Comparative Criminal Procedure: “Myth” and Reality

Abstract

In a recent issue of this Journal, Professor Abraham Goldstein and Research Fellow Martin Marcus discussed their observations about the criminal procedures of three European countries, France, Germany, and Italy, as representative of the "Continental" or "inquisitorial" model of investigation and prosecution. Their inquiry was prompted, they said, by a desire to probe claims that in those countries the extreme form of prosecutorial discretion that produces plea bargaining and pervasive reliance on guilty pleas in the United States is avoided by greater judicial control and supervision of the process. They were concerned also to find out to what extent judicial supervision of the investigation of crime obviates our after-the-fact efforts to deter official abuses by the exclusion of evidence unlawfully obtained. Their conclusions are summarized in the title of their article: "Judicial supervision" is a "myth." The claim that Continental systems of criminal procedure adhere to a rule of law more strictly than ours is based not on fact but on "ideology" and "the assumption that officials adhere to the ideology." The prosecutor and, in their sphere, the police are dominant in Europe as they are here; judicial responsibility is mostly "reactive" to the primary roles played by other officials. The authors advise that we Americans be skeptical and cautious about borrowing from the models they describe.