Stephen C. Thaman

Europe’s New Jury Systems: The Cases of Spain and Russia

The recent reintroduction of trial by jury in both Russia (1993) and Spain (1995) is interesting for two reasons. First, it is a surprising reversal in the longterm trend toward the elimination of the classic jury in favor of either courts composed exclusively of professional judges, or of “mixed courts” in which professional judges and lay assessors collegially decide all questions of fact, law, and sentence. Second, it raises the question whether the jury can act as a catalyst in the reform of Continental European criminal procedure, as it did during the nineteenth century in the wake of the French Revolution. The modern notions of procedural fairness in criminal procedure, which have gained general international recognition in national constitutions and international human rights conventions, have their origins in the following Anglo-American concepts, which developed in the context of an adversarial trial by jury: (l) the presumption of innocence, (2) the privilege against selfincrimination, (3) the equality of arms, (4) the right to a public and oral trial, (5) the accusatory principle, and (6) the judge’s independence from the executive or investigative agency. The classic separation of powers within the adversarial criminal process between a neutral judge, responsible for deciding questions of law and punishment, and a panel of lay persons responsible for questions of fact and guilt, also gave rise to common law rules of evidence. For instance, the separation of powers inspired the regulation of hearsay and relevance, the creation of exclusionary rules addressing excessively prejudicial and illegally gathered evidence, and the adoption of the principle of “free evaluation of the evidence” unfettered by formal rules of evidence. Important devel-

Exclusionary rules in comparative law

Introduction Stephen C. Thaman.- Part One: The Vicissitudes of Court-Made Exclusionary Tests: Section One: Common Law Jurisdictions.- Chapter 1: The United States: The Rise and Fall of the Constitutional Exclusionary Rule Mark E. Cammack.- Chapter 2: Ireland: A Move to Categorical Exclusion? Arnaud Cras and Yvonne Daly.- Chapter 3: Scotland: A Plea for Consistency Fiona Leverick and Findlay Stark.- Chapter 4: Israel: The Supreme Courts New, Cautious Exclusionary Rule Yuval Merin and Rinat Kitai-Sangero.- Part One: The Vicissitudes of Court-Made Exclusionary Tests:Section Two: Civil Law Balancing.- Chapter 5: Germany: Balancing Truth against Protected Constitutional Interests Sabine Gless.- Part Two: From Nullities to Statutory Exclusionary Rules in Continental Europe: Section One: The Traditional Approach Based on Statutory Nullities.- Chapter 6: France: Procedural Nullities and Exclusion Jean Pradel.- Part Two: From Nullities to Statutory Exclusionary Rules in Continental Europe: Section Two: From Nullities to Balancing.- Chapter 7: Belgium: From Categorical Nullities to a Judicially Created Balancing Test Marie-Aude Beernaert and Philip Traest.- Chapter 8: The Netherlands: Statutory Balancing and a Choice of Remedies: Matthias Borgers and Lonneke Stevens.- Part Two: From Nullities to Statutory Exclusionary Rules in Continental Europe: Section Three: From Nullities to Statutory Exclusionary Rules.- Chapter 9: Spain: The Constitutional Courts Move From Categorical Exclusion to Limited Balancing Lorena Bachmaier Winter.- Chapter 10: Italy: Statutory Nullities and Non-Usability Giulio Illuminati.- Chapter 11: Greece: From Nullities to Categorical Statutory and Constitutional Exclusionary Rules George Triantafyllou.- Chapter 12: Turkey: The Move to Categorical Exclusion of Illegally Gathered Evidence Adem Sozuer.- Chapter 13: Serbia: Courts Struggle With a New Categorical Statutory Exclusionary Rule Snezana Brkic.- Part Three: The Fair Trial Test for Exclusion.- Chapter 14: England and Wales: Fair Trial Analysis and the Presumed Admissibility of Physical Evidence Andrew L-T Choo.- Chapter 15: Taiwan: The Codification of a Judicially-Made Discretionary Exclusionary Rule Jaw-perng Wang.- Chapter 16: The European Court of Human Rights: The Fair Trial Analysis under Article 6 of the European Convention of Human Rights Pinar Olcer.- Part Four: A Comparison of Exclusionary Jurisprudence.- Chapter 17: Balancing Truth Against Human Rights: A Comparative Analysis of the Use of Illegally Gathered Evidence in the Criminal Trial Stephen C. Thaman.-About the contributors.- index.

Report on USA

This chapter in the book on transnational inquiries and the protection of fundamental rights in criminal proceedings takes into account the particular, and perhaps unique situation in the United States (US) following the terrorist attacks on 11 September 2001. It explores the laws regulating inquiries by foreign governments who seek evidence in the US to use in criminal proceedings overseas, but primarily the protections recognized by US statutes and jurisprudence when US officials gather evidence abroad. In this respect, the chapter focuses on protections during interrogations, searches, interceptions of confidential communications, and examinations of witnesses and explores when the protection differs, depending on whether the target of the investigative measure is a US-, or non US-citizen, or whether the investigating officials are part of the criminal justice apparatus or belong to the military or the intelligence community. Finally, the chapter explores the admissibility of evidence gathered in the same areas, depending on whether it is used in the normal civilian criminal courts, or in the newly constituted military commissions instituted for trial of foreigners accused of international terrorism.

