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Summary of the Case Law: Miranda v. Arizona (Comparative Criminal Law 2016/2017).
Police interrogation and a breach of the right not to incriminate oneself.
Miranda v. Arizona
Introduction
This case was brought before the US Supreme Court and it is about the Miranda Rights. This case is about police interrogation in the United States. In this case the statements of the defence were obtained under circumstances that did not meet constitutional standards for protection of the privilege against self-incrimination. The Court deals with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself. The Miranda rights consist of the right to remain silent, everything you say can and will be used against you in the court of law, the right to an attorney, if you can’t afford an attorney you will get one. (page 12 & 13).
Facts
The Mexican defendant Ernesto Miranda was questioned while in custody and he was cut off from the outside world. There was given no warning of his rights at the outset of the interrogation process (page 19). The police took him to a special interrogation room where they secured a confession (par. 25). The defendant was a seriously disturbed individual with pronounced sexual fantasies.
Two hours later the police emerged from the interrogation room with a written confession signed by Miranda. At the top of the statement was a typed paragraph stating that the confession was made voluntarily, without threats or promises of immunity and ‘’with full knowledge of my legal rights, understanding any statement I make may be used against me.’’ At trial before the jury, the written confession was admitted to the evidence and Miranda was found guilty of kidnapping and rape. .
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Comparative Criminal Law (2016/2017)
Comparative Criminal Law Lecture 1
Comparative Criminal Law, Lecture 1 (2016/2017)
Comparative Criminal Law
Lecture 1, 14 February 2017
(R.S.B. Kool, Introduction).
The criminal question
‘the constellation of images, ideas, processes and attitudes towards crime, safety, punishment, control and fear that are fundamental in shaping social control more generally and criminal justice in particular’. The keyword is diversity. This is a very broad definition, it features criminal law as an element of social policy, culture. Law is a living instrument and it’s altering every day, especially in the current period.
We should compare different criminal systems, to classify social (legal) arrangements, to fight ethnocentrism and to gain deeper understanding of one’s own system (Academic incentive). Be curious and willing to learn from others! Crime is an international issue, for example cyber crime. We should secure basic levels of cooperation and face global challenges (Practical incentive). Finally, we have human rights standards (Political incentive).
Differences within criminal law
- Archetypes: civil law vs. common law: one of a kind, sharia law.
- Legal pluralism rules: there are mixed systems.
Research orientations
- Relativist postiiton (contextualisation; qualitative)
- Positivist approach (similarities; quantitative)
- Course focus: comparison on sub-items of an archetypical case executed by ‘arm chair travellers’.
Pitfalls
- Criminological Tourism (‘Cherry Picking’).
- Touching base (relevance of sources/observations): No use of Wikipedia, use legislative sources.
- Law in book vs. Law in action. The law in action may be very different than you may see the regulations in the books. You should bear in mind that not just the Law from the books is important, but also the law in action/practice.
Course focus
For the paper, you should pick a procedural topic only! Substantives are not allowed.
Truth-finding: there are different ways to achieve the truth, think about the differences in the adversarial and inquisitorial systems.
Styles of procedures: inquisitorial vs. adversarial.
Positions of police/defence, public prosecutor, judicial decision makers.
The jury system is a very expensive issue. If they can avoid to go to trial, then they will settle and not go to the court. In only 5% of the criminal cases, a jury system is used, because it's very expensive to collect the jury members.
Comparative Criminal Law Working Group 1
Comparative Criminal Law: Workgroup 1 (2016/2017)
Comparative criminal law
Working group 1
Assignment 1
According to Brants & Franken, the central issue determining whether a criminal process is (predominantly) inquisitorial or adversarial, is the conception of the ideal search for the truth (p. 6 literature reader). Weigend’s article also elaborates on the truth-finding in both systems.
- Describe the inquisitorial truth-finding conception, explaining also that the term ‘inquisitorial’ is closely related to the word ‘inquiry’.
