Comparative Criminal Justice 5th Edition Chapter 6: Criminal Procedure Adrianna Hughes University of Scranton Learning Objectives: Chapter 6Explore the major differences in criminal procedure among the various families of law Analyze the differences between adversarial systems and inquisitorial systemsExplain the different types of constitutional reviewDescribe how convergence has become the norms in criminal procedure in the legal systems around the worldIdentify the general forms of supranational courts that deal with issues of human rights and international crime and criminals Comparative Criminal Justice Systems 5th Edition The Adversarial System Comparative Criminal Justice Systems 5th Edition Adversarial- set of legal procedures used in Common Law countries to determine the truth during adjudication whereby the prosecution and defense counsel compete against each other The judge acts as an umpireRights given to accusedright to an attorneyright to remain silentright to be free of unwarranted arrests and searches right to compel witnesses The Adversarial SystemCriticismsManipulation by criminals of systemCombat effect- emphasis on “winning” the legal battle instead of justice being doneWealth effect- advantage held by those who can afford to hire a skilled attorney and pay for investigatorsPlea bargaining- about 90% of cases in U.S. are settled by plea bargainingCountries that use adversarial systemEngland and United States Comparative Criminal Justice Systems 5th Edition The Inquisitorial System Comparative Criminal Justice Systems 5th Edition Inquisitorial - main model of criminal procedure and has been around for 700 years.Most commonly associated with Civil Law countriesThe trial in the inquisitorial system is less like a competition and more like a continuing investigationCriticismsMain issues arise with extreme power of the judge at both the investigative and trial levelsDelays in system because of extensive pretrial investigationsJudge must balance impartialityModel countries that use Inquisitorial systemFrance, Germany, China, Saudi Arabia, Japan Popular System(Mixed)It is called popular, because it is a system that calls for the popular participation of citizens who are not necessarily criminal justice professionals.It is the oldest of the procedural systems of justice, practiced long before the formation of modern societies, and it probably has its roots in the magical as well as group resolutions of community disputes.In most countries, it has evolved into a fully acceptable system that has been integrated into the adversarial and inquisitorial systems. Examples: Anglo American- Jury trial system Comparative Criminal Justice Systems 5th Edition Popular System(Mixed)Today, the popular system is a variation of criminal procedure that is used primarily in Civil Law countries but is also found in Socialist and Common Law countries.It is a method of ad.

1. Comparative Criminal Justice
5th Edition
Chapter 6: Criminal Procedure
Adrianna Hughes
University of Scranton
Learning Objectives: Chapter 6Explore the major differences in
criminal procedure among the various families of law Analyze
the differences between adversarial systems and inquisitorial
systemsExplain the different types of constitutional
reviewDescribe how convergence has become the norms in
criminal procedure in the legal systems around the
worldIdentify the general forms of supranational courts that
deal with issues of human rights and international crime and
criminals
Comparative Criminal Justice Systems
5th Edition

2. The Adversarial System
Comparative Criminal Justice Systems
5th Edition
Adversarial- set of legal procedures used in Common Law
countries to determine the truth during adjudication whereby the
prosecution and defense counsel compete against each other The
judge acts as an umpireRights given to accusedright to an
attorneyright to remain silentright to be free of unwarranted
arrests and searches right to compel witnesses
The Adversarial SystemCriticismsManipulation by criminals of
systemCombat effect- emphasis on “winning” the legal battle
instead of justice being doneWealth effect- advantage held by
those who can afford to hire a skilled attorney and pay for
investigatorsPlea bargaining- about 90% of cases in U.S. are
settled by plea bargainingCountries that use adversarial
systemEngland and United States
Comparative Criminal Justice Systems
5th Edition
The Inquisitorial System
Comparative Criminal Justice Systems
5th Edition
Inquisitorial - main model of criminal procedure and has been

