Table of Contents

Comparative Criminal Procedure

Comparative Criminal Procedure

Research Handbooks in Comparative Law series

Edited by Jacqueline E. Ross and Stephen C. Thaman

This Handbook presents innovative research that compares different criminal procedure systems by focusing on the mechanisms by which legal systems seek to avoid error, protect rights, ground their legitimacy, expand lay participation in the criminal process and develop alternatives to criminal trials, such as plea bargaining, as well as alternatives to the criminal process as a whole, such as intelligence operations. The criminal procedures examined in this book include those of the United States, Germany, France, Spain, Russia, India, Latin America, Taiwan and Japan, among others.

Chapter 1: Limits on the search for truth in criminal procedure: a comparative view

Jenia Iontcheva Turner

Subjects: law - academic, comparative law, criminal law and justice

Extract

Across diverse legal traditions, the search for truth is a basic function of the criminal process.2 Uncovering the truth about the charged crime is regarded as an essential precondition to achieving justice, enforcing criminal law, and legitimating the verdict.3 Yet while truth-seeking is a broadly accepted goal in the criminal process, no system seeks the truth at all costs. The search for truth must on occasion yield to considerations related to efficiency, democratic participation, and protection of individual rights.Different jurisdictions around the world show different preferences with respect to the trade-offs between these values and the search for truth in criminal procedure. In an effort to promote efficiency, enhance democratic participation, or protect individual rights, legal systems tolerate certain procedures that are known to heighten the risk of inaccurate outcomes (Dama_ka, 1973; Dripps, 2011; LaFave et al., 2012; Laudan, 2006; Stamp, 1998; Weigend, 2003). Some of these procedural preferences can be explained with reference to the influence of the adversarial and inquisitorial traditions (Dama_ka, 1973; Grande, 2008; Laudan, 2006; Pizzi, 2000; Trüg and Kerner, 2007; Weigend, 2003). But the distinction between adversarial and inquisitorial systems on this point is not always clear. Great variation exists within these two traditions, and common approaches can be seen across the divide.Some truth-limiting procedures, such as those related to the exclusionary rule and the protection of individual rights, have been widely adopted across the globe and have proven amenable to adjustments that accommodate the concern for truth.