Comparative Criminal Justice

Systems

PROFESSIONAL ACTORS IN THE JUDICIARY

SIX MODEL NATIONS

Reichel / Dammer and Fairchild

Legal Professionals*(in Developed Societies)

Adjudicators: individuals who decide the outcome of legal disputes, i.e., judges.

Advocates: represent either the defendant or the prosecution in legal matters before the court.

Legal advisors: provide legal advice to advocates and citizens outside the court.

Legal scholars: study the law and discuss it in legal commentaries and professional journals.

* Key Terms: unified or separated legal profession

Questions

When speaking of the adjudication process, courts will often decide questions of law

as well as ones of fact. Explain the difference.

How would this process affect different nations.?

Across legal cultures, can the interpretation of the law (content) be limited

because of the nature of the law itself (context)?

Methods of Judge Selectionin Model Countries

England: appointed in magistrate’s courts, local committees are responsible for appointments; in other courts (generally), the lord chancellor has the responsibility.

Germany and France: self-selected candidates undergo and extensive apprenticeship period and then face rigorous civil service examinations.

China: elected and appointed. The heads of the courts, called presidents, are elected by the corresponding people’s congresses while all other judges are appointed by corresponding standing committee of the particular court.

Methods of Judge Selectionin Model Countries (cont’d)

Japan: self-selected and then promoted by merit. After passing a national-level judicial examination, candidates train for two years at the Legal Research and Training Institute and then move up through the ranks on merit.

Saudi Arabia: self-selected. Candidates must first qualify for this position and then go through a period of apprenticeship before being allowed to decide cases.

United States: usually elected on local and county levels, appointed on state and federal level. A combination method plan (Missouri Plan) is available in some states.

Number of Professional Judges per 100,000 population

China: 3.48

Germany: 26

Japan: 2.29

England and Wales: 4

France: 14.88

Saudi Arabia: n/a

United States: 4

* Source: Dammer & Fairchild (2006)

Lay Judges and Jurors(continuum)

---------------------I---------------------

Reliance on Mixed Reliance on

Professional judges Reliance Laypeople

Saudi Arabia Germany England

France China

Japan

Question

What is the International Criminal Court?

What types of cases does it hear?

Since the United States actively participated in the Rome Treaty (which created the ICC),

why hasn’t the U.S. ratified the ICC since its inception in 2002?

Bureaucratic and Political Organization of Legal Actors

Bureaucratic

Hierarchical in nature

Entry into the organization is based on merit alone

Employees are trained for specialized tasks

Long periods of tenure

Examples: Germany, France, and Japan

Politically Oriented

Horizontal in nature

Appointment or election

Normally not trained for specialized tasks

Short terms of office

Examples: England, China, and U.S.

AdvocatesLike adjudicators, advocates are subject to economic,

social, and political pressures that affect their work. For example:

Saudi Arabia and China: advocates for both the prosecution and the defense are under considerable pressure to conform to forces beyond the courtroom.

Saudi Arabia: advocates must be schooled in classic Islamic Law because there is no distinction between religious and secular offenses.

China: advocates must be approved by the Ministry of Justice and are expected to protect the rights of their clients while promoting the interests of the state.

Question

What is the difference between

a solicitor and a barrister?

What country do they practice in ?

What is the difference between

private and public prosecution?

Public and Private Prosecution

Public Prosecution(Government initiates action)

Office of Public Prosecution: U.S.

Procurator: France, China

Police: England (CPS)

Private Prosecution(Victim or Victim’s relatives

initiate action)

Finland

Variation in Defense*

Professional trained lawyers: hired/chosen by defendant.

Laypeople: friends, family, self. Examples: Islamic and socialist systems.

Assigned Counsel: assigned to indigents from a list of practicing attorneys in the area or from lawyers paid by the state, i.e., public defenders. Examples: Europe, Latin American countries, U.S.

National or State Programs, i.e., legal assistance programs and law school clinics. Examples: Europe, Latin American countries (France, Chile, Mexico).

* Variation exists within as well as among countries.

Legal Aid in the Model Countries

England: Free and independent legal advice is assured regardless of means. Persons must be notified of their right to legal advice by police from duty solicitors at the time of custody; or defendants can use their own private solicitor.

France and Germany: All suspects have a right to be defended in court. They can choose their own attorney; if indigent, counsel will be assigned. In France, the defendant is required to have legal counsel.

Japan: The state must provide legal counsel if the defendant cannot afford a private lawyer. Counsel is assigned from a list of lawyers provided by the Japanese Bar Association.

Legal Aid in the Model Countries

China: Suspects have a right to defend themselves, or they can appoint someone to defend them. Indigent defendants are not assigned defense counsel unless they have a physical disability (blind, deaf, mute), are a juvenile, or face the death penalty.

Saudi Arabia: Suspects have a right to defend themselves, or they can appoint someone to defend them. Indigent defendants are not automatically assigned defense counsel.

Question

How do you feel about concurrent consideration of guilt and sentence?

Would the difference

between adversarial and inquisitorial systems have an impact on your consideration?