Comparative Criminal Law: Workgroup 1 (2016/2017)

Comparative criminal law

Working group 1

Assignment 1

According to Brants & Franken, the central issue determining whether a criminal process is (predominantly) inquisitorial or adversarial, is the conception of the ideal search for the truth (p. 6 literature reader). Weigend’s article also elaborates on the truth-finding in both systems.

1. Describe the inquisitorial truth-finding conception, explaining also that the term ‘inquisitorial’ is closely related to the word ‘inquiry’.

Answer to question 1a:

Brants & Franken’s article: The state is best entrusted with truth finding. The police is subordinate to the public prosecutor and in some cases an investigating judge.

Weigend’s article: The inquisitorial system entrusts an authoritative, neutral law officer with collecting relevant evidence, a process that includes the interrogation of suspects and witnesses. In the inquisitorial system the suspect is the subject of the investigation. He only has a few rights. He may be interrogated, this is why the term inquisitorial is closely related to the word ‘inquiry’.

Inquiry means that someone asks a question intended to get information about someone or something.

This also happens in the inquisitorial system, because witnesses and suspects can be interrogated. This is to get information on the suspect.

• The state is best suited to find the truth.
• Focus on the pre-trial state, because the dossier is made and this is handed over at the trial. The suspect is subject to the investigation. The dossier is the only file that can be used at the trial.
• Focus on the best truth.

2. Describe the adversarial truth-finding conception, explaining also that the term ‘adversarial’ is closely related to the word ‘adversary’.

Answer to question 1b:

Brants & Franken’s article: The criminal process (oral trial) is conceived of as a struggle between parties in which the individual defendant fights his own corner.

Weigend’s article: The adversarial system relies on opposing parties coming forward with their competing versions of the truth, challenging each other’s accuracy, and thereby ultimately bringing about a composite picture of or approximating the truth. This is also why the term adversarial is closely related to the word ‘adversary’, which means ‘enemy’, or ‘opponent’.

You could consider the parties as each other’s enemies or opponents, because they have a different vision of truth and they try to challenge each other’s accuracy.

• Equality of arms
• Focus on the procedural truth: you will never find the whole substantive truth. The procedure is very important, this is the main focus in the adversarial system.

Assignment 2

Weigend is critical about the truth-finding ability of both types of systems, but, obviously, for different reasons. He concludes that the end result of the search for the truth in both systems however will often be strikingly similar: “a half-truth based on what the defendant and more or less interested third parties are willing to disclose.” (p. 16 reader)

.....read more

Week 1.

C.H. Brants & A.A. Franken, ‘The protection of fundamental human rights in criminal process’, Utrecht Law Review

Legal systems and procedural traditions are to be distinguished as being either adversarial or inquisitorial. Adversarial systems are the so-called common law (English countries, like the UK, USA and colonies) and inquisitorial systems are civil law (European countries and colonies). There are also countries which have a mixed system. The question whether a legal system is adversarial or inquisitorial is important, because the criminal proceedings are different in the different systems.

Individual, state and individual rights and freedoms

The civil law system has the purpose to realize the ‘common good’. There are powers needed to carry out this task, so the liberty of the individuals is threatened. Only the state can achieve and uphold the liberty of the individual, so that the common good can be established. The State’s power is curtailed by the primacy of written rules under law, abstract constitutional rights of the individual and the division of power within the state, which implies judicial scrunity (review) executive action on the basis of written law and hierarchical monitoring and control within the executive itself.

Legally conferred powers in the written law are the only powers which can provide the State the possibility to infringe on individual rights; without legally written law they can do nothing.

In adversarial systems, the individuals define their relationships to the state in terms of the rule of law: as a set of concrete rights and freedoms from particular forms of state intrusion, which they themselves can assert. Under the common law system, executive organs of criminal justice do not monitor (to check or watch someone in order to find out what is happening) each other. They exist in a state of coordinate authority, and all their tasks are governed by the rule of law. Executive officials may do everything, they need no conferred powers, they may do anything which is not expressly forbidden in law. All law must be statutory, coming from the government, to be enforced by the executive and applied by the courts and interpreted in so far as the law is not clear.

However, it is impossible to legislate.....read more

Comparative Criminal Law, Lecture 3 (14 March 2017), Course Utrecht University (2016/2017)

Topic: Prosecution. 

Comparative Criminal Law

Lecture 3, Prosecution (14 March 2017).

