Pre-Conference for Young Scholars

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Ninth Conference on the Future of Adversarial Systems

rights and remedies in criminal procedure: examining the nature of the relationship

April 6, 2017 (Thursday)
The University of North Carolina at Chapel Hill (School of Law)

In this conference we will consider the relationship between rights and remedies in criminal procedure in various aspects – including the contrasting approaches of adversarial and inquisitorial traditions and how this illuminates differences in the role of law across jurisdictions; new remedies developed through EU co-operation and ECHR rights-based approaches; and the challenges of international criminal law remedies, where the approach may differ from those operated at the national level.

As part of the Ninth Conference on the Future of Adversarial and Inquisitorial Systems, we seek to consider these issues in context. Is there a difference between adversarial and inquisitorial approaches, or do all the systems apply the criterion of the effective violation of a substantial right? In various systems, legislatures and courts have considered exclusionary rules (mandatory and discretionary), fines, victim compensation and injunctive relief in different contexts.  Rights such as appointed counsel or discovery help shape the system as well, as they shape the regulation of investigation and prosecution.  Different considerations may apply during the investigative and adjudicative phases of criminal cases, with the courts having more discretion to shape rights and remedies in areas within their exclusive domain. 

What is the source of the rights and remedies – legislation or case law? Does case law play the prominent role, leaving to the legislator a secondary (and often ineffective) role? Does the legislator set out the general framework, while the details are regulated by judicial decisions?  And if remedies are the subject of judicial law-making, how is accountability of judicial decisions ensured by the systems?  How much flexibility may systems build into their remedial systems?  Should courts grant a remedy whenever there is a violation of formal provisions, or should harmless error and deterrence guide decision-making?

The Preconference will take place at the Frank Porter Graham Student Union on UNC campus.

Panel One: Rights and Remedies in the Digital Age
1:00 - 2:00 p.m.

Sharda Ramdewor, Doctoral Researcher, School of Law, University of Warwick: Using body worn video as evidence to combat disproportionate stop and searches/frisks.

Dario Stagno, Research and Teaching Assistant, Law Faculty, University of Basel: "Your car knows what you did last summer - should officials know too?" Discussing the rights and remedies in criminal procedure with regard to digital evidence in Swiss law.

Moderator: Professor Richard E. Myers II, Henry Brandis Distinguished Professor of Law, UNC School of Law

2:00 - 2:30 p.m. 

Panel Two: The Practical Value of Exercising Rights Outside the Trial Framework
2:30 - 4:00 p.m.

Eisha Jain, Assistant Professor of Law, UNC School of Law: Commodified Criminal Justice - discussing the effectiveness of the right to counsel in a world where plea bargaining is subject to a schedule of sentencing discounts.

David Mühlemann, Research and Teaching Assistant, Law Faculty, University of BaselDiscussing problems arising from the legal framework for  
corporate internal investigations in Switzerland which holds a
RIGHT against self-incrimination for employees, but basically no REMEDY to enforce it

Divya Sukumar, PhD Student, Department of Psychology, University of Warwick: Strategic Disclosure of Evidence in Police Interviews: Implications for Suspects and their Lawyers.

Moderator: Professor Jacqueline S. Hodgson, Director, Criminal Justice Centre, School of Law, University of Warwick

UNC School of Law | Van Hecke-Wettach Hall | 160 Ridge Road, CB #3380 | Chapel Hill, NC 27599-3380 | 919.962.5106 | Accessibility

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