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Each speaker will be leading a discussion based on their own papers, each one investigating a different element of the future of the adversary system. Below, you will find either an excerpt or the abstract from the papers on which the talks will be based.

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-by-country 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.

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