International Criminal Procedure

A Clash of Legal Cultures

By: Christine Schuon

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Hardcover | 1 September 2010

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4 an incorrect verdict. The basic concept of a criminal trial in common law s- tems is that of a competition between the parties, in which the stronger - and therefore true - version of the case will prevail. Civil law-style criminal proceedings, in contrast, are characterised by a "one case approach". Beginning at the pre-trial stage, only one case is prepared by a state official who carries out by far the major part of the investigations. This state official is either an investigating judge or (as for example in Germany) the prosecutor who, in contrast to a common law prosecutor, is also obliged to investigate exonerating evidence. The defence is granted a right to inspect the case files produced by this investigating authority. If the case proceeds to trial, these case files are transmitted to the trial court. At trial, the central figure is the judge who largely decides on the submission of evidence and questions the witnesses, and who decides over the defendant's guilt or innocence. Thus, only one case is presented at trial. In civil law systems, the judge is under a legal duty to establish the true facts of a case and to submit the appropriate evidence - cordingly. The central concept of a civil law-style criminal trial is that the true facts of a case are established by an official authority.

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Non-Fiction Law Laws of Specific Jurisdictions Criminal Law & Procedure International Law Public International Law International Criminal Law

Acknowledgements	p. V
Summary of Contents	p. VII
Abbreviations	p. XVI
Introduction	p. 1
The Debate Between Civil Law and Common Law Lawyers in International Criminal Procedure	p. 3
About this Study	p. 7
National Procedural Law	p. 13
Disclosure Rules	p. 15
Disclosure Rules in U.S. Law	p. 16
Disclosure Obligations of the Prosecution	p. 17
Exculpatory Material	p. 17
Documents and Tangible Objects	p. 18
Prior Statements of the Defendant	p. 18
No Disclosure of Prior Statements of Prosecution Witnesses, but Disclosure of Summaries of Experts' Testimonies	p. 19
Disclosure Obligations of the Defence	p. 20
Alternative Disclosure Vehicles	p. 22
Restrictions on Disclosure	p. 22
Open File Discovery in German Law	p. 23
The Defence's Broad Right of Inspection	p. 23
No Right of Inspection by the Prosecution	p. 25
No Other Procedural Elements Promoting Further Exchange between the Parties at the Pre-Trial Stage	p. 26
Restrictions on the Right of Inspection	p. 26
Comparing U.S. Disclosure Rules and Open File Discovery in German Law and the Debate on the National Level	p. 27
The Different Approaches of the Two Procedural Systems	p. 27
No Real Dispute about Disclosure Rules versus a Broad Right of Inspection on the National Level	p. 28
The Discussion in the U.S. on Broadening Disclosure Rules	p. 29
Evidence Rules	p. 31
Evidence Rules in U.S. Law	p. 33
Introduction to U.S. Evidence Rules	p. 33
Relevancy and the Basic Structure of U.S. Admissibility Rules	p. 34
Excluding Hearsay	p. 36
Authentication of Documents and Other Exclusionary Rules	p. 38
Depositions	p. 39
Evidence Rules in German Law	p. 40
Introduction to German Law's Flexible Approach to Evidence	p. 40
The Principle of a Judge's Free Evaluation of Evidence and its Limits	p. 41
The Restriction of a German Criminal Trial to Certain-Types of Evidence	p. 41
A Court's Legal Duty to Submit Evidence Determining the Scope and Quality of Evidence at Trial	p. 42
