ch6- criminal procedure

Comparative Criminal Justice 5th Edition Chapter 6: Criminal Procedure Adrianna Hughes University of Scranton Learning Objectives: Chapter 6 Explore the major differences in criminal procedure among the various families of law Analyze the differences between adversarial systems and inquisitorial systems Explain the different types of constitutional review Describe how convergence has become the norms in criminal procedure in the legal systems around the world Identify 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 umpire Rights given to accused right to an attorney right to remain silent right to be free of unwarranted arrests and searches right to compel witnesses The Adversarial System Criticisms Manipulation by criminals of system Combat effect- emphasis on “winning” the legal battle instead of justice being done Wealth effect- advantage held by those who can afford to hire a skilled attorney and pay for investigators Plea bargaining- about 90% of cases in U.S. are settled by plea bargaining Countries that use adversarial system England 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 countries The trial in the inquisitorial system is less like a competition and more like a continuing investigation Criticisms Main issues arise with extreme power of the judge at both the investigative and trial levels Delays in system because of extensive pretrial investigations Judge must balance impartiality Model countries that use Inquisitorial system France, 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 adjudication in which one or more lay judges help the professional judge come to a decision. Examples Germany- Schoffen China- Lay assessors United 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 Counsel United States- essential basic right for all citizens within a democracy Burden 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 attorney England Access to Justice Legislation(1999)- legal advice and representation are provided for all persons held for questioning. Common Law Criminal Procedure Right to Remain Silent Provides the foundation for the adversarial system of criminal process found in Common Law Countries Right 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 in the latter 17th century This hard won right especially important to American colonists Criminal Justice and Public Order Act 1994- changed status of right to remain silent in England Previously the accused could not be required to incriminate himself Now guilt can be inferred from silence- so there is pressure on the accused to waive the right to silence when being questioned by police United States- 5th Amendment- deals with right to remain silent Basically state must prove guilt without help of that person Comparative Criminal Justice Systems 5th Edition Common Law Criminal Procedure Right to Trial by Jury Origins-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 1215 Used less commonly then previously United States-90% of criminal cases settled through plea bargain England- 58% of defendant’s in Crown Court cases plead guilty and 88% in magistrates court accept such a plea In reality, trial by jury remains only a small part of the English Criminal Justice System Comparative Criminal Justice Systems 5th Edition Common Law Criminal Procedure Right to Bail 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 issue In 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 traditions Numerous variations of criminal procedure practiced within Civil Law countries Model Nation: France Investigation Minor crimes and misdemeanors are handled by police investigators and prosecuting attorneys Felonies- handled through the extensive process of pretrial investigation(instruction)- characterizes Civil Law systems Garde 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 Civil Law Criminal Procedure After the Garde a vue, the suspect must be released unless the judicial police officer feels there is enough evidence against him/her Once 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 investigation Juge d’ instruction- examining magistrate responsible for a complete and impartial investigation of the facts The 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 trial Conducted in camera by the juge d’ instruction with the help of police investigators and the procurator Protects accused from adverse publicity prior to the government having a strong case for prosecution Civil Law Criminal Procedure Pre-trial investigation- similar to grand jury hearings in U.S After 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 matters Dossier- complete record of the pretrial proceedings and informs the judges, defense attorneys, and others about the testimony of key witnesses and evidence to be presented The potential for abuse in lengthy, secret pretrial proceedings is evident- including lengthy detentions Comparative Criminal Justice Systems 5th Edition Civil Law Criminal Procedure Right to Bail Accused or defense counsel can apply for bail at any time during the case Magistrate determines if it will be granted Problem in France: infrequently granted so most suspects spend a considerable amount of time in pretrial detention Right to Counsel Defendant required to have counsel at pretrial investigation stage; can chose or appointed if indignant Right 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 Silent Accused can remain silent throughout all steps of process but expected to answer questions during trial l Right to Trial By Jury Right to trial by jury of nine or by judge and two lay assessors Assessors- professional judges selected from other courts to sit in on the trial Socialist Criminal Procedure Comparative Criminal Justice Systems 5th Edition Pretrial Investigation Public Safety Office or procurator or local court can initiate investigation , then give case to procurator Right to Counsel Allowed from the day case is transferred to procurator; indignant offenders provided with counsel( not guaranteed) Right to Remain Silent Accused can remain silent, but silence is treated as admission of guilt Socialist Criminal Procedure Right to Bail More restricted in China than in most other countries Can apply for and receive bail, but her or she is not entitled to this right Police maintain complete discretion over whether or not to approve the application Right to Trial by Jury No trial by jury; trial by panel of judges Determined by majority rule Sentences handed down immediately after verdict Comparative Criminal Justice Systems 5th Edition Distinctive Aspects of Socialist Law Procedure In Socialist Law, the major emphasis is on the public’s interest instead of protecting individual rights. The collective is more important than any one individual Separation 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 East Model Country: Saudi Arabia Investigation Two common ways to initiate criminal prosecution A victim or their heirs may initiate criminal action to a competent court The quadi will then decide whether or not to formally prosecute the matter The government can conduct a criminal investigation with the assistance of the investigator Comparative Criminal Justice Systems 5th Edition Sacred Law Criminal Procedure Right to Bail There is a bail system in Saudi Arabia, but it is generally only applied for those accused of less serious crimes Right to Counsel Allowed during investigation and trial stages; public defender appointed if needed; right to defend oneself or appoint counsel Right to Remain Silent No right to remain silent; however, accused does not have to tell the truth Right to trial by jury No trial by jury Comparative Criminal Justice Systems 5th Edition Japan: Hybrid Situation Investigation Police transfer cases to prosecutor for investigation; prosecutor can dismiss case before trial Right to Counsel Counsel provided to those who can not afford it at point where suspect is taken into custody Right to Remain Silent Can remain silent but judicial system relies on confession Right to Trial by Jury Lay assessors with professional judges for important cases Saiban-in Right to Bail Bail allowed for some offenses, but can be denied by judge at request of procurator Comparative Criminal Justice Systems 5th Edition Arrangements for Constitutional Review 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 Arabia No Review- the alternative to conventional judicial review is no constitutional review Historically many systems that are based on written constitutions have not provided for constitutional review How 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 Review Non-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 Council The 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 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 Courts Supranational 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 forms 1. International courts that have been accepted internationally as legitimate International Court of Justice International Criminal Court Comparative Criminal Justice Systems 5th Edition Supranational Courts 2. Ad hoc tribunals that have been developed for a specific purpose, have a narrowly defined jurisdiction, and are meant to be temporary International 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 Current Event Read 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 Event Read the following article discussing the effectiveness of international courts What 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 Event What 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.html?iref=allsearch Comparative Criminal Justice Systems 5th Edition