Journal articles on the topic 'Adversarial criminal justice'
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1
Myers, Nicole Marie. "Who Said Anything About Justice? Bail Court and the Culture of Adjournment." Canadian Journal of Law and Society / Revue Canadienne Droit et Société 30, no. 01 (February 20, 2015): 127–46. http://dx.doi.org/10.1017/cls.2014.28.
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Abstract The criminal court is supposed to be a place of adversarial justice; however, these formal legal values do not appear to translate into practice. The courtroom workgroup, though made up of formal adversaries with widely divergent roles and objectives, is a community of workers whose shared interests include getting through the day as quickly and efficiently as possible. Using data from 142 days of bail court observation in Ontario the author argues that a “culture of adjournment” has taken over the bail process. Rather than the court being run by an efficient adversarial group of people processing criminal cases through the system, the courtroom has developed a culture that emphasizes the importance of expeditiously disposing of the daily docket over distributing justice.
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Johnston, Ed. "All Rise for the Interventionist." Journal of Criminal Law 80, no. 3 (June 2016): 201–13. http://dx.doi.org/10.1177/0022018316647870.
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This paper will examine the changing role played by the judiciary in criminal trials. The paper examines the genesis of the adversarial criminal trial that was born out of lifting the prohibition on defence counsel in trials of treason. The paper will chart the rise of judicial passivity as lawyers dominated trials. Finally, the paper examines the rise of the interventionist judiciary in the wake of the Auld Review that launched an attack on the inefficiencies of the modern trial. To tackle the inefficiencies, the Criminal Procedure Rules allowed the judiciary to reassume a role of active case management. The impact an interventionist judiciary has for adversarial criminal justice is examined. The paper finds that a departure from traditional adversarial has occurred; the criminal justice process has shifted to a new form of process, driven by a managerial agenda.
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Rajput, Muhammad Arif, and Farid Samir Benavides-Vanegas. "Reformation of Criminal Justice System of Pakistan." European Scientific Journal, ESJ 18, no. 5 (February 21, 2022): 87. http://dx.doi.org/10.19044/esj.2022.v18n5p87.
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This paper analyzes the loopholes and faults in the Criminal Justice System of Pakistan (CJSP), which is under rising criticism for its ineffectiveness and has been ranked at 108th of the total 139 countries of the world in the Rule of Law Index, 2021. The poor and defective investigation by the police, without any effective prosecutorial or judicial supervision over the process of investigation, is mainly responsible for crippling the CJSP adversarial system, which needs to be reformed to make it effective. A comparative analysis will show that Latin American countries such as Chile, Argentina, México and Colombia have moved from an inquisitorial to an accusatorial system, claiming that this is the best way to protect fundamental rights and to reduce the ever-increasing impunity in these countries. By applying a comparative approach, it shows that both inquisitorial and adversarial system of justice have systematic weaknesses and strengths in their composition. This certainly has motivated the International Criminal Court (ICC), China, Spain, Italy and many other countries to develop an Adquisitorial System-mixed inquisitorial/adversarial system- to get the benefit of best practices of both the systems. The Pakistan case, in relation to the Latin American one, shows that what is important is not to analyze the system in the abstract, but to determine which one solves in a better way the problem a judicial system has: in Pakistan, law and order, given the limitations of police action; in Latin America, the protection of fundamental rights during the criminal process. The case in Pakistan shows that the problems the judicial system is facing can be solved by appealing to a combination of inquisitorial and accusatorial features. This paper concludes suggesting that the existing investigation phase of the CJSP should be transformed, by legal transplant, to an inquisitorial pre-trial investigation process, with necessary modifications, led by the investigative judge while the trial phase remains to be adversarial.
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Kirchengast, Tyrone, Tatiana Badaró, and Lucas Pardini. "The mixed and hybrid criminal courts of Brazil: Mainstreaming restoration, rehabilitation and community justice in a human rights context." International Review of Victimology 27, no. 1 (April 9, 2020): 23–42. http://dx.doi.org/10.1177/0269758020916261.
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In Brazil, minor to mid-level criminal offences are dealt with through an inventive community problem-solving paradigm that sees a shift from traditional court engagement between the accused and state towards a therapeutic process that involves all participants in the justice process. This article considers the work of the Domestic Violence and Special Justice Courts of Brazil, by examining their use of a mixed and hybrid adversarial-inquisitorial criminal procedure that supports a participatory model of community and problem-solving justice in a human rights context. The article argues that this hybrid and mixed approach to criminal justice allows for the mainstreaming of problem-centred and community justice through the adoption of human rights measures that afford justice to all participants in the criminal justice process. This approach sees the forging of relationships between traditional and non-traditional justice stakeholders, specifically victims, police, the judiciary, defendants, the community and service providers, as a central rather than alternative pathway to justice. Importantly, this innovative criminal procedure as a standard response to crime provides for longer-term community building by engaging victims and the accused through a range of informal processes that support admonishment of wrongdoing and conciliation between the victim, offender and community, albeit more serious matters invariably proceed directly to trial. Lessons from this mixed and hybrid model for adversarial jurisdictions attempting to better integrate problem-solving justice follow.
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Sahu, Dr Meena Ketan, and Chandi Prasad Khamari. "CRIMINAL LAW REFORMS IN INDIA: A STUDY ON PAST, PRESENT AND FUTURE." YMER Digital 21, no. 07 (July 10, 2022): 451–59. http://dx.doi.org/10.37896/ymer21.07/35.
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The Criminal Justice System represents the cutting edge of governance. Towering over society, it parades an array of institutions, processes, people, and penalties to reinforce its images. This array includes policemen in uniform, constables with batons or lathis, the police station, courts, jail, bail, sentence, prisons, imprisonment, death row, the gallows, hanging and death. Each of these institutions and processes is part of the Criminal Justice System and yet partly autonomous within it. But a matter of great concern is that there arise multiple questions about whether these institutions are working/functioning properly within their ambit or not. Is there lack of implementation of provisions of criminal law by the enforcing agencies? Whether the recommendations of law commissions are adequately implemented? Whether the Malimath Committee’s Report on Criminal Law Reforms are being adequately addressed and enforced. Is adversarial system of criminal justice in India suitable in the present-day context, or it is high time to accept few principles of inquisitorial system of justice as it is prevailing in common law countries. With these few questions, in the present paper, the researchers have made an attempt to introduce our criminal justice system. The researchers further focuses on reforms recommended by the Law Commission. Finally, the researchers have suggested some important changes/modifications required in the prevailing criminal justice system in India to make it more streamlined and strengthened. Key Words: Criminal Justice System, Adversarial, Inquisitorial, Malimath Committee, Law Commission, Human Rights, Courts, Police, Bail etc.
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Mason, J. K. "Expert Evidence in the Adversarial System of Criminal Justice." Medicine, Science and the Law 26, no. 1 (January 1986): 8–12. http://dx.doi.org/10.1177/002580248602600102.
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Kirchengast, Tyrone. "Victim Lawyers, Victim Advocates, and the Adversarial Criminal Trial." New Criminal Law Review 16, no. 4 (2013): 568–94. http://dx.doi.org/10.1525/nclr.2013.16.4.568.
