Skip to main content
SpringerLink
Log in

The convergence of the continental and the common law model of criminal procedure

  • Book Reviews
  • Published:
Criminal Law Forum Aims and scope Submit manuscript

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

References

  1. Seeinfra note 44. Even if the defendant chooses to admit guilt, the presiding juidge will still conduct a limited trail. Joachim Hermann,Bargining Justice: A Bargain for German Criminal Justice, 53 U. Pitt. L. Rev. 755, 763 (1992).

  2. “Americans tend to equare inquisitorial systems with coercive interrogation, unbridled search, and undualy efficient crime control.” Abraham Goldstein,Reflections on Two Models: Inquistitorial Themes in American Criminal Procedure, 26 Stan. L. Rev. 1009, 1018 (1974).

  3. But see Albert Alschuler,Implementing the Criminal Defendant's Right to Trial: Alternatives to the Plea Bargining System, 50 U. Chi. L. Rev. 931 (1983) (arguing that for about $850 million more than was then being spent on the crimnal justice system, every defendant could be given a 3-day jury trial).

  4. The National Center for State Courts found that in 13 jurisdictions surveryed, the percentage of felony cases resolved by jury trial ranged from a low of 2.1 in Texas to a high of 6.9 in Alaska. Jeffrey Abramson,We, The Jury 298 (1994).

  5. For an interesting discussion of this problem,compare Robert Scott & Wiliam Stuntz,Plea Bargainging as contract, 101 Yale L.J. 1909, 1948–49 (1992),with Stephen Schulhofer,Plea Barganing as Diseaster, 101 Yale L.J. 1979, 1981–83 (1992).

  6. On convergence between the United States and Germany, see Richard Frase & Thomas Weigend,German Criminal Justices as a Guide to American Law Reform: Similar Problems, Better Solution? 18B.C. Int'l & Comp. L. Rev. 317 (1995);see also craig Bardley,The Failure of the Criminal Procedure Revolution 95–143 (1993) (discussing how various common law and civil law countries are moving toward a U.S.-style, rights-oriented approach to rules governing criminal investigation).

  7. On recent changes in France, see Stewart Field & Andrew West,A Tale of Two Reforms: French Defense Rights and Police Powers in Transition, 6 Crim. L.F. 473 (1995).

  8. Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosecutors, Examining Judges, and Control of Police Investigations, inCriminal Justice in Europ 227, 229, (Phil Fennell et al. eds., 1995). Jury trials have also been abandoned in Japan and India, and are used increasingly rerely in England. Stephen J. Adler,The Jury at xv–xvi (1994).

  9. Nico Järg et al.,Are Inquisitorial and Adversarial Systems Converging? inCriminal Justice in Europe, supra note 8. Germany also has a limited exclusionary rule, but it depends more on balancing the nature of the evidece against the seriousness of the crime than it does on the way in which the evidence was obtained. Craig Bradley,The Exclusonary Rule in Germany, 96 Harb. L. Rev. 1032, 1048 (1983); Frase & Weigend,supra note, at 334. On convergence between the United States and Germany, see Richard Frase & Thomas Weigend,German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?, 18 B.C. Int'l & Comp. L. Rev. 317 (1995);see also Craig Bradley,The Failure of the Criminal Procedure Revolution 95–143 (1993) (discussing how various common law and civil law countries are moving toward a U.S.-style, rights-oriented approach to rules governing criminal investigation) at 48, 54.

