Comparative Criminal Procedure Research Articles

The Power of Comparative Constitutional Law Reasoning in European Criminal Law Procedure

Abstract This paper explores the constitutional dimension of comparative criminal law procedure in a European context. It does so by focusing on the European civil law traditions and by explaining how the impact of constitutional law reasoning has changed the criminal law landscape. The paper argues that the influence of European Union law and the European Convention on Human Rights regime together with other comparative law effects have led to an adapted version of the comparative law project, where the orthodox distinction between civil law and common law is largely erased. Specifically, the paper focuses on the question of fairness and justification in the criminal law process, the principle of proportionality and the notion of dignity in a comparative perspective. The paper draws on both doctrinal and theoretical examples.

Climbing the Mountain of Criminal Procedure

Comparative Criminal Procedure1 is a collection of essays that analyze mechanisms of criminal procedure across jurisdictions and over time. The book contains an introduction by the editors, fourteen essays addressing aspects of criminal procedure within or across countries, and an epilogue by Maximo Langer that responds to these essays and analyzes the field of comparative criminal procedure more broadly. A common assumption among the authors is that a jurisdiction’s criminal procedure does more than merely effectuate the policy goals underlying substantive criminal law. Rather, criminal procedure reflects or constitutes deeper normative and political commitments. There is no single best way to run...

The Power of Comparative Constitutional Law Reasoning in European Criminal Law Procedure

This paper explores the constitutional dimension of comparative criminal law procedure in a European context. It does so by focusing on the European civil law traditions and by explaining how the impact of constitutional law reasoning has changed the criminal law landscape. The paper argues that the influence of European Union law and the European Convention on Human Rights regime together with other comparative law effects have led to an adapted version of the comparative law project, where the orthodox distinction between civil law and common law is largely erased. Specifically, the paper focuses on the question of fairness and justification in the criminal law process, the principle of proportionality and the notion of dignity in a comparative perspective. The paper draws on both doctrinal and theoretical examples.

O que vem depois dos “legal transplants”? Uma análise do processo penal brasileiro atual à luz de direito comparado

O presente estudo pretende tratar do processo penal comparado à luz da conhecida expressão de “transplante jurídico”. Nesse sentido aqui se diz, num primeiro momento, do atual estágio da ciência do direito comparado. Depois se trata de possíveis aspectos críticos que podem ser lembrados em países latino-americanos, incluindo o Brasil. Por fim, com olhos ao processo penal e autores que se debruçaram no tema do processo penal comparado, assume-se posição crítica quanto ao cenário de algumas reformas do processo penal brasileiro atual.

Criminal Procedure in China: Evolution and Hybrid Nature

China’s criminal procedure is undergoing an era of profound institutional reform. Ongoing experiments occurs frequently, just like an important laboratory for justice reform. The evolution of criminal procedure will be examined from 1979 to 2012 by means of referring to the code. It is clear that China’s criminal procedure demonstrates a hybrid nature by referring to the main weberian model-divides in the field of comparative criminal procedure.

Prosecutorial Accountability in the Rechtsstaat: The Tension between Law, Politics, and the Public Interest.

During the past two decades, scholars, politicians, and legal practitioners in the United States have criticized American prosecutors for adopting a “conviction mentality” that diverges from their ethical duty to pursue justice. Most notably, critics have alleged and, in some cases shown, that prosecutors have suppressed exculpatory evidence, applied the law selectively, used their sentencing leverage to force plea bargains, and have helped fuel America’s incarceration epidemic. These criticisms locate the origin of these problems in prosecutors’ lack of accountability, the inefficiency of elections, non-transparent decision-making processes, and prosecutors’ desire for political gain. In contrast to this robust criticism of American prosecutors, the German prosecution service is not under fire. This lack of criticism is due to several striking differences not only between the institutional role played prosecutors in both countries, but also between each state’s vision of governance, democratic accountability, and the law itself. Perhaps, most tellingly, it has been the German judges and the prosecutors themselves have launched the most visible calls for reform. service. Moreover, the reformers aim not to make prosecutors more accountable, but rather to increase their political independence. The divergent directions of these calls for reform in Germany and the U.S. contradicts the narrative that, despite differences between the adversarial and inquisitorial traditions, there are significant points of convergence between prosecutorial practices in both countries. To cite one example, although Germany was once hailed as the land without plea-bargaining, today “confession-bargaining” is used to settle a rising percentage of criminal cases. The existence of these superficial similarities, however, obscures deeper and more durable differences between the two systems. These differences are not fully captured by analyses that argue that adversarial systems are becoming more inquisitorial and inquisitorial systems have adopted some adversarial procedures. Although a significant body of scholarship in the field of comparative criminal procedure has focused on the functional, normative, and institutional differences between adversarial and inquisitorial systems, this chapter aims to break new ground by exploring the tension between democratic accountability and independence that undergirds the institutional position of German prosecution offices within an inquisitorial framework.