3. around for 700 years.Most commonly associated with Civil Law
countriesThe trial in the inquisitorial system is less like a
competition and more like a continuing
investigationCriticismsMain issues arise with extreme power of
the judge at both the investigative and trial levelsDelays in
system because of extensive pretrial investigationsJudge must
balance impartialityModel countries that use Inquisitorial
systemFrance, Germany, China, Saudi Arabia, Japan
Popular System(Mixed)It is called popular, because it is a
system that calls for the popular participation of citizens who
are not necessarily criminal justice professionals.It is the oldest
of the procedural systems of justice, practiced long before the
formation of modern societies, and it probably has its roots in
the magical as well as group resolutions of community
disputes.In most countries, it has evolved into a fully acceptable
system that has been integrated into the adversarial and
inquisitorial systems. Examples: Anglo American- Jury trial
system
Comparative Criminal Justice Systems
5th Edition
Popular System(Mixed)Today, the popular system is a variation
of criminal procedure that is used primarily in Civil Law
countries but is also found in Socialist and Common Law

4. countries.It is a method of adjudication in which one or more
lay judges help the professional judge come to a
decision.ExamplesGermany- SchoffenChina- Lay
assessorsUnited States and England- Justice of the Peace
Comparative Criminal Justice Systems
5th Edition
Common Law Criminal Procedure
Comparative Criminal Justice Systems
5th Edition
Right to CounselUnited States- essential basic right for all
citizens within a democracyBurden is on the prosecution to
prove guilt of the defendant Miranda v. Arizona- requires all
persons to be informed of his or her right to remain silent and to
have an attorneyEnglandAccess to Justice Legislation(1999)-
legal advice and representation are provided for all persons held
for questioning.
Common Law Criminal ProcedureRight to Remain
SilentProvides the foundation for the adversarial system of
criminal process found in Common Law CountriesRight to
protection against self incrimination achieved its real definition
during the period of religious conflict in the 16th and 17th
centuries.Over many years the custom of refusing to testify at
all became common and was finally legitimized by parliament

5. in the latter 17th centuryThis hard won right especially
important to American colonistsCriminal Justice and Public
Order Act 1994- changed status of right to remain silent in
EnglandPreviously the accused could not be required to
incriminate himselfNow guilt can be inferred from silence- so
there is pressure on the accused to waive the right to silence
when being questioned by policeUnited States- 5th Amendment-
deals with right to remain silentBasically state must prove guilt
without help of that person
Comparative Criminal Justice Systems
5th Edition
Common Law Criminal ProcedureRight to Trial by JuryOrigins-
right to be judged by one’s own peers dates back to concessions
made by King John I to his nobles in the Magna Carta of
1215Used less commonly then previouslyUnited States-90% of
criminal cases settled through plea bargainEngland- 58% of
defendant’s in Crown Court cases plead guilty and 88% in
magistrates court accept such a pleaIn reality, trial by jury
remains only a small part of the English Criminal Justice
System
Comparative Criminal Justice Systems
5th Edition
Common Law Criminal ProcedureRight to Bail

6. England- bail is allowed for anyone who is not a fugitive from
the law, who is accused of a crime that would not require
imprisonment, and whose prior record or history of absconding
are not an issueIn 1994 police gained power to set bail and
provide conditions of bail prior to the first appearance of the
accused in court
United States- Judges will deny bail if the subject is a flight
risk, has a prior record, or has committed a serious current
offense
Concerns- is bail discriminatory towards the poor?
Comparative Criminal Justice Systems
5th Edition
Civil Law Criminal Procedure
Most common of all the legal traditionsNumerous variations of
criminal procedure practiced within Civil Law countriesModel
Nation: FranceInvestigationMinor crimes and misdemeanors
are handled by police investigators and prosecuting
attorneysFelonies- handled through the extensive process of
pretrial investigation(instruction)- characterizes Civil Law
systemsGarde a vue- after a crime has been committed and a
preliminary investigation has been undertaken a suspect can be
brought in for questioning Modified in 2011- any person can be
held “who is suspected of having committed or attempted to
commit a crime or offence punishable by imprisonment for one
or more plausible reasons
Comparative Criminal Justice Systems
5th Edition

