NCJ Number
80162
Journal
American Journal of Criminal Law Volume: 9 Issue: 1 Dated: (March 1981) Pages: 1-32
Date Published
1981
Length
32 pages
Annotation
This article compares adversary (Anglo-American) and nonadversary (continental-European) systems of criminal procedure by focusing not only on procedural devices but also on institutional arrangements.
Abstract
These institutional arrangements are strongly influenced by the underlying systems of the political structure which are described as the coordinate and hierarchical models. In the United States, the police and public prosecutors are decentralized and possess a high degree of independent authority, whereas their continental European counterparts are subject to hierarchical and bureaucratic structures which impose uniformity of conduct and decisionmaking. Since continental police forces are subject to strong external and internal regulations, they are more likely to comply with given standards of behavior (which may differ somewhat from American standards) than the American police who, as the Supreme Court has pointed out several times, are perhaps only to be tamed by means of the exclusionary rule. Although procedural discretion exists both de jure and de facto in continental European countries, it is limited by procedural or institutional means and does not reach the freedom from normative restraints that American prosecutors have. Therefore, although continental systems do provide simple models of procedure which avoid the costly and burdensome public trial, plea bargaining as such does not exist in nonadversary procedures. American procedural and institutional features are based on different political and social premises than European ones. American democracy has created its own system of criminal justice administration which provides individualized justice and legal complexity. It cannot be replaced by another system, such as the European, which has developed in a completely different environment. However, varied European experience with similar problems may serve as a guideline for American law reform, rather than as a substitute for American procedure. The guideline has to be tailored to special American conditions and values. Before this can be done, the reformer must understand the nature and the operation of continental European criminal procedures and institutions as precisely as possible. A total of 108 footnotes are included. (Author summary modified)