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Comparative Criminal Procedure
This Handbook presents innovative research that compares different criminal procedure systems by focusing on the mechanisms by which legal systems seek to avoid error, protect rights, ground their legitimacy, expand lay participation in the criminal process and develop alternatives to criminal trials, such as plea bargaining, as well as alternatives to the criminal process as a whole, such as intelligence operations. The criminal procedures examined in this book include those of the United States, Germany, France, Spain, Russia, India, Latin America, Taiwan and Japan, among others.
More Information
Critical Acclaim
Contributors
Contents
More Information
This Handbook presents innovative research that compares different criminal procedure systems by focusing on the mechanisms by which legal systems seek to avoid error, protect rights, ground their legitimacy, expand lay participation in the criminal process and develop alternatives to criminal trials, such as plea bargaining, as well as alternatives to the criminal process as a whole, such as intelligence operations. The criminal procedures examined in this book include those of the United States, Germany, France, Spain, Russia, India, Latin America, Taiwan and Japan, among others.
This book explores a number of key topics in the field of criminal procedure: the role of screening mechanisms in weeding out weak cases before trial; the willingness of different legal systems to suppress illegally obtained evidence; the ways legal systems set meaningful evidentiary thresholds for arrest and pretrial detention; the problem of wrongful convictions; the way legal systems balance the search for truth against other values, such as protections for fundamental rights; emerging legal protections for criminal defendants, including new safeguards against custodial questioning in the European Union, limitations on covert operations in post-Soviet states and the Indian system of anticipatory bail, as well as the mechanisms by which legal systems avoid trials altogether. A number of contributors also examine the impact of legal reforms that have newly introduced lay jurors into the fact-finding process, or that now require juries to give reasons for verdicts.
The ideal readership for this Handbook includes scholars and students of criminal procedure and comparative law, as well as civil liberties lawyers. Scholars of national security, the European Union, transitional justice and privacy will also be interested in the volume’s contributions to their fields.
This book explores a number of key topics in the field of criminal procedure: the role of screening mechanisms in weeding out weak cases before trial; the willingness of different legal systems to suppress illegally obtained evidence; the ways legal systems set meaningful evidentiary thresholds for arrest and pretrial detention; the problem of wrongful convictions; the way legal systems balance the search for truth against other values, such as protections for fundamental rights; emerging legal protections for criminal defendants, including new safeguards against custodial questioning in the European Union, limitations on covert operations in post-Soviet states and the Indian system of anticipatory bail, as well as the mechanisms by which legal systems avoid trials altogether. A number of contributors also examine the impact of legal reforms that have newly introduced lay jurors into the fact-finding process, or that now require juries to give reasons for verdicts.
The ideal readership for this Handbook includes scholars and students of criminal procedure and comparative law, as well as civil liberties lawyers. Scholars of national security, the European Union, transitional justice and privacy will also be interested in the volume’s contributions to their fields.
Critical Acclaim
‘Contemporary criminal procedure may be seen as a global garden in which myriad blossoms, with names like “lay judges”, “anticipatory bail” and “confession bargaining” have sprung out of a grafting of old adversarial-inquisitorial roots. In this impressive volume, contributors from England, India, Italy, Taiwan and the United States examine many facets of these new hybridities. Cross-pollination among national and supranational systems, differences and similarities at various stages of the criminal process, and even efforts to avoid that process altogether, are explored. The result is a comparative analysis that enriches understanding of global criminal procedure.’
– Diane Marie Amann, University of Georgia, School of Law, US
‘This enlightening book assembles cutting-edge work from the finest scholars of comparative criminal procedure around the world. It marks a real advance in our knowledge and poses policy challenges that every country in the world will have to face.’
– James Q. Whitman, Yale University, US
– Diane Marie Amann, University of Georgia, School of Law, US
‘This enlightening book assembles cutting-edge work from the finest scholars of comparative criminal procedure around the world. It marks a real advance in our knowledge and poses policy challenges that every country in the world will have to face.’
– James Q. Whitman, Yale University, US
Contributors
Contributors: S.M. Boyne, M. Cohen, S. Fouladvand, E. Grande, J.S. Hodgson, D.T. Johnson, V.S. Khanna, N. Kovalev, M. Langer, A.D. Leipold, K. Mahajan, J. Mazzone, J.E. Ross, C. Slobogin, S.C. Thaman, J.I. Turner, R. Vogler, T. Wen
Contents
Contents:
PART I INTRODUCTION: MAPPING DIALOGUE AND CHANGE IN COMPARATIVE CRIMINAL PROCEDURE
Jacqueline E. Ross and Stephen C. Thaman
PART II HOLISTIC COMPARISONS
1. Limits on the Search for Truth in Criminal Procedure: A Comparative View
Jenia Iontcheva Turner
2. Ensuring the Factual Reliability of Criminal Convictions: Reasoned Judgments or a Return to Formal Rules of Evidence?
Stephen C. Thaman
PART III DIACHRONIC COMPARISONS
A. Screening Mechanisms
3. Anticipatory Bail in India: Addressing Misuse of the Criminal Justice Process?
Vikramaditya S. Khanna and Kartikey Mahajan
4. Mechanisms for Screening Prosecutorial Charging Decisions in the United States and Taiwan
Tzu-te Wen and Andrew D. Leipold
5. Standards for Making Factual Determinations in Arrest and Pretrial Detention: A Comparative Analysis of Law and Practice
Richard Vogler and Shahrzad Fouladvand
B. Pretrial Investigation
6. Procedural Economy in Pre-Trial Procedure: Developments in Germany and the United States
Shawn Marie Boyne
7. From the Domestic to the European: An Empirical Approach to Comparative Custodial Legal Advice
Jacqueline S. Hodgson
8. A Comparative Perspective on the Exclusionary Rule in Search and Seizure Cases
Christopher Slobogin
9. Silence, Self-Incrimination, and Hazards of Globalization
Jason Mazzone
C. Adjudication: Jury Trials
10. Rumba Justice and the Spanish Jury Trial
Elisabetta Grande
11. Japan’s Lay Judge System
David T. Johnson
12. The French Case for Requiring Juries to Give Reasons: Safeguarding Defendants or Guarding the Judges?
Mathilde Cohen
PART IV SYNCHRONIC COMPARISONS: ALTERNATIVES TO TRIAL, TO CRIMINAL INVESTIGATIONS, AND TO THE CRIMINAL PROCESS ITSELF
13. Special Investigative Techniques in Post-Soviet States: The Divide Between Preventive Policing and Criminal Investigation
Nikolai Kovalev and Stephen C. Thaman
14. The Emergence of Foreign Intelligence Investigations as Alternatives to the Criminal Process: A View of American Counterterrorism Surveillance Through German Lenses
Jacqueline E. Ross
V EPILOGUE
Strength, Weakness, or Both? On the Endurance of the Adversarial-Inquisitorial Systems in Comparative Criminal Procedure
Máximo Langer
Index
PART I INTRODUCTION: MAPPING DIALOGUE AND CHANGE IN COMPARATIVE CRIMINAL PROCEDURE
Jacqueline E. Ross and Stephen C. Thaman
PART II HOLISTIC COMPARISONS
1. Limits on the Search for Truth in Criminal Procedure: A Comparative View
Jenia Iontcheva Turner
2. Ensuring the Factual Reliability of Criminal Convictions: Reasoned Judgments or a Return to Formal Rules of Evidence?
Stephen C. Thaman
PART III DIACHRONIC COMPARISONS
A. Screening Mechanisms
3. Anticipatory Bail in India: Addressing Misuse of the Criminal Justice Process?
Vikramaditya S. Khanna and Kartikey Mahajan
4. Mechanisms for Screening Prosecutorial Charging Decisions in the United States and Taiwan
Tzu-te Wen and Andrew D. Leipold
5. Standards for Making Factual Determinations in Arrest and Pretrial Detention: A Comparative Analysis of Law and Practice
Richard Vogler and Shahrzad Fouladvand
B. Pretrial Investigation
6. Procedural Economy in Pre-Trial Procedure: Developments in Germany and the United States
Shawn Marie Boyne
7. From the Domestic to the European: An Empirical Approach to Comparative Custodial Legal Advice
Jacqueline S. Hodgson
8. A Comparative Perspective on the Exclusionary Rule in Search and Seizure Cases
Christopher Slobogin
9. Silence, Self-Incrimination, and Hazards of Globalization
Jason Mazzone
C. Adjudication: Jury Trials
10. Rumba Justice and the Spanish Jury Trial
Elisabetta Grande
11. Japan’s Lay Judge System
David T. Johnson
12. The French Case for Requiring Juries to Give Reasons: Safeguarding Defendants or Guarding the Judges?
Mathilde Cohen
PART IV SYNCHRONIC COMPARISONS: ALTERNATIVES TO TRIAL, TO CRIMINAL INVESTIGATIONS, AND TO THE CRIMINAL PROCESS ITSELF
13. Special Investigative Techniques in Post-Soviet States: The Divide Between Preventive Policing and Criminal Investigation
Nikolai Kovalev and Stephen C. Thaman
14. The Emergence of Foreign Intelligence Investigations as Alternatives to the Criminal Process: A View of American Counterterrorism Surveillance Through German Lenses
Jacqueline E. Ross
V EPILOGUE
Strength, Weakness, or Both? On the Endurance of the Adversarial-Inquisitorial Systems in Comparative Criminal Procedure
Máximo Langer
Index