7. Civil Law Criminal ProcedureAfter the Garde a vue, the suspect
must be released unless the judicial police officer feels there is
enough evidence against him/herOnce it is determined the
evidence is sufficient the suspect is arrested and formally
charged for the offense.At this stage- the judicial police, the
procurator, and the juge d’ instruction proceed with the
investigationJuge d’ instruction- examining magistrate
responsible for a complete and impartial investigation of the
factsThe pretrial investigation- involves the calling of witnesses
on both sides, extensive gathering of facts and testimony, and
careful questioning of the accused prior to decision to bring
case to trialConducted in camera by the juge d’ instruction with
the help of police investigators and the procuratorProtects
accused from adverse publicity prior to the government having a
strong case for prosecution
Civil Law Criminal ProcedurePre-trial investigation- similar to
grand jury hearings in U.SAfter the investigation the juge d’
instruction forwards his or her findings to the Indicting
Chamber of the Court of Appeals and if warranted to the Courts
of Assize- which are the courts of original jurisdiction in
criminal mattersDossier- complete record of the pretrial
proceedings and informs the judges, defense attorneys, and
others about the testimony of key witnesses and evidence to be
presentedThe potential for abuse in lengthy, secret pretrial

8. proceedings is evident- including lengthy detentions
Comparative Criminal Justice Systems
5th Edition
Civil Law Criminal ProcedureRight to BailAccused or defense
counsel can apply for bail at any time during the caseMagistrate
determines if it will be grantedProblem in France: infrequently
granted so most suspects spend a considerable amount of time in
pretrial detentionRight to CounselDefendant required to have
counsel at pretrial investigation stage; can chose or appointed if
indignantRight restricted if suspect is involved with terrorist
activity
Comparative Criminal Justice Systems
5th Edition
Civil Law Criminal Procedure
Comparative Criminal Justice Systems
5th Edition
Right to Remain SilentAccused can remain silent throughout all
steps of process but expected to answer questions during trial
lRight to Trial By JuryRight to trial by jury of nine or by judge
and two lay assessorsAssessors- professional judges selected

9. from other courts to sit in on the trial
Socialist Criminal Procedure
Comparative Criminal Justice Systems
5th Edition
Pretrial InvestigationPublic Safety Office or procurator or local
court can initiate investigation , then give case to
procuratorRight to CounselAllowed from the day case is
transferred to procurator; indignant offenders provided with
counsel( not guaranteed)Right to Remain SilentAccused can
remain silent, but silence is treated as admission of guilt
Socialist Criminal ProcedureRight to BailMore restricted in
China than in most other countriesCan apply for and receive
bail, but her or she is not entitled to this rightPolice maintain
complete discretion over whether or not to approve the
applicationRight to Trial by JuryNo trial by jury; trial by panel
of judgesDetermined by majority ruleSentences handed down
immediately after verdict
Comparative Criminal Justice Systems
5th Edition

10. Distinctive Aspects of Socialist Law ProcedureIn Socialist Law,
the major emphasis is on the public’s interest instead of
protecting individual rights.The collective is more important
than any one individualSeparation of powers is subordinate to
the idea of sovereignty of state.In Socialist China there is much
broader pretrial detention possibilities, defendants have limited
rights to counsel, and procurators enjoy extensive discretion.In
China, cases seem to be handled differently depending on
whether they are political or criminal cases.
Comparative Criminal Justice Systems
5th Edition
Sacred Law Criminal Procedure Mostly located in Middle
EastModel Country: Saudi Arabia
InvestigationTwo common ways to initiate criminal
prosecutionA victim or their heirs may initiate criminal action
to a competent courtThe quadi will then decide whether or not
to formally prosecute the matterThe government can conduct a
criminal investigation with the assistance of the investigator
Comparative Criminal Justice Systems
5th Edition