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Adversarial proceedings in common law jurisdictions tend to exclude the victim of crime. Although victim impact statements provide some role for victims following conviction but before sentencing, such statements may not influence the actual sentencing outcome, despite allowing for a therapeutic experience that may encourage the restoration of the victim. The introduction of victim lawyers across certain common law jurisdictions, including England and Wales, the United States and Australia, allows victims to retain private counsel to represent their interests alongside those of the state, from pretrial hearings and potentially through to appeal. By comparison, various civil law jurisdictions following an adversarial trial process, including Sweden, have long allowed such representation. This article provides a comparative assessment of the rise of victim lawyers in common law jurisdictions, arguing that access to private counsel is an important development in criminal justice that allows for the expression of the agency of the victim as a significant stakeholder in adversarial systems of justice.
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Batchaeva, Erna Kaysynovna, Daria Olegovna Chistilina, Aleksandr Viktorovich Grinenko, Tatyana Kimovna Ryabinina, and Vasiliy Jonovich Potapov. "Russian court in adversarial criminal procedures." Cuestiones Políticas 39, no. 71 (December 25, 2021): 531–42. http://dx.doi.org/10.46398/cuestpol.3971.30.
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This article discusses the role of the Russian court in accusatory criminal proceedings. At the legislative and practical levels, there is uncertainty about the degree of judicial activity in relation to the question of evidence. The theoretical model of the accusatory system assumes that there is minimal judicial intervention in the investigative proceedings of the parties. The latter must act and defend their position in the criminal case. The court is supposed to have a passive stance. The methodological basis of this study is composed of general scientific and legal methods such as dialectical, historical, systematic, comparative legal, formal-logical methods, etc. Most countries that practice an accusatory model of criminal justice grant the court a certain level of action that allows it to participate fully in the evidence during trials. By way of conclusion, it is suggested to improve the capabilities of the Russian court to actively investigate the evidence, as well as to offer new forms of defense to the parties.
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Hersant, Jeanne. "Patronage and Rationalization: Reform to Criminal Procedure and the Lower Courts in Chile." Law & Social Inquiry 42, no. 02 (2017): 423–49. http://dx.doi.org/10.1111/lsi.12272.
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This article analyzes how the lower criminal courts in Chile transitioned from an inquisitorial to an adversarial justice system between 2000 and 2005 as part of the Criminal Procedure Reform. Drawing on the frame analysis of the street-level bureaucracy and judicial ethnography, I examine the transition between two different types of judicial bureaucracy from the perspective of the actors who implemented the reform. The study is based on in-depth interviews with officials and judges of both inquisitorial and adversarial courts, administrative managers of the new courts, and actors who designed the administrative reorganization of lower criminal courts. The study involved a three-month, weekly observation in an inquisitorial court in Santiago de Chile. The article emphasizes the specificity of the Chilean judiciary, where both inquisitorial and adversarial criminal courts still coexist.
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Gioia, Federica, and Mauro Politi. "The Criminal Procedure before the International Criminal Court: Main Features." Law & Practice of International Courts and Tribunals 5, no. 1 (2006): 103–23. http://dx.doi.org/10.1163/157180306777156871.
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AbstractThis article provides a broad and comprehensive overview so as to confirm the starting assumption that the ICC proceedings do not entirely mirror either the adversarial or the inquisitorial system. Elements drawn and inspired from both traditions are to be found in the Rome Statute and the other institutive instruments of the Court which concur to create an innovative procedural framework aimed at preserving the fairest and most efficient features of both. It will be for the Court's practice to show whether this framework will be able to live up to the ambitious goal pursued by the Rome Conference: the creation of a model for international criminal justice which is not only fair and impartial (both requirements being necessary in order to achieve any form of justice), but is also efficient and expeditious.
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Vuille, Joelle, and William C. Thompson. "An American Advantage? How American and Swiss Criminal Defense Attorneys Evaluate Forensic DNA Evidence." International Commentary on Evidence 14, no. 1 (January 18, 2016): 1–41. http://dx.doi.org/10.1515/ice-2016-0002.
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AbstractCritics of the American system of justice sometimes perceive “inquisitorialism” as an attractive alternative. In this article we will report a comparative study investigating the way forensic DNA evidence is handled in criminal prosecutions in the Swiss and American systems, focusing particularly on the behavior of criminal defense lawyers. We will argue that the successes and failures of American and Swiss lawyers in this context offer important insights into the relative strengths and limitations of adversarial and non-adversarial legal systems.
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Johnston, Edward, and Daniel Jasinski. "Neuroscientific evidence: a criminal justice dream, or an adversarial nightmare?" International Journal of Liability and Scientific Enquiry 6, no. 4 (2013): 193. http://dx.doi.org/10.1504/ijlse.2013.060843.
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Rahman, Khandaker Farzana. "Ensuring Victims’ Participation in the Criminal Justice of Bangladesh." International Journal of Criminology and Sociology 11 (July 14, 2022): 82–90. http://dx.doi.org/10.6000/1929-4409.2022.11.10.
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It is seen that if the main actors in a criminal justice framework are to be identified, the most commonly identified would be the alleged, his legal representative, the prosecutor and the judge. In our current legal system, the victim appears to be one of the overlooked and disregarded parties, when in reality they should be considered a vital stakeholder in the criminal justice process to secure justice. Due to adversarial legal system in Bangladesh the burden of proof lies upon the prosecution or victim in a criminal proceeding. There is hence no comprehensive law securing rights and participation of victims in criminal justice system though few supports exist for them. In accessing the justice system, victims face numerous challenges and the plight of crime victims continues to go from bad to worse. In this background, the research relies on qualitative methods to explore their status, participation and challenges in the justice system and lastly recommends how to make the justice system victim oriented.
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Goldstein, Abraham S. "Converging Criminal Justice Systems: Guilty Pleas and the Public Interest." Israel Law Review 31, no. 1-3 (1997): 169–82. http://dx.doi.org/10.1017/s0021223700015272.
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It is becoming increasingly apparent to criminal justice scholars that single theory models of criminal procedure — whether termed inquisitorial or adversarial — are being stretched beyond their capacity by the phenomena they are designed to control. Virtually everywhere, formal systems of charge and adjudication cannot possibly be enforced in accordance with the premises underlying them. There are simply too many offenses, too many offenders and too few resources to deal with them all. One result has been a steady movement towards a convergence of legal systems — towards borrowing from others those institutions and practices that offer some hope of relief.In this transnational effort to cope with system overload, two issues have emerged as more than ordinarily significant: The first is the desirability of abandoning the principle of obligatory prosecution, so common in Continental Europe, and turning instead to the exercise of prosecutorial discretion. The second is the question whether the ban on guilty pleas and plea bargains should be lifted, as in adversarial systems.
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Kilekamajenga, Ntemi Nimilwa. "Learning from contemporary examples in Africa: Referral mechanisms for restorative justice in Tanzania." South African Crime Quarterly, no. 63 (March 30, 2018): 17–26. http://dx.doi.org/10.17159/2413-3108/2018/v0n63a4368.
