Innovation or Renovation in Criminal Procedure: Is the World Moving Toward a New Model of Adjudication?

Abstract

A universal system of criminal procedure offers the allure of efficiency, predictability, and enhanced crime control. For the first time in modern history, universality seems achievable. The criminal procedures employed by the world’s major legal systems are converging. What was once distinctively “civil” or “common law” is now a blend of the two. The adversarial adjudicative approach of most common law countries now can be found in the most unlikely places, and civil law characteristics adorn the processes of some of the world’s most aggressively adversarial systems.

While this movement has not gone unnoticed, the pace of change has accelerated, and the ways in which it has manifested itself have increased. This article begins by revealing how little systems actually differ in practice. It then analyzes how the gap that remains between these systems is closing by examining three illustrations of convergence: the growing use of lay judges and juries in civil law countries, the Italian reform movement incorporating adversarial techniques in a traditionally nonadversarial system, and the modernization of Chinese criminal procedure.

Following or perhaps leading this trend are a new breed of “hybrid” legal systems that borrow freely from several legal traditions and invent procedures freely. Beginning with the creation of multinational and supranational criminal tribunals following the end of World War II, new institutions and processes have been developed to deal with regional and international violations. Among the most important examples of the movement toward hybridization and multinational adjudication is the Corpus Juris project. Little known in the United States, this proposal represents a controversial effort within the European Union to harmonize – and perhaps to universalize – the criminal processes related to protecting the Community’s financial interests. Only some of the recommendations resulting from Corpus Juris have been instituted, but it nevertheless continues to impact thinking about unification and reform. Several tribunals already function with regional and international jurisdiction. The European Court of Human Rights, the International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Court have somewhat distinctive rules of procedure, but all blend the traditions of the major legal systems in a slightly different mix.

Will the trend toward adversarial trials and hybrid rules of adjudication eventually produce, as some have predicted, a universal system? This article explains not only the influences propelling countries toward a similar view of criminal procedure, but also why that movement is inherently limited and unlikely to produce universality.

Keywords: criminal procedure, comparative, international, harmonize, adversarial