Introduction

Prosecution is one of the key topics of the Criminal justice and criminal proceedings. The Prosecutor is the gatekeeper, the one who decides to prosecute or not. This may have a lot of consequences. Today we will discuss the function and institution of the prosecution. What does the prosecutor do and who is the prosecutor? This is very important to understand. It is difficult to give this overview, because there are many differences between countries. Therefore, the main traditions will be discussed; the Continental tradition (inquisitorial and mixed system) and the Common law system (adversarial systems).

In the Middle Ages there was a lot of torture to examine whether there was criminal behaviour. The suspect was obliged to undergo these torture. There was no need for a prosecution service. There has been a different development in the Continental tradition and the Common law system. The Continental tradition was more inquisitorial, with an active search for criminality.

Private prosecution vs. State prosecution

There is private prosecution and State prosecution. This may be different in the different systems. In England & Wales the prosecution was always essentially brought by private citizens, for example victims. Things changed, the Central Prosecution Service (CPS) was established in 1986. Inquisitorial and mixed systems, on the contrary, entrusted since their very beginning the power to prosecute to organs of the State (or the Church).

Continental system

What does the Prosecutor do in the Continental system? This is the one who points the finger. It’s a bit more complex, though. To understand that, we have to know the stages of the criminal proceedings. Everything starts with a suspicion of the crime. After that we go to the investigating stage and finally there is the trial stage. The prosecution has to discover the truth. The police does this as well, but it is the most important task of the Prosecutor. The Public Prosecutor is the main actor in the pretrial stage. He supervises the tasks of the Police. He can decide to take measures. He can directly authorize the adoption of certain specific investigative measures. He can also be independent or subordinate to the executive power.

 .....read more

Summary of Case Law: Berghuis, Warden v. Thompkins (Comparative Criminal Law, 2016/2017)

About police interrogation and waiver. 

Berghuis, Warden v. Thompkins

Introduction

The Berghuis Warden v. Thompkins case is about interrogation by the police and the right to remain silent (the Fifth Amendment). The case is about implicit waiver. Implicit waiver is possible when a suspect does not invoke his right to remain silent.

Facts

Thompkins was arrested for a shooting in Michigan. He was informed his rights by the police officers. At no point did Thompkins say that he wanted to remain silent, that he did not want to talk with the police or that he wanted an attorney. He was largely silent during the 3-hour interrogation, but near the end, he answered ‘yes’ when asked if he prayed to god to forgive him for the shooting. He moved to suppress his statements, claiming that he had invoked his right to remain silent, that he had not waived that right, and that his inculpatory statements were involuntary. Thompkins was charged with first-degree murder and other charges. The jury found Thompkins guilty and he was sentenced to life in prison.

Thompkins appealed two times: First at the State Court of Appeals, and after that the Federal District Court. The Federal District Court denied his request, reasoning that he did not invoke his right to remain silent and was not coerced into making statements during the interrogation, and that it was not unreasonable, for purposes of the Antiterrorism and Effective Death Penalty, for the State Court of Appeals to determine that he had waived his right to remain silent.

According to the Court, Thompkins waived his right to remain silent when he knowingly and voluntarily made a statement to the police. He didn’t invoke his right to remain silent. A waiver must be the product of a free and deliberate choice rather than intimidation, coercion or deception and made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.

Such a waiver may be implied through a defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver. If the State establishes that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver. Thompkins waived his right; he knew what he gave up when he spoke. His course of conduct indicating waiver was present by his statement about God.  The interrogation was not coercive.

After giving the Miranda warning, the police may interrogate a suspect who has neither.....read more

Summary of the Case Law: Miranda v. Arizona (Comparative Criminal Law 2016/2017).

Police interrogation and a breach of the right not to incriminate oneself. 

Miranda v. Arizona

Introduction

This case was brought before the US Supreme Court and it is about the Miranda Rights. This case is about police interrogation in the United States. In this case the statements of the defence were obtained under circumstances that did not meet constitutional standards for protection of the privilege against self-incrimination. The Court deals with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself. The Miranda rights consist of the right to remain silent, everything you say can and will be used against you in the court of law, the right to an attorney, if you can’t afford an attorney you will get one. (page 12 & 13).

Facts

The Mexican defendant Ernesto Miranda was questioned while in custody and he was cut off from the outside world. There was given no warning of his rights at the outset of the interrogation process (page 19). The police took him to a special interrogation room where they secured a confession (par. 25). The defendant was a seriously disturbed individual with pronounced sexual fantasies.

