1. CRIM 405.003
Prof.
Andrew Novak
INTERNATIONAL AND
COMPARATIVE CRIMINAL
PROCEDURE

2.  Adversarial system (UK)
 Inquisitorial system (France, Germany, China)
 Islamic system (Saudi Arabia)
 Hybrid system (Japan)
 Comparative Judicial Review
 Comparative Convergence and Introduction to International
Criminal Procedure
AGENDA

3.  Police and Criminal Evidence Act of 1984
 Police need reasonable suspicion for stopping and searching
 Search may only be conducted with consent, warrant, or exigent
circumstances
 Strict time limits on police custody; must charge or release
 Right to remain silent (but may be used to infer guilt after 1994)
 Entitled to be released on bail except where danger to evidence or
other witnesses, prior convictions, or risk of another crime
 No public defender system, but legal aid exists
 Judge and jury trial system with speedy appeals
 90% of cases handled in summary proceedings
ADVERSARIAL SYSTEM (UK)

4.  Preliminary investigations, limited police custody permitted
 Procurator acts as “junior judge” with both investigatory and
adjudicatory duties
 Investigatory judge and a procurator may interrogate the
suspect and witnesses, with counsel from both defendant and
victim present
 Pretrial detention and supervision during course of
investigation (may be lengthy) permitted, as is bail
 No plea bargaining in France; yes in Germany
 Victims may bring simultaneous civil claims for damages, and
if so their lawyers may make presentation at trial
 Limited role for juries to decide smaller questions
INQUISITORIAL SYSTEM (FRANCE)

5.  Like France, Office of People’s Procuratorate mirrors court
system, and procurators act as quasi-judges and quasi-
investigators
 Trials conducted before three judges, or a judge and two
citizen assessors
 Trials usually public unless state secrets involved
SOCIALIST VARIANT (CHINA)

6.  Siyasa Sharia: Administration of justice in conformity with
Islamic law
 State initiates criminal actions for hudud offenses (crimes
against God), while victims may initiate actions for offenses
against individuals
 Recognizes presumption of innocence and right to remain
silent; forced confessions not permitted in pure Sharia law
though they exist in some Islamic countries
 Hudud crimes: higher evidence thresholds, including two
eyewitnesses (four for unlawful sexual intercourse), hearsay
unacceptable, witnesses must possess moral integrity
 Saudi Arabia: Law of Criminal Procedure (Western-style);
experiments with public defenders
 Convictions not in accordance with the Quran will be reversed
ISLAMIC LAW (SAUDI ARABIA)

7.  In Japan, offenders more likely to feel sense of shame rather
than guilt; 95% plead guilty and seek forgiveness
 Office of procurator, like France, Germany, and China; viewed
with trust and deference, perceived as authority figures
 Supreme Court acknowledged existence of exclusionary rule in
1978 (where search and seizure is illegal, evidence excluded)
 Trial system is adversarial, with public oral presentations by
prosecution and defense
HYBRID (JAPAN)

8.  American “invention” with Marbury v. Madison – ability of
highest court to declare laws “unconstitutional”
 Most countries have some judicial review today, and many
have separate constitutional courts
 Alternatives:
 France, advisory constitutional review of legislation before it is
passed
 Legislative or parliamentary overrides
 Courts or constitutions that permit broad executive or legislative
discretion
 Supreme Court of India and Appellate Division of Bangladesh
have declared constitutional amendments unconstitutional
 Remember Basic Law in Germany has unamendable provisions
JUDICIAL REVIEW

9.  Remember that the trend is toward convergence between
adversarial and inquisitorial systems
 Virtually every system has elements of both
 In addition, increasing emphasis on participatory
aspects, such as victim’s involvement in criminal proceedings
and compensation for victims
CONVERGENGE?