  10. A practice imported from England. Miranda v. Arizona, 384 U.S. 436, 486–488 (1966).

    Google Scholar 

  11. Seeinfra text accompanying note 33–37. Seesupra note 9 Nico Jörg et al.,Are Inquisitorial and Adversarial Systems Convergin?, inCriminal Justice in Europe, supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosecutors, Examining Judges, and Control of Police Investigations, inCriminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995). Jury trials have also been abandoned in Japan and India, and are used increasingly creasingly rarely in England. Stephen J. Alder,The Jury at xv–xvi (1994)., at 48, 54. Germany also has a limited exclusionary rule, but it depends more on balancing the nature of the evidence against the serousness of the crime than it does on the way in which the evidence was obtained. Craig Bradley,The Exclusionary Rule in Germany, 96 Harv. L. Rev. 1032, 1048 (1983); Frase & Weigned,supra note 6, On convergence between the United States and Germany, see Richard Frase & Thomas Weigend,German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?, 18 B.C. Int'l & Comp. L. Rev. 317 (1995);see also Craig Bradley,The Failure of the Criminal Procedure Revolution 95–143 (1993) (discussing how various common law and civil law contries are moving toward a U.S.-style, reigh-oriented approach to rules governing criminal investigation), at 334. and accompanying text. Jörg et al.,supta note 8, Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosecutors, Esxamining Judges, and Control of Police Investigation, inCriminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995). Jury trials have also been abandoned in Japan and India, and are used increasingly rarely in England. Stephen J. Adler,The Jury at xv–xvi (1994), at 239. However, this practice appears to be in conflict with the European Convention and thus is likely to change. Annemarieleke Beijer et al.,Witness Evidence. Article 6 of the European Convention of Huan Rights, and the Principle of Open Justice, inCriminal Justice in Europe, supra note 8, Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosecutors, Examining Judges, and Control of Police Investigations, inCriminal Justice in Europe 227, 229 (Phi Fennell et al. eds., 1995). Jury trials have also been abandoned in Japan and India, are are used increasingly rarely in England. Stephen J. Adler,The Jury at xv–xvi (1994), at 283, 287–88. Jörg et al.,supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosecturors, Examining Judges, and Control of Police Investigations, inCriminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995). Jury trials have also been abandoned in Japan and India, and are used increasingly rarely in England. Stephen J. Adler,The Jury at xv–xvi (1994), at 239. Jörg et al.,supra note 9, Nico Jörg et al.,Are Inquistitorial and Adversarial Systems Convergin?, inCriminal Justice in Europe, supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosectors, Examining Jdges, and Control of Police Investigation, in Criminal Justice in Europe 227, 229 (Phil fennell et al. eds., 1995). Jruy trials have also been abandoned in Japan and India, and are used increasingly rarely in England. Stephen. J. Adler,The Jury at xv–xvi (1994), at 48, 54. Germany also has a limited exclusionary rule, but it depends more on balancing the nature of the evidence against the seriousness of the crime than it does on the way in which the evidence was obtained. Craig Bradley,The Exclusionary Rule in Germany, 96 Harv. L. Rev. 1032, 1048 (1983); Frase & Weigend,supra note 6 On convergence between the United States and Germany, see Richard Frase & Thomas Weigend,German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?, 18B.C. Int'l & Comp. L. Rev. 317 (1995);see also Craig Bradley,The Failure of the Criminal Procedure Revolution 95–143 (1993) (discussing how various common law and civil law contries are moving toward a U.S.-style, rights-oriented approach to rules governing criminal investigation), at 334, at 49. Eventhough England has been a party to the European convention since 1966.See generally Bert Swart & James Young,The European converntion on Human Rights and Criminal Justice in the Netherlands and the United Kingdom, inCriminal Justice in Europe, supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosecutors, Examining Judges, and Control of Police Investigations, inCriminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995). Jury trials have also been bandoned in Japan and India, and are used increasingly rarely in England. Stephen J. Adler,The Jury at xv–xvi (1994), at 57. The convention is, however, often a subsidiary source of law.Id. at 62.

  12. “Worries about the partisan nature of policing have led to calls for the introduction of a pretrial truth-finder such as the investigating judge.” Jörg et all.,supra, note 9 Nico Jörg et al.,Are Inquisitorial and Adversarial Systems Convergin?, inCriminal Justice in Europe, supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosecutors, Examining Judges, and Control of Police Investigation, inCriminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995), Jury trials have also been abandoned in Japan and India, and are used increasingly rarely in England. Stephen J. Adler,The Jury at xv–xvi (1994)., at, 48, 54. Germany also has a limited exclusionary rule, but it depends more on balancing the nature of the evidence against the seriousness of the crime than it does on the way in which the evidence was obtained Craig Bradley,The Exclusionary Rule in Germany, 96 Harv. L. Rev. 1032, 1048 (1983); Frase & Weigend,supra note 6, On convergence between the United Stateds and Germany, see Richard Frase & Thomas Weigend,German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?, 18 B.C. Int'l & Comp. L. Rev. 317 (1995);see also Craig Bradley,The Failure of the Criminal Procedure Revolution 95–143 (1993) (discussing how various commoin law and civil law countries are moving toward a U.S.-style, rights-oriented approach to rules governing criminal investigation). at 334. at 49. Other “proposal include greater juidical involvement in indicating sentences and regulating deals.”Id. at 52.

