Criminal Procedure: Comparative Aspects

The purpose of comparative research into foreign ways of conducting the criminal process is not limited to the satisfaction of scholarly curiosity, its results can also be put to practical use in various ways. Observation of foreign laws and practices can demonstrate that it is feasible to depart from one's own traditional solutions and thus back up reform proposals against conservative criticism. Looking abroad can also generate a pool of new ideas for law reform—ideas whose attractiveness increases in proportion to the perceived dysfunctionality of a system's own procedural system (cf. Frase, 1999; Frase and Weigend). Solutions that have thrived in a foreign system should, however, not be embraced without a healthy dose of skepticism. Even achieving a proper understanding of foreign legal systems is not as simple as it may appear. Domestic procedural institutions rarely have exact equivalents abroad, but their functions may be fulfilled by procedural arrangements that appear under a different name and sometimes in a totally different legal context, or practitioners may have developed functionally similar solutions without any explicit support in statutory law. To cite just one example: in continental procedure law, pleas of guilty or not guilty are unknown. Yet the main effect of a guilty plea, namely the radical abbreviation of the criminal trial, can be achieved by other means, for example, by a brief confession made at the beginning of the trial immediately followed by imposition of a sentence, or by the defendant's submission to being adjudicated on the record of pretrial proceedings. This example shows that it is crucial for comparativists to look not only beyond nominal parallels but even beyond a country's law on the books and to take procedural practice into account.

The second step, adaptation of a solution proven to "work" abroad creates even greater problems. Because of the interdependence of all elements of the criminal process, a procedural device that functions excellently in its original environment may be ineffectual or even counterproductive as a transplant severed from its roots. For example, the authors of the German Code of Criminal Procedure of 1877, fascinated by what they had seen flourish in England, introduced the possibility of examination and cross-examination of witnesses by the parties (Strafprozessordnung (StPO) vom 7. April 1987, Bundesgesetzblatt 1987 I, p. 1074, § 239). This option, which does not fit into the judge-dominated mode of the German trial, has almost never been used and is hardly known among German lawyers. Another possible pitfall for reformers intent on "borrowing" foreign solutions is the attitude of judges and lawyers: if they reject the transplant, perhaps because it seems to disturb the well-ingrained ways of doing justice, they can easily ignore or "integrate" any new institution into the old mold and thus prevent substantive change.