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Tanzania is one of the jurisdictions in Africa that follow an adversarial criminal justice system. Despite a number of problems associated with the fact that the criminal justice system over-utilises imprisonment, there is still a lack of diversionary measures to complement the system. This article investigates restorative justice as a complementary system to the Tanzanian criminal justice system, arguing that the law, including the constitution of the country, favours the application of restorative interventions. Invoking restorative justice mechanisms can, inter alia, relieve over-laden courts from the backlog of minor cases, and can help the government salvage funds by reducing the number of incarcerated offenders. It is further argued that restorative justice approaches that have been articulated in some juvenile justice systems in Africa can be adapted to suit the Tanzanian restorative approach for child and adult offenders.
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Kilekamajenga, Ntemi Nimilwa. "Learning from contemporary examples in Africa: Referral mechanisms for restorative justice in Tanzania." South African Crime Quarterly, no. 63 (March 30, 2018): 17–26. http://dx.doi.org/10.17159/2413-3108/2018/i63a4368.
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Tanzania is one of the jurisdictions in Africa that follow an adversarial criminal justice system. Despite a number of problems associated with the fact that the criminal justice system over-utilises imprisonment, there is still a lack of diversionary measures to complement the system. This article investigates restorative justice as a complementary system to the Tanzanian criminal justice system, arguing that the law, including the constitution of the country, favours the application of restorative interventions. Invoking restorative justice mechanisms can, inter alia, relieve over-laden courts from the backlog of minor cases, and can help the government salvage funds by reducing the number of incarcerated offenders. It is further argued that restorative justice approaches that have been articulated in some juvenile justice systems in Africa can be adapted to suit the Tanzanian restorative approach for child and adult offenders.
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Doak, Jonathan, and Lauran Doak. "Non-verbal victims in the adversarial criminal process: communication, competency, and credibility." Northern Ireland Legal Quarterly 68, no. 4 (December 21, 2017): 451–68. http://dx.doi.org/10.53386/nilq.v68i4.59.
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Research consistently shows that persons with learning disabilities are more likely to be victims of crime. For such victims, engaging with the criminal justice system may be fraught with difficulties given the expectation that victims should normally articulate verbally and with fluency both their testimony and their views on issues pertaining to the justice process itself. Grounded in the principle of orality and often likened to a system of gladiatorial combat, adversarial justice systems have a poor track record of hearing the voices of victims of crime who have learning disabilities. However, recent years have witnessed an attitudinal shift towards meeting the needs of victims who require communication support; with legal and policy reforms introduced across multiple jurisdictions designed to enable more effective participation in the justice process. Augmentative and alternative communication could constitute an important support mechanism to enable and empower victims of crime who would struggle to express themselves verbally in the courtroom; yet these alternative forms of voice are alien to the oral tradition and sit uneasily within the priority traditionally afforded to adversarial questioning techniques.
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Vinogradova, O. B. "PORTIANKINA S. P. IMPLEMENTATION OF THE ADVERSARIAL PRINCIPLE IN CRIMINAL PROCEEDINGS." Scientific Notes of V. I. Vernadsky Crimean Federal University. Juridical science 6 (72), no. 2 (2020): 264–68. http://dx.doi.org/10.37279/2413-1733-2020-6-2-264-268.
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The relevance of the topic is due to the special significance of the principle of competition in the justice system of any democratic state. The purpose of the study is to analyze the application of the adversarial principle in criminal proceedings in Russia. The author concludes that the prosecution is in a deliberately advantageous position in the criminal process. For this reason it can`t be said that the principle of competitiveness is equally present at all stages of criminal proceedings.
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Kutuev, Eldar K., Oxana A. Chabukiani, Maria A. Shuvalova, Sofya Dmitrievna Shestakova, and Oleg V. Logunov. "Implementation of the principle of justice in the adversarial model of criminal procedure." LAPLAGE EM REVISTA 7, Extra-D (July 12, 2021): 343–50. http://dx.doi.org/10.24115/s2446-622020217extra-d1109p.343-350.
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For a correct understanding of the content of justice, it is necessary to determine, what is it in an adversarial model of the process – a principle, a task, general conditions of judicial consideration of a criminal case, moral requirements for procedural decisions of a judge (judges) or a participant’s right guaranteed by a public hearing of a case within a reasonable time by an independent and impartial court created based on national legislation? The study presents the results of research, within the framework of which international legal acts, national legislation of various countries of the Anglo-Saxon and continental legal systems, sentences and appealed decisions of officials were studied, a questionnaire among employees of criminal prosecution bodies, lawyers and judges, and a survey of participants in criminal proceedings were conducted. In conclusion, there is a need to recognize justice precisely by the principle of the criminal process with the allocation of general and special criteria.
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Doak, Jonathan, Ralph Henham, and Barry Mitchell. "Victims and the sentencing process: developing participatory rights?" Legal Studies 29, no. 4 (December 2009): 651–77. http://dx.doi.org/10.1111/j.1748-121x.2009.00134.x.
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Recent years have seen a number of developments pertaining to the notion that victims should be afforded a ‘voice’ in the criminal justice system. The theoretical and structural parameters of the adversarial system are not, however, conducive to exercising such a role. For many, conferring procedural rights on victims jeopardises the due process rights of the accused, as well as the public nature of the criminal justice system. In light of the recent decision to roll out the ‘Victims' Focus Scheme’ across England and Wales, this paper explores a number of issues of principle that arise – not least the deeper policy implications of an apparent re-alignment of the normative parameters of the criminal justice system to incorporate the private interests of third parties.
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Friday, Paul C. "A Criminology of Criminal Justice: An Effort Toward Theoretical Integration." Journal of Contemporary Criminal Justice 4, no. 1 (February 1988): 37–48. http://dx.doi.org/10.1177/104398628800400104.
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Criminal Justice studies are frequently studies in operational effectiveness and as such are often atheoretical and primarily descriptive. The adversarial system creates structural tension between the decision making components: law enforcement, prosecution, courts. But there is an identifiable process which defines the parameters of choice in response to crime: the key factor is the perception of alternative responses. The parameters of choice result from the degree of abstract conceptualization of roles and role performances. Criminal Justice decision making is analyzed using a multi-level (structural, systemic, individual) criminological theory.
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Gore, Aaditya, and Anuradha Parasar. "Adversarial Criminal Investigation - Legal, Psychological, and Sociological Aspects." ECS Transactions 107, no. 1 (April 24, 2022): 873–89. http://dx.doi.org/10.1149/10701.0873ecst.
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Criminal investigation in India is premised on the adversarial system, which provides for investigative fact finding with complete police discretion in fact finding. Investigation to find out only inculpatory facts deviates from the requirement of fairness in executive procedure. The purpose of investigation is to find out the truth. Exculpatory facts are a part of that truth. Constraints placed upon the freedom of the arrestee during investigative incarceration curtail the ability to establish exculpatory facts. Fair investigative procedure ought to provide for statutory norms for bringing to the fore exculpatory facts. Incarceration-related duress leads at times to false confessions. This paper explores the legal, psychological, and sociological aspects of investigative incarceration, and the practical implications and limitations of processual justice in the adversarial investigative process with special reference to India. A survey of civilian experience of policing is made to understand the approach of the public towards policing as a service.