Two hours later the police emerged from the interrogation room with a written confession signed by Miranda. At the top of the statement was a typed paragraph stating that the confession was made voluntarily, without threats or promises of immunity and ‘’with full knowledge of my legal rights, understanding any statement I make may be used against me.’’ At trial before the jury, the written confession was admitted to the evidence and Miranda was found guilty of kidnapping and rape. .

Decision

The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination (p. 4). These safeguards mean that the prosecutor is devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it. The person must be warned that  he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, only voluntarily,.....read more

Comparative Criminal Law (2016/2017): Case Law Summary: United States v. Russel 

United States v. Russel

Introduction

This case is about incitement in drugs offence and the concept of entrapment.

Facts

Russel was charged in three counts of a five-count indictment returned against him and co-defendants Connolly. He was convicted of all three counts of having unlawfully manufactured and processed speed and of having unlawfully sold and delivered that drug in violation of the US law. On appeal, the United States Court of Appeals reversed the conviction solely for the reason that an undercover agent supplied an essential chemical for manufacturing the speed which formed the basis for respondent’s conviction.

The undercover agent had visited the home of the respondent. The assignment of the agent was to locate a laboratory where the speed was manufactured illicitly. He told the respondent that he was from a company that was interested in controlling the manufacture and distribution of speed. He made an offer to supply the defendants with an essential chemical ingredient in the manufacture of the speed, in return of half the drugs produced. Connolly gave the agent a big sample of the speed and they viewed the agent the laboratory. The day after, the agent supplied Russel and Connolly with the ingredient, and the morning after the manufacturing of the speed was finished.

Sometime later, the agent returned to the house with a search warrant and arrested Russel and Connolly. Russel was found guilty by the Court.

Appeal

The respondent went on appeal and conceded that the jury could have found him predisposed to commit the offences, but argued that on the facts represented there was entrapment as a matter of law. The Court of Appeals agreed, although it did not find that the District Court had misconstrued or misapplied the traditional standards governing the entrapment defence. Rather, the Court expanded the traditional notion of entrapment, which focuses on the predisposition of the defendant, to mandate dismissal of a criminal prosecution whenever the court determines that there has been an ‘intolerable degree of governmental participation in criminal enterprise’. In this case the Court decided that the conduct of the agent in supplying a scarce ingredient essential for the manufacture of a controlled substance established that defence.

The respondent asks the US Supreme Court to reconsider the theory of the entrapment defence. He argues that the level of the agent’s involvement in the manufacture of the speed was so high that a criminal prosecution for the drug’s manufacture violates the fundamental principles.....read more

Comparative Criminal Law Lecture 4: Judicial Decisionmakers 

Utrecht University, Bachelor 3 (2016/2017)

Comparative Criminal Law

Lecture 4, 28 march 2017

Judicial decisionmakers (The Concept of Truth)

Essence of legal political culture

‘Every society must be equipped with institutions that can function in the context of its own political culture’. – Griffith 1997, p. 158.

We already crossed the investigative stage of the proceedings, we are now in the trial stage. There are also relations between those stages, because the trial stage is also about the investigation stage; everything that happens in this stage will reflect on how the trial works.

Key features of judicial decisionmaking

• Independency of the judiciary: None of us wants to be tried by a dependent judiciary.
• Impartiality of the judicial decision-makers: None of us wants to be tried by a partial judiciary. The European Court of Human Rights is both objective and subjective. The United Kingdom is objective and the United States are subjective. In terms of the case law about decision-making, the objective is most important. There are some legal safeguards which were acknowledged by the European Court. There is case law which relates to the judges.
• Legal safeguards: These safeguards are present to establish impartiality, such as:

• Prior to trial: rules of appointment, jury selections.
• During trial: Withdrawal ex officio, substitution/challenge. For example, think about the Wilders trial, he wanted the ‘impartial’ judge to be replaced. This is a possibility to challenge the impartiality of the judge.

The archetypes

The civil law has a ‘patriarch doctrine’, where the judge is the decision-maker; versus the peer review doctrine in the common law system. The ‘peer review’ is known as the jury as a decision-maker. This occurs in the United States and the United Kingdom, for example.

Patriarch doctrine

Patriarch doctrine: this doctrine is the pursuit of substantive truth, the enforcement of the law to uphold the maintenance of legal and social order. The concept of truth is different than within the peer review. The truth we find in Court cannot be any other than one we decided upon......read more