The Orality Principle and the Immediacy Principle	p. 44
No Rule to Exclude Hearsay	p. 46
Depositions	p. 47
Comparing the Different Approaches to Evidence of U.S. Law and German Law	p. 47
The Role of a Judge and the Question of a Dossier	p. 56
A Judge's Role in U.S. Law	p. 57
A Judge's Tasks at the Pre-Trial Stage	p. 57
Presentation of Evidence at a U.S. Common Law Criminal Trial	p. 57
The Passive Judge	p. 61
The Almost Unlimited Control by the Parties over a Trial and the Lack of a Dossier	p. 63
A Judge's Role and the Dossier in German Law	p. 65
A Judge's Tasks at the Pre-Trial Stage	p. 65
Presentation of Evidence at a German Civil Law-Style Criminal Trial	p. 66
The Active Judge	p. 70
The Dossier in German Criminal Proceedings	p. 71
Comparing the Different Roles of a Judge and the Question of a Dossier in U.S. and German Criminal Proceedings	p. 71
The Most Striking Differences between the Two Systems	p. 71
ôPartisan Evidenceö in Common Law versus ôObjective Evidenceö in Civil Law	p. 73
The Complexity of U.S. Proceedings	p. 74
Guilty Pleas and Plea-Bargaining	p. 76
Guilty Pleas and Plea-Bargaining in U.S. Law	p. 77
Overview of the Guilty Plea Procedure in U.S. Law	p. 77
The Requirements for a Valid Plea, Especially the Factual Basis Requirement	p. 79
Plea-Bargaining	p. 80
Dropping Facts through Charge Bargaining	p. 82
The Real Offence Element in Sentencing after Bargaining	p. 82
Admission of Guilt and Bargains in German Law	p. 83
Admission of Guilt in German Criminal Procedure	p. 83
Bargains in German Criminal Procedure	p. 84
Standard Requirements for Bargains set by German Case Law	p. 87
Comparing U.S. Guilty Pleas and Bargains with German Admissions of Guilt and Bargains	p. 91
Different Notions of Truth: Formalised and Material Truth	p. 93
Arguments from the Debate on Bargaining from the Viewpoint of Domestic Systems	p. 94
Efficiency	p. 94
Diminishing the Capacity of Criminal Proceedings to Establish the True Facts	p. 96
Prejudicing the Principle of Guilt-Adequate Punishment	p. 97
Impairing Equal Treatment before the Law	p. 98
Obtaining an Accused's Co-Operation by Means of Bargaining	p. 99
Various Considerations about Bargaining that are Specific to U.S. Criminal Procedure	p. 100
Bargaining in Line with Basic Notions of the Adversarial Model	p. 101
Bargaining at Odds with Basic Notions of the Continental Model	p. 102
Sparing Victims the Appearance at Trial	p. 103
The Special Need for Efficiency in Particularly Complex or Otherwise Difficult Cases	p. 104
ôMarket Place Justiceö Looming	p. 104
Concern over Involuntary Bargains	p. 105
Other Concerns	p. 106
Evaluating the Bargaining Debate in Relation to Domestic Law in the U.S. and Germany	p. 107
Procedural Law of the Icty	p. 109
Disclosure Rules	p. 111
Disclosure Rules in Proceedings Before the ICTY	p. 111
Disclosure Obligations of the Prosecution	p. 111
Rule 68(i) of the Rules: Exculpatory Material	p. 111
Rule 66(B) of the Rules: Documents and Tangible Objects	p. 114
Rule 66(A)(i) of the Rules: Prior Statements of the Defendant	p. 115
Rule 66(A)(ii) of the Rules: Statements of Prosecution Witnesses and Rule 94 bis of the Rules: Expert Reports	p. 117
Rule 66(A)(i) of the Rules: Supporting Material which Accompanied the Indictment	p. 118
Gaining Access from the Registry to Confidential Materials from Other ICTY Cases	p. 118
Disclosure Obligations of the Defence	p. 119
Alternative Disclosure Vehicles	p. 121
Restrictions on Disclosure before the ICTY	p. 122
Rule 70(A) of the Rules: Work Product Privilege	p. 122
Rule 69 of the Rules: Witness Protection	p. 122
Rule 70(B)-(G) of the Rules: Confidentially Provided Information	p. 124