11. Sacred Law Criminal Procedure Right to BailThere is a bail
system in Saudi Arabia, but it is generally only applied for
those accused of less serious crimesRight to CounselAllowed
during investigation and trial stages; public defender appointed
if needed; right to defend oneself or appoint counselRight to
Remain SilentNo right to remain silent; however, accused does
not have to tell the truthRight to trial by juryNo trial by jury
Comparative Criminal Justice Systems
5th Edition
Japan: Hybrid Situation
InvestigationPolice transfer cases to prosecutor for
investigation; prosecutor can dismiss case before trialRight to
CounselCounsel provided to those who can not afford it at point
where suspect is taken into custodyRight to Remain SilentCan
remain silent but judicial system relies on confessionRight to
Trial by JuryLay assessors with professional judges for
important casesSaiban-inRight to BailBail allowed for some
offenses, but can be denied by judge at request of procurator
Comparative Criminal Justice Systems
5th Edition
Arrangements for Constitutional Review

12. Judicial Review- the power of a court to review actions and
legal decisions made by those in the criminal justice system.
Most commonly accepted form of review in the world today,
with over 40 percent of political systems using this method..Ex.
Germany, Japan, England, Saudi ArabiaNo Review- the
alternative to conventional judicial review is no constitutional
reviewHistorically many systems that are based on written
constitutions have not provided for constitutional reviewHow do
countries without provisions for constitutional review address
possible problems with criminal process and behavior? – Basic
constitutional arrangements exist in most democratic
governments.
Comparative Criminal Justice Systems
5th Edition
Arrangements for Constitutional ReviewNon-judicial review-
another alternative is the establishment of a non-judicial
constitutional review agency to resolve issues of
constitutionality. France adopted this alternative – provides for
a nine member Constitutional CouncilThe French System is
known as abstract constitutional review because the council
decides on issues of constitutionality without hearing actual
cases that have arisen under specific laws.Basically means that
the council gives advice rather than make judgments on actual
cases.The Chinese practice also most closely resembles non-
judicial review.
Comparative Criminal Justice Systems
5th Edition

13. Arrangements for Constitutional Review
Judicial Review with Legislative Approval- constitutional
decisions by a supreme court subject to approval by a
legislative body. This arrangement exists in India, where
constitutional arrangements may be passed with the approval of
two- thirds of both houses of parliament. None of the model
countries use this procedure.
Comparative Criminal Justice Systems
5th Edition
Supranational CourtsSupranational courts- Special criminal
courts and courts of human rights that have been developed ,
whose decisions cross national boundaries and supposedly have
higher legal standing than the decisions of courts in individual
countries.Three general forms1. International courts that have
been accepted internationally as legitimateInternational Court
of JusticeInternational Criminal Court
Comparative Criminal Justice Systems
5th Edition

14. Supranational Courts
2. Ad hoc tribunals that have been developed for a specific
purpose, have a narrowly defined jurisdiction, and are meant to
be temporaryInternational Criminal Tribunals in Rwanda and
Yugoslavia
Comparative Criminal Justice Systems
5th Edition
Supranational Courts
3. Internationalized Courts- operate with the support of the
United Nations to prosecute those responsible for crimes against
humanity, war crimes, and violations of domestic
law.International Criminal Court (ICC)International Criminal
Tribunal for Yugoslavia (ICTY)Special Tribunal for Lebanon
(STL)
Comparative Criminal Justice Systems
5th Edition

15. Current EventRead the following article and discuss
supranational courts and their roles in criminal procedure.How
did the International Criminal Court come about?What is its
jurisdiction and
purpose?http://www.cnn.com/2011/WORLD/africa/06/27/libya.
war/index.html?iref=allsearch
Comparative Criminal Justice Systems
5th Edition
Current EventRead the following article discussing the
effectiveness of international courtsWhat is your opinion on
International courts? Are they useful? Why or why not? What
other options are available?
http://www.cnn.com/2012/04/26/opinion/charles-taylor-
victims/index.html?iref=allsearch
Comparative Criminal Justice Systems
5th Edition
Current EventWhat are the different types of Supranational
Courts?What are some pros and cons of the international
courts?Form an opinion on whether or not International courts
are useful.
http://www.cnn.com/2011/POLITICS/05/28/obama.icc/index.ht

16. ml?iref=allsearch
Comparative Criminal Justice Systems
5th Edition