Standards for Criminal Procedure and Standards for Criminal Law: The Need for Balance

Abstract

This paper analyses standards for criminal procedure and for criminal law from a comparative perspective. I hope to show that standards for criminal procedure need to be balanced by standards for criminal law because, if a balance is not maintained, the consequences can be disastrous for defendants. I will focus on the U.S. criminal justice system to show what can happen when there is not a balance between standards for criminal procedure and standards for criminal law. Let me start by explaining that, like most American law professors in the criminal area, I teach both criminal procedure and criminal law. But, as I switch from courses in one area to the other over the last few decades, I feel like I am moving between two worlds that are inconsistent and contradictory in the way they treat citizens. In the world of criminal procedure, the rights of defendants in the United States are many, and they are almost always more powerful than the same rights in common law countries that share the same legal tradition. Our Supreme Court has, for example, fashioned an exclusionary rule that demands the exclusion from use at trial, evidence gathered as the result of police mistakes that are somewhat understandable – a misjudgment on the street as to whether the legal standard for a lawful search or lawful arrest was met.1 Other common law countries have exclusionary rules, but they typically balance the seriousness of the violation by the police against other factors such as the seriousness of the crime, the nature of the evidence obtained, etc.2 The U.S. rule is intended to be a powerful