  13. For most purposes, Scotland has a separate criminal justice system.

  14. constantijn Kelk,Griminal Justice in the Netherland, inCriminal Justice in Europe, supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosecutors, Examining Judges, and Control of Police Investigations, inCriminal Justice in Europe 227, 229 (Phil Fennell et at. eds., 1995). Jury trials have also been abandoned in Japan and India, and are used increasingly rarely in England. Stephen J. Adler,The Jury at xv–xvi (1994), at 1, 19.

  15. In 1950, 500,000 crimes were reported to the police; in 1991, 5.4 million. Gavin Dingwall & Alan Davenport,The Evolution of Criminal Justice Policy in the UK, inCriminal Justice in Europe, supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosecutors, Examining Judges, and Control of Police Investigations, inCriminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995). Jury trials have also been abandoned in Japan and India, and are used in creasingly rarely in England. Stephen J. Adler,The Jury at xv–xvi (1994), at 21, 21.

  16. Presumably, the Netherlands has experienced a similar growth in crime, which has influenced the developments that kelk,supra note 14 Constantijn Kelk,Criminal in the Netherlands, inCriminal Justice in Europe, supra note 8 Jury trials were used at in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosecutors, Examining Judges, and Control of Police Investigations, inCriminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995). Jury trials have also been abandoned in Japan and India, and are used increasingly rarely in England. Stephen J. Adler,The Jury at xv–xvi (1994), at 21, 21.

  17. Between 1960 and 1979, recorded crime in England and Wales rose by 177 percent and the prison population rose by 45 percent. Dingwall & Daveport,supra note 15 In 1950, 500,000 crimes were reported to the police; in 1991, 5.4 million. Gavin Dingwall & Alan Davenoport,The Evolution of Criminal Justice Policy in the UK, inCriminal Justice in Europe, supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813, Nico Jörg et al.,Prosecutors, Examining Judges, and Control of Police Investigations, inCriminal Justice in Europe 227, 2229 (Phil Fennell et al. eds., 1995). Jury trials have also been abandoned in Japan and India, and are used increasingly rerely in England. Stephen J. Adler,The Jury at xv–xvi (1994)., at 27. On the recent leveling off of crime rates, see Madeleine Sann, Documents Received, in this issue ofCriminal Law Forum, at 495, 505.

  18. Dingwall & Davenport,supra not 15 In 1950, 500,000 crimes were reported to the police; in 1991, 5.4 million. Gavin Dingwall & Alan Davenport,The Evolution of Criminal Justice Policy in the UK inCriminal Justice in Europe, supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosecutors, Examining Judges, and Control of Police Investigations, inCriminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995). Jury trials have also been abandoned in Japan and India, and are used increasingly rarely in England. Stephen J. Adler,The Jury at xv–xvi (1994), at 21, 21., at 31.

  19. 378 U.S. 52 (1964).

  20. Id. 378 U.S. 52 (1964). at 55;accord Culombe v. Connecticut, 367 U.S. 568, 581 (1961) (emphasis added) (“This principle [against self-incrimination], branded into the consciousness of our civilization by the memory of the secret inquisitions, sometimes pracitied with torture,which were borrowed briefly from the continent, during the era of the Star Chamber, was well know to those who established the American governments.”).

  21. 399 U.S. 78 (1970).

  22. 406 U.S. 404 (1972).