Answer to question 1a:
Brants & Franken’s article: The state is best entrusted with truth finding. The police is subordinate to the public prosecutor and in some cases an investigating judge.
Weigend’s article: The inquisitorial system entrusts an authoritative, neutral law officer with collecting relevant evidence, a process that includes the interrogation of suspects and witnesses. In the inquisitorial system the suspect is the subject of the investigation. He only has a few rights. He may be interrogated, this is why the term inquisitorial is closely related to the word ‘inquiry’.
Inquiry means that someone asks a question intended to get information about someone or something.
This also happens in the inquisitorial system, because witnesses and suspects can be interrogated. This is to get information on the suspect.
- The state is best suited to find the truth.
- Focus on the pre-trial state, because the dossier is made and this is handed over at the trial. The suspect is subject to the investigation. The dossier is the only file that can be used at the trial.
- Focus on the best truth.
- Describe the adversarial truth-finding conception, explaining also that the term ‘adversarial’ is closely related to the word ‘adversary’.
Answer to question 1b:
Brants & Franken’s article: The criminal process (oral trial) is conceived of as a struggle between parties in which the individual defendant fights his own corner.
Weigend’s article: The adversarial system relies on opposing parties coming forward with their competing versions of the truth, challenging each other’s accuracy, and thereby ultimately bringing about a composite picture of or approximating the truth. This is also why the term adversarial is closely related to the word ‘adversary’, which means ‘enemy’, or ‘opponent’.
You could consider the parties as each other’s enemies or opponents, because they have a different vision of truth and they try to challenge each other’s accuracy.
- Equality of arms
- Focus on the procedural truth: you will never find the whole substantive truth. The procedure is very important, this is the main focus in the adversarial system.
Assignment 2
Weigend is critical about the truth-finding ability of both types of systems, but, obviously, for different reasons. He concludes that the end result of the search for the truth in both systems however will often be strikingly similar: “a half-truth based on what the defendant and more or less interested third parties are willing to disclose.” (p. 16 reader)
Comparative Criminal Law Lecture 2
Lecture 2 in the Course Comparative Criminal Law (2016/2017): Police & Interrogation
Comparative Criminal Law (2016/2017)
Lecture 2: Police & Interrogation
Policing
What we discuss now is mostly law in the books.
- Policing: a set of processes (surveillance, threat of sanctions) attempting to maintain security. It has two main tasks, to prevent crime and to maintain public order. It is ruled by the Minister of Internal Affairs. Policing is the policy of activities of the police. They have to serve by exerting power (contradictory demands).
The styles of policing are related to legal culture (authority). Japan is a community policing, in the USA it is more like crime control. There are more different models of policing (relationship military vs. Police). There is a civil police model (England, the Netherlands), State police model (Germany, France) and Quasi-military police model (Eastern-Europe).
Society is changing. There is no social unity anymore, due to immigration and socialisation, we live with a lot of subcultural group. This causes friction between subcultural groups and the police. The majority of the police-officers in the Netherlands are mostly white, Dutch, etc. We try to change this, to prevent the friction of happening. (Mitch killed by police force). It is worrying that there are no go areas to the police, these areas are out of control (for example the suburbs in France). There is a lot of crime, organised crime. The police activities are broad and hard.
Coordinate model: Officials are more or less on the same level, bread discretionary powers, autonomous decision making, values; find the best solution in a given case. This is the adversarial system.
Hierarchical model: Officials have no broad discretionary power, decisions are subject to review, values; certainty and uniformity in decision making, reliance on the documentation (file. This is the inquisitorial system.
Police tasks
‘Blue within the street’: there is a difference in two sorts of policing, the non-crime policing and the crime policing. The non-crime policing consists of public order maintenance and crime prevention due to visibility. The crime policing consists of oppression. This can be divided in community policing and administrative policing.
- Community policing (England & Wales): they focus on local priorities, there is a high level of discretion. There is a joined communal responsibility for social control. There is .....read more
Summary C.H. Brants & A.A. Franken, ‘The protection of fundamental human rights in criminal process’
Comparative Criminal Law
- Week 1.
