The convergence of the continental and the common law model of criminal procedure

Criminal Law Forum

Volumn 7, Issue 2, 1996, Pages 471-484

  Bradley, Craig M ^a  

^a INDIANA UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 0347678873     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1007/BF02197174     Document Type: Review

References (59)

1. See infra note 44.
2. "Americans tend to equate inquisitorial systems with coercive interrogation, unbridled search, and unduly efficient crime control." Abraham Goldstein, Reflections on Two Models: Inquisitorial Themes in American Criminal Procedure, 26 Stan. L. Rev. 1009, 1018 (1974).
3. But see Albert Alschuler, Implementing the Criminal Defendant's Right to Trial: Alternatives to the Plea Bargaining System, 50 U. Chi. L. Rev. 931 (1983) (arguing that for about $850 million more than was then being spent on the criminal justice system, every defendant could be given a 3-day jury trial).
4. The National Center for State Courts found that in 13 jurisdictions surveyed, the percentage of felony cases resolved by jury trail ranged from a low of 2.1 in Texas to a high of 6.9 in Alaska. Jeffrey Abramson, We, The Jury 298 (1994).
5. For an interesting discussion of this problem, compare Robert Scott & William Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1948-49 (1992), with Stephen Schulhofer, Plea Bargaining as Disaster, 101 Yale L.J. 1979, 1981-83 (1992).
6. On convergence between the United States and Germany, see Richard Frase & Thomas Weigend, German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?, 18 B.C. Int'l & Comp. L. Rev. 317 (1995);
7. see also Craig Bradley, The Failure of the Criminal Procedure Revolution 95-143 (1993) (discussing how various common law and civil law countries are moving toward a U.S.-style, rights-oriented approach to rules governing criminal investigation).
8. On recent changes in France, see Stewart Field & Andrew West, A Tale of Two Reforms: French Defense Rights and Police Powers in Transition, 6 Crim. L.F. 473 (1995).
9. Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al., Prosecutors, Examining Judges, and Control of Police Investigations, in Criminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995). Jury trials have also been abandoned in Japan and India, and are used increasingly rarely in England. Stephen J. Adler, The Jury at xv-xvi (1994).
10. Nico Jörg et al., Are Inquisitorial and Adversarial Systems Converging?, in Criminal Justice in Europe, supra note 8, at 48, 54. Germany also has a limited exclusionary rule, but it depends more on balancing the nature of the evidence against the seriousness of the crime than it does on the way in which the evidence was obtained. Craig Bradley, The Exclusionary Rule in Germany, 96 Harv. L. Rev. 1032, 1048 (1983);
11. Frase & Weigend, supra note 6, at 334.
12. A practice imported from England. Miranda v. Arizona, 384 U.S. 436, 486-88 (1966).
13. See infra text accompanying notes 33-37.
14. "Worries about the partisan nature of policing have led to calls for the introduction of a pretrial truth-finder such as the investigating judge." Jörg et al., supra note 9, at 49. Other "proposals include greater judicial involvement in indicating sentences and regulating deals." Id. at 52.
15. For most purposes, Scotland has a separate criminal justice system.
16. Constantijn Kelk, Criminal Justice in the Netherlands, in Criminal Justice in Europe, supra, note 8, at 1, 19.
17. In 1950, 500,000 crimes were reported to the police; in 1991, 5.4 million. Gavin Dingwall & Alan Davenport, The Evolution of Criminal Justice Policy in the UK, in Criminal Justice in Europe, supra note 8, at 21, 21.
18. Presumably, the Netherlands has experienced a similar growth in crime, which has influenced the developments that Kelk, supra note 14, criticizes.
19. Between 1960 and 1979, recorded crime in England and Wales rose by 177 percent and the prison population rose by 45 percent. Dingwall & Davenport, supra note 15, at 27. On the recent leveling off of crime rates, see Madeleine Sann, Documents Received, in this issue of Criminal Law Forum, at 495, 505.
20. Dingwall & Davenport, supra note 15, at 31.
21. 378 U.S. 52 (1964).
22. Id. at 55; accord Culombe v. Connecticut, 367 U.S. 568, 581 (1961) (emphasis added) ("This principle [against self-incrimination], branded into the consciousness of our civilization by the memory of the secret inquisitions, sometimes practiced with torture, which were borrowed briefly from the continent, during the era of the Star Chamber, was well known to those who established the American governments.").
23. 399 U.S. 78 (1970).
24. 406 U.S. 404 (1972).