Rules 66(C) and 68(iv) of the Rules: Further or Ongoing Investigations, Public Interest or State Security Interests	p. 125
Calling for Further Restriction	p. 125
Reasons for the Development of Disclosure Rules in the ICTY's Procedure	p. 125
Comparison of the ICTY's Disclosure Rules with U.S. Disclosure Rules	p. 125
Development of the ICTY's Disclosure Rules	p. 126
Problems Arising out of the ICTY's Disclosure Rules and Possible Remedies	p. 128
Disclosure Rules as an Area of Disagreement between the Parties	p. 128
Difficulties for the Defence and Possible Remedies	p. 129
The Burden for the Prosecution	p. 130
Improving the Situation for the Prosecution	p. 132
Discussion on Disclosure Revisited in the International Context and Suggestions for Further Amendments	p. 133
Evidence Rules	p. 136
Evidence Rules in the Procedure Before the ICTY	p. 136
Introduction to the ICTY's Evidence Rules	p. 136
The Admissibility Test of Rule 89(C) of the Rules and Other Basic Rules of Admissibility	p. 138
Preference for Live Witness Testimony	p. 141
No Rule to Exclude Hearsay before the ICTY	p. 143
Admissibility of Documentary Evidence	p. 147
Admissibility of Documentary Evidence pursuant to Rule 89(C) of the Rules	p. 149
Admission of Written Statements Prepared for Litigation and Transcripts in Lieu of Oral Testimony pursuant to Rule 92 bis of the Rules	p. 151
Admission of Written Statements and Transcripts of a Witness who is Present in Court pursuant to Rule 92 bis of the Rules	p. 156
Admission of Written Statements and Transcripts of Testimony of Later Deceased or Otherwise Unavailable Witnesses pursuant to Rule 92 ter of the Rules	p. 156
Authentication of Documents pursuant to Rule 89(E) of the Rules	p. 159
No Strict Requirement to Introduce an Exhibit Through a Witness	p. 160
Various Other ICTY Evidence Rules	p. 161
Other Alternative Forms of Evidence to Live In-Court Testimony	p. 162
Reasons for the Development of the ICTY's Evidence Rules	p. 163
The Development of the ICTY's Evidence Rules	p. 163
Why a Flexible Approach to Evidence before the ICTY is Appropriate and Suggestions for Further Amendments	p. 165
The Role of a Judge and the Question of a Dossier	p. 172
A Judge's Role Before the ICTY	p. 172
A Judge's Tasks at the Pre-Trial Stage	p. 172
The Pre-Trial Judge	p. 172
The Pre-Trial Conference and the Pre-Defence Conference	p. 174
Presentation of Evidence at a Trial before the ICTY	p. 177
Witness Examination	p. 178
A Judge's Right to Question a Witness pursuant to Rule 85(B) Second Sentence of the Rules	p. 180
A Judge's Power to Order Additional Evidence pursuant to Rule 98 of the Rules	p. 181
The ICTY Judge: Towards Greater Activity	p. 182
The Question of a Dossier before the ICTY	p. 183
Reasons for the Development of a Judge's Role in ICTY Procedure	p. 184
Differences from U.S. Law	p. 185
The Development of ICTY Rules Defining a Judge's Role and Its Reasons	p. 186
Further Suggested Amendments Concerning a Judge's Role before the ICTY	p. 192
Guilty Pleas and Plea-Bargaining	p. 196
Guilty Pleas and Plea-Bargaining Before the ICTY	p. 196
Overview of the ICTY's Guilty Plea Procedure and Plea-Bargaining	p. 196
The Development of Guilty Pleas and Plea-Bargaining before the ICTY	p. 200
Reasons for the Development of the ICTY's Procedure in regard to Guilty Pleas and Plea-Bargaining	p. 202
The ICTY's Discussion on Guilty Pleas and Plea-Bargaining	p. 203
Efficiency	p. 203
Dropping Facts after Charge Bargaining	p. 206
Guilty Pleas and Plea-Bargaining Contributing to the Establishment of the True Facts	p. 208
The Factual Basis Requirement of Rule 62bis(iv) of the Rules	p. 209
The Accused's Guilty Plea as a Source of Insider Information	p. 210