  23. Abraham Goldstein & Martin Marcus,The Myth of Judicial Supervision in Three “Inquisitorial” Systems: France, Italy, and Criminal Procedure: “Myth” and Reality, 87 Yale L.J. 1549 (1977); John Langbein,Compative Criminal Procedure (1977); Mirjan Damaska,Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study 121 U. Pa. L. Rev. 506 (1973). However, nearly four decades ago, Jerome Hall discussed the importance of the comparative approach inThe Fundamental Aspects of Crinminal Law, inEssays in Criminal Science 159 (Gerhard O.W. Mueller ed., 1961).

  24. Williams, 399 U.S. at 87–98;Apodaca, 406 U.S. at 407-10. Even in the 1980s, Supreme Court Chief Justice Burger, Judge Malcolm Wilkey of the U.S. Court of Appeals for the D.C. Ciruit, and others though that “no other civilized nation in the world” had an exclusionary rule. Bradley,supra note 9 Nico Jörg et al.,Are Inquisitorial and Adversarial Systems Convergin?, in Criminal Justice in Europe, supra, note 8, Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosecutors, Examining Judges, and Control of Police Investigations, inCriminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995). Jury trials have also been abandoned in Japan and India, and are used increasingly rarely in England. Stephen J. Adler,The Jury at xv–xvi (1994), at 48, 54. Germany also has a limited exclusionary rule, but it depends more on balancing the nature of the evidence against the seriousness of the crime than it does on the way in which the evidence was obtained. Craig Bradley,The Exclusionary Rule in Germany, 96 Harv. L. Rev. 1032, 19048 (1983); Frase & Weigend,supra note 6 On convergence between the United States and Germany, see Richard Frase & Thomas Weigend,German Criminal Justices and Guide to Ameirican Law Reform: Similar Problems, Better Solutions? 18 B.C. Int'l & Comp. L. Rev. 317 (1995);see also Criag Bradley,The Failure of the Criminal Procedure Revolution 95–143 (1993) (discussing how various common to rules governing criminal investigation)., at 334., at 44.

  25. Id. Jörg et al.,upra note 9 Nico Jörg et al.,Are Inquisitaorial and Adverarial systems convergin? inCriminal Justice in Europe, supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosecutors, Examining Judges, and Control of Police Investigations, inCriminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995). Jurly trials have also been abandoned in Japan and India, are are used increasuingly rarely in England. Stephen J. Adler,The Jury at xv–xvi (1994), at 48, 54. Germany also has a limited exclusionary rule, but it depends more on balancing the nature of the evidence against the seriousnes of the crime than in does on the way in which the evidence was obtained. Craig Bradley,The Exclusionary Rule in Germany, 96 Harv. L. Rev. 1032, 1048 (1983); Frase & Weigend,supra note 6 On convergence between the United States and Germany, see Richard Fase & Thomas Weigend,German Criminal Justices as a Guide to American Law Reform: Similar Problems, Better Solutions? 18 B.C. Int'l & Comp. L. Rev. 317 (1995);see also Craig Bradley,The Failure of the Criminal Procedure Revolution 95–143 (1939) (disucssing how various common law and civil law counties are moving toward a U.S.-style, rights-oriented approach to rules governing criminal investigation)., at 334. at 45.

  26. Id. Jörg et al.,supra note 9, Nico Jörg et al.,Are Inquisitorial and Adversarial Systems Converging?. inCriminal Justice in Europe, supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 and 1813. Nico Jörg et all,Prosecutors, Examining Judges, and Control of Police Investigations, inCriminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995). Jury trials have also been abandoned in Japan and India, and are used increasingly rarely in England. Stephen J. Adler,The Jury at xv–xvi (1994)., at 48, 54. Germany also has a limited exclusionary rule, but it depends more on balancing the nature of the evidence against the seriousness of the crime than it does on the way in which the evidence was obtained. Craig Badley,The Exclusionary Rule in Germany, 96 Harv. L. Rev. 1032, 1048 (1983); Frase & Weigend,supra note 6 On convergence between the United States and Germany, see Richard Frase & Thomas Weigend,German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?, 18 B.C. Int'l & Compl. L. Rev. 317 (1995);see also Craig Bradley,The Failure of the Criminal Procedure Revolutio 95–143 (1993) (discussing how various common law and civil law countries are moving toward a U.S.-style, rights-oriented approach to rules governing criminal investigation), at 334. at 44 at 45.

