Guest Blogger: Jacqueline Hodgson

It's IntLawGrrls' great pleasure to welcome Dr. Jacqueline Hodgson (right) as today's guest blogger.
Jackie is Professor of Law at the University of Warwick School of Law, Coventry, England, where she teaches Criminal Law as well as Criminal Justice and Human Rights in Europe. She's published widely on issues of criminal justice, particularly from a comparative perspective, and often draws on her own empirical research. She provides an overview of her comparative criminal justice scholarship in her guest post below.
This academic year, as the recipient of a British Academy/Leverhulme Senior Research Fellowship, Jackie's examining these issues within the framework of "The Metamorphosis of Criminal Procedure in the 21st century: A Comparative Analysis." She earned her LL.B. and Ph.D. from the University of Birmingham.
Jackie's contributions to policy reform include: her research for the Royal Commission on Criminal Justice; her current empirical study of the role of Criminal Case Review Commission, the body that investigates possible miscarriages of justice in England, Wales and Northern Ireland; and her evidence to the House of Lords Select Committee on Europe. Her monograph French Criminal Justice (2005) -- discussed in a recent guest post by IntLawGrrls alumna Susan A. Bandes -- is the 1st major empirical study of the investigation and prosecution of crime in France. Other books include the coauthored Suspects in Europe: Procedural Rights at the Investigative Stage of the Criminal Process in the European Union (2007), Criminal Injustice: An Evaluation of the Criminal Justice Process in Britain (2000), and Standing Accused (1994).

Heartfelt welcome!

In inquisitorial & adversarial systems, defence counsel's core functions before & during trial

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Although the trial is the public setting in which a criminal case is determined and so is often the focus for media comment and academic critique, the pre-trial process is at least as important, if not more important, for a number of reasons:
► First, most people’s experience of the criminal justice process does not involve a trial, but an arrest, a stop and search, or a period of detention and questioning in police custody.
► Second, for those cases that do go to trial, the nature of the evidence presented depends on the pre-trial process. As the European Court of Human Rights has made explicit in its jurisprudence -- applying, from the point of arrest and detention onward, the fair trial guarantees contained in Article 6 of the Convention on Human Rights -- the fairness of the trial depends on the fairness of the pre-trial. The right to custodial legal advice is of fundamental importance in this, as it is the key to equality of arms as well as being closely linked to the accused’s ability to exercise her right against self-incrimination. This has been underlined in recent case law such as Salduz v. Turkey (2008) and Panovits v. Cyprus (2008). At paragraph 55 of Salduz, the Court wrote:

The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.

The Court added that there will need to be compelling reasons to justify such a restriction.
Doubtless, the process of judicial supervision by either a prosecutor or an examining judge will be cited as just such a compelling reason in many jurisdictions. But as IntLawGrrl guest/alumna Susan A. Bandes noted in her recent post, this overstates the role of such supervision both in theory and in practice. Prosecutorial supervision is the norm in countries such as Germany, the Netherlands. It holds sway as well in France, where, as noted in this prior IntLawGrrls post and detailed in this governmental report, President Nicolas Sarkozy is determined to abolish the more politically independent juge d’instruction. But whilst prosecutorial supervision may provide some basic oversight of and accountability for the police enquiry, it is no substitute for the role performed by the suspect’s own lawyer – and this latter is the effective defence assistance envisaged by the European human rights court.
► Third, pre-trial is important because it is inextricably linked to the trial. The character of the pre-trial process has a determinative influence upon the nature of the evidence presented at court and indeed, the decision whether or not a trial takes place at all. As I discussed in my chapter entitled Conceptions of the Trial in Inquisitorial and Adversarial Procedure (2006), under adversarial procedures, the parties are responsible for the collection and presentation of evidence, so we would expect defence counsel to have an active pre-trial role. Quite simply, if she does not gather the evidence for the accused’s case, nobody else will. In jurisdictions with a more inquisitorial tradition, such as France, the judge leads the enquiry both before and at trial – in theory at least. For this reason, the defence role is often less developed.
I argue in my chapter entitled The Role of the Criminal Defence Lawyer in Adversarial and Inquisitorial Procedure (2008), that a core defence function exists whatever the procedure. This has been recognized at trial, with the need for the accused to be represented, to have sight of the prosecution case, to have an opportunity to interrogate the evidence against her, and so on. But this is often too late. The effectiveness of that representation will depend on what goes before.
If the trial serves more as an affirmation of a pre-trial judicial enquiry, as in countries such as France, defence counsel must participate in the enquiry in order to be effective at trial. We cannot rely on the distant and bureaucratic oversight of a prosecutor to ensure the proper development of the defence case. Her different professional status and ideology can, as I've detailed here and here, can make this difficult. That fact was demonstrated powerfully, moreover, in the Outreau case, subject of this governmental inquiry into "the causes of dysfunction in the system of justice." Further support for this argument in favor of defence participation comes from the attempts of the European Union to establish universal procedural safeguards for suspects, discussed here. Unfortunately, these attempts have been resisted by countries who currently deny suspects access to legal advice during the police interrogation of the suspect.