- C.H. Brants & A.A. Franken, ‘The protection of fundamental human rights in criminal process’, Utrecht Law Review
- Individual, state and individual rights and freedoms
- Common and civil law in practice
- Legal traditions and styles of procedure
- Checks and balances
- Adversarial & inquisitorial systems in practice
- Year of summary
Week 1.
C.H. Brants & A.A. Franken, ‘The protection of fundamental human rights in criminal process’, Utrecht Law Review
Legal systems and procedural traditions are to be distinguished as being either adversarial or inquisitorial. Adversarial systems are the so-called common law (English countries, like the UK, USA and colonies) and inquisitorial systems are civil law (European countries and colonies). There are also countries which have a mixed system. The question whether a legal system is adversarial or inquisitorial is important, because the criminal proceedings are different in the different systems.
Individual, state and individual rights and freedoms
The civil law system has the purpose to realize the ‘common good’. There are powers needed to carry out this task, so the liberty of the individuals is threatened. Only the state can achieve and uphold the liberty of the individual, so that the common good can be established. The State’s power is curtailed by the primacy of written rules under law, abstract constitutional rights of the individual and the division of power within the state, which implies judicial scrunity (review) executive action on the basis of written law and hierarchical monitoring and control within the executive itself.
Legally conferred powers in the written law are the only powers which can provide the State the possibility to infringe on individual rights; without legally written law they can do nothing.
In adversarial systems, the individuals define their relationships to the state in terms of the rule of law: as a set of concrete rights and freedoms from particular forms of state intrusion, which they themselves can assert. Under the common law system, executive organs of criminal justice do not monitor (to check or watch someone in order to find out what is happening) each other. They exist in a state of coordinate authority, and all their tasks are governed by the rule of law. Executive officials may do everything, they need no conferred powers, they may do anything which is not expressly forbidden in law. All law must be statutory, coming from the government, to be enforced by the executive and applied by the courts and interpreted in so.....read more
Comparative Criminal Law Working Group 2
Comparative Criminal Law, Working group 2 (2016/2017).
Comparative Criminal Law Working Group 2
Police Interrogation
Question 1:
Analyse the decisions in Miranda v Arizona and Salduz v Turkey answering the following questions, referring to the relevant pages or paragraphs:
Miranda v Arizona, US SC
- Which are the most important facts in the Miranda case?
Answer:
The Mexican defendant Ernesto Miranda was questioned while in custody and he was cut off from the outside world. There was given no warning of his rights at the outset of the interrogation process (page 19). The police took him to a special interrogation room where they secured a confession (par. 25). The defendant was a seriously disturbed individual with pronounced sexual fantasies.
Two hours later the police emerged from the interrogation room with a written confession signed by Miranda. At the top of the statement was a typed paragraph stating that the confession was made voluntarily, without threats or promises of immunity and ‘’with full knowledge of my legal rights, understanding any statement I make may be used against me.’’ At trial before the jury, the written confession was admitted to the evidence and Miranda was found guilty of kidnapping and rape.
This case is about police interrogation in the United States. In this case the statements of the defence were obtained under circumstances that did not meet constitutional standards for protection of the privilege against self-incrimination. The Court deals with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself.
The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination (p. 4). These safeguards mean that the prosecutor is devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it. The person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, only voluntarily, knowingly and intelligently.
- What is the constitutional .....read more
Comparative Criminal Law Lecture 3
Comparative Criminal Law, Lecture 3 (14 March 2017), Course Utrecht University (2016/2017)
Topic: Prosecution.
Comparative Criminal Law
Lecture 3, Prosecution (14 March 2017).
Introduction
Prosecution is one of the key topics of the Criminal justice and criminal proceedings. The Prosecutor is the gatekeeper, the one who decides to prosecute or not. This may have a lot of consequences. Today we will discuss the function and institution of the prosecution. What does the prosecutor do and who is the prosecutor? This is very important to understand. It is difficult to give this overview, because there are many differences between countries. Therefore, the main traditions will be discussed; the Continental tradition (inquisitorial and mixed system) and the Common law system (adversarial systems).