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Duff, Peter. "Disclosure in Scottish Criminal Procedure: Another Step in an Inquisitorial Direction?" International Journal of Evidence & Proof 11, no. 3 (July 2007): 153–80. http://dx.doi.org/10.1350/ijep.2007.11.3.153.
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This article describes the recent development of a common law doctrine of disclosure in Scottish criminal procedure when, as little as 10 years ago, the prosecution had no legal duty to disclose any information to the defence prior to trial. Further, it is argued that this transformation has the potential to move the Scottish criminal justice system further from its adversarial base towards a more inquisitorial model.
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Kucherov, I. I. "Review of the Monograph by PhD in Law D.A. Pechegin «Competitive and Investigative Models of Proceedings in the International Criminal Court»." Russian Journal of Legal Studies 4, no. 3 (September 15, 2017): 245–46. http://dx.doi.org/10.17816/rjls18332.
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Monograph by D.A. Pechegin «Competitive and investigative models of proceedings in the International Criminal Court» is devoted to the study of the model of criminal justice, as well as its implementation in the structure of adversarial and investigative principles, both internationally and nationally. The reader is presented with a comprehensive analysis of various issues in the production of criminal cases through the prism of analyzing the provisions of not only domestic and foreign legislation, but also statutory and other documents of international criminal tribunals, ad hoc courts, the European Court of Human Rights.
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McEwan, Jenny. "From adversarialism to managerialism: criminal justice in transition." Legal Studies 31, no. 4 (December 2011): 519–46. http://dx.doi.org/10.1111/j.1748-121x.2011.00201.x.
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The criminal justice system of England and Wales has been subject to a series of essentially ad hoc reforms that depart to a significant degree from its adversarial heritage and represent a threat to fair trial rights under Art 6 of the European Convention on Human Rights. Far from moving closer to the European ‘inquisitorial’ model, as has been suggested by some commentators, criminal procedure is becoming increasingly dominated by managerialist concerns. Intolerance to litigant control is motivated by the desire to increase efficiency and reduce cost, although the replacement of party autonomy in terms of control over the conduct of the case by state power over process corresponds to some degree to the descriptions, in the work of Mirjan Damaška, of the system favoured by ‘activist’ states. However, the financial crisis facing the new government means that the situation is unlikely to be alleviated should the extent of government activity be reduced.
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Coscas-Williams, Béatrice, and Michal Alberstein. "A Patchwork of Doors." New Criminal Law Review 22, no. 4 (2019): 585–617. http://dx.doi.org/10.1525/nclr.2019.22.4.585.
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Our paper surveys the development of criminal hybrid models in two continental jurisdictions, Italy and France, following the 1987 Recommendation of the Committee of Ministers of the Council of Europe to accelerate criminal proceedings through the introduction of guilty pleas, out-of-court settlements and simplified proceedings. We describe various frameworks for criminal justice as a multi-door arena, of which the plea bargaining is but one of several possibilities. In our review, we emphasize consensual elements, the place of the search of truth, and the role of the judges and other stakeholders. We outline the different paths that France and Italy have taken as incorporating adversarial and inquisitorial elements to increase efficiency. The French system made gradual modifications and remained inquisitorial by nature. Aside from the more recent integration of proceedings without trial inspired by plea bargaining, it has developed doors of abbreviated trials where the investigation stage is minimized. This has resulted in a different version of the vanishing trial—the vanishing investigation. The Italian system, on the other hand, has announced a drastic transformation to an adversarial framework of trial, while adopting mainly proceedings without trial. This shift has not resulted in a vanishing trial phenomenon, and currently, the full adversarial-type trial remains the main door in Italy. We describe the sequence of transformations of these systems and emphasize the significance of this contemporary patchwork of doors in terms of the role of the judges and the possibility of implementing a conflict resolution criminal justice perspective.
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Pushkarev, Viktor Victorovich, Ekaterina Alekseevna Trishkina, Ekaterina Viktorovna Tokareva, Bui Tran Cuong, and Olga Rinatovna Shepeleva. "The Adversarial Approach in the Pre-trial Phase of Prosecution." Cuestiones Políticas 37, no. 65 (August 6, 2020): 281–87. http://dx.doi.org/10.46398/cuestpol.3865.21.
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The confrontational or adversarial approach is one of the main factors that forms the basis of the criminal justice system. However, its application in the pre-trial phase is limited. Therefore, this document aims to demonstrate the importance of analyzing theoretical and practical problems. The choice of documentary and casuistic methodology allowed the following conclusions to be reached: Currently, the Russian police are undergoing changes that aim to humanize the criminal process, to solve fundamental challenges in the protection of the rights, liberty and interests of a person in the pre-trial investigation that will guarantee the confrontation system in criminal proceedings. We conducted a comparative legal investigation and analyzed criminal case files, as well as the results of questionnaire surveys conducted among investigators and attorneys. Overall, the results represent the actual state of cases in the pre-trial phase and help determine areas of development. We propose feasible changes to the criminal procedure legislation of the Russian Federation that will eliminate the disparity between some of its regulations and the requirements of the confrontation system in general.
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Amani, S. Z., and Nisha Dhanraj Dewani. "Restorative Justice: A Contrivance of Compensatory Jurisprudence for the Victims of Rape in India." Journal of Victimology and Victim Justice 2, no. 2 (October 2019): 202–14. http://dx.doi.org/10.1177/2516606919885495.
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Victims in rape cases are invariably the forgotten part in India’s criminal adversarial system. While the accused, more often than not, is protected with all the resources available at the expenditure of the State, the victim is left to fend for herself with little or no support from the State machinery. She is merely transformed to a witness to watch the entire play being organized by the accused and the State as the protagonists. The violations of victim’s rights, the invasion of her dignity, the actual losses incurred to her do not constitute matter of concern of any one. India, at present, is faced with the situations where respect for criminal law has reduced to minimum; one of the crucial reasons being the hapless condition of the victims. Perhaps, the most dismal condition is witnessed in the rape case. The present article seeks to highlight the plight of victims in Indian Criminal Justice System with special reference to victims of rape and also highlights the attempts of the judiciary to fill all the gaps through restorative justice to repair the harm caused by criminals.
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Kovalchuk, Serhii, Liliia Korytko, Galyna Kret, Serhii Fomin, and Volodymyr Hryniuk. "Standards of fair justice and their relationship to standards of proof in criminal proceedings." Cuestiones Políticas 39, no. 71 (December 25, 2021): 957–71. http://dx.doi.org/10.46398/cuestpol.3971.58.
