Abstracts for 2011 Conference on the Future
of the Adversarial System
EU Criminal Justice: Crime Control and Due Process within
a Framework of Mutual Recognition
Jacqueline Hodgson
University of Warwick School of Law, UK
The Papers presented at this third conference in the series "The Future of the Adversarial System",
are designed to encourage us to consider different legal models, in which the rulings and instruments
of one overarching court or legislature must be applied by a myriad of courts subservient to this
higher legal authority. This might be the European Court of Human Rights (ECtHR), whose case
law applies not only to the instant country before it, but also passes into wider jurisprudence, to be
applied by all 47 members of the Council of Europe. It might be the European Union (EU), whose
legal instruments must be translated into the domestic legislation of the 27 member states and whose
court, the European Court of Justice (ECJ) will rule on the interpretation and implementation of EU
law. Or, it might be the American federal model in which the rulings of the US Supreme Court bind
state courts.
Comparative Empiricism and Police Investigative Practice
Christopher Slobogin
Vanderbilt University Law School
Ten years ago I canvassed differences between European and American law enforcement practices
(specifically, with respect to search and seizure and interrogation) and evaluated empirical research
that might help determine the relative impact of these differences. This article is an update of that
effort. Since 2000 legal developments have been numerous, especially in connection with regulation
of interrogation and especially in Europe. The past ten years have also seen a considerable amount
of new empirical work evaluating the effectiveness of specific police investigative practices. This
article exposes how much we still do not know after a decade of additional research and then
describes a type of empirical work-what this article calls "comparative empiricism"-that can fill the
gap.
Comparative empiricism is an empirical assessment of the relative effectiveness of different nations'
regulatory regimes. In the law enforcement context, this type of assessment may turn out to be
extremely useful. Indeed, it might be the only realistic means of determining the combination of
mechanisms that best protects against government over-reaching without unduly stymying good
police-work. Domestic research that attempts to explore differing regulatory approaches either
occurs in experimental settings that undermine generalizability or is constrained by national laws that
prohibit or limit the ability to manipulate investigatory rules. In contrast, the significant country-bycountry differences in approaches to police regulation, combined with the relatively consistent
demands of police work across countries, provide a naturalistic setting for testing the effectiveness
of a wide array of rules. In particular, comparative empirical work that uses the same metric for
gauging effectiveness-this article proposes "hit rates" for searches and seizures and confession and
clearance rates for interrogations-can provide a unique source of information to policymakers.
Part I discusses the relevant positive law. Part II describes the newest research studying the effects
of that law. Part III lays out an empirical agenda.
Harmonizing Procedural Rights Indirectly: The Framework
Decision on Trials in Absentia
Martin Boese
University of Bonn, Germany
When comparing the administration of Criminal Justice in the United States and the European
Union you will immediately realize a significant difference: The United States have an elaborated
federal system of Criminal Justice, the European Union has not. In Europe, it is still the single
Member State being in charge of criminal prosecution and sentencing and, by this, providing security
for its citizens. The predominant role of the Member States in the area of freedom, security and
justice (Article 67 of the Treaty on the Functioning of the European Union - TFEU) is illustrated by
the fact that even the European Public Prosecutor - once he is established - will have to lodge an
indictment at the national court of a Member State. Thus, talking about European Criminal Justice
we do not refer to a European Criminal Court, nor to a European Code on criminal procedure, but
on a rapidly expanding set of rules on cooperation in criminal matters. Correspondingly, the Union's
action in the framework of police and judicial cooperation in criminal matters has focused on
initiatives in the area of mutual legal assistance in order to overcome traditional impediments to
transnational criminal law enforcement.
The main question still is how to balance mutual trust and judicial control in the executing
(requested) Member State, i.e. the efficiency of transnational cooperation on the one hand and the
rights of the accused on the other. Harmonising the rights of the accused can help to find the
balance between these two and, thereby, to enhance cooperation between the Member States. This
paper will not discuss the initiatives to harmonise the rights of the accused as a whole but focus on
trials in absentia and a specific function of harmonisation, i.e. providing a common basis for an
effective cooperation between the Member States. To that end, the paper shall address three
different aspects:
•
•
•
the concept of mutual recognition and the role of standard-setting
the minimum standard for trials in absentia that can be derived from the case-law of the
European Court of Human Rights
the standard defined by the Framework Decision on trials in absentia
EU Policy to Guarantee Procedural Rights in Criminal
Proceedings "Step by Step"
Taru Spronken & Dorris de Vocht
Maastricht University, Netherlands
The European Union is increasingly active in matters of criminal justice, concerning both
transborder crime and domestic provisions. Criminal procedures however vary enormously across
EU jurisdictions and so does the level of legal protection offered to suspects in criminal
proceedings.