The Role of the Prosecutor of an International Criminal Court from a Comparative Perspective

The following paper is based on the answers given to 13 questions in the national reports of Argentina, England and Wales, France, Germany, Italy, Japan, Netherlands, Nigeria, Poland, Russia, Singapore, Scotland, Spain, Togo and the USA, as well as on the report 0111 Sharia, prepared for the international workshop Toward a procedural regime for the International Criminal Court (London, 6-7 June 1997). The paper deals with the role of the prosecutor at the pre-trial stage in the different national systems, summarising, on the one hand, the answers of the reports given to the three f1rst questions and including, on the other hand, further research on comparative criminal procedure and the invaluable knowledge of some colleagues at the MaxPlanck-Institute for Foreign and International Criminal Law.I have done my best to interpret the country reports correctly and to avoid superficial generalisations. However, given the spatial constraints, the comments made must remain rather impressionistic and focus on the major procedural systems. In my vie~, these are the English and US systems on the one hand, and the French and German on the other. The English adversarial common law model was imposed on the former colonies worldwide, the USA· being its first and most enthusiastic inheritor. The French 1808 Code d'instruction criminelle was not only imposed by the Napoleonic empire but also voluntarily accepted by former authoritarian regimes which wanted to liberalise their criminal justice, e.g. the newly unified German Empire (1877).

The analysis and containment of organized crime in Europe: an interview with Cyrille Fijnaut

This email interview with Cyrille Fijnaut was conducted during 2013 and 2014. It discusses Fijnaut’s background, influences, career and current thinking and activities from his early career in the Dutch police in the 1960s, through to his work as a criminologist for academia and governments. His main research interests are related to organized crime and terrorism, international police and judicial cooperation, comparative criminal procedure and police law, the history of European and American criminology and of policing in Europe, and police and judicial cooperation in the Benelux. In these fields he has written and edited some 75 books and published hundreds of articles in national and international journals and edited books. In 2004 he edited together with Letizia Paoli, Organized Crime in Europe: Concepts, Patterns and Control Policies in the European Union and Beyond. In addition he has worked in the last 20 years as an expert for a number of governmental and parliamentary committees of inquiry in Belgium and the Netherlands with regard to organized and professional crime problems and in relation to security issues. Currently he is working on a book on the future of police and judicial cooperation in the framework of the internal and external security policies of the European Union.

American Criminal Procedure in a European Context

Research is focused on the field of comparative criminal procedure. Classical distinction between accusatorial and inquisitorial approaches, which are found in common law and civil law systems respectively are examinated. Inquisitorial criminal procedure, which is followed in continental Europe, has a pejorative connotation by contrast to accusatorial one. Both inquisitorial and accusatorial models are seen as irreconcilable and as having conflicting characteristics. However, in practice, both models are not as different as the abstract descriptions suggest. The criminal procedures followed in continental Europe, influenced by American practices, have many of the features associated with the accusatorial/adversarial models. In addition, in accusatorial and/or adversarial systems, especially in the United States, the trial is not the general rule. In fact, in more than 90% of criminal cases in the United States, resolution is reached through plea bargaining. This is now a part of the adversarial system that also represents a failure of the system as far as the trial, which should be the general rule, is now the exception. My proposal is that we should eliminate the two categories or labels (inquisitorial and accusatorial) for two reasons. First, the distinction is no longer accurate. The two models might have had distinctive and competing characteristics in the past, but this is no longer the case. Second, there is no longer a clear distinction between the two models because of the ways these models have influenced each other, especially the influence of the Anglo-American model on the European model.

Discretionary vs. Mandatory Prosecution: A Game-Theoretic Approach to Comparative Criminal Procedure

Using a game-theoretic model of criminal procedure, we investigate relative merits and demerits between discretionary and mandatory prosecution. The game illustrates a prosecutor's dilemma associated with his two tasks: evidence production and case screening. Discretionary prosecution makes use of incriminating evidence to dispose of weak cases, but it may suffer the moral-hazard problem in evidence production more seriously than mandatory prosecution. Our welfare analyses suggest that mandatory prosecution outperforms discretionary prosecution when evidence transmission from the prosecutor to the judge is accurate and/or when the cost of litigation incurred by the prosecutor is large.

Discretionary vs. Mandatory Prosecution: A Game-Theoretic Approach to Comparative Criminal Procedure

Abstract Using a game-theoretic model of criminal procedure, we investigate relative merits and demerits of discretionary and mandatory prosecution. The game illustrates a prosecutor's dilemma associated with his two tasks: evidence production and case screening. Discretionary prosecution makes use of incriminating evidence to dispose of weak cases, but discretionary prosecution may suffer the moral-hazard problem in evidence production more seriously than mandatory prosecution. Our welfare analyses suggest that mandatory prosecution outperforms discretionary prosecution when evidence transmission from the prosecutor to the judge is accurate and/or when the cost of litigation incurred by the prosecutor is large.

