Jurisdiction and Transnational Ne Bis in Idem in Prosecution of Transnational Crimes

This chapter explores the range of jurisdictional principles that have been developed by various states to address the applicability of ne bis in idem to the prosecution of transnational crimes. It first considers two approaches under international law dealing with criminal jurisdiction before discussing state practice on jurisdictional principles, focusing on territorial jurisdiction, the protective principle, the flag principle, and the active nationality principle. The aut dedere, aut judicare principle, passive nationality principle, the domicile principle, the principle of universal jurisdiction, and the principle of complementary jurisdiction/secondary jurisdiction are also examined, along with the justifications for states to vest extraterritorial jurisdiction. The chapter concludes with an analysis of solution mechanisms for the prevention of conflicts of jurisdiction and of limitations to jurisdiction.

Comparing Plea Bargaining and Abbreviated Trial Procedures

This chapter compares U.S. plea bargaining with plea-bargaining-type procedures and penal orders in Continental Europe, with reference to Switzerland, Germany, and France. It first considers consensual criminal procedures across jurisdictions and why they exist, focusing on plea bargaining in the U.S. criminal justice system and abbreviated trial procedures in European civil law systems. It then examines the extent to which abbreviated trial procedures in civil law systems differ from plea bargaining in the U.S. system, the problems inherent in consensual criminal procedures, and the question of whether there are any solutions. In particular, it explains how plea bargaining and penal orders may lead to wrongful convictions. Finally, it discusses prospects for reform of plea bargaining in the United States and in civil law systems in Europe.

Rights and Methods to Challenge Evidence and Witnesses in Civil Law Jurisdictions

This chapter examines the primary grounds for challenging the admissibility of evidence, the methods to do it, and the potential consequences of those challenges for civil law systems. It first provides an overview of the jurisprudence of the European Court of Human Rights (ECtHR) with respect to admissibility of evidence, before discussing the exclusionary rules of evidence, focusing on the methods for excluding unreliable evidence, irrelevant or unnecessary evidence, and illegally obtained evidence. It then considers the process for challenging the admissibility of evidence, the cross-examination of witnesses, and the role of trial courts in the questioning of witnesses. It also tackles the admissibility of out-of-court witness testimonies in European civil law systems and notes the convergence between common law and civil law systems with regard to methods for excluding evidence and for questioning witnesses.

Procedural Roles

This chapter examines the procedural roles of professional judges, lay judges, and lay jurors in criminal adjudication. It considers the relationships between each actor and other participants in the criminal process, using examples from specific jurisdictions within three identified adjudicatory frameworks. It also discusses competing trends in the roles of each actor in systems across the world, focusing on increased reliance on professional judges in some countries and introduction of new lay judge and jury systems in others. The likely impact of these shifts is explored by comparing patterns in judge versus jury decision-making. The chapter concludes by highlighting reasons for global trends observed in the allocation of decision-making in criminal adjudication to particular actors, noting the desire for greater accountability in systems shifting toward more judicial control as well as the attraction of democratizing decision-making in systems embracing trial by jury.

The Place of the Prosecutor in Common Law and Civil Law Jurisdictions

This chapter focuses on the place of the public prosecutor in common law and civil law jurisdictions. It first describes the institutional positioning of public prosecutors, particularly vis-à-vis the executive power, before discussing their role and powers in regard to the pretrial phase. It then considers the increasing tendency to entrust the public prosecutor with quasi-judicial sanctioning powers in the context of out-of-court procedures (“prosecutorial adjudication”). It also examines the role of specialized law enforcement authorities in the exercise of investigative and prosecutorial functions, coercive measures and the need for judicial authorization, and prosecutorial discretion and alternatives to trial proceedings. Finally, it explains how independence, centralization and decentralization, legality and opportunity of prosecution, and the alternatives to trial proceedings have been translated to the supranational design of the European Public Prosecutor’s Office (EPPO).

