Criminal Procedure Commons^™

The Jury As Catalyst For The Reform Of Criminal Evidentiary Procedure In Continental Europe: The Cases Of Russia And Spain, Stephen C. Thaman

All Faculty Scholarship

This paper focuses on the dialectic between the search for truth, adversarial procedure, and lay participation in the preparation, presentation, and evaluation of evidence in criminal trials. Its primary focus is on the reintroduction of trial by jury in two classic inquisitorial criminal justice systems, Russia (1993) and Spain (1995), as a catalyst in those countries’ move to adversary procedure. It focuses on the effect of the jury system on preparing evidence for trial, the presentation of evidence at trial, and the evaluation of evidence.

Waiting For The Verdict On Spain's New Jury System, Stephen C. Thaman

All Faculty Scholarship

This article discusses Spain’s history of trial by jury, focusing on the reinstatement of trial by jury in Spain by the 1995 jury legislation implementing Article 125 of the post-Franco Spanish Constitution. It discusses key provisions of the new Spanish jury law with illustrations from the cases of Otegi and others. It also predicts as to whether the classic jury will acquit itself as a catalyst for criminal justice reform in a Civil Law system such as that of Spain.

Fact-Bargaining: An American Phenomenon, William T. Pizzi

Publications

No abstract provided.

Prostitution And The Law In Germany, Margarete Von Galen

Cardozo Journal of Equal Rights & Social Justice

The article examines the legal and social contradictions surrounding prostitution in Germany, highlighting how, despite its legal status, the practice is subject to discriminatory laws and regulations that create a hypocritical gap between legal frameworks and real-world enforcement. The author argues that while prostitution is legal, the surrounding legal provisions often criminalize related activities, leading to inconsistent enforcement and continued marginalization of sex workers.

Punishment And Procedure: A Different View Of The American Criminal Justice System, William T. Pizzi

Publications

No abstract provided.

Structures Of Environmental Criminal Enforcement, Michael E. Herz

Articles

No abstract provided.

A Decade Of International Legal Reform Regarding Child Abuse Investigation And Litigation: Steps Toward A Child Witness Code, John E.B. Myers

McGeorge School of Law Scholarly Articles

No abstract provided.

Discovering Who We Are: An English Perspective On The Simpson Trial, William T. Pizzi

Publications

No abstract provided.

Reform Of The Procuracy And Bar In Russia, Stephen C. Thaman

All Faculty Scholarship

This article discusses recent efforts to reform the Russian bar and procuracy, the institutions’ responses, and the problem of criminal procedure reform as it relates to them.

Mature Adjudication: Interpretive Choice In Recent Death Penalty Cases, Bernard Harcourt

Faculty Scholarship

Capital punishment presents a "hard" case for adjudication. It provokes sharp conflict between competing constitutional interpretations and invariably raises questions of judicial bias. This is particularly true in the new Republic of South Africa, where the framers of the interim constitution deliberately were silent regarding the legality of the death penalty. The tension is of equivalent force in the United States, where recent expressions of core constitutional rights have raised potentially irreconcilable conflicts in the application of capital punishment.

Two recent death penalty decisions – the South African Constitutional Court opinions in State v. Makwanyane and the United States Supreme …

The Reach Of Rights In The New Russian Constitution, Antti Korkeakivi

Cardozo Journal of International and Comparative Law

The new Russian Constitution incorporates a comprehensive catalogue of human rights, largely mirroring international standards and Western democracies, while retaining elements influenced by Soviet tradition. It rejects the socialist notion that rights are state-granted, declaring them inalienable and innate. However, the Constitution’s effectiveness in protecting these rights remains uncertain, as its success hinges on the judiciary’s ability to enforce them independently, despite historical weaknesses and ongoing concerns about judicial autonomy.

Sentencing And Cultural Differences: Banishment Of The American Indian Robbers, 29 J. Marshall L. Rev. 239 (1995), Stephanie J. Kim

UIC Law Review

No abstract provided.

Of Policy, Politics, And Parliament: The Legislative Rewriting Of The British Right To Silence, Mark Berger

Faculty Works

No abstract provided.

The Fourth Amendment Protection Against Unreasonable Searches And Seizures And The French Experience, Florence Sophie Boreil

LLM Theses and Essays

Under the American approach to criminal justice, freedom of the individual is of the utmost importance. The American criminal justice system reflects a distrust of abuse of power and an emphasis on protection of personal freedom. However, the French take a contrary approach; under French law, freedom is achieved through the State. This paper examines the protection of individuals’ rights in American and French criminal procedure. Focus will be given to tracking the police investigatory powers in each country through searches and seizures, and the impact that those powers have on individuals’ rights. This paper will assert that the police …

Lessons From Reforming Inquisitorial Systems, William T. Pizzi

Publications

No abstract provided.

Incoming Drug Calls And Performative Words: They're Not Just Talking About It, Baron Parke!, Christopher B. Mueller

Publications

No abstract provided.