Guest Blogger: Susan A. Bandes

It's IntLawGrrls' great pleasure to welcome Susan A. Bandes (left) as today's guest blogger.
Susan is a Distinguished Research Professor of Law, as well this year as a Wicklander Fellow, at DePaul University College of Law in Chicago, where she teaches Criminal Procedure, Federal Courts, and Law and Literature.
She's a pioneer in the emerging study of the role of emotion in law; New York University Press published the anthology on the subject that she edited, The Passions of Law, in 2000. Susan's also noted for her scholarship in federal jurisdiction, criminal procedure, and civil rights.
Having earned her B.A. degree from the State University of New York at Buffalo and her J.D. from the University of Michigan, Susan practiced at the Illinois Office of the State Appellate Defender and as staff counsel for the Illinois American Civil Liberties Union before joining the DePaul faculty.
Her recent pro bono activities include acting as co-reporter for the Constitution Project’s bipartisan Death Penalty Initiative, which produced the report Mandatory Justice: Eighteen Reforms to the Death Penalty (2001), and serving on the advisory board for a study of the Cook County, Illinois, criminal justice system, described here and conducted by the Chicago Appleseed Fund.
In her guest post below, Susan discusses the comparative criminal justice analysis that she undertakes in Protecting the Innocent as the Primary Value of the Criminal Justice System, her forthcoming review of a new book on innocence and criminal justice. For reasons she sets out in a further post below, Susan dedicates her contribution to the late newspaper columnist Molly Ivins, who joins other IntLawGrrls transnational foremothers in the list below our "visiting from..." map at right.
Heartfelt welcome!

Read On! Innocent defendants: Comparing U.S. & French criminal justice systems

(My thanks to IntLawGrrls for the opportunity to contribute this guest post, dedicated to a new foremother, on my book review forthcoming at 7 Ohio State Journal of Criminal Law (2009))

In my review of The Supreme Court on Trial: How the American Justice System Sacrifices Innocent Defendants (2008), a compelling and provocative new book by Rutgers-Newark Law Professor George C. Thomas III, I explore Thomas’s argument that the adversary system is poorly suited to protecting the innocent, and that the U.S. criminal justice system ought to adopt a number of central features of the French system.
Surprisingly few works have bridged the gap between the study of wrongful convictions and the comparative study of trial systems. As Thomas demonstrates, the comparative approach to the study of wrongful convictions is highly promising. It places several questions in sharp relief:
► If the adversary system is at fault, what aspects of it are to blame?
► To what extent are those aspects culturally imbedded, and to what extent are they amenable to reform?
► Alternatively, how much of the problem is attributable to deeply rooted cross-cultural factors that transcend national boundaries?
Such factors might include cultural and social alignments between judges and prosecutors, institutional pressures toward loyalty and cooperation, and racial and ethnic prejudice.
Thomas argues that the central problem with the adversary system is that it lacks institutions or procedures responsible for seeking the truth. My review, while recognizing that Thomas had limited space to devote to his discussion of the French system, nevertheless raises several concerns about the portrait of that system Thomas paints:
► First, there is the problem, endemic to comparative analysis, of what versions of the French and U.S. systems are being compared. Some central features of the French system Thomas describes are in flux or have changed considerably. Most important, Thomas describes a French system in which the investigative magistrate plays a central role in the truth-seeking process. As IntLawGrrls contributors Jacqueline Ross and Diane Marie Amann have described in posts here and here, the role of the investigative magistrate has diminished dramatically. In addition, as Ross and Warwick Law Professor Jacqueline Hodgson, have described, the investigative magistrate in practice does not appear to be as neutral and independent as his official description suggests. (See Jacqueline Hodgson, French Criminal Justice: A Comparative Account of the Investigation and Prosecution of Crime in France (2005) (right), and Jacqueline Ross, "Review of Hodgson," 55 Am. J. Comp. L. 367 (2007).) This problem is exacerbated by the weak role of the defense attorney (a role that is justified by the strong and independent role of the investigative magistrate).
► Second, there is the question of how certain attributes of the French system could be adopted in the United States. For example, how could the investigative magistrate role, even in its “ideal” form, be implemented in the United States, with its deeply rooted culture of decentralized judicial selection, and given the current reality of widespread plea-bargaining?
Interestingly, the most intriguing reform Thomas proposes is inspired by the British system: the proposal that advocates serve, from time to time, as both prosecutors and defense attorneys. The bottom line: the book is highly recommended, and it illustrates the need for additional comparative study about what causes wrongful convictions and how to prevent them.