Week 1 - Features of Criminal Procedures
What is criminal procedure?
Criminal procedure is described as rules that govern the making, administering and
enforcing the substantve law
Process for assessing substantve law violatons, enforcing substantve law prohibitonss
the rules of law that cover the apprehension, screening and trial of persons suspected of
crime (Packer)
Substantve criminal law- defnes crimes and punishments for them
Characteristcs:
Official
Formal process (documents, deadlines), ceremonial character
(theatrical grandeur)
Formal-linear process (Practce oriented feld)
Lead by state – authorites
Public law element
Enforced by state
Coercive measures legitmacy (core relatonship between individual
and state)
Goals of criminal procedure:
1. Prosecuton of crime
2. Protecton of rights (balance security v. liberty)
Two main stages
Pre-trial stage (investgaton) Trial stage (trial court hearing)
Context of discovery Context of justfcaton validaton of hypothesis
formulaton of hypothesis Public
In secret Actors – judge, jury, prosecutor, witness, defence
Actors – police, prosecutor, counsel
investgatng judge, victm, Defendant (suspect is called defendant in trial
counsel, stage)
Suspect – called accused No clear separaton
Different rights
Crucial: structure of two stages and their
relatonship
, Two models of criminal justce according to Packer:
Crime control model (Packer)
Prosecuton of crime (priority)
Maximisaton of security (essental)
Legitmacy = efficiency if investgatve measure is efficient then it is legitmate
(focus on efficiency)
Fast and successful outcomes (goal)
Minimise obstacles-no individual rights included
Fast, informal and uniform procedures
Factual presumpton of guilt: Once established as a suspect processed by the
system under the view of probable guilt (only theoretcals not opposite to
Normatve presumpton of innocence as it does not exist in practce like the later
one)
Increased investgatve powers, presumed reliable
Efficiency is very important
System is legitmate because it is efficient
Due Process Model (Packer)
Protecton of individual rights
Liberty
System is reliable because it is efficient (crime control)
System is efficient only if reliable (due process)
No shortcuts around reliability
Create obstacles!
Law is reactve, not proactve
Normatve presumpton of innocence: Attude of authorites towards individuals
despite the factual evidence
Individual is treated as innocent untl proven guilty by the court of law
Normatve presumpton of innocence exists in practces an actual legal concept
that state authorites need to abide by
o System is only efficient if it is legitmate
Presumpton of guilt and innocence are not opposite!!!
Factual presumpton of guilt does not exist in legal world,
only statstcal predicton of outcome if the investgaton says you are a suspect,
you are probably guilty (factual)
Presumpton of innocence is NORMATIVE AND LEGAL it refects an attude of
authorites despite the factual evidence
Which model would you prefer and why?
Due Process model, emphasis on protecton of individual rights and against arbitrariness
What is the difference between Packer’s models of due process and crime control, and of the
inquisitorial and adversarial traditons?
Packer’s models are theoretcal whereas Inquisitorial and adversarial systems exists real systems
are mix of dues process and crime control models
How to balance? Natonal legal traditons
State v. Individual De facto unbalanced relaton Two major legal traditons in Europe
Ratonale: state has enormous power and resources whereas Adversarial traditon (e.g. English
an individual is much more limited system)Common law system
Balancing mechanisms: Inquisitorial traditon (e.g. Dutch and German
1) Principles (e.g. fair trial, orality of trial) systems)Civil law system
2) Individual rights (e.g. defence rights) Nowadays real systems mixed!
3) Safeguards (e.g. maximum period of police custody) Hybrid systems (e.g. Italian)
4) Supervision mechanisms
(e.g. judicial orders (warrants)-higher authority that checks the law)
What is criminal procedure?
Criminal procedure is described as rules that govern the making, administering and
enforcing the substantve law
Process for assessing substantve law violatons, enforcing substantve law prohibitonss
the rules of law that cover the apprehension, screening and trial of persons suspected of
crime (Packer)
Substantve criminal law- defnes crimes and punishments for them
Characteristcs:
Official
Formal process (documents, deadlines), ceremonial character
(theatrical grandeur)
Formal-linear process (Practce oriented feld)
Lead by state – authorites
Public law element
Enforced by state
Coercive measures legitmacy (core relatonship between individual
and state)
Goals of criminal procedure:
1. Prosecuton of crime
2. Protecton of rights (balance security v. liberty)
Two main stages
Pre-trial stage (investgaton) Trial stage (trial court hearing)
Context of discovery Context of justfcaton validaton of hypothesis
formulaton of hypothesis Public
In secret Actors – judge, jury, prosecutor, witness, defence
Actors – police, prosecutor, counsel
investgatng judge, victm, Defendant (suspect is called defendant in trial
counsel, stage)
Suspect – called accused No clear separaton
Different rights
Crucial: structure of two stages and their
relatonship
, Two models of criminal justce according to Packer:
Crime control model (Packer)
Prosecuton of crime (priority)
Maximisaton of security (essental)
Legitmacy = efficiency if investgatve measure is efficient then it is legitmate
(focus on efficiency)
Fast and successful outcomes (goal)
Minimise obstacles-no individual rights included
Fast, informal and uniform procedures
Factual presumpton of guilt: Once established as a suspect processed by the
system under the view of probable guilt (only theoretcals not opposite to
Normatve presumpton of innocence as it does not exist in practce like the later
one)
Increased investgatve powers, presumed reliable
Efficiency is very important
System is legitmate because it is efficient
Due Process Model (Packer)
Protecton of individual rights
Liberty
System is reliable because it is efficient (crime control)
System is efficient only if reliable (due process)
No shortcuts around reliability
Create obstacles!
Law is reactve, not proactve
Normatve presumpton of innocence: Attude of authorites towards individuals
despite the factual evidence
Individual is treated as innocent untl proven guilty by the court of law
Normatve presumpton of innocence exists in practces an actual legal concept
that state authorites need to abide by
o System is only efficient if it is legitmate
Presumpton of guilt and innocence are not opposite!!!
Factual presumpton of guilt does not exist in legal world,
only statstcal predicton of outcome if the investgaton says you are a suspect,
you are probably guilty (factual)
Presumpton of innocence is NORMATIVE AND LEGAL it refects an attude of
authorites despite the factual evidence
Which model would you prefer and why?
Due Process model, emphasis on protecton of individual rights and against arbitrariness
What is the difference between Packer’s models of due process and crime control, and of the
inquisitorial and adversarial traditons?
Packer’s models are theoretcal whereas Inquisitorial and adversarial systems exists real systems
are mix of dues process and crime control models
How to balance? Natonal legal traditons
State v. Individual De facto unbalanced relaton Two major legal traditons in Europe
Ratonale: state has enormous power and resources whereas Adversarial traditon (e.g. English
an individual is much more limited system)Common law system
Balancing mechanisms: Inquisitorial traditon (e.g. Dutch and German
1) Principles (e.g. fair trial, orality of trial) systems)Civil law system
2) Individual rights (e.g. defence rights) Nowadays real systems mixed!
3) Safeguards (e.g. maximum period of police custody) Hybrid systems (e.g. Italian)
4) Supervision mechanisms
(e.g. judicial orders (warrants)-higher authority that checks the law)
