NCJ Number
50653
Journal
Yale Law Journal Volume: 87 Issue: 8 Dated: (JULY 1978) Pages: 1549-1569
Date Published
1978
Length
21 pages
Annotation
CRIMINAL PROCEDURES IN FRANCE AND GERMANY ARE REVIEWED IN RESPONSE TO THE CONTINENTAL CRIMINAL PROCEDURE MODEL OF GOLDSTEIN AND MARCUS, THAT DIFFERS FROM THE U.S. ACCUSATORIAL PROCESS.
Abstract
IN FRANCE AS IN THE UNITED STATES, ORDINARY CRIMES ARE RESOLVED PRIMARILY ON THE BASIS OF EVIDENCE THAT POLICE GATHER ROUTINELY AS PART OF THEIR INITIAL RESPONSE AT THE SCENE OF A CRIME. THE EXCLUSION OF EVIDENCE IS NOT APPLIED AS A REMEDY FOR POLICE MISCONDUCT IN FRANCE AS IT IS IN THE UNITED STATES. UNLIKE THE UNITED STATES, THE SERIOUSNESS OF AN ACCUSATION DOES NOT HAVE A BEARING ON THE PROCESS OF PROSECUTION. A FRENCH ACCUSED WHO ACCEPTS CORRECTIONALIZATION OF AN OFFENSE IS NOT BOUND TO ACCEPT THE PROSECUTION'S EVIDENCE AGAINST HIM. GERMAN POLICE FORCES ARE RELATIVELY LARGE, THEY ARE ORGANIZED OR COORDINATED FROM THE STATE LEVEL, AND THEY HAVE MANY GRADES OF RANK AND COMPENSATION. A MERITOCRATIC PROMOTION SYSTEM GIVES POLICE A DIRECT INCENTIVE TO AVOID GENERATING CITIZEN COMPLAINTS. THERE IS AN EXTENSIVE STATUTORY PROCEDURE, INCLUDING PROVISIONS FOR BOTH ADMINISTRATIVE AND JUDICIAL SANCTIONS, THAT DEALS WITH THE INVESTIGATION OF POLICE MISCONDUCT COMPLAINTS. THE GERMAN CODE OF CRIMINAL PROCEDURE REQUIRES PROSECUTORS TO PROSECUTE FOR ALL PROSECUTABLE OFFENSES TO THE EXTENT THAT THERE IS A SUFFICIENT FACTUAL BASIS. LIKE POLICE, PROSECUTORS ARE MEMBERS OF A CAREER SERVICE WITH STRICTLY MERITOCRATIC PROMOTION STANDARDS. ALL DECISIONS NOT TO PROSECUTE ARE REVIEWABLE UPON CITIZEN COMPLAINT, AND EVERY COMPLAINT AND ITS RESOLUTION ARE ENTERED IN RELEVANT PERSONNEL FILES. ALTHOUGH NUMEROUS DISAGREEMENTS WITH THE GOLDSTEIN AND MARCUS MODEL ARE INDICATED, AGREEMENT IS EXPRESSED WITH REGARD TO THE NEGATIVE ASPECTS OF CONCEPTUALIZING ISSUES IN CRIMINAL PROCEDURES AS A CHOICE BETWEEN THE ADVERSARIAL APPROACH AND THE INQUISITORIAL APPROACH AND WITH REGARD TO THE NEED FOR THE RELATIVELY SWIFT DISPOSITION OF MOST CASES. THE IMPORTANCE OF STUDYING AND LEARNING FROM THE CRIMINAL PROCESS IN FOREIGN COUNTRIES IS EMPHASIZED. (DEP)