International Law and Treaty Obligations, Mutual Legal Assistance, and EU Instruments

This chapter deals with international and European Union law that provides a legal framework for international cooperation in crime-related matters. The relevant provisions of international law form part of treaties combating transnational crime and of bilateral and multilateral agreements establishing a general framework for international cooperation in criminal matters as well as the new instruments under EU law that are based upon the principle of mutual legal assistance. The chapter first outlines the scope and elements of international cooperation in criminal matters before discussing international cooperation in criminal matters and human rights. It then considers the principle of mutual recognition, new international cooperation instruments such as extradition, and enforcement of criminal sentences and measures. In particular, it examines the transfer of convicted persons and enforcement of prison sentences, along with enforcement of pecuniary sanctions and asset recovery.

Pluralism in International Criminal Procedure

This chapter examines the pluralistic nature of international criminal procedure. International criminal procedure refers to the procedures used at the international criminal courts and tribunals that were established to address war crimes, crimes against humanity, genocide, and other serious offenses. The chapter begins with an overview of the evolution of modern international criminal procedure, first at the ad hoc tribunals for the former Yugoslavia and Rwanda and then at hybrid courts and the International Criminal Court. It then discusses the goals pursued by international criminal procedure, such as: providing a fair trial, establishing the truth, enforcing criminal laws effectively, respecting human rights, and promoting the rule of law. Different views about the proper weight to be placed on each of these goals leads to diverse procedures across and within international criminal courts. The chapter considers two examples of pluralism in international criminal procedure: judicial management of criminal proceedings and involvement of victims in the proceedings. Finally, the chapter offers a normative assessment of pluralism in international criminal procedure. While diversity of procedures can help international criminal courts arrive at solutions that address the unique political and practical challenges of international criminal justice, divergent procedures within the same court raise concerns about predictability and equal treatment.

The Confrontation Right

This chapter examines the right of criminal defendants to be confronted with the witnesses against them. It first provides an overview of the nature, purposes, and costs of the confrontation right before discussing the history of the confrontation right. It then considers a range of issues that may arise in any jurisdiction (or in some cases, any common law jurisdiction) with regard to the confrontation right, using as a touchstone the current status of the right in the United States. In particular, it describes situations in which the question of whether a statement is testimonial typically arises, such as fresh accusations and forensic laboratory reports. It also explores the waiver and forfeiture of the confrontation right, a child’s testimony, and remote testimony as well as the extent of constitutionally protected impeachment before concluding with an analysis of the confrontation right in Europe.

Transnational Access to Evidence, Witnesses, and Suspects

This chapter examines issues surrounding transnational access to evidence, witnesses, and suspects. More specifically, it considers whether the evidence can be transferred between nation-states without negatively affecting the legitimacy, fairness, and reliability of the fact-finding procedure. The focus is on basic questions arising from the conflict between the criminal justice systems’ genuine interest in comprehensive and reliable fact-finding and the specific restrictions on fact-finding when evidence exists beyond a state border. The chapter first traces the historical roots of transnational access to evidence and provides an overview of current legal practices before using the German and U.S. legal frameworks as case studies to illustrate the impact of mutual legal assistance in a civil law and a common law jurisdiction. It then outlines new approaches to transnational access to evidence such as the framework of the European Union, with emphasis on safeguards for reliability and fairness of fact-finding.

Fundamental Values of Criminal Procedure

This chapter examines the fundamental values that ought to inform criminal procedure. More specifically, it considers what we ideally should want from the rules and procedures that exist in legal jurisdictions throughout the world. Three fundamental values are discussed—human dignity, truth, and fairness—and the ways in which they can be upheld or subverted by criminal justice practices. Illustrations are drawn primarily from the United States, but reference is also made to criminal procedure in other countries, including those in the civil law tradition. The article concludes by analyzing two further candidates for inclusion on the list of fundamental values of criminal procedure: the “effectiveness” of criminal procedure and the value of “expertise” that highlights the distinction between the common law and civil law traditions.