WEEK 1: Introduction into Criminal Procedure and the ECHR
Textbook: Preface and Chapter 1 (excl. Case Study on Italy, p. 19 ff.)
The Adversarial System of Justice
U.S. criminal justice system is the most prominent example
Historical origin
- Did not originate in the U.S.
- The medieval judicial duel or “trial by combat” encompasses the basic adversarial structure
- Competing parties defending their respective positions with the outcome dependent on
the “strongest person” prevailing
- The Trial of Socrates
- Democracy in ancient Athens
- Majority of Athenians thrived on this model of self-governance
- Socrates openly and vocally disagreed proposed a theory of absolute rule by
knowledgeable experts to which the masses would be required to submit
- Antithetical to a thriving democracy and led to his trial; they were afraid his ideas
would lead to another uprising
- Indictments brought about by lay citizens since there was no public
prosecutor’s office
- Jury of 500 men chosen; use of a jury-court exemplified the concept of
democratic self-rule, which was further enhanced by the jury’s capacity
to independently dispense justice and equity as circumstances warranted
- Oath: “swore to vote according to the laws where there were
laws, and where there is not, to vote as justly in us lies.”
- Basic structure similar to today
- Verdict in two stages: first was the measure of guilt or innocence, then if
necessary, the second was to determine punishment
- Medieval period
- Oath-taking
- Judicial duel or “trial by combat”
- Trial by ordeal
, - The Assize of Clarendon and the Magna Carta
- The Assize of Clarendon
- Act by Henry II in 1164
- Official formalization of the jury trial process modern-day grand jury
proceeding
Common features:
- Trial by jury of peers
- Judicial neutrality and independence
- Prosecutorial discretion
- Defendant’s right to silence
- The defendant’s right to counsel
- The presumption of innocence
- Right to confront witnesses
- The principle of orality
- Elaborate rules surrounding the admissibility of evidence at trial
- Proof beyond a reasonable doubt
- Charge and plea bargaining
- Emphasis on guilty pleas
- Limitation on victim participation
The Inquisitorial System
Origins of the Inquisitorial Approach
- Began as a method for determining true believers in the Catholic faith, and evolved into a method
for investigating and prosecuting crimes on the European continent
- The Papal Inquisition
- Roman church wanted an efficient means to identify and address heterodoxy within the
Christian community lest it spread and lead to the downfall of the Church
- The Trial of Galileo
- His work as an astronomer and mathematician was under scrutiny
, - Sun being the immovable center of the universe; the Church did not like him
holding/defending this belief
- He was deposed/interrogated
- Was sentenced for holding and believing a doctrine contrary to the teachings of the
Catholic Church
- The Spanish Inquisition
- Primary goal was to invoke fear
- When arriving in a town, the inquisition’s first order of business was to gather the crowds
and read the edict or list of offences
- Onlookers would then be invited to come forward and confess their own sins, or more
likely, to denounce others for having committed crimes listed in the edict
- Relied upon hearsay evidence while shielding the identities of witnesses
Common features:
- Judicial proactiveness during the investigation and trial process
- Duty to seek the truth
- Focus on defendants as a source of evidence
- Prosecutorial neutrality
- Limited defense counsel participation
- Compilation of a dossier of evidence
- Secrecy during the investigation stage
- Limitations on guilty pleas
- Mandatory prosecution or the principle of legality
- Merging of guilt and sentencing phases
- Professional jurors
- Written justification for jury verdicts
- Victim participation as parties to the proceeding
Adversarial Inquisitorial
PRETRIAL
Role of Police Investigate crime; interview Investigate crime usually at the
witnesses; interrogate suspects; direction of prosecutor or judge
gather evidence; defendant (investigating magistrate);
, doesn’t have access to police defendant can often inspect
files and is usually not apprised information being compiled by
of specific charges until the police
arraignment
Role of Grand Jury Serves as a one-sided screening No grand jury process;
mechanism before prosecutor prosecutor or investigating
brings charges; also serves as magistrate usually provide
investigatory function much like screening function
the police – usually
investigating complex crimes
Role of Prosecutor Discretion as to whether charges Limited discretion – mandatory
will be filed prosecution in some cases
Plea bargaining Most cases are terminated by Generally forbidden. Once
plea agreement charged, the defendant will go to
trial on that charge.
TRIAL
Role of Judges Judges can be trier of fact if Single professional judge or
defendant waives trial by jury. mixed bench with professional
But in typical jury trial, judge judges and lay assessors. Panel
decides questions of law and decides questions of guilt and
jury decides questions of fact. punishment in one proceeding.
Guilty Plea? If defendant pleads guilty, there Must have trial even if
will be no trial. defendant confesses. Guilty plea
is unknown.
Evidence Neither judge nor jury considers Presiding judge has dossier;
evidence unless and until attorneys can review it, but not
presented at trial. lay judges; not admitted into
evidence or considered in
reaching verdict unless
something in dossier is
admissible; may use it to
impeach.
