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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?