PRESENTATIONS
Jacqueline Hodgson
After a relative high point in the 1980s with the enactment of the Police and Criminal Evidence
Act 1984, the recognition of the fundamental right to custodial legal advice and the need for full
prosecution disclosure as a means of going some way to redress the imbalance in resources and
information, the adversarial process in England and Wales has seen a number of modifications
over the last 15 years. The right to silence has been curtailed in significant ways and there is
now a defence requirement to disclose an outline of their case - with a corresponding reduction
in the disclosure requirement of the prosecution. Shifts away from the public and oral
examination of witnesses towards the agreement of evidence in pre-trial hearings, are driven by
concerns with managerial efficiency rather than justice. In contrast to criminal procedures rooted
in an inquisitorial tradition, the prosecution role has been designed to operate independently of
the police investigation - with no power to direct assigned either to a prosecutor or to a pre-trial
judge. Recent changes have seen the prosecutor based in the police station and responsible for
determining the nature of the initial police charge (as well as the offence to be prosecuted),
suggesting a closer relationship in which advice if not direction is the norm. In counter-terrorism
investigations, the relationship is closer still: a dedicated joint police-prosecution unit has been
established, allowing both organisations to work together closely in the months leading up to any
arrest and detention. Terrorist suspects may be held for up to 28 days, the prosecutor (not the
police) requesting the periods of extended detention. As well as widely drawn offence
provisions, greater powers of search and arrest and extended police detention and questioning,
the charging thresholds at the end of detention are also lower in terrorism cases. Once the case
comes to trial, the accused may not see all of the evidence against her and a special advocate
may be appointed to deal with sensitive material. This is not defence representation in the
ordinary sense, as the special advocate may not communicate anything of the closed (sensitive)
evidence to her 'client'. Many of these changes have been described as being more inquisitorial
in nature, in the sense that information is scrutinised pre-trial. The production of this
information, however, remains unchanged, being the responsibility of the police, with no judicial
oversight. The final topic that I would like to address is the procedure in place for postconviction investigations by the Criminal Cases Review Commission. It is interesting to
consider that potential miscarriages of justice are addressed through an inquisitorial review
before then deciding whether there is new evidence meriting the case being referred back to the
Court of Appeal - when the usual adversarial procedure returns to play. There are interesting
questions concerning the role of the CCRC, the role of the defence during their review process
and any parallels with the French experience of judicial investigation and defence engagement.
Giulio Illuminati
The Italian Code of Criminal Procedure issued in 1988 had to implement, according to the 1987
parliamentary Act of delegation to the government, "the features of the accusatorial system".
This provision was meant to mark a radical departure from the inquisitorial tradition of
continental European countries. In order to give a definition of accusatorial system, it is
necessary to distinguish between the historical meaning and the theoretical approach. From a
historical point of view, the alternative accusatorial/inquisitorial dates back to Roman and
medieval law, depending on the presence of a direct intervention of the State in the prosecution
and on the powers of initiative of the judge in the proceeding. From a theoretical point of view,
the paper assumes that the accusatorial model is characterized by the principle of confrontation
on the evidence collected in a public trial. As a consequence, a strict separation of the
investigating phase from the trial is required. In this meaning, an accusatorial system does not
necessarily imply a full adversarial procedure. In particular, the Italian-style accusatorial process
is well away from the Anglo-American adversary trial: taking into account, on the one hand, the
principle of mandatory prosecution, on the other hand, the prevailing control of the judge over
the assessment of the facts. In the Italian juridical culture the criminal process is not considered
as much a means of settlement of conflicts, but rather a means of ascertainment of the truth.
Richard Myers
My paper will consider the inherent tensions between truth-finding as a function and a clientcentered ethic in the American adversarial system. I am interested in truth-defeating or truthobscuring mechanisms we have adopted for other purposes, such as the exclusionary rule and the
various forms of evidentiary privilege, and how they undercut defense counsel's credibility with
prosecutors, and as a result undercut counsel's power to act as an honest broker in a system
where the vast majority of cases are resolved in a negotiated plea. I will suggest that the current
system, perhaps for very valid reasons, serves the guilty far better than the innocent, because the
defense bar has an institutional and often repeated reaction in favoring of mechanisms that
increase its ability to control (or limit) access to true and potentially damaging information.
Some differences in the balance on the prosecution side, such as open-file discovery and
constitutional obligations to reveal exculpatory information, somewhat undercut similar concerns
related to the prosecutor. However, truth-obscuring mechanisms are in place on the prosecution
side as well. I am really interested to hear about how these tensions are resolved in other
systems.
Theresa Newman and James Coleman
The U.S. criminal justice system relies on the adversarial nature of the established trial process to
lead to the development of the "facts" of a case and, ultimately, to a just result. Regrettably, that
process is now known to produce an intolerably high number of incorrect results, as evidenced
by the number of exonerations over the past decade or so. As a result, the adversarial system is
now being modified -- or modifications are being proposed -- to protect the innocent and
otherwise advance justice. We will identify some of the problems with the existing system that
lead to the conviction of the innocent and discuss some of the proposed reforms, ranging from
slight modifications to the rules of ethics governing lawyers' conduct in the adversarial system to
the creation of new fora for adjudicating claims of innocence.
Kent Roach
My paper will examine the effects of the recent discovery of wide-spread wrongful convictions
on the future of the adversary system. The first part of the paper will assess whether the common
causes of wrongful convictions reflect a failure of the adversarial system. For example, the
ability to cross-examine adverse witnesses is commonly seen as important safeguard of the
adversarial system, but it may not be effective with respect to witnesses who have made honest
mistakes about the identity of a perpetrator of a crime. Similarly, party presentation of expert
evidence may have an insufficient appreciation of social interests in the discovery of the truth.
The second part of the paper will examine the extent to which remedies for wrongful convictions
can be found in 1) improvements of the adversarial system and/or 2) through increased use of
more state-based and court-based inquisitorial features. The former adversarial remedies include
measures such as better funding for defence counsel and the use of challenge functions within
policing and prosecutorial agencies to counter tunnel vision. The latter inquisitorial remedies
include an increased gate keeping role for judges with respect to expert scientific evidence,
broader fact-based appeals, and the use of state-based commissions to investigate claims of
wrongful convictions. I will draw mainly on examples of the wrongful conviction debate in
Canada including recommendations made by three recent Canadian commissions of inquiry that
examined specific wrongful convictions and made recommendations about various forms of
scientific evidence, determinations of innocence and the investigation of wrongful convictions. I
will also make reference to the growing literature on wrongful convictions in continental
systems, most specifically in Netherlands and France. I will examine the hypothesis that present
thinking about wrongful convictions reveals deep ambivalence about the ability of both
adversary and inquisitorial features of Anglo-American systems to discover the truth. I will also
examine the extent to which adversarial or inquisitorial systems may be resistant to adopting
features of the other system as a means to prevent and remedy wrongful convictions.
Ron Wright
Since the early 1990s, a number of Latin American countries have experimented with
movements toward adversarial systems of criminal justice. These experiments have included an
emphasis on oral trial proceedings, de-emphasis of judicial participation in the investigation
process, increased roles for defense attorneys and prosecutors, the availability of abbreviated
proceedings, and negotiated punishments such as probation and diversion. Some of the most
recent movement in this direction has happened in Mexico. My article will explore the sources of
the reform efforts in Mexico and the institutional habits that will project these reform ideas onto
the landscape of daily criminal justice in Mexico. My interest throughout will be the forces that
will make this movement different in Mexico than the reform efforts that have played out
elsewhere in Latin America.