Comparative Criminal Justice Systems

1
Comparative Criminal Justice Systems

• PROFESSIONAL ACTORS IN THE JUDICIARY
• SIX MODEL NATIONS
• Reichel / Dammer and Fairchild

2
Legal Professionals(in Developed Societies)

• Adjudicators individuals who decide the outcome
  of legal disputes, i.e., judges.
• Advocates represent either the defendant or the
  prosecution in legal matters before the court.
• Legal advisors provide legal advice to
  advocates and citizens outside the court.
• Legal scholars study the law and discuss it in
  legal commentaries and professional journals.
• Key Terms unified or separated legal
  profession

3
Questions

• When speaking of the adjudication process,
• courts will often decide questions of law
• as well as ones of fact.
• Explain the difference.
• How would this process affect different nations.?
• Across legal cultures,
• can the interpretation of the law (content) be
  limited
• because of the nature of the law itself (context)?

4
Methods of Judge Selectionin Model Countries

• England appointed in magistrates courts, local
  committees are responsible for appointments in
  other courts (generally), the lord chancellor has
  the responsibility.
• Germany and France self-selected candidates
  undergo and extensive apprenticeship period and
  then face rigorous civil service examinations.
• China elected and appointed. The heads of the
  courts, called presidents, are elected by the
  corresponding peoples congresses while all other
  judges are appointed by corresponding standing
  committee of the particular court.

5
Methods of Judge Selectionin Model Countries
(contd)

• Japan self-selected and then promoted by merit.
  After passing a national-level judicial
  examination, candidates train for two years at
  the Legal Research and Training Institute and
  then move up through the ranks on merit.
• Saudi Arabia self-selected. Candidates must
  first qualify for this position and then go
  through a period of apprenticeship before being
  allowed to decide cases.
• United States usually elected on local and
  county levels, appointed on state and federal
  level. A combination method plan (Missouri Plan)
  is available in some states.

6
Number of Professional Judges per 100,000
population

• China 3.48
• Germany 26
• Japan 2.29
• England and Wales 4
• France 14.88
• Saudi Arabia n/a
• United States 4
• Source Dammer Fairchild (2006)

7
Lay Judges and Jurors(continuum)

• ?---------------------I---------------------?
• Reliance on Mixed
  Reliance on
• Professional judges Reliance
  Laypeople
• Saudi Arabia Germany
  England
• 
  France
• China
• Japan

8
Question

• What is the International Criminal Court?
• What types of cases does it hear?
• Since the United States actively participated in
  the Rome Treaty (which created the ICC), why
  hasnt the U.S. ratified the ICC since its
  inception in 2002?

9
Bureaucratic and Political Organization of Legal
Actors

• Bureaucratic
• Hierarchical in nature
• Entry into the organization is based on merit
  alone
• Employees are trained for specialized tasks
• Long periods of tenure
• Examples Germany, France, and Japan

• Politically Oriented
• Horizontal in nature
• Appointment or election
• Normally not trained for specialized tasks
• Short terms of office
• Examples England, China, and U.S.

10
Advocates

• Like adjudicators, advocates are subject to
  economic, social, and political pressures that
  affect their work.
• For example
• Saudi Arabia and China advocates for both the
  prosecution and the defense are under
  considerable pressure to conform to forces beyond
  the courtroom.
• Saudi Arabia advocates must be schooled in
  classic Islamic Law because there is no
  distinction between religious and secular
  offenses.
• China advocates must be approved by the
  Ministry of Justice and are expected to protect
  the rights of their clients while promoting the
  interests of the state.

11
Question

• What is the difference between
• a solicitor and a barrister?
• What country do they practice in ?
• What is the difference between
• private and public prosecution?

12
Public and Private Prosecution

• Public Prosecution
• (Government initiates action)
• Office of Public Prosecution U.S.
• Procurator France, China
• Police England (CPS)

• Private Prosecution
• (Victim or Victims relatives
• initiate action)
• Finland

13
Variation in Defense

• Professional trained lawyers hired/chosen by
  defendant.
• Laypeople friends, family, self. Examples
  Islamic and socialist systems.
• Assigned Counsel assigned to indigents from a
  list of practicing attorneys in the area or from
  lawyers paid by the state, i.e., public
  defenders. Examples Europe, Latin American
  countries, U.S.
• National or State Programs, i.e., legal
  assistance programs and law school clinics.
  Examples Europe, Latin American countries
  (France, Chile, Mexico).
• Variation exists within as well as among
  countries.

14
Legal Aid in the Model Countries

• England Free and independent legal advice is
  assured regardless of means. Persons must be
  notified of their right to legal advice by police
  from duty solicitors at the time of custody or
  defendants can use their own private solicitor.
• France and Germany All suspects have a right to
  be defended in court. They can choose their own
  attorney if indigent, counsel will be assigned.
  In France, the defendant is required to have
  legal counsel.
• Japan The state must provide legal counsel if
  the defendant cannot afford a private lawyer.
  Counsel is assigned from a list of lawyers
  provided by the Japanese Bar Association.

15
Legal Aid in the Model Countries

• China Suspects have a right to defend
  themselves, or they can appoint someone to defend
  them. Indigent defendants are not assigned
  defense counsel unless they have a physical
  disability (blind, deaf, mute), are a juvenile,
  or face the death penalty.
• Saudi Arabia Suspects have a right to defend
  themselves, or they can appoint someone to defend
  them. Indigent defendants are not automatically
  assigned defense counsel.

16
Question

• How do you feel about concurrent consideration of
  guilt and sentence?
• Would the difference
• between adversarial and inquisitorial systems
  have an impact on your consideration?