In the Middle Ages there was a lot of torture to examine whether there was criminal behaviour. The suspect was obliged to undergo these torture. There was no need for a prosecution service. There has been a different development in the Continental tradition and the Common law system. The Continental tradition was more inquisitorial, with an active search for criminality.
Private prosecution vs. State prosecution
There is private prosecution and State prosecution. This may be different in the different systems. In England & Wales the prosecution was always essentially brought by private citizens, for example victims. Things changed, the Central Prosecution Service (CPS) was established in 1986. Inquisitorial and mixed systems, on the contrary, entrusted since their very beginning the power to prosecute to organs of the State (or the Church).
Continental system
What does the Prosecutor do in the Continental system? This is the one who points the finger. It’s a bit more complex, though. To understand that, we have to know the stages of the criminal proceedings. Everything starts with a suspicion of the crime. After that we go to the investigating stage and finally there is the trial stage. The prosecution has to discover the truth. The police does this as well, but it is the most important task of the Prosecutor. The Public Prosecutor is the main actor in the pretrial stage. He supervises the tasks of the Police. He can decide to take measures. He can directly authorize the adoption of certain specific investigative.....read more
Summary Case Law: Plonka v. Poland
Summary of the Case Law Plonka v. Poland (Week 1), Comparative Criminal Law (2016/2017)
Plonka v. Poland, ECtHR 31 March 2009, appl. No. 20310.02
Introduction
The Plonka case is a decision made by the European Court of Human Rights in Strasbourg. The case was decided in March 2009 and it concerns interrogation by the police. The applicant claims that there has been a breach of article 6(3)(c) of the Convention.
Facts
In the Plonka case, the applicant was arrested on suspicion of homicide (par. 6). She was first interviewed by a police officer. The day after she was arrested she was charged with murdering. One day later, she was questioned by the Sosnowiec District Prosecutor. The applicant stated that she had been having alcohol problems for the past 20 years. At the night of the killing, she drank too much and didn’t remember much of what happened. She confessed killing her former work colleague, but hadn’t meant to kill him. He had made her very angry, and she had stabbed him with scissors while she was drunk.
The applicant was not consisted by a lawyer during her police interrogation (par. 7). She however signed a form that she had been informed of her rights, including the right of access to a lawyer. The applicant was held criminally responsible for the killing of the victim (par. 8). She was indicted with charges of murder (par. 11).
Throughout the trial the applicant maintained that she suffered from alcoholism. She retracted her confession made during police custody, alleging that she had been questioned under duress and forced by the police officers to make self-incriminating statements (par. 12). The applicant got convicted, based on the applicant’s statements made during the initial phase of the investigation and on evidence given by several witnesses (par. 14). The lawyer of the applicant stated that there had been a violation of the applicant’s right to defend herself in view of the deficiencies in the preliminary investigation (par. 15).
The arguments
The applicant complained that her right to a fair trial had been breached as she had not had legal aid at the initial stage of the criminal proceedings against her (article 6(3)(c) Convention). The Government contested this, because she had not availed herself of the possibility to request legal assistance during her interview with the police. The applicant had.....read more
Summary Case Law: Berghuis, Warden v. Thompkins
Summary of Case Law: Berghuis, Warden v. Thompkins (Comparative Criminal Law, 2016/2017)
About police interrogation and waiver.
Berghuis, Warden v. Thompkins
Introduction
The Berghuis Warden v. Thompkins case is about interrogation by the police and the right to remain silent (the Fifth Amendment). The case is about implicit waiver. Implicit waiver is possible when a suspect does not invoke his right to remain silent.
