Notes Week 1

European Criminal Procedures – Introduction

A book that compares 5 European jurisdictions and their criminal procedure. One can distinguish
between the countries several minor and major offenses, which have different courts/approaches to
deal with them.

1. Origins of the divergence between “inquisitorial” v. “accusatory” approaches.

English system = accusatorial, European = inquisitorial. However, the two have borrowed from each
other and the systems have merged. Historically, the systems were one in Europe called ‘summary
procedure’ where a person was hanged. The lesser crimes were done by a formal accusation and
have slowly developed to what we now have today for all crimes (with a lawyer etc.). But the
techniques were quite old fashioned, with lowering people into water and burning them with a piece
of iron to prove innocence (called an ordeal).

In western Europe in the 12th century, an inquisitorial system was set up as the trust in the ordeal
evaporated at the church. In England, on the other hand, the trial by jury started, where the citizens
decide whether someone is guilty or not guilty. In the beginning in England, the jury was supposed
to base guilty or not guilty on their own knowledge.

The inquisitorial system, however, deteriorated by allowing torture for confessions. The English
system did not allow for torture, and thus, felt superior. In 1808 the Code d’instruction criminelle
came into place in France, combining the two systems. What happened is that one judge
interrogates and not that judge but new judges decide on the guilt of the person.

In Germany and Italy, the investigating judge got removed because it was unnecessary as the
prosecutor and police already did that work. In England, around the 19 th century, the prosecutor and
professional policeman came into place. This led to a pre-trial phase, which historically was not given
much attention.

One important difference between the English system and the French/Belgium system is that the
English only count stuff that is orally heard as evidence, whereas other evidence is accepted in the
French/Belgium system. On the other hand, the information on the defendant is more known
because of journalists in mainland Europe, as the press has more freedom to publish.

Another difference (which is a misconception) is that mainland Europe does not have the innocent
until proven guilty. What is true is that the prosecutor has more limitations to prosecuting, as some
evidence is not accepted (previous record etc.). In addition to that, one can think that people are
more often convicted in mainland Europe but that is because the weak cases are disposed of earlier
and do not reach trial.

Another difference between the two systems is that one can go free in France awaiting appeal,
whereas one is locked in England awaiting appeal.

CRITIQUE: the press is not part of the adversarial nor the inquisitorial system. Thus, they are not part
of whether one is presumed innocent or not BY THE COURT.

QUESTION: can names of suspects be published in the media, when they are not yet convicted?

The third difference between the accusatorial and inquisitorial system are that the defense talks
more for the suspect in England, whereas in continental Europe, the suspect talks directly to the
judge. Investigation and judging are more blurred in mainland Europe.

Police suppressing of information (scientific information) is a disadvantage of the common law

system.

Eu Law knows three pillars.

First pillar: community method (criminal justice excluded because it is not in the competence of the
EU institutions).

Third pillar: inter-governmental arrangements, European Union (This also includes the EU mutual
legal assistance convention)

Teaching comparative criminal procedure: Russian dolls, color charts and cappuccino

Prefer to be tried in a civil law country if innocent and in a common law country if guilty. Right to
truth and individual liberties sometimes do clash.

In the US: ‘mistrust of officialdom’.

The differences that have been noted between the civil and common law system are:

1. Reactive state (common law system) proactive state (civil law system)
2. More exclusionary rules (common law system) less exclusionary rules (civil law system) --> if
innocent one would prefer to be tried in a civil law country, if guilty, preference would go to
common law system. QUESTION: Civil law systems tend to favor truth at the expense of
privacy?
3. Attorney driven trials (common law system) Judge Driven Trials (civil law system)
4. More reliance on precedent (common law system) less reliance on precedent (civil law
system)
5. One supreme court (common law system) Each country in civil law countries have several
supreme courts (civil law system)
6. Power to judges (common law system) power to scholars and legislators (civil law countries)
7. No power to investigate for judges (common law system) power to investigate for judges
(civil law countries)

Introduction – Davis

Differences between the common law and civil law traditions:

1. Common law --> Unreviewable power to prosecutors (mandatory minimum sentences, help
in guilty pleas)
NOTES CLASS & Questions

2. Emergence of lay courts and criminal procedures independent of the church.

Happened when people did not believe in the god’s sentence anymore (fire and water).

3. Emergence of professional police functions and a professional, independent judiciary; the

emergence of lawyer-assisted defense and adversarial rights.

4. Emergence of supra-national sources of authority and review – the concept of human rights
applicable to the criminal process, the development of the European Court of Human Rights
and others.

5. Emergence of crimes against humanity, genocide and war crimes, and of international
tribunals – and the procedural challenges they pose.