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The purpose of the article is to define the concept, system and content of fair justice standards and outline their relationship to standards of evidence in criminal proceedings. The purpose of the study is to reveal the content of the right to a fair trial, distinguish fair justice standards and establish its relationship with standards of evidence in criminal proceedings. The research methodology consists of comparative law, structural system methods and formal legal methods. The study found that testing standards are covered by justice standards, expanding, specifying, and clarifying their content. The content of the fair justice standards "examination of the case by an independent and impartial tribunal established by law", "adversarial procedure", "equality of the parties", "frankness of the examination of evidence", "presumption of innocence" and reveals the "motivation of judicial decisions". It is concluded that each of these concepts is a heuristic contribution to test standards. As a result of the study, the author's definition of the concept of "fair justice standards" is formulated and the concept is based on its relationship with the standards of evidence in criminal proceedings.
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Schulhofer, Stephen J. "No Job Too Small: Justice Without Bargaining in the Lower Criminal Courts." American Bar Foundation Research Journal 10, no. 03 (1985): 519–98. http://dx.doi.org/10.1111/j.1747-4469.1985.tb00509.x.
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Plea bargaining and other informal disposition devices dominate case processing in the lower criminal courts. Consistently, studies have found such courts characterized by assembly-line procedures, deemphasis or disregard of formal due process rights, and guilty plea rates approaching 100% of all convictions. Caseload pressures, tendencies toward cooperation among courtroom participants and, above all, process costs of litigation that greatly outweigh the stakes in minor cases are widely thought to render informality and high guilty plea rates inevitable. The study reported here challenges these assumptions. The author finds that in Philadelphia roughly one-fifth of all misdemeanor dispositions and one-half of all determinations of guilt are the result of genuine adversarial trials. He shows that an adversarial trial system need not impose prohibitive resource costs, even when extended to misdemeanor cases involving little likelihood of imprisonment, and that process costs will not deter defendants from invoking formal procedures when the court culture is committed to providing trials. Finally, the author argues that even routine misdemeanor cases benefit from guarantees of fairness and accuracy afforded by trial but unattainable when cases are processed by plea bargaining.
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Ryabinina, Tatyana K., and Daria O. Chistilina. "POWERS OF THE PRESIDING JUDGE IN A JURY TRIAL IN THE CONTEXT OF ADVERSARIAL PRINCIPLES OF RUSSIAN CRIMINAL PROCEDURE." Vestnik Tomskogo gosudarstvennogo universiteta. Pravo, no. 41 (2021): 64–76. http://dx.doi.org/10.17223/22253513/41/6.
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The main objective is to examine the powers of the presiding judge in jury trials in the context of adversarial principles of criminal proceedings. Particular attention will be paid by the authors to different approaches to the notion of adversariality and the definition of the role of a professional judge in such courts, as well as the degree of his activity during the judicial investigation. The main methods used by the authors were dialectical and systematic method, analysis, synthesis, as well as special legal methods of knowledge. The outcome of the research will be a definition of the role of the presiding judge in a jury trial. Forms of criminal procedure that allow the individual to directly participate in the deci-sion-making process of the judiciary are responsible for ensuring citizen participation in the administration of justice in the state. Two such forms have been developed in the world practice so far: the classical jury trial model and the Scheffen model. Each of them provides certain (broad or narrow) powers of a professional judge, the scope of which determines the degree of independence of citizens and the ultimate prospects for the development of a system of popular democratic justice in an adversarial system of criminal proceedings. In today's Russia, the classical jury trial model, modeled after the English jury trial, does not provide for broad powers of the court. In addition, there is the adversarial principle in Russia, which is fostered by the existence of jury trials. However, strict adherence to its provisions may lead to a misunderstanding of the role of the presiding judge in such a court. The activity of a professional judge should be balanced in accordance with the needs of the criminal case under consideration. Thus, requesting additional evidence in the course of the trial in order to verify existing evidence should not be considered a violation of the adversarial principle. Thus, the development of the optimal model for jury trial functioning as well as the determination of the presiding judge's role in the context of adversarial principles of criminal proceedings is a socially-systemic task. It requires a comprehensive dogmatic, comparative-legal and political-legal approach in order to develop the jury trial model which is more con-sistent with the legal system of the state.
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Petrakova, S. A. "Evolution of the adversary (on the example of criminal proceedings)." Institute Bulletin: Crime, Punishment, Correction 13, no. 2 (July 19, 2019): 222–28. http://dx.doi.org/10.46741/2076-4162-2019-13-2-222-228.
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Adversary in juridical science cannot be considered separately from the judicial system, because the changes that took place in the judicial process had an irreversible impact on the evolution of adversarial proceedings. This provision is proved in legal practice. The evolution of competition in criminal proceedings is investigated in chronological order, in historical retrospect. At the beginning of statehood when democratic principles prevailed in society, trials were based on adversarial principles, the court played the role of an impartial arbitrator, and the outcome of the case was determined by the evidence collected by the plaintiffs and defendants. In the process of strengthening of the state, the court has become an active subject of judicial investigations and by the end of the XVII century the state displaces the adversary system of trial, replacing it to prove the guilt of the accused of the results of the investigation: torture, interrogations, etc. Only in the second half of the XIX century in the proceedings returned adversary, but not for long. During the soviet period previous achievements in the field of justice were eradicated. The restoration of adversarial proceedings in legislation and judicial practice began in the early 1990s in the process of judicial reform, which was carried out in order to improve the efficiency of judicial proceedings. At present it is safe to say that the potential of the adversarial principle has not yet been sufficiently disclosed.
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Александров, Александр Сергеевич, and Ирина Александровна Александрова. "JUDICIAL PROCESS – SOURCE OF LAW AND JUSTICE." Rule-of-law state: theory and practice 18, no. 1(67) (March 30, 2022): 11–29. http://dx.doi.org/10.33184/pravgos-2022.1.1.
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Abstract. The main purpose of the article is to establish that legal proceedings are not a mere law enforcement, but the creation of law and justice. In addition, it is proved that the modern theory of state and law has turned into scholasticism and has lost its methodological significance. Instead, the theory of criminal procedure created by Nizhny Novgorod scientists claims this role in jurisprudence. The method by which the set goals are achieved is rhetorical argumentation. Results: using the example of the Nizhny Novgorod doctrine of criminal procedure, the article shows how, by going against the canons of dogmatic law, it is possible to create a fundamentally new, integral scientific concept. The article presents three main components of this concept: the doctrine of «law-process», which explains the procedural way of existence of real law – a means of regulation, which includes the postulate of procedural determinism of everything legal; the doctrine of prosecutorial institutions (criminal action) and evidence as two means of establishing law and justice; scientific project of judicial reform, including reorganization of preliminary investigation, renunciation of investigative authority to charge and prove, establishment of a digital adversarial process and transition to the rule-of-law state.
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Akimov, V. S. "The Generation of the Competitive Process in the Institute of Juridates in the Countries of the Common Law." Rossijskoe pravosudie, no. 11 (2021): 101–4. http://dx.doi.org/10.37399/issn2072-909x.2021.11.101-104.
