International and comparative criminal procedure

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International and comparative criminal procedure

  1. 1. CRIM 405.003 Prof. Andrew Novak INTERNATIONAL AND COMPARATIVE CRIMINAL PROCEDURE
  2. 2.  Adversarial system (UK)  Inquisitorial system (France, Germany, China)  Islamic system (Saudi Arabia)  Hybrid system (Japan)  Comparative Judicial Review  Comparative Convergence and Introduction to International Criminal Procedure AGENDA
  3. 3.  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 appeals  90% of cases handled in summary proceedings ADVERSARIAL SYSTEM (UK)
  4. 4.  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 Germany  Victims 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)
  5. 5.  Like France, Office 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)
  6. 6.  Siyasa Sharia: Administration of justice in conformity with Islamic law  State initiates criminal actions for hudud offenses (crimes against God), while victims may initiate actions for offenses 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)
  7. 7.  In Japan, offenders more likely to feel sense of shame rather than guilt; 95% plead guilty and seek forgiveness  Office 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)
  8. 8.  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 discretion  Supreme Court of India and Appellate Division of Bangladesh have declared constitutional amendments unconstitutional  Remember Basic Law in Germany has unamendable provisions JUDICIAL REVIEW
  9. 9.  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?

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