  27. Id. Jörg et al.,supra note 9 Nico Jörg et al.,Are Inquistiorial and Adversarial Systems Convergin?, in Criminal Justice in Europe, supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosecutors, Examining Judges, and Control of Police Investiagion, inCriminal Justice in Europe 227, 229 (phil Fennel et al. eds., 1995). Jury trials have also been abandoned in Japan and India, and are used increasingly rarely in England. Stephen J. Adler,The Jury at xv–xvi (1994)., at 48, 54. Germany also has a limited exclusionary rule, but it depends more on balancing the nature of the evidence agianst the seriousness of the crime than it does on the way in which the evidence was obtained. Craig Bradley,The Exclusonary Rule in Germany, 96 Harv. L. Rev. 1032, 1048 (1983); Frase & Weigend,supra note 6 On convergence between the United States and Germany, see Richard Frase & Thomas Weigend,German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?, 18 B.C. Int'l & Comp. L. Rev. 317 (1995);see also Craig Bradley,The Failure of the Criminal Procedure Revolution 95–143 (1993) (discussing how various common law and civil law countries are moving toward a U.S.-style, right-oriented approach to rules governing criminal investigation)., at 334. at47.

  28. Id. Jörg et al.,supra note 9 Nico Jörg et al.,Are Inquisitorial and Adversarial Systems Converging?. inCriminal Justice in Europe, supra note 8, Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosecutors, Examining Judges, and Control of Police Investigations, inCriminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995). Jury trials have also been abandoned in Japan and India, and are used increasingly rarely in England. Stephen J. Adler,The Jur at xv–xvi (1994)., at 48, 54. Germany also has a limited exclusionary rule, but is depends more on blancing the nature of the evicence against the seriousness of the crime than it does on the way in which the evidence was obtained. Criaig Bradley,The Exclusionary Rule in Germany, 96 Harv. L. Rev. 1032, 1048 (1983); Frase & Weigend,supra note 6, On convergence between the United States and Germany, see Richard Frase & Thomas Weigend,German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solution?, 18 B.C. Int'l & Comp. L. Rev. 317 (1995);see also Craig Brandey, The Failure of the Criminal Procedure Revolution 95–143 (1993) (discussing how various common law and civil law countries are moving toward a U.S.-style, rights-oriented approach to rules governing criminal investigation). at 334, at 48.

  29. Jörg et al.,supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the netherland from 1811 to 1813. Nico Jörg et al.,Prosecutors, Examining Judges, and Control of Police Investigations, inCriminal Justice in Europe 227, 229, (Phil Fennell et al. eds., 1995). Jury trials have als, been abandoned in Japan and India, and are used incresingly rarely in England. Stephen J. Adler,The Jury at xv–xvi (1994). at 236.

  30. Id. Jörg et al.,supra note 8, Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosectors, Examining Judges, and Control of Police Investigations, inCriminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995). Jury trials have also been adondoned in Japan and India, and are used increasingly rarely in England. Stephen. J. Adler,The Jury at xv–xvi (1994). at 237.

  31. Id. Jörg et al.,supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosector, Examining Judges, and Control of Police Investigations, inCriminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995). Jury trials have also been abandoned in Japan and India, and used increasingly rarely in England. Stephen J. Adlder,The Jury at xv–xvi (1994). at 238 242.

  32. Jörg et al.,supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosecutors, Examining Judges, and Control of Police Investigations, inCriminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995). Jury trials have also been abandoned in Japan and India, and are use increasingly rarely in England. Stephen J. Adler,The Jury at xv–xvi (1994)., at 239. However, this practice apprears to be in conflict with the European Convention and thus is likely to change. Annemarieke Bejer et al.,Witness Evidence, Article 6 of the Eropean Convention of Human Rights, and the Principle of Open Justice, inCriminal Justic in Europe, supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosecutors, Esamining Judges, and Control of Police Investigations, inCriminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1955). Jury trials have also been abandoned in Japan and India, and are used increasingly rarely in England. Stephen J. Adler,The Jury at xv–xvi (1994), at 283, 287–88.