Facts
Thompkins was arrested for a shooting in Michigan. He was informed his rights by the police officers. At no point did Thompkins say that he wanted to remain silent, that he did not want to talk with the police or that he wanted an attorney. He was largely silent during the 3-hour interrogation, but near the end, he answered ‘yes’ when asked if he prayed to god to forgive him for the shooting. He moved to suppress his statements, claiming that he had invoked his right to remain silent, that he had not waived that right, and that his inculpatory statements were involuntary. Thompkins was charged with first-degree murder and other charges. The jury found Thompkins guilty and he was sentenced to life in prison.
Thompkins appealed two times: First at the State Court of Appeals, and after that the Federal District Court. The Federal District Court denied his request, reasoning that he did not invoke his right to remain silent and was not coerced into making statements during the interrogation, and that it was not unreasonable, for purposes of the Antiterrorism and Effective Death Penalty, for the State Court of Appeals to determine that he had waived his right to remain silent.
According to the Court, Thompkins waived his right to remain silent when he knowingly and voluntarily made a statement to the police. He didn’t invoke his right to remain silent. A waiver must be the product of a free and deliberate choice rather than intimidation, coercion or deception and made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.
Such a waiver may be implied through a defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver. If the State establishes that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver. Thompkins waived his right; he knew what he gave up when he spoke. His course of conduct indicating waiver was present by his statement about God. The interrogation was not coercive.
After giving.....read more
Summary Case Law: Salduz v. Turkey
Summary of the Case Law: Salduz v. Turkey (Comparative Criminal Law, 2016/2017)
Access to a lawyer, breach of Article 6(3)(c) European Convention on Human Rights & Fundamental Freedoms
Salduz v. Turkey
Introduction
This case is about article 6(3)(c) of the European Convention on Human Rights and Fundamental Freedoms. Salduz claims that his right to a fair trial has been breached, because he did not have access to a lawyer from the first police interrogation.
Facts
Salduz was taken into custody on the suspicion that he had participated in an unlawful demonstration in support of an illegal organisation (PKK) (par. 12). Salduz was interrogated in the absence of a lawyer. In his statement, the applicant admitted his involvement and gave the names of several persons who worked for the organisation. A medical report stated that Salduz had no trace of ill-treatment on his body (par. 13,14). On the same day the applicant was brought before the prosecutor and the investigating judge. He denied that he had a part in the PKK and that he was beaten and insulted while in police custody. He denied any illegal activity. After this moment, the applicant got access to a lawyer.
Salduz got convicted on the basis of his confession. He appealed against that decision, stating that there had been a breach of article 5 and 6 of the Convention, arguing that the proceedings before the first-instance court had been unfair and that the court had failed to assess the evidence properly (par. 24).
Judgment of the Chamber and arguments
Access to a lawyer is the right under article 6(3)(c) Convention. The applicant alleged that his defence rights had been violated as he had been denied access to a lawyer during his police custody (par. 45). The Chamber held that there had been no violation of the article; the applicant had been represented during the trial and appeal proceedings by a lawyer, and the statement of the applicant had not been the only basis for the conviction. The Chamber stated that Salduz had had the opportunity to challenge the prosecution’s allegations under conditions which did not place him at a substantial disadvantage against his opponent (par. 46).
Salduz stated that the assistance of a lawyer in police custody was a fundamental right. He reminded the Court that all the evidence which had been used against him had been collected at the preliminary investigation stage, during which.....read more
Summary Case Law: Miranda v. Arizona
Summary of the Case Law: Miranda v. Arizona (Comparative Criminal Law 2016/2017).
Police interrogation and a breach of the right not to incriminate oneself.
Miranda v. Arizona
Introduction
This case was brought before the US Supreme Court and it is about the Miranda Rights. This case is about police interrogation in the United States. In this case the statements of the defence were obtained under circumstances that did not meet constitutional standards for protection of the privilege against self-incrimination. The Court deals with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself. The Miranda rights consist of the right to remain silent, everything you say can and will be used against you in the court of law, the right to an attorney, if you can’t afford an attorney you will get one. (page 12 & 13).