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More than 20 years have passed since the beginning of the judicial reform, which changed the judicial system that existed in the Soviet era, the position of the court and the role of representatives of the population in the process of considering and resolving a criminal case. At the same time, the comparative legal aspects of the implementation of the adversarial principle with the participation of jurors still remain insufficiently studied, since there are practically no works, with the exception of some articles by N. V. Radutnaya, such as «Trial by jury in the continental system of law», «Juror in Criminal Procedure», which raised issues related to the emergence of an adversarial model of criminal proceedings with the participation of representatives of the people. The aim of the work is to develop a theoretical understanding of the genesis of adversarial proceedings in common law countries with the participation of jurors. This goal predetermined the need to identify the historical path of the formation and development of forms of participation of representatives of the population in the administration of justice in Ancient Greece, England and the United States. Particular attention is paid to the comparison of historical features that took place in a specific period of development of the state, which later served as the basis for the reception of provisions on the adversarial form of criminal proceedings with the participation of jurors in other countries. As a methodological basis, the work used formal and logical methods (induction, deduction, analysis, synthesis, hypothesis, analogy), the ascent from the abstract to the concrete, as well as some special scientific methods: historical, comparative legal, technical and legal. The theoretical significance of the work lies in the formulated conclusions, which can serve as a basis for the development of theoretical and practical provisions on the adversarial form of criminal proceedings with the participation of jurors in the Russian Federation in order to improve the current criminal procedural legislation.
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Coulling, Ryan, and Matthew S. Johnston. "The criminal justice system on trial: Shaming, outrage, and gendered tensions in public responses to the Jian Ghomeshi verdict." Crime, Media, Culture: An International Journal 14, no. 2 (June 27, 2017): 311–31. http://dx.doi.org/10.1177/1741659017715059.
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Drawing on an affective framework, this qualitative content analysis of the immediate public responses on Twitter in the hours following Jian Ghomeshi’s not guilty verdict (n = 3943 tweets) reveals two key discourses of public opinion. Twitter users depicted the criminal justice system (CJS) as having worked and/or failed, and these intensifying divisions were highly gendered. Members of the public pitted notions of the “rational male” against the “emotional female”, and these debates heavily supported or opposed a patriarchal legal rationality. This study sheds light on the ways in which adversarial justice systems reproduce adversarial discourses on crime, and overlook the problems entangled in misleading applications of rationality to sexual consent. The wide circulation of blame to all parties involved in this case leads us to the conclusion that the CJS, in its current punitive form, does not instil a sense of confidence in the public. With a shifted focus on the healing and dignity of everyone involved in sexual assault cases, we recommend Restorative and Transformative approaches to justice as alternative measures to respond to sexual assault.
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VAN SLIEDREGT, ELIES. "Introduction: Common Civility – International Criminal Law as Cultural Hybrid." Leiden Journal of International Law 24, no. 2 (May 6, 2011): 389–91. http://dx.doi.org/10.1017/s0922156511000069.
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On 28 and 29 October 2011, a conference was held in The Hague on International Criminal Law (ICL) as a cultural and legal hybrid. The aim of the conference convenors was to facilitate an exchange of thoughts between legal scholars, practitioners, and social scientists on the nature of ICL and to discuss the role (legal) culture plays in international criminal justice. The recent discussion is dominated by the adversarial (common law)–inquisitorial (civil law) dichotomy and centres on the hybrid nature of the procedure in international criminal law. The debate focuses on how a fair and efficient trial can be safeguarded by observing the rights of the accused and other participants through an operational criminal procedure. Sometimes, this clash of legal systems has become an end in itself, resulting in a debate on which system is superior. At least in theory, however, modern international criminal procedural law seems to have overcome the adversarial–inquisitorial dichotomy, since it combines features of both common- and civil-law systems. This unique compromise structure poses a challenge to the practitioners who – although trained in and influenced by their respective national systems – have to apply the procedural norms at the international level and, in doing so, find an appropriate balance between adversarial and inquisitorial features. This is even more challenging since the single elements of the different legal traditions do not fit together seamlessly, leading to myriad, heated disagreements over how to combine them into a single, coherent, workable legal system.
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Chi, Tran Kim. "Victim’s Participation in Adversary Procedure of the Russian Federation’s Criminal Procedure Code and Lessons for Vietnam." Vietnamese Journal of Legal Sciences 5, no. 2 (December 1, 2021): 71–97. http://dx.doi.org/10.2478/vjls-2021-0015.
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Abstract Some countries that mainly follow the inquisitorial system, such as Russia, France, and Vietnam, tend to absorb some features of the adversarial system. Using the Russian Federation as an example, this article raises questions including: How will the acquisition of adversarial elements affect the position, role, rights and obligations of the victim? Is the victim an independent party to participate in the adversary procedure? Do the adversarial activities of the victim and the other subjects exist at the pre-trial stages? In Vietnam, with the limitation of the victim to participate actively in the adversary procedure, it will be difficult for the victim to protect his or her legitimate rights and interests in the criminal proceedings. He/ she participates in the proceedings passively with the same role as witnesses. This article explores the role and position of the victim in the adversary procedure of the Russian Federation. While analyzing the rights and obligations of the victim in the adversary procedure, we found that the victim in the Criminal Procedure Code of the Russian Federation is eligible to participate in the adversary procedure as an independent party. The article discusses the significance of this study and proposes approaches to improve the victim’s participation in adversary procedure in Vietnam’s criminal justice system.
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Panzavolta, Michele. "Of hearsay and beyond: is the Italian criminal justice system an adversarial system?" International Journal of Human Rights 20, no. 5 (April 27, 2016): 617–33. http://dx.doi.org/10.1080/13642987.2016.1162409.
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Kovac, Michael C. "role of the public prosecutor in the United States." Revista Acadêmica Escola Superior do Ministério Público do Ceará 12, no. 1 (June 30, 2020): 253–63. http://dx.doi.org/10.54275/raesmpce.v12i1.26.
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Prosecutors in the United States play multifaceted roles in their criminal justice system. They provide guidance during the investigative stages of cases, lead the prosecution of cases in the country’s adversarial proceedings, police their own profession, and lead legislative efforts aimed at making the system more just for all involved. There are separate prosecuting offices for the separate sovereignties located within the countries. Statutes, constitutions, and case law establish the rights and duties of those separate offices. All prosecuting offices in the United States share the pursuit of justice as their common goal.
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Iliadis, Mary. "Victim representation for sexual history evidence in Ireland: A step towards or away from meeting victims’ procedural justice needs?" Criminology & Criminal Justice 20, no. 4 (May 20, 2019): 416–32. http://dx.doi.org/10.1177/1748895819851848.
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Sexual assault cases have historically resulted in persistent victim dissatisfaction with, and alienation from, the prosecution process. As a result, some adversarial jurisdictions have moved contentiously towards integrating victim participation rights within the legal process to address sexual assault victims’ procedural and substantive justice concerns. The introduction of section 34 of the Sex Offenders Act 2001 (IRE), which allows a victim to access state-funded legal representation to oppose a defendant’s application for the introduction of the victim’s sexual history evidence in court, is one such example. Drawing from five interviews conducted with high-level criminal justice professionals, legal stakeholders and victim support workers, and an analysis of primary source documents, including legislation and reports, this article argues that, although section 34 represents a unique response to the problems raised by the use of a victim’s sexual history evidence in criminal trials, its shortcomings may hinder its capacity to improve sexual assault victims’ procedural justice experiences in ways unanticipated from its introduction.