A Holistic Approach To Criminal Justice Scholarship, William T. Pizzi

Publications

No abstract provided.

The Resurrection Of Trial By Jury In Russia, Stephen C. Thaman

All Faculty Scholarship

This article traces the genesis of the Russian jury law of July 16, 1993, and places it in the context of the criminal justice reform movement that began during the perestroika period. This article analyzes and evaluates the Jury Law on the basis of the first Russian jury trials. The purpose of this article is to isolate certain problem areas and pose questions, which must be answered in the future.

Much of the material for this paper results from the author’s personal observation of eleven of the first fourteen jury trials and parts of four more trials. The author also …

Trial By Jury And The Constitutional Rights Of The Accused In Russia, Stephen C. Thaman

All Faculty Scholarship

This article discusses the Russian criminal justice system’s transformation from the unjust Soviet system and the introduction of trial by jury. It specifically addresses the role of supplementary investigations in the new adversary procedure and the newly introduced privilege against self-incrimination. The author concludes that even though reforms have improved the Russian criminal justice system, elements of the Soviet system, such as supplementary investigations, remain, undermining the purpose of the new system.

From Japan's Death Row To Freedom, Daniel H. Foote

Washington International Law Journal

In 1975, the Japanese Supreme Court relaxed the standards governing the grant of retrials in criminal cases. Since then four death row inmates have obtained new trials and ultimate vindication through acquittals. The facts of the four cases are compelling: all involved highly publicized murders, rather harsh investigations leading to confessions that the defendants subsequently disavowed, and seemingly routine convictions followed by decades-long struggles by the convicted men to forestall their executions and secure retrials. Each of the men spent over 25 years on death row before the final determination that he had been unjustly convicted. In this article, Professor …

Judicial Forging Of A Political Weapon: The Impact Of The Cold War On The Law Of Contempt, 27 J. Marshall L. Rev. 3 (1993), Melvin B. Lewis

UIC Law Review

No abstract provided.

The Emerging International Consensus As To Criminal Procedure Rules, Craig M. Bradley

Michigan Journal of International Law

This article will demonstrate that these general claims, as well as certain observations about specific countries, were, with one significant exception, substantially wrong when they were written. More importantly, due to significant developments in several countries in the years since those reports came out, they are even more wrong now. That is, not only have the U.S. concepts of pre-interrogation warnings to suspects, a search warrant requirement, and the use of an exclusionary remedy to deter police misconduct been widely adopted, but in many cases other countries have gone beyond the U.S. requirements.

Understanding Prosecutorial Discretion In The United States: The Limits Of Comparative Criminal Procedure As An Instrument Of Reform, William T. Pizzi

Publications

No abstract provided.

Some Worries About Sentencing Guidelines, William T. Pizzi

Publications

No abstract provided.

Forensic Expertise In Dutch Criminal Procedure, Johannes F. Nijboer

Cardozo Law Review

No abstract provided.

Self-Defense As A Justification For Punishment, George P. Fletcher

Cardozo Law Review

No abstract provided.

The Exclusionary Rule And Confession Evidence: Some Perspectives On Evolving Practices And Policies In The United States And England And Wales, Mark Berger

Faculty Works

No abstract provided.

Confessions And The Right To Silence In Japan, Daniel H. Foote

Articles

In several highly-publicized recent cases in Japan, individuals convicted of murder and sentenced to death were acquitted in retrials obtained after decades on death row. These so-called "death penalty retrial cases'" generated great controversy and considerable reflection about the criminal justice system in Japan. A central, substantive issue presented by these cases relates to the procurement and use of confessions; each of these cases-and several other major recent Japanese cases in which defendants have been acquitted following bitterly contested trials-turned on the validity of repudiated confessions.

Consequently, much recent commentary has focussed on conf essions and related issues. Not surprisingly, …

Legislating Confession Law In Great Britain: A Statutory Approach To Police Interrogations, Mark Berger

Faculty Works

The police interrogation process has been a subject of controversy in both Great Britain and the United States. The debate has focused on how to regulate the police and thereby balance the public interest in crime control against the individual interest in freedom from state coercion. In the U.S regulation of the police interrogation process has largely been the result of U.S. Supreme Court interpretations of the self-incrimination privilege of the Fifth Amendment of the U.S. Constitution. In contrast, in Great Britain police interrogation controls have been enacted by Parliament in the Police and Criminal Evidence Act (PACE), supplemented by …

Legislating Confession Law In Great Britain: A Statutory Approach To Police Interrogations, Mark Berger

University of Michigan Journal of Law Reform

Part I provides an overview of the development of British confession law, including the changes under PACE. Part II examines PACE's impact on related subjects, such as detention conditions, access to legal advice, and waiver of the right of access to a solicitor. Finally, Part III suggests that the British experience in developing a statutory framework to regulate these issues can serve as a model for undertaking such reforms in the United States.