Facts
The Mexican defendant Ernesto Miranda was questioned while in custody and he was cut off from the outside world. There was given no warning of his rights at the outset of the interrogation process (page 19). The police took him to a special interrogation room where they secured a confession (par. 25). The defendant was a seriously disturbed individual with pronounced sexual fantasies.
Two hours later the police emerged from the interrogation room with a written confession signed by Miranda. At the top of the statement was a typed paragraph stating that the confession was made voluntarily, without threats or promises of immunity and ‘’with full knowledge of my legal rights, understanding any statement I make may be used against me.’’ At trial before the jury, the written confession was admitted to the evidence and Miranda was found guilty of kidnapping and rape. .
Decision
The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination (p. 4). These safeguards mean that the prosecutor is devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it. The person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either.....read more
Summary Case Law: Bannikova v. Russia
Comparative Criminal Law, Case Law: Bannikova v. Russia (2016/2017), Bachelor 3.
Comparative Criminal Law: Case Law
Bannikova v. Russia
Introduction
This case is about an application of a Russian national against Russia, concerning Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (par. 1). The case is more precisely about inducing to commit crimes, by the police.
Facts
The applicant alleged that she had been convicted of an offence incited by the police and complained that certain evidence had not been disclosed at the trial (par. 3). The applicant had some telephone conversations with S. and agreed that he would supply her with cannabis which she would then sell (par. 4). The telephone conversations were recorded by the Federal Security Service (FSB).
The FSB started an undercover operation in the form of a test purchase, and bought 4,408 grams of cannabis from the applicant (par. 8). This was also filmed and recorded by the agent. After the purchase, the applicant was arrested and her house was searched; the FSB found another 28,6 grams of cannabis in her home (par. 8).
The applicant pleaded guilty for having assisted the FSB agent in purchasing the cannabis, but she claimed that she had been induced by that agent to commit the offence, and that she would not have committed it without its intervention (par. 9). The applicant claims that she had the cannabis in her home to help her friend S. out of trouble. She were approached by a certain Vladimir, who started to force her into selling cannabis and making threats should she refuse to do so (par. 10).
Evidence & decision District Court
S. makes a statement that the applicant wanted to sell a large consignment of cannabis, she had customers waiting and wanted to suggest a price. She also stated that she had received threats pressuring her to start selling the cannabis (par. 11).
Other evidence consisted of witness testimonies by certain persons, including the agent, the FSB reports to the test purchase and forensic evidence and reports on the inspection of the seized substance and the telephone conversations (par. 12).
On the basis of this evidence, the Court found the applicant guilty of having sold cannabis to.....read more
Summary Case Law: United States v. Russel
Comparative Criminal Law (2016/2017): Case Law Summary: United States v. Russel
United States v. Russel
Introduction
This case is about incitement in drugs offence and the concept of entrapment.
Facts
The undercover agent had visited the home of the respondent. The assignment of the agent was to locate a laboratory where the speed was manufactured illicitly. He told the respondent that he was from a company that was interested in controlling the manufacture and distribution of speed. He made an offer to supply the defendants with an essential chemical ingredient in the manufacture of the speed, in return of half the drugs produced. Connolly gave the agent a big sample of the speed and they viewed the agent the laboratory. The day after, the agent supplied Russel and Connolly with the ingredient, and the morning after the manufacturing of the speed was finished.
Sometime later, the agent returned to the house with a search warrant and arrested Russel and Connolly. Russel was found guilty by the Court.
Appeal
The respondent went on appeal and conceded that the jury could have found him predisposed to commit the offences, but argued that on the facts represented there was entrapment as a matter of law. The Court of Appeals agreed, although it did not find that the District Court had misconstrued or misapplied the traditional standards governing the entrapment defence. Rather, the Court expanded the traditional notion of entrapment, which focuses on the predisposition of the defendant, to mandate dismissal of a criminal prosecution whenever the court determines that there has been an ‘intolerable degree of governmental participation in criminal enterprise’. In this case the Court decided that the conduct of the agent in supplying a scarce ingredient essential for the manufacture of a controlled substance established that defence.