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Burmagin, S. V. "Problematic Issues of Adversarial Construction of Judicial Proceedings at the Stage of Execution of the Sentence." Actual Problems of Russian Law 15, no. 9 (September 29, 2020): 93–103. http://dx.doi.org/10.17803/1994-1471.2020.118.9.093-103.
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An adversarial nature of any trial, characteristic of justice and corresponding to its nature, is manifested in criminal proceedings not only in criminal cases, but also in cases addressing issues related to the execution of the sentence. The paper examines the peculiarities of the adversarial construction of judicial proceedings at the stage of execution of the sentence pre-conditioned by the tasks and the specific subject of judicial proceedings in a particular category of cases. The author elucidates the specifics of the conflict relationship, the essence of the legal dispute and the subject composition of procedural parties in cases where issues related to the execution of punishment are resolved. Also, the author analyzes the problems of ensuring equality of the parties and the undefined role of the prosecutor at the execution stage, suggests ways to address them at the legislative level. Finally, it is concluded that there is a need to improve the procedural form of dealing with issues related to the execution of sentences in accordance with the principles of adversarial proceedings and equality and taking into account the peculiarities of their manifestations in judicial proceedings arising during the execution of the sentence.
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Burmagin, S. V. "Metamorphoses of an Adversarial Nature of Criminal Proceedings in Cases of Judicial Review." Lex Russica 1, no. 2 (February 28, 2020): 44–62. http://dx.doi.org/10.17803/1729-5920.2020.159.2.044-062.
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An adversarial nature of any judicial proceedings, which is characteristic of justice and corresponds to its nature, is revealed in criminal proceedings not only in criminal cases, but also in so called cases of judicial review exercised during pre-trial proceedings. In the present paper the features of adversarial construction of judicial review proceedings in the Russian criminal process are investigated in the context of the purpose and subject of judicial review at pre-trial stages. The author has analyzed the specifics of the conflict relationship, the essence of the legal dispute and the subject composition of the procedural parties in cases of judicial review, as well as the peculiarities of initiating the judicial review proceedings and distribution of the burden of proof between the parties; reveals the transformation of the procedural roles of the main participants of the adversarial proceedings when the disputed issue is transfered from the main proceedings in the criminal case for consideration in the procedure of judicial review within the framework of separate proceedings. The paper also elucidates such features characteristic for certain forms of judicial review as involvement of third parties having their own interest in the judicial review case and restriction of participation in the court session of the interested party. The paper focuses on the problem of ambiguous (from the standpoint of the principle of adversariality) procedural status of the prosecutor in judicial and review proceedings in which independent parties are the investigator and (or) the head of the investigative body. Alternative options for elimination of the problem discussed above are proposed. It is concluded that in the course of normative regulation of judicial review procedures and law enforcement, it is necessary to take into account the specifics of cases of judicial review and the originality of manifestation of adversarial foundation in such cases.
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Chebotareva, Irina, Olesia Pashutina, and Irina Revina. "International Standards of Trial Waiver Systems in Russian Criminal Procedure." SHS Web of Conferences 134 (2022): 00064. http://dx.doi.org/10.1051/shsconf/202213400064.
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Trial is a central part of any criminal procedure regardless of the type of the procedure and the procedural traditions. It is at this stage when the evidence is examined during an adversarial procedure and the issues of the guilt or innocence of a person accused of committing a crime and the assignment of punishment are considered. In 2018, the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe paid attention to the fact that in many Member States of the Council of Europe and in the states Observers or having any other status in the Council of Europe or the Assembly, common criminal justice is gradually being replaced by various forms trial waiver. Based on Russian practices, the article examines trial waiver systems as a general concept that includes various national practices within individual states. It is characterized by various kinds of preferences exempted by the state for defendants who have pleaded guilty and waived their right to an adversarial trial; the study reviews positive and negative aspects of these practices as well as the minimum requirements they must comply with.
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Johnston, Ed. "The adversarial defence lawyer: Myths, disclosure and efficiency—A contemporary analysis of the role in the era of the Criminal Procedure Rules." International Journal of Evidence & Proof 24, no. 1 (August 26, 2019): 35–58. http://dx.doi.org/10.1177/1365712719867972.
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This article contends that piecemeal changes to the adversarial process since the dawn of the new millennium have transformed the CJS. The advent of (near) compulsory disclosure means the defendant has to reveal many elements of his defence. This dilutes the adversarial battle and leaves a process which is managerialist in nature. The Early Guilty Plea system is a mechanism to increase the efficiency by stemming the amount of cases reaching the trial stage. This has an impact on the defence lawyer’s role and renders him conflicted between advancing the best interest of the client against other pre-trial obligations. This small empirical study suggests that classic adversarial lawyers are seen as a relic of a bygone era. The modern criminal justice system prioritises speed and efficiency. If a case reaches court, the defendant is treated as an ‘informational resource’ of the court reminiscent of his position in the 17th century.
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Smirnov, V. A., and M. P. Peryakina. "Institute of Defense at the Present Stage of Development of Criminal Justice in Russia." Siberian Law Herald 2 (2021): 92–98. http://dx.doi.org/10.26516/2071-8136.2021.2.92.
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The article examines some procedural issues of the participation of the defender in the criminal proceedings, the problems of compliance with the principle of adversarial parties at all stages of criminal proceedings. A clear discrepancy between the rights of the parties to the prosecution and the defense at the pretrial stages of the criminal process was established. Since all key decisions on the movement of a criminal case (suspension of a criminal case, bringing a person as an accused, termination of a criminal case, issuing an indictment, an indictment or an indictment, etc.) are made by the investigator, the inquirer, who belong to the prosecution, and the defense lawyer can practically have no influence on these decisions. In addition, in Russian criminal proceedings, the defender still does not have the right to collect evidence along with the investigator, the inquirer. In addition, the authors of the article consider the actual issue of providing legal assistance to persons who do not have the financial capacity to pay for a lawyer. The article notes that the intervention of the competent authorities in the case of inadequate assistance of the defender is required only when the free-appointed defender has shown a clear inability to provide effective assistance. Special attention is paid to such a concept as “attorney-client privilege”. It has been determined that advocate secrecy in criminal proceedings is absolute, which is currently unacceptable for Russian reality. It is proposed to introduce certain amendments to the current legislation of Russia, which will help to increase guarantees for the implementation of the institution of protection in criminal proceedings.
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Grinenko, Aleksandr V., and Daria O. Chistilina. "The Aadversarial Nature of the Criminal Procedure: Problematic Aspects." Proceedings of the Southwest State University. Series: History and Law 11, no. 5 (2021): 130–40. http://dx.doi.org/10.21869/2223-1501-2021-11-5-130-140.