6. Rationales for studying comparative criminal procedure today.

Preparation Class 2

The basic goal next week is to get our arms around the principal differences in how criminal
procedural laws address the police function, particularly the interface between the police
and members of the public who ultimately become involved in criminal justice.
Reading 1: American Criminal Justice
Chapter 3
Criminal investigation is started by the police. Often these are divided in specialized
agencies such as the FBI, DEA etc. All report to the Attorney General of the US who heads
the department of justice.
An investigation does not need authorization from a prosecutor or judge. However, they do
work together often as search warrants, arrest warrants etc. Need prosecutor approval.
However, all testimony from the police investigation cannot be used in trial because of the
hearsay rule (no secondary evidence).
Before the official indictment of a person, there is no right to an attorney.

Chapter 4
Pre-arrest and post-arrest investigations differ. For small crimes there is the speedy trial, for
more complicated crimes, there is the official indictment and the decision of the prosecutor
to prosecute. During police interrogations, the person interrogated must get the miranda
warnings: right to remain silent, right to an attorney. Strict rules apply on search warrants,
and only at the place of arrest can there be a search.
Judicial intervention in a criminal investigation --> wires, international cooperation, seizure

o Read my (short, and now a bit obsolete) article on the French “garde à vue.”
o Take a look at the Medvedyev decision from the ECHR. When I say “take a
look at,” I’m meaning that you need not assiduously read the whole thing,
but you should fairly quickly be able to take away the core of what the Court
was saying, starting around page 23 or so.
o Also “take a look” at the summary of other decisions from the ECtHR.
As noted, Professor Momsen will be participating in our class on Thursday. I am meeting
with him later today. If he and I come up with a somewhat different focus for that class, I’ll
let you know.
And finally, please do watch the two Iranian film extracts by Thursday.

Notes week 3

 S. v. Allen, decided in 2017.

Whether testimony given by an individual involuntarily under the legal compulsion of a foreign
power may be used against that individual in a criminal case in an American court.

The Fifth Amendment's prohibition on the use of compelled testimony in American criminal
proceedings applies even when a foreign sovereign has compelled the testimony. When the
government makes use of a witness who had substantial exposure to a defendant's
compelled testimony, it is required under Kastigar v. United States, 406 U.S. 441 (1972), to
prove, at a minimum, that the witness's review of the compelled testimony did not shape,
alter, or affect the evidence used by the government. A bare, generalized denial of taint
from a witness who has materially altered his or her testimony after being substantially
exposed to a defendant’s compelled testimony is insufficient as a matter of law to sustain
the prosecution’s burden of proof. In this case involving the London Interbank Offered Rate
(LIBOR), defendants were convicted of wire fraud and conspiracy to commit wire fraud and
bank fraud. The Second Circuit held that defendants' compelled testimony was "used"
against them, and this impermissible use before the petit and grand juries was not harmless
beyond a reasonable doubt. Accordingly, the court reversed the judgments of conviction
and dismissed the indictment.

n July 2017, a three-judge panel of the Second Circuit overturned the convictions of
former London traders Anthony Allen and Anthony Conti, finding that their Fifth
Amendment rights were violated by the Department of Justice’s use of testimony
compelled by U.K. authorities.
Allen and Conti were accused of manipulating the London Interbank Offered Rate
(“LIBOR”), the benchmark rate used by several global banks to set short-term lending
rates. In November 2015, both were convicted of fraud and conspiracy by a Manhattan
federal jury.
Prior to their conviction, Allen and Conti had been interviewed and compelled to provide
testimony to the U.K.’s Financial Conduct Authority in a LIBOR-related investigation, with
protections for “direct use” immunity (i.e., the evidence could not be used directly in a
prosecution against them). Those interviews were reviewed by another former banker,
Paul Robson, who became a cooperating witness for the DOJ before he testified at Allen
and Conti’s grand jury proceeding and trial.
The Second Circuit held that the DOJ had failed to demonstrate that the compelled self-
incriminating testimony from Allan and Conti did not taint Robson’s testimony, which
was central to both the grand jury proceeding and the trial. The Second Circuit
accordingly vacated the conviction and dismissed the indictment, reversing the DOJ’s
high-profile victory in the first LIBOR-rigging trial.
The three-judge panel’s decision was affirmed on November 9, 2017, when the full
Second Circuit refused the DOJ’s request to revisit the ruling.

Please start by reading Chapter 6 of my book (The Decision to Prosecute, or not), which is
only a few pages.

 What were the procedures leading to these documents?

 What is the basis for them? In the sense of, what evidence supports them?
Several people

 Who had the authority to issue them?

Staatsanwaeltin (prosecutor)?

 What rights did the accused have to address the accusation?

 And most importantly: what effect do they have?

Open the main proceedings