  33. Jörg et al.,supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosecutors, Examining Judeges, and Control of Police Investigations, inCriminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995). Jury trials have also been abandoned in Japan and India, and are used increasingly rarely in England. Stephen J. Adler,The Jury at xv–xvi (1994), at 239.

  34. Jörg et al.,supra note 9 Nico Jörg et al.,Are Inguisitorial and Adversarial Systems Converging? inCriminal Justice in Europe, supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prostcutors, Examining Judges, and Control of Police Investigations, inCriminal Justice in Europe 227, 229 (Phil Fenell et al. eds., 1995). Jury trials have also been abandoned in Japan and India, and are used increasingly rarely in england. Stephen J. Adler,The Jury at xv–xvi (1994), at 48, 54. Germany also has a limited exlucionary rule, but it depends more on balancing the nature of the evidence against the seriousness of the crime than it does on the way in which the evidence was obtained. Craig Bradley,The exclusionary Rule in Germany, 96 Harv. L. Rev. 1032, 1048 (1983); Frase & Weigend,supra note 6 On convergence between the United States and Germany see Richard Frase & Thomas Weinged,German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?, 18 B. C. Int'l & Compl. L. Rev. 317 (1995);see also Craig Brandley,The Failure of the Criminal Procedure Revolution 95–143 (1993) (discussing how vaious common law and civil law countries are moving toward a U.S.-style, right-oriented approach to rule govering criminal investigation)., at 49.

  35. Even though England has been a party to the European Convention since 1966.See generally Bert Swart & James Young,The European Convention on Human rights and Criminal Justice in the Netherlands and the United Kindom, inCriminal Justice in Europe, supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosecutors, Examining Judges, and Control of Police, Investigations, inCriminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995). July trials have also been abandoned in Japan and India, and are used increasingly rarely in England. Stephen J. Adler,The Jury at xv–xvi (1994)., at 57. The convention is, however, often a subsidiary source of law.Id. at 62.

  36. Kelk,supra note 14, Constantijn Kelk,Criminal Justice in the Netherlands, inCriminal Justice in Europe, supra, note 8 Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Järg et al.,Prosecutors, Examining judges, and Control of Poloice Investigations, inCriminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995). Jury trials have also been abandoned in Japan and India, and are used increasingly rarely in England. Stephen J. Adler,The Jury at xv–xvi (1994), 6–7, does point to “diminishing tiolerance” in the Netherlands, which can “be seen in our attitude toward ethnic minorities,” and concludes that this trend has contributed to “juridification” (the establishment of formal rules)” not because of any deep-seated interest in the clasical values of liberty, and fratenity” but to establish “social control in the sense of supervision and one person watching another.” I doubt that many Americans would have such a rosy view of human nature as to suppose that police do not require some “ watching”, especially when it comes to their treatment of minorities.

  37. Bradley,supra note 6 On convergence between the United States and Germany, see Richard Frase & Thomas Weigend,German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions? 18 B.C. Int'l & Comp. L. Rev. 317 (1995);see also Craig Bradley,the Failure of the Criminal Procedure Revolution 95–143 (1993) (discussing how various common law and civil law countries are moving toward a U.S.-style, reight-oriented approach to rules governing criminal investigation)., at 96–108.

