Criminal Procedure: Comparative Aspects - Purposes And Problems, Two Models Of The Criminal Process, Investigation, Control Of Police, Prosecution
In the light of growing dissatisfaction with the realities of American criminal procedure, the criminal process of foreign countries has since the 1970s attracted growing interest among American scholars. They have sought possible models for domestic reform not only in other jurisdictions of the common law family but also in continental Europe, where the criminal process has followed a format quite different from the Anglo-American tradition.
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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 cri…
This entry does not advocate any particular legal reform but limits itself to providing outlines of the criminal process in some European countries, especially France, Germany, Italy, and Spain (for more detailed information on these and other systems see, Bradley, 1999 and Van den Wyngaert; for in-depth comparisons of two or three legal systems, see Fennell et al. (England and the Netherlands) an…
Investigation of a reported offense is the first step in the criminal process. The law typically entrusts either an investigating magistrate, as in France (Code de Procédure Pénale, Loi n. 57-1426 du 31 déc. 1957 (French CPP), arts. 80, 81) and Spain (Ley de Enjuiciamiento Criminal, promulgada por real decreto de 14 de sept. de 1882 (LEC), art. 306), or the state's attorney, …
One possible way of controlling police is the imposition of individual civil and criminal liability for unlawful invasions of citizens' rights. Such remedies are available in most legal systems, but they are notoriously ineffectual in cases of misconduct below the level of outright brutality. The same must be said of formal disciplinary proceedings. Internal discipline generally functions c…
Prosecutorial discretion. American prosecutors enjoy practically unlimited discretion in their decision whether to file charges against a suspect, and what charges to bring. This can frustrate victims of crime, who have no legal recourse against a district attorney's refusal to prosecute and who are in most states precluded from directly involving the courts by filing criminal charges. Fore…
The contrast between adversarial and inquisitorial styles of conducting the criminal process becomes most evident at the trial stage. In inquisitorial systems, the trial is typically dominated by the presiding judge, who selects and calls up the evidence to be presented at trial, makes procedural rulings as necessary, and interrogates defendants, witnesses, and experts. In adversarial systems, the…
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 pr…
Bundesministerium der Justiz, ed. Täter-Opfer- Ausgleich in Deutschland. Bonn: Forum, 1998. ——. Evidence Law Adrift. New Haven and London: Yale University Press, 1997. ——. "Truth in Adjudication." Hastings Law Journal 49 (1998): 289–308. ——. "France." Criminal Procedure. A Worldwide Study. Edited by Craig M. Bradley.…
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