25. Abraham Goldstein & Martin Marcus, The Myth of Judicial Supervision in Three "Inquisitorial" Systems: France, Italy, and Germany, 87 Yale L.J. 240 (1977);
26. John Langbein & Lloyd Weinreb, Continental Criminal Procedure: "Myth " and Reality, 87 Yale L.J. 1549 (1977);
27. John Langbein, Comparative Criminal Procedure (1977);
28. Mirjan Damaska, Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study, 121 U. Pa. L. Rev. 506 (1973). However, nearly four decades ago, Jerome Hall discussed the importance of the comparative approach in The Fundamental Aspects of Criminal Law, in Essays in Criminal Science 159 (Gerhard O.W. Mueller ed., 1961).
29. Williams, 399 U.S. at 87-98;
30. Apodaca, 406 U.S. at 407-10. Even in the 1980s, Supreme Court Chief Justice Burger, Judge Malcolm Wilkey of the U.S. Court of Appeals for the D.C. Circuit, and others thought that "no other civilized nation in the world" had an exclusionary rule. Bradley, supra note 9, at 1032.
31. Jörg et al., supra note 9, at 44.
32. Id. at 45.
33. Id.
34. Id. at 47.
35. Id. at 48.
36. Jörg et al., supra, note 8, at 236.
37. Id. at 237.
38. W. at 238, 242.
39. See supra note 9 and accompanying text.
40. Jörg et al., supra note 8, at 239. However, this practice appears to be in conflict with the European Convention and thus is likely to change. Annemarieke Beijer et al., Witness Evidence, Article 6 of the European Convention of Human Rights, and the Principle of Open Justice, in Criminal Justice in Europe, supra note 8, at 283, 287-88.
41. Jörg et al., supra note 8, at 239.
42. Jörg et al., supra note 9, at 49.
43. Even though England has been a party to the European Convention since 1966. See generally Bert Swart & James Young, The European Convention on Human Rights and Criminal Justice in the Netherlands and the United Kingdom, in Criminal Justice in Europe, supra note 8, at 57. The convention is, however, often a subsidiary source of law. Id. at 62.
44. Kelk, supra note 14, at 6-7, does point to "diminishing tolerance" in the Netherlands, which can "be seen in our attitude toward ethnic minorities," and concludes that this trend has contributed to "juridification" (the establishment of formal rules) "not because of any deep-seated interest in the classical values of liberty, equality and fraternity" but to establish "social control in the sense of supervision and one person watching another." I doubt that many Americans would have such a rosy view of human nature as to suppose that police do not require some "watching," especially when it comes to their treatment of minorities.
45. Bradley, supra note 6, at 96-108.
46. United States v. Bagley, 473 U.S. 667 (1985). In the United States, at least, this obligation extends to impeachment evidence. Id. at 678. However, in neither country are the police expected to search out all possibly exculpatory material nor necessarily even to hand over such material absent a request by the defense attorney. Id. at 681-82;
47. see also jörg et al., supra note 9, at 49.
48. Older features of the Anglo-American system such as "an organized police force and overt acceptance of police power to detain and interrogate in order to generate evidence against the suspect" originated with inquisitorial systems. Jörg et al., supra note 9, at 48;
49. see also Goldstein, supra note 2, at 1018.
50. On Britain, see Laura Masnerus, Under Fire, Jury System Faces Overhaul, N.Y. Times, Nov. 4, 1995, at 9; on the United States, see Abramson, supra note 4, at 252 (citing statistics from the National Center for State Courts).
51. E.g., Masnerus, supra note 42.
52. Even if the defendant chooses to admit guilt, the presiding judge will still conduct a limited trail. Joachim Hermann, Bargaining Justice: A Bargain for German Criminal Justice, 53 U. Pitt. L. Rev. 755, 763 (1992).
53. In Germany, the average trial for less serious criminal cases takes about 2 hours; for more serious cases, about one day. Langbein, supra note 23, at 77. A similar pattern is documented in Supreme Court of Japan, Criminal Justice in Japan 14 (1987).
54. Lloyd Weinreb, Denial of Justice 117-64 (1977);
55. Stephen Schulhofer, Is Plea Bargaining Inevitable?, 97 Harv. L Rev. 1037 (1984).
56. For further discussion, see Bradley, supra note 9, at 1063.
57. Craig Bradley & Joseph Hoffmann, Public Perception, Justice, and the "Search for Truth" in Criminal Cases, S. Cal. L. Rev. (forthcoming 1996).
58. Christopher Harding et al., Conclusion - Europeanization and Convergence: The Lessons of Comparative Study, in Criminal Justice in Europe, supra note 8, at 379, 386.
59. As would the educative function of widespread citizen participation in juries. However, if lay judges sat in many more and shorter trials than are currently held, the total amount of citizen participation might not be much reduced.