  38. Unted States v. Bagley, 473 U.S 667 (1985). In the United States, at least, this obligation extends to impeachment evendence.Id Bradley,supra note 6 On convergence between the United States and Germany, see Richard Frase & Thomas Weigend,German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Scholution?, 18 B.C. Int'l & Comp. L. Rev. 317 (1995);see also Craig Bradley,The Failure of the Criminal Procedure Revolution 95–143 (1993) (discussing how various common law and civil law countries are moving toward a U.S.-style, rights-oreiented approach to rule governing criminal investigation). at 678. However, in neither country are the police expected to search out all possibly exculpatory maaterial nor necessarily even to hand over such material absent a request by the defense attorney.Id. Baradley,supra note 6 On convergence between the United States and Germany, see Richard Frase & Thomas Weigend,German Criminal ustice as a Guide to American Law Reform: Similar Problems, Better Solutions?, 18 B.C. Int'l & Comp. L. Rev. 317 (1995);see also Craig Bradley,The Failure of the Criiminal Procedure Revolution 95–143 (1993) (discussing how various common law and civil law countries are moving twoard a U.S.-style, rights-oriented approach to rules govening criminal investigation). at 681–82;see also Jörg et al.,supa note 9 Nico Jörg et al.,Are Inquisitorial and Adversarial Systems Converging?, inCriminal Justice in Europe, supra note 8 Jury trials were used in Germany betwen 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosecutors, Examining Judes, and Control of Police Investigation, inCriminal Justice in Europe 227, 229 (phil Fennel et al. eds., 1995). Jury trials have also been abandoned in Japan and India, and are used increasingly rarely in England. Stephen J. Adler,The Jury at xv–xvi (1994)., at 48, 54. Germany also has a limited exclusionary rule, but it depends more on balancing the nature of the evidence against the seriousness of the crime than it does on the way in which the evidence was obtained. Craig Bradley,The Exclusionary Rule in Germany, 96 Harv. L. Rev. 1032, 1048 (1983); Frase & Weigend,supra note 6 On convergence between the United States and Germany, see Richard Frase & Thomas Weigend,German Criminal, Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?, 18 B. C. Int'l & Comp. L. Rev. 317 (1995);see also Craig Bradley,The Failure of the Criminal Procedure Revolution 95–143 (1993) (discussing how various common law and civil law councries are moving toward a U.S.-style, rights-oriented approach to rules governing criminal investigation). at 49.

  39. Older features of the Anglo-american system such as “an organized police force overt acceptance of police power to detain and interrogate in order to generate evidence against the suspect” origainated with inquisitorial systems. Jörg et al.,supra note 9 Nico Jörg et al., Are Inquistorial and Adversarial Systems Converging?, inCriminal Justice in Europe, supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et all,Prsecutors, Examininin Judges, and Control of Police Investigations,Criminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995). Jury trials have also been abandoned in Japan and India, and are used increasingly rarely in England. Stepten J. Adler,The Jury at xv–xvi (1994). at 48, 54. Germany also has a limited exclusionary rule, but it depends more on balancing the nature of the evience against the seriousness of the crime than it does on the way in which the evidence was obtained. Craig Bradley,The Exclusionary Rule in Germany, 96 Harv. L. Rev. 1032, 1048 (1983); Frase & Weigend,supra note 6 On convergence between the Unitied States and Germany, see Richard Frase & Thomas Weigend,German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?, 18 B.C. Int'l & Comp. L. Rev. 317 (1995);see also Craig Bradley,The Failure of the Criminal Procedure Revolution 95–143 (1993) (discussing how various common law and civil law countries are moving toward a U.S.-style, right-oriented approach to rules governing criminal investigation)., at 48;see also Goldstein,supra note 2 “Americans tend to equated inquisitorial systems with coercive interrogation, unbridled search, and unduly efficent crime control.” Abraham Goldstein, Reflections on Two Models: Inquisitorial Themes in American Criminal Prcedure, 26 Stan. L. Rev. 1009, 1018 (1974)., at 1018.

  40. On Britain, see Laura Masneurs,Under Fire, Jury System Faces Overbaul, N.Y. Times, Nov. 4, 1995, at 9; on the United States, see Abramson,supra note 4 The National Center for State Courts found that in 13 jurisdictions surveyed, the percentage of felony cases resolved by jury trail ranged from a low of 2.1 in Texas to a high of 6.9 in Alaska. Jeffrey Abramson,We, The Jury 298 (1994)., at 252 (citing statistics from the National Center for State Courts).

  41. E.g., Masnerus,supra note 42 On Britain, see Laura Masnerus,Under Fire, Jury System Faces Overhaul, N. Y. Times, Nov. 4., 1995, at 9; on United States, see Abramson,supra note 4 The National Center for State Courts found that in 13 jurisdicrions surve the percentage of felony cases resolved by jury trail ranged from a low of 2.1 in Texas to a high of 6.9 in Alaska. Jeffrey Abramson,We, The Jury 298 (1994)., at 252 (citing statistics from the National Center for State Courts).

