Chapter 6 Flashcards
Criminal procedure is necessary because…
- To guide the many people engaged in the criminal justice process.
- To create a predictability and consistency to the process.
- To bring legitimacy to the government’s criminal justice process.
Bill of Rights
Right to a fair, just, and speedy trial.
Right of Habeas Corpus.
Freedom from illegal searches and seizures (Exclusionary Rule).
Right to an attorney during all important processes.
Right to be free from double jeopardy.
Right to trial by jury of peers.
Right against self incrimination.
Right to confront witnesses.
Right to demand and subpoena witnesses to attend trial.
Right to reasonable bail.
Right against cruel and unusual punishment.
The Adversarial System
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 to win. It’s a game with rules.
Countries that use it: USA and England.
Prosecutor: represents the government’s interest and proves guilt rather than potential innocence.
Defense: represents the accused and attacks the State’s case, presenting evidence that demonstrates innocence.
The Judge decides two things: are the prosecutor and the defense playing by the rules of the game and is the law being fairly applied to the case.
The jury or judge decides who wins.
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.
The Inquisitorial System
Inquisitorial - main model of criminal procedure and has been around for 700 years. Most commonly associated with Civil Law countries. The assumption is that the truth can be found through a detailed and exhaustive investigation, not the adversarial process.
Countries that use it: France, Germany, China, Japan, and Saudi Arabia.
The Judge takes center stage in the Inquisitorial system. Judge conducts a lengthy and detailed investigation into the facts. Judge interviews witnesses, examines the scene of the crime, and retains experts. The Parties are required to provide all information that they have.
Criticisms:
Main issues arise from the extreme power of the judge at both the investigative and trial levels.
Delays in system because of extensive pretrial investigations.
Judge must balance impartiality with investigative vigor and tenacity.
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 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
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 (similar but not the same as U.S. juries) help the professional judge come to a decision.
Examples:
Germany - Schoffen
China - Lay assessors
United States and England - Justice of the Peace
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. Cases seem to be handled differently depending on whether they are political or criminal cases.
Civil Law Criminal Procedure
France:
Type of investigation depends on which category a crime falls into.
1. Crimes (felonies)
2. Delits (Serious misdemeanors)
3. Contraventions (Minor Crimes)
Felonies are handled through the extensive process of pretrial investigation called Instruction.
Minor crimes and misdemeanors are handled by police investigators and prosecuting attorneys.
Felonies are handled through the extensive process of pretrial investigation (Instruction).
Garde a vue - after a crime has been committed and a preliminary investigation has been undertaken, a suspect can be brought in for questioning. The suspect must be released afterward unless there is enough evidence against them.
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 the case to trial. Done in private to protect the accused from the public. They are engaged with the process the whole time.
Pre-trial investigation - similar to grand jury hearings in U.S. After the investigation the juge d’ instruction forwards their findings (Dossier) 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. The potential for abuse in lengthy, secret pretrial proceedings is evident - including lengthy detentions.
Right to Bail:
Accused or defense counsel can apply for bail at anytime during the case. Magistrate determines if it will be granted, but it’s infrequently granted so most suspects spend a long time in pretrial detention.
Right to Counsel:
Defendant required to have counsel at pretrial investigation stage; can chose or appointed if indignant. Counsel may be present during the entire garde a vue. Right restricted if suspect is involved with terrorist activity.
Right to Remain Silent:
Accused can remain silent throughout all steps of process but, in practice, is expected to answer questions during trial. French law requires the accused be informed of his right to remain silent during the pretrial proceedings. Defendants have the right to withdraw any pretrial confessions.
Right to Trial By Jury:
Unlike Germany, France has kept the jury trial process. Right to trial by jury of nine or by President Judge and two lay Assessors. Assessors are professional judges selected from other courts to sit in on the trial. Judges and jurors question witnesses and defendants.
Socialist Criminal Procedure
China:
Pretrial Investigation:
Public Safety Office or procurator or local court can initiate investigation then give case to procurator who decides whether to prosecute.
Right to Counsel:
Allowed from the day case is transferred to procurator; indigent offenders provided with counsel (not guaranteed and no objective standards for determination).
Right to Remain Silent:
Accused can remain silent, but silence is treated as admission of guilt, and may add to the length of the sentence.
Right to Bail:
More restricted in China than in most other countries. Can apply for and receive bail, but it is not guaranteed. Police maintain complete discretion over whether or not to approve the application.
People are routinely held without arrest or procurator approval for months or even years.
Right to Trial by Jury:
No trial by jury; trial by panel of judges. Determined by majority rule. Sentences handed down immediately after verdict.
Chinese Trial:
The procurator represents the interest of the state and the defendant, or his legal counsel represents the interest of the accused. Jury trials do not exist. A panel of judges, the number of which is determined by the court, comes to a verdict by majority vote. Sentences are handed down immediately after verdict.
At trial, the emphasis is on obtaining the confession of the defendant rather than the testimony of witnesses. Witnesses usually do not appear in court and are unavailable for cross examination. Judge engages in questioning the defendant.
Sacred Law Criminal Procedure
Mostly located in Middle East, like Saudi Arabia.
Two common ways to initiate criminal prosecution:
1. A victim or their heirs may initiate criminal action to a competent court. The quadi (judge) will then decide whether or not to formally prosecute the matter.
2. The government can conduct a criminal investigation with the assistance of the investigator.
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. There is a right to defend oneself or appoint counsel but it is inconsistently applied.
Right to Remain Silent:
No right to remain silent. Those who do remain silent are subjected to poor treatment and torture.
Right to trial by jury:
No trial by jury
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 cannot afford it at point where suspect is taken into custody.
Right to Remain Silent:
Can remain silent but judicial system relies on confessions.
Right to Trial by Jury:
Japan abandoned jury trials. Lay assessors with professional judges for important cases called Saiban-in (take the place of the jury). Otherwise the trial proceeds very much like in U.S.
Right to Bail:
Bail allowed for some offenses, but can be denied by judge at request of procurator.
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% of political systems using this method. Eg. Germany, Japan, England, Saudi Arabia, United States.
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.
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.