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The relevance of the research is due to the existing contradictions between the theoretical model of adversarial nature and the practice of its implementation in the criminal procedure of Russia. The legislative regulation of this principle does not allow us to say that it is effective in the course of practical activity. The purpose of the research is to consider the operation of the principle of adversarial nature at various stages of the criminal procedure, as well as the theoretical concepts of its strengthening in the criminal procedure. The objectives of the research: to conduct a retrospective research of the implementation of the principle of competition in the criminal procedure of Russia, to consider various approaches to the definition of competition, to analyze proposals for strengthening competition in the criminal procedure of Russia. Methodology. Methodological basis of research is a general scientific dialectical method as a method of scientific knowledge; a systematic approach to the problem, historical method, formal-logical method, etc. Results. The strengths and weaknesses of the adversarial criminal procedure were identified, the possibility of introducing a lawyer's investigation, reviving the institute of investigative judges, creating a special court apparatus to ensure the independence of judges was considered. Conclusion. The existing criminal procedure system has long been formed in the conditions of authoritarian state power, which has left its mark on the operation of the principle of competition in the criminal procedure of Russia. Its manifestation to a greater extent at the trial stage is due to the presence only at this stage of an independent subject in the form of a judge, who can provide equal opportunities for the prosecution and the defense to participate in the consideration of a criminal case. In addition, there is no conceptual contradiction to the principle of competition in the fact that the presiding judge can act actively because the law imposes on him responsibility for the justice of the sentence. At the pre-trial stages, there is no such independent body, although it is necessary for the objective establishment of all the circumstances of the incident.
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Feeley, Malcolm M. "Legal Complexity and the Transformation of the Criminal Process: The Origins of Plea Bargaining." Israel Law Review 31, no. 1-3 (1997): 183–222. http://dx.doi.org/10.1017/s0021223700015284.
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The standard form of disposition for most English and American criminal cases is the guilty plea, by means of a plea bargain. Jury trials are the rare exception rather than the rule. Although plea bargaining is the subject of a huge scholarly literature analyzing its nature and functioning, there is a much smaller literature on its origins and development. Most of the literature is highly critical, and much of it rests upon a belief that bureaucratic justice has come to replace the vigorous adversarial jury trial. Some critics lament “our vanishing jury”. Others decry the rise of “technocratic justice”. And still others warn that we are witnessing the “twilight of the adversary process”, or the decline of the adversary system. Even those who defend plea bargaining, such as justices on the United States Supreme Court, tend to regard it as a “necessary evil” required as an expedient to cope with the rising tide of caseloads rather than an ideal process.Despite important differences of emphasis among these and still other commentators, most share an important commonalty; they adopt a form of functional analysis that understands plea bargaining as an adaptation to caseload pressures. Hence the power of the metaphor “the twilight” of the adversary process. This assessment seems plausible in light of pervasive plea bargaining and the crush of caseloads in American and English courts.
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Barbu, Denisa. "The Concept of Plea Bargain in an Ethical Society." Journal for Ethics in Social Studies 4, no. 1 (2020): 21–30. http://dx.doi.org/10.18662/jess/4.1/25.
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The current Criminal Procedure Code has introduced several elements specific to adversarial law. Among these specific elements, I consider that a special impact on those interested in or targeted by the dispositions of criminal law is "negotiated justice". Traditionally, in the field of criminal procedural law, several institutions specific to the continental system have been adopted in our country, that impose for the diagnosis of the legal problem, so that in criminal procedural law the objective truth must be identical to the judicial truth, hence the fact that judges can't base their rulings on anything else than actual facts. During the evolution of civilization, three criminal procedural systems have appeared progressively, in a chronological (historical) order in full accordance with the political and social tendency of the states at a certain moment, namely the inquisitorial system, the accusatory system, respectively the mixed system, named the continental system. We will resort in the following article to a brief presentation of these criminal procedural systems, while making a brief analysis of each of them.
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Kuzmenko, O. V., and P. R. Levchuk. "Implementation of the principle of competitiveness of the parties and free- dom in the presentation of their evidence to the court in the criminal process of some countries of the world." Uzhhorod National University Herald. Series: Law, no. 64 (August 14, 2021): 313–16. http://dx.doi.org/10.24144/2307-3322.2021.64.57.
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One of the tasks of criminal proceedings is to protect the individual, society and the state from criminal offenses, which is achieved through the implementation of other tasks, in particular, by ensuring a rapid, complete and im-partial investigation and trial. In this case, any procedural decisions in criminal proceedings must be based on evi-dence that serves as a kind of link between the event of a criminal offense and the consciousness of the investigator, prosecutor, investigating judge, court. Evidence itself is the main content of criminal procedure in both the pre-trial investigation and in the judicial stages of criminal proceedings in most countries.The authors note that the Constitution of Ukraine as one of the main principles of justice provides for adversarial parties and freedom in providing the court with their evidence and proving their persuasiveness before the court. Factor The Criminal Procedure Code of Ukraine has significantly expanded the scope of this principle of the do-mestic criminal process, including in the field of evidence. Thus, the defense, as well as the prosecution, was given the opportunity to collect evidence during the pre-trial investigation, as a result of which the right of the parties and other participants in criminal proceedings to submit evidence (things and documents) is becoming increasingly important.The article also examines that the principles of criminal procedure in France include: the principle of formality, prosecution, legality, equality, dignity, protection of the victim, urgency of the trial, presumption of innocence, publicity, oral and adversarial proceedings. And the main principles of the criminal process in Germany include: the principle of formality (publicity); the principle of charge; the principle of legality and the principle of compulsory research. A characteristic feature of modern law in the field of criminal procedure in the United States is the consis-tent expansion of the institution of delegated legislation. The US Congress has delegated to the Supreme Court the right to establish rules of criminal procedure that have the force of federal law.
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Slinko, Dmytro, Kateryna Slinko, and Dmytro Filin. "GENERAL AND SPECIAL THEORY OF THE CRIMINAL PROCESS OF UKRAINE." Journal of V. N. Karazin Kharkiv National University, Series "Law", no. 31 (August 4, 2021): 92–98. http://dx.doi.org/10.26565/2075-1834-2021-31-13.
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Introduction. The criminal process in Ukraine is based on the basic principles of legal theories of Anglo-Saxon law. Adversarial proceedings are defined as a criminal lawsuit, on the basis of which the investigator is obliged to initiate criminal proceedings and support public prosecution. A retrospective analysis of the theoretical constructions of general theories of the criminal process in Ukraine shows their construction on the basis of Romano-Germanic provisions of continental Europe, where the basis is the publicity of the process and criminal prosecution by criminal justice authorities. In this case, the construction of general and particular theories of the process of Ukraine has a significant legal difference. Summary of the main research results. The main differences can be considered on the basis of optimization constructions, procedural economy, application of criminal repressions connected with restriction of the rights, freedoms and interests of participants of criminal proceedings. It should be noted that the current criminal procedure law does not define, to the end, the concept of general and private theories of process. Conclusions. The article offers theoretical aspects and practical solutions to emerging problems on the basis of the criminal process of Ukraine, the construction of theoretical approaches based on Anglo-Saxon law, which is important for optimizing the criminal process of Ukraine.