The Accused's Guilty Plea as a Source of Insider Information for Other Cases	p. 213
Why Insider Information is Important for the Victims' Relatives	p. 218
A Sentencing Hearing May Serve to Elucidate Facts	p. 218
Sparing Victims the Appearance at Trial	p. 220
A Guilty Plea Promotes Reconciliation	p. 221
A Guilty Plea Hampers Ongoing Denial	p. 224
Further Advantages of Guilty Pleas and Plea-Bargaining as Mentioned in the Tribunal's Case Law	p. 225
Further Disadvantages of Guilty Pleas and Plea-Bargaining as Mentioned in the Tribunal's Case Law	p. 227
A Critical Evaluation of the ICTY's Discussion on Guilty Pleas and Plea-Bargaining	p. 229
Efficiency	p. 229
Guilty Pleas and Plea-Bargaining Contributing to the Establishment of the True Facts	p. 232
The Factual Basis Requirement of Rule 62bis(iv) of the Rules	p. 232
The Accused's Guilty Plea as a Source of Insider Information	p. 233
The Accused's Guilty Plea as a Source of Insider Information for Other Cases	p. 235
Why Insider Information is Important for the Victims' Relatives	p. 236
A Sentencing Hearing May Serve to Elucidate Facts	p. 238
Sparing Victims the Appearance at Trial	p. 240
A Guilty Plea Promotes Reconciliation	p. 241
A Guilty Plea Hampers Ongoing Denial	p. 242
Further Advantages of Guilty Pleas and Plea-Bargaining	p. 243
Further Disadvantages of Guilty Pleas and Plea-Bargaining	p. 245
Further Disadvantages of Guilty Pleas and Plea-Bargaining due to Specific Characteristics of International Criminal Law	p. 247
The Problem of Dropping Facts by Way of Charge Bargaining, A Concluding Evaluation of the ICTY's Discussion, and Suggestions for Further Improvements of the Procedure	p. 249
Evaluation of the Rules of the ICTY-The Results of the Comparative Study of Domestic and ICTY Procedure in a Nutshell	p. 255
Disclosure Rules	p. 255
Evidence Rules	p. 257
The Role of a Judge and the Question of a Dossier	p. 262
Guilty Pleas and Plea-Bargaining	p. 267
Procedural Law of the ICC	p. 271
Disclosure Rules	p. 275
Disclosure Obligations of the Prosecution Before the ICC	p. 276
Article 61(3) of the Rome Statute and Rule 121(3) of the Rules: Disclosure Prior to the Confirmation Hearing	p. 276
Article 67(2) of the Rome Statute: Exculpatory Material	p. 276
Rule 77 of the Rules: Documents and Tangible Objects	p. 277
Rule 112 of the Rules: Copies of Recordings of the Defendant's Prior Questioning	p. 278
Rule 76 of the Rules: Prior Statements of Prosecution Witnesses	p. 278
Disclosure Obligations of the Defence before the ICC	p. 279
Rule 121(6) of the Rules: Disclosure Prior to the Confirmation Hearing	p. 279
Rule 79 of the Rules: Defence of Alibi or Lack of Criminal Responsibility	p. 280
Rule 78 of the Rules: Documents and Other Tangible Objects	p. 280
The Court's Orders Concerning Disclosure	p. 281
Restrictions on Disclosure	p. 281
Evaluating the ICC's Disclosure Rules	p. 282
Evidence Rules	p. 286
The Role of a Judge and the Question of a Dossier	p. 291
A Judge's Role in the ICC's Procedure	p. 291
The Pre-Trial Chamber	p. 291
Evidence Presentation and Witness Examination at Trial	p. 292
The Question of a Dossier Before the ICC	p. 295
Evaluating a Judge's Role and the Question of a Dossier Before the ICC	p. 299
Admission of Guilt and Bargaining	p. 301
Concluding Remarks	p. 305
Appendices	p. 309
Bibliography	p. 311
Table of Cases	p. 321
Legal Materials	p. 331
Other Relevant Materials	p. 359
Index	p. 361
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International Criminal Procedure

A Clash of Legal Cultures

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Hardcover

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How to return your order

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