Criminal Procedure: Comparative Aspects

Comparative research has concentrated for too long on juxtaposing trial models, especially the inquisitorial and adversarial features of civil law and common law systems. The development of similar techniques for dealing with the large bulk of uncontested cases in various systems shows that the style of presenting evidence at trial is only one, comparatively insignificant aspect of the criminal process. There does remain a difference with respect to systems' overall orientation toward conflict resolution or "truthfinding." But even that theoretical contrast may be less important for the resolution of practical issues than appears at first blush. Research should thus refrain from spelling out again and again the supposed differences between adversarial and inquisitorial systems, but should focus on two other sets of issues.

One area of potentially fruitful research is the delineation of new paradigms by which to evaluate individual legal systems. The standard inquiry into the extent to which participants' human rights are respected in the criminal process could be augmented, for example, by research into the (comparative) relevance of bureaucratic interests and lawyers' professional interests in shaping the process, by studying the relationship and interactions between public security (police) law and criminal procedure law, and by looking into the influence of economic considerations on the criminal process. Another promising approach might be "micro" studies on particular aspects of the criminal process, where practical solutions developed in various systems could be compared and their potential for borrowing be explored. From an American perspective, areas of interest might include the law and practice of pretrial detention, protection of victims' interests, reduction of delay, and the organization of defense services. In studying foreign achievements in these and other problem areas, one should, however, keep aware of the pitfalls of transplanting foreign solutions—there is a rather large step from theoretical comparison to successful implementation in practice.