentary overrides Courts or constitutions that permit broad executive or

legislative discretionSupreme Court of India and Appellate Division of

Bangladesh have declared constitutional amendments unconstitutional Remember Basic Law in Germany has unamendable

provisions

JUDICIAL REVIEW

Remember that the trend is toward convergence between adversarial and inquisitorial systems Virtually every system has elements of both

In addition, increasing emphasis on participatory aspects, such as victim’s involvement in criminal proceedings and compensation for victims

CONVERGENGE?