Format of Trial Very formal; everyone has a Less formal; judge performs
specific role to play and the most of the questioning;
Textbook: Preface and Chapter 1 (excl. Case Study on Italy, p. 19 ff.)
The Adversarial System of Justice
U.S. criminal justice system is the most prominent example
Historical origin
- Did not originate in the U.S.
- The medieval judicial duel or “trial by combat” encompasses the basic adversarial structure
- Competing parties defending their respective positions with the outcome dependent on
the “strongest person” prevailing
- The Trial of Socrates
- Democracy in ancient Athens
- Majority of Athenians thrived on this model of self-governance
- Socrates openly and vocally disagreed proposed a theory of absolute rule by
knowledgeable experts to which the masses would be required to submit
- Antithetical to a thriving democracy and led to his trial; they were afraid his ideas
would lead to another uprising
- Indictments brought about by lay citizens since there was no public
prosecutor’s office
- Jury of 500 men chosen; use of a jury-court exemplified the concept of
democratic self-rule, which was further enhanced by the jury’s capacity
to independently dispense justice and equity as circumstances warranted
- Oath: “swore to vote according to the laws where there were
laws, and where there is not, to vote as justly in us lies.”
- Basic structure similar to today
- Verdict in two stages: first was the measure of guilt or innocence, then if
necessary, the second was to determine punishment
- Medieval period
- Oath-taking
- Judicial duel or “trial by combat”
- Trial by ordeal
, - The Assize of Clarendon and the Magna Carta
- The Assize of Clarendon
- Act by Henry II in 1164
- Official formalization of the jury trial process modern-day grand jury
proceeding
Common features:
- Trial by jury of peers
- Judicial neutrality and independence
- Prosecutorial discretion
- Defendant’s right to silence
- The defendant’s right to counsel
- The presumption of innocence
- Right to confront witnesses
- The principle of orality
- Elaborate rules surrounding the admissibility of evidence at trial
- Proof beyond a reasonable doubt
- Charge and plea bargaining
- Emphasis on guilty pleas
- Limitation on victim participation
The Inquisitorial System
Origins of the Inquisitorial Approach
- Began as a method for determining true believers in the Catholic faith, and evolved into a method
for investigating and prosecuting crimes on the European continent
- The Papal Inquisition
- Roman church wanted an efficient means to identify and address heterodoxy within the
Christian community lest it spread and lead to the downfall of the Church
- The Trial of Galileo
- His work as an astronomer and mathematician was under scrutiny
, - Sun being the immovable center of the universe; the Church did not like him
holding/defending this belief
- He was deposed/interrogated
- Was sentenced for holding and believing a doctrine contrary to the teachings of the
Catholic Church
- The Spanish Inquisition
- Primary goal was to invoke fear
- When arriving in a town, the inquisition’s first order of business was to gather the crowds
and read the edict or list of offences
- Onlookers would then be invited to come forward and confess their own sins, or more
likely, to denounce others for having committed crimes listed in the edict
- Relied upon hearsay evidence while shielding the identities of witnesses
Common features:
- Judicial proactiveness during the investigation and trial process
- Duty to seek the truth
- Focus on defendants as a source of evidence
- Prosecutorial neutrality
- Limited defense counsel participation
- Compilation of a dossier of evidence
- Secrecy during the investigation stage
- Limitations on guilty pleas
- Mandatory prosecution or the principle of legality
- Merging of guilt and sentencing phases
- Professional jurors
- Written justification for jury verdicts
- Victim participation as parties to the proceeding
Adversarial Inquisitorial
PRETRIAL
Role of Police Investigate crime; interview Investigate crime usually at the
witnesses; interrogate suspects; direction of prosecutor or judge
gather evidence; defendant (investigating magistrate);
, doesn’t have access to police defendant can often inspect
files and is usually not apprised information being compiled by
of specific charges until the police
arraignment
Role of Grand Jury Serves as a one-sided screening No grand jury process;
mechanism before prosecutor prosecutor or investigating
brings charges; also serves as magistrate usually provide
investigatory function much like screening function
the police – usually
investigating complex crimes
Role of Prosecutor Discretion as to whether charges Limited discretion – mandatory
will be filed prosecution in some cases
Plea bargaining Most cases are terminated by Generally forbidden. Once
plea agreement charged, the defendant will go to
trial on that charge.
TRIAL
Role of Judges Judges can be trier of fact if Single professional judge or
defendant waives trial by jury. mixed bench with professional
But in typical jury trial, judge judges and lay assessors. Panel
decides questions of law and decides questions of guilt and
jury decides questions of fact. punishment in one proceeding.
Guilty Plea? If defendant pleads guilty, there Must have trial even if
will be no trial. defendant confesses. Guilty plea
is unknown.
Evidence Neither judge nor jury considers Presiding judge has dossier;
evidence unless and until attorneys can review it, but not
presented at trial. lay judges; not admitted into
evidence or considered in
reaching verdict unless
something in dossier is
admissible; may use it to
impeach.
Format of Trial Very formal; everyone has a Less formal; judge performs
specific role to play and the most of the questioning;