Constitutional rights in the balance: Modern exclusionary rules and the toleration of police lawlessness in the search for truth

This article explores the tension in modern criminal procedure between the goal of ascertaining the material truth of the criminal charge and the respect for important human rights of criminal suspects during the investigation of their alleged criminal responsibility. It examines two major areas where police run the risk of violating and often do violate the constitutional rights of criminal suspects during interrogations and during invasions of privacy in the form of dwelling searches and interception of confidential communications. The approaches of modern democracies to this dilemma run from the strict exclusion of all direct and indirect evidence (fruits of the poisonous tree), whenever a substantial constitutional right is violated, to a discretionary approach, which balances various factors, including the need to ascertain the truth before deciding whether to use the evidence. The ambition of the article is to draw clear lines between when courts should exclude evidence and when discretion can reign.

The Model Penal Code and the Dilemma of Criminal Law Codification in the United States

American criminal law was based originally in judge-made doctrines of the English Common Law, supplemented by statutes in certain areas. No codes of criminal law existed, and still do not in England, Wales and Scotland. This tradition implanted itself first in the colonies, and then in the new union. Criminal law was primarily a matter for the States in exercise of their police power. Only later did a system of federal criminal law develop, rooted in the federal courts’ power to regulate interstate and international commerce. (Art. I, § 8, clause 10, US-Const.) and to “define and punish Piracies and Felonies on the High Seas and Offences against the Law of Nations.” (Art. I, § 8, clause 3, US-Const.)

Legal Systems: Adversarial and Inquisitorial

This article explains the historical development of the two main types of court procedures used in criminal and, to a lesser extent, in civil cases around the world. The adversarial system developed from the English jury trial and envisions a passive role for the judge and an active role of the parties. The inquisitorial system sees the judge as active investigator of the truth and mistrusts lay participation. A third tradition, that of consensual resolution of cases and plea bargaining, grew out of the adversarial tradition, but, through its inducement of pleas of guilty, it also smacks of the inquisitorial tradition.

Criminal Courts and Procedure

This chapter provides both a historical and modern perspective on criminal procedure around the world.

The Use of Information and Communications Technology in Criminal Procedure in the USA

This chapter deals with the impact which information and communications technology has had on criminal procedure in the USA. It will not only lay out the framework of laws regulating criminal and national security wiretapping as well as access to stored electronic data in the form of e-mails and voicemail, etc. but also the jurisprudence regulating intercepting communications by I-phones, smart phones as well as the search of stored information in computers and I-phones and even in the “cloud.” Electronic communications have called into question the traditional Fourth Amendment jurisprudence which had denied privacy protection to information given to a third party, such as a telecommunications provider, or to movements in public. But the mass surveillance by the National Security Agency (NSA) and the scope of modern data collection and mining are gradually leading to a more critical approach to privacy issues.

Criminal Procedure: Adversarial and Inquisitorial Legal Systems

This article explains the historical development of the two main types of court procedures used in criminal, and to a lesser extent in civil, cases around the world. The adversarial system developed from the English jury trial and envisions a passive judge and an active role for the parties. The inquisitorial system sees the judge as active investigator of the truth and mistrusts lay participation. A third tradition, that of consensual resolution of cases and plea bargaining, grew not only out of the adversarial tradition but also, through its inducement of pleas of guilty, smacks of the inquisitorial tradition.

Balancing Truth Against Human Rights: A Theory of Modern Exclusionary Rules

This final chapter attempts to synthesize the different approaches to exclusion of illegally gathered evidence reflected in the preceding chapters, and to formulate a theory of balancing of truth-finding in the criminal trial against the respect for fundamental human rights. Absolute exclusionary regimes included in constitutions, statutes, or even in decisions of high courts reflect a kind of “pre-balancing” which leaves the trial judge no option but to exclude. Thus would apply to statements or evidence issuing from torture or cruel, inhuman and degrading treatment, and in some countries, prima facie to constitutional violations affecting the right to counsel or wiretapping. Some jurisdictions, however, allow courts to determine whether a constitutional violation is “grave” and, if not, to then balance the violation against the seriousness of the charge before the court, or other interests. Many jurisdictions will also not exclude evidence even if it was the result of a violation of a fundamental right, if, after a balancing of the circumstances of the case show that the defendant was not deprived of a “fair trial”. The conclusion of the editor, is that courts are too willing to allow fundamental violation of human rights to be “balanced” away in favor of the search for truth, and that such balancing should be limited to situations where the violations are of subconstitutional legal rules. Courts should prima facie exclude evidence if there is a direct link between the evidence and a fundamental violation.