Dances of Justice: Tango and Rumba in Comparative Criminal Procedure

Different ideas about justice convey different images that can be captured by a dancing metaphor. This paper suggests that the adversary system can be associated with the idea of a ‘tango justice'; the non-adversary one with that of a ‘rumba justice.' ‘Tango' can be performed by two dancers and only by those two, acting together in the venture of establishing the adversarial truth. ‘Rumba,' on the contrary, is performed by a variable number of dancers occasionally alone and occasionally in groups with many shifts and continuous substitutions of dancers and roles. It is a genuinely communal performance in the collective search of an objective truth. The paper shows that the two dances associated with the two systems reflect different notions of ‘truth' and lead to different procedural arrangements consistent with their underlying tenets.

Comparative Corporate Criminal Liability: Exploring the Uniquely American Doctrine through Comparative Criminal Procedure

In the United States, corporations—as entities—can be criminally tried and convicted for crimes committed by individual directors, managers, and even low-level employees. From a comparative perspective, such corporate liability marks the United States as relatively unique. Few other Western countries impose entity liability, and those that do impose such liability comparatively infrequently and under the threat of far less serious punishment. The question of why the United States—and the United States virtually alone—imposes corporate criminal liability has been the subject of limited scholarly attention. This Note seeks to fill that void through the prism of comparative law. Using Germany—a country that imposes no corporate criminal liability—as a foil, this Note argues that the American doctrine can best be explained not through criminal theory but rather through criminal procedure. American criminal procedure imposes unique difficulties on American investigators and prosecutors seeking to root out individual white-collar criminals. But it also imparts powers to those prosecutors that are unknown to their German counterparts. Among them is the power to threaten criminal indictment, one that allows prosecutors to force American corporations to cooperate, to waive the attorney-client privilege, and to cut ties to individual employees under investigation, thereby facilitating the prosecution of those individual defendants. Using differences in criminal procedure rather than criminal theory to explain the uniquely American doctrine, this Note concludes by suggesting how the criminal procedure approach can best be used to understand— and potentially to reform—an American system that critics increasingly decry as broken. author. Yale Law School, J.D. 2008; Yale College, B.A. 2003. The author wishes to thank Professor James Whitman for inspiring this project and providing extensive feedback on prior drafts; Professors Kate Stith and Steven Duke for their invaluable guidance on this and other projects; and Greg Diskant, Paul Hughes, Richard Re, and Nicolas Thompson for their very helpful comments on the topic and prior drafts. DISKANT OP 10/14/2008 11:37:14 AM comparative corporate criminal liability

Scientific Expertise and Comparative Criminal Procedure

… the legacy of postmodernism is that truth is not fixed, meanings are ‘located’ provisionally, not ‘discovered’ and people who ‘find’ truth, whether judges, juries, critics, or, yes, even scientists, have interests — social, economic, political, racial, gender — that affect how they see the world. However much we may be convinced of the merits of the Anglo-Saxon judicial system, the courtroom is not the best place, and the adversary procedure is not the right method, to decide what is and what is not a science.

Teaching comparative criminal procedure: Russian dolls, color charts, and cappuccino

ABSTRACT Two major traditions-common law and civil law—provide the legal bases for most criminal justice systems in the Western world. Though sharp differences still exist, the past two centuries have witnessed a convergence between the two systems. This article suggests a method to introduce these two systems. It also suggests analogies and provides class handouts for an overview lecture that may be used in comparative criminal justice classes or, more commonly, in any criminal justice class in which the instructor wishes to introduce comparative criminal processes efficiently and with some depth.

Comparative Criminal Procedure by J. Hatchard, B. Huber and R. Vogler, Comparative Law Series, BIICL 1996, xiv + 256 pp (hardback £29.50)

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Structures of Authority and Comparative Criminal Procedure

Structures of Authority and Comparative Criminal Procedure

Lay Judges in the German Criminal Courts

Previous articleNext article No AccessLay Judges in the German Criminal CourtsGerhard Casper and Hans ZeiselGerhard Casper Search for more articles by this author and Hans Zeisel Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Journal of Legal Studies Volume 1, Number 1Jan., 1972 Sponsored by The University of Chicago Law School Article DOIhttps://doi.org/10.1086/467481 Views: 34Total views on this site Citations: 34Citations are reported from Crossref Copyright 1972 The University of ChicagoPDF download Crossref reports the following articles citing this article:Stefan Machura, Christoph Rennig “In the Name of the People”, (Jul 2021): 152–173.https://doi.org/10.1017/9781108669290.008Anna Offit Dismissing the Jury, (Jul 2021): 197–217.https://doi.org/10.1017/9781108669290.010Frans van Dijk Perceptions of Lay Judges About Independence of the Judiciary, (Dec 2020): 53–63.https://doi.org/10.1007/978-3-030-63143-7_4Yumiko Kita An Analysis of a Lay Adjudication System and Open Judiciary, (Jan 2020): 2522–2538.https://doi.org/10.4018/978-1-5225-9860-2.ch114Gordan Struić PRAVNO UREĐENJE KVALIFIKACIJA ZA PARTICIPACIJU GRAĐANA LAIKA U SUĐENJU U HRVATSKOJ OD 1848. 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