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
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 Basel: Discussing problems arising from the legal
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