The respondent asks the US Supreme Court to reconsider the theory of the entrapment defence. He argues that the level of the agent’s involvement in the manufacture of the speed was so.....read more
Comparative Criminal Law Working Group 3
Comparative Criminal Law (Utrecht University, 2016/2017): Working Group 3: Entrapment/incitement.
Assignments Comparative Criminal Law 2016-2017
Working Group 3 (21 and 23 March 2017)
Question 1a:
Analyse the decisions in US v. Russell, Loosely v. R and Bannikova v. Russia answering for each decision the following questions: Which are the most relevant facts? How and by which criteria or considerations - does the court consider whether there has been ‘entrapment’?
Answer to Question 1a:
- US v. Russel:
- Facts: Russel was charged in three counts of a five-count indictment returned against him and codefendants Connolly. He was convicted of all three counts of having unlawfully manufactured and processed speed and of having unlawfully sold and delivered that drug in violation of the US law. On appeal, the United States Court of Appeals reversed the conviction solely for the reason that an undercover agent supplied an essential chemical for manufacturing the speed which formed the basis for respondent’s conviction. The undercover agent had visited the home of the respondent. The assignment of the agent was to locate a laboratory where the speed was manufactured illicitly. He told the respondent that he was from a company that was interested in controlling the manufacture and distribution of speed. He made an offer to supply the defendants with an essential chemical ingredient in the manufacture of the speed, in return of half the drugs produced. Connolly gave the agent a big sample of the speed and they viewed the agent the laboratory. The day after, the agent supplied Russel and Connolly with the ingredient, and the morning after the manufacturing of the speed was finished. Sometime later, the agent returned to the house with a search warrant and arrested Russel and Connolly. Russel was found guilty by the Court.
- Criteria & considerations: the initiative of the agent. the traditional notion of entrapment, which focuses on the predisposition of the defendant, to mandate dismissal of a criminal prosecution whenever the court determines that there has been an ‘intolerable degree of governmental participation in criminal enterprise’. .....read more
Comparative Criminal Law Lecture 4
Comparative Criminal Law Lecture 4: Judicial Decisionmakers
Utrecht University, Bachelor 3 (2016/2017)
Comparative Criminal Law
Lecture 4, 28 march 2017
Judicial decisionmakers (The Concept of Truth)
Essence of legal political culture
‘Every society must be equipped with institutions that can function in the context of its own political culture’. – Griffith 1997, p. 158.
We already crossed the investigative stage of the proceedings, we are now in the trial stage. There are also relations between those stages, because the trial stage is also about the investigation stage; everything that happens in this stage will reflect on how the trial works.
Key features of judicial decisionmaking
- Independency of the judiciary: None of us wants to be tried by a dependent judiciary.
- Impartiality of the judicial decision-makers: None of us wants to be tried by a partial judiciary. The European Court of Human Rights is both objective and subjective. The United Kingdom is objective and the United States are subjective. In terms of the case law about decision-making, the objective is most important. There are some legal safeguards which were acknowledged by the European Court. There is case law which relates to the judges.
- Legal safeguards: These safeguards are present to establish impartiality, such as:
- Prior to trial: rules of appointment, jury selections.
- During trial: Withdrawal ex officio, substitution/challenge. For example, think about the Wilders trial, he wanted the ‘impartial’ judge to be replaced. This is a possibility to challenge the impartiality of the judge.
The archetypes
The civil law has a ‘patriarch doctrine’, where the judge is the decision-maker; versus the peer review doctrine in the common law system. The ‘peer review’ is known as the jury as a decision-maker. This occurs in the United States and the United Kingdom, for example.
Patriarch doctrine
Patriarch doctrine: this doctrine is the pursuit of substantive truth, the enforcement of the law to uphold the maintenance of legal and social order. The concept of truth is different than within the peer review......read more
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