Initial attempts by the European Union to establish minimum procedural rights for suspects and
defendants throughout the EU failed in 2007 in the face of opposition by a number of member
states who argued that the European Convention on Human Rights (ECHR) and the enforcement
mechanism of the European Court of Human Rights (ECtHR) in Strasbourg rendered EU
regulation unnecessary. However, with ratification of the Lisbon Treaty, criminal defence rights are
on the agenda again. To increase mutual trust, and thus improve the operation of mutual
recognition, in November 2009 the European Council adopted the Roadmap on Procedural Rights
setting out a step-by-step approach to strengthen the rights of suspects and accused persons.
This article describes how procedural safeguards for suspects and defendants are protected by the
European Convention on Human Rights and the increasing and sometimes competing impact of the
European Union in this area.
To set the context, first an outline will be given of a three year research study on the subject of
access to effective defence in criminal proceedings across nine European jurisdictions that constitute
examples of the three major legal traditions in Europe, inquisitorial, adversarial and post-state
socialist: Belgium, England & Wales, Finland, France, Germany, Hungary, Italy, Poland and Turkey.
Subsequently we will describe current developments within the Strasbourg enforcement mechanism
and the way EU policy aims to fill the gaps in human rights protection in the area of criminal
procedural law. Finally two EU legislative proposals on the right to information and the right to
legal assistance in criminal proceedings will be discussed.
On Reach and Grasp in Criminal Procedure, OR, Crawford
in California
Donald Dripps
University of San Diego Law
This essay makes four basic, related, points. First, it explains for an international audience the
peculiar U.S. arrangement for adjudicating human-rights claims in the criminal process of a federal
system. Second, it documents the Supreme Court's modern retreat from the sweeping intervention
in state criminal procedure undertaken by the Court in the 1960s. Third, it exposes the irony of this
retreat-undertaken to reduce the practical significance of the Court's prior jurisprudence of rights in
the criminal process-given the current Court's recent pro-defense turn on one important issue. The
Supreme Court has announced a robust confrontation right in state cases, but has little practical
power to enforce this prescription, given the self-imposed limits on its remedial options. Hence my
title; the Court's "reach" exceeds its "grasp" in the criminal procedure context. Fourth and finally,
the paper takes up the interesting question of whether there is anything to be said, from a normative
point of view, on behalf of affirming rights claims in the criminal process without practical power to
enforce compliance.
Will Mandated Counsel Be Effective Council? An American
Cautionary Tale for European Courts.
Richard Myers
University of North Carolina School of Law
In criminal procedure, as in all law, context matters immensely. The value of a particular mechanism
can only be truly understood within the context of the entire system in which it operates. That is
why one should be incredibly cautious about making predictions from thousands of miles and an
Atlantic Ocean away. Nevertheless, here goes: The extra-national commitment to the right to
counsel, under the precedents established under the European Court of Human Rights ("ECHR"),
has helped set the European nations that are parties to the Convention on the path to an
increasingly adversarial system of criminal justice. The right to trial contemplated by Article 6 is
increasingly being interpreted to be an adversarial trial, and the counsel adversarial. If that is true,
then Europe's precedent will evolve over time toward a more adversarial baseline, and proceedings
that permit adversarial counsel to litigate various aspects of criminal cases will be mandated.
Moreover, I predict that the European Court of Human Rights will encounter the same set of
institutional limitations that the US Supreme Court has in enforcing the right to counsel. First,
courts are better at defining and enforcing negative rights than positive rights. Second Appellate
Courts are better at enforcing process than accuracy, so they tend to impose more process as their
concerns about accuracy rise. And third, appellate courts have no money to spend, so they cannot
get too far in front of the population enforcing their decisions, especially when there may be core
concerns about legitimacy.
If these institutional limitations do in fact exist, then in practice, future ECHR litigation over the
commitment to counsel who can meaningfully contest evidence will look to an American audience
much like the litigation in the US Supreme Court over the last 50 years establishing the contours to
the right to counsel in the US federal system. In implementing its judgments, the ECHR faces
additional limitations imposed by the concept of the "margin of appreciation." For the right to
counsel, the limitation may be greatest in those settings where there is a commitment to an
inquisitorial system.
If the US experience can serve as any guide, it is just as likely that an increase in adversarialness will
negatively affect the perception of defense counsel as improve it. If that risk is realized, then the
danger is a race to the bottom, meeting whatever the minimal requirements are, with the public
spending as much as it must, and no more, on the defense, especially in trying economic times.