  42. Even if the defendant chooses to admint guilt, the presiding judge will still conduct a limited trail. Joachim Hermann,Bargianing Justice: A Bartain for German criminal Justice, 53 U. Pitt. L. Rev. 755, 763 (1992).

  43. In Germany, the average trial for less serious criminal cases takes about 2 hours; for more serious cases, about one day. Langbein,supra note 23 Abraham Goldstein & Martin Marcus,The Myth of Judicial Supervision in Three “Inquisitorial” Systems: France, Italy, and Germany, 87 Yale L.J. 240 (1977); John Langbein & Lloyd Weinred,Continental Criminal Procedure: “Myth” and Reality, 87 Yale L.J. 1549 (1977); John Langbein,Comparative Criminal procedure (1977); Mirjan Damaska,Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Compaative Study, 121 U. Pa. L. Rev. 506 (1973). However, nearly four decades ago, Jerome Hall discussed the importance of the comparative approach inThe Fundametal Aspects of Criminal Law, inEssays in Criminal Science 159 (Gerhard O.W. Mueller ed., 1961)., at 77. A similar pattern is documented in supreme Court of Japan,Criminal Justice in Japan 14 (1987).

  44. Lloyd Weinreb,Denial of Justice 117–64 (1977); Stephen Schulhofer,Is Plea Bargaining Inevitable?, 97 Harv. L. Rev. 1037 (1984).

  45. For further discussion, see Bradley,supra note 9 Nico Jörg et al.,Are Inquisitorial and Adversarial Systems converging.? inCriminal Justice in Europe, supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the netherlands from 1811 to 1813. Nico Jörg et al.,Proceustors, Examining Judges, and Control of Police Investigations, inCriminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995). Jury trials have also been abandened in Japan and India, and are use increasingly rarely in England. Stephen. J. Adler,The Jury at xv–xvi (1994), at 48, 54. Germany also has a limited exclusionary rule, but it depends morre on balancing the nature of the evidence aganst the seriousness of the crime than it does on the way in which the evidence was obtained. Craig Bradley,The Exclusionary Rule in Germany, 96 Harv. L. Rev. 1032, 1048 (1983); Frase & Weigend,supra note 6 On convergence between the United and Germany, see Richard Frase & Thomas Weigend,German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solution?. 18 B.C. Int'l & Comp. L. Rev. 317 (1995);see also Craig Bradley,The Failure of the Criminal Procedure Revolution 95–143 (1993) (discussing how various common law and civil law counties are moving toaward a U.S.-style, rights-oriented approach to rules governing criminal investiation). at 1063.

  46. Craig Bradley & Jospeph Hoffmann,Public, Perception, Justice, and the “Search for Truth” in Criminal Cases, S. Cal. L. Rev. (forthcoming 1996).

  47. Christopher Harding et al.,Conclusion—Europeanziation and convergence: The Lessons of Comprative Study inCriminal Justice in Europe, supra note 8 Jury trials were used in Germany between 1890 and 1920 and in the Netherlands from 1811 to 1813. Nico Jörg et al.,Prosecutors, Examining Judges, and Control of Police Investigations, inCriminal Justice in Europe 227, 229 (Phil Fennell et al. eds., 1995). Jury trial have also been abandoned in Japan and India, are used increasingly rarely in England. Stephen J. Adler,The Jury at xv–xvi (1994), at 379, 386.

  48. As would the educative function of widespered citizen participation in juries. However, if lay judges sat in many more and shorter trials than are currently held, the total amount of citizen participation might not be much reduced.

Download references

Author information

Authors and Affiliations

  1. Indian University, Bloomington, Indiana, USA

    Craig M. Bradley (James Louis Calmaras Professor of Law)

Authors
  1. Craig M. Bradley
    View author publications

    You can also search for this author in PubMed Google Scholar

Additional information

A.B., University of North Carolina 1967; J.D., University of Virginia 1970.

Rights and permissions

Reprints and permissions

About this article

Cite this article

Bradley, C.M. The convergence of the continental and the common law model of criminal procedure. Crim Law Forum 7, 471–484 (1996). https://doi.org/10.1007/BF02197174

Download citation

  • Issue Date:

  • DOI: https://doi.org/10.1007/BF02197174

Search

Navigation