John Engstrom Resident Legal Advisor, US Embassy, Ankara

Fifty-One Systems One Federal System Fifty Different State Systems

Fifty State Court Systems Each state has its own: Court systems Attorney General Prosecutor Offices (usually divided by counties) Civil Codes and Penal Codes Civil procedure Code Criminal Procedure Code Evidence Code Legal ethics code Legal aid system Prison system

Some Differences Between Turkish and American Justice Systems

SPECTRUM OF CRIMINAL JUSTICE SYSTEMS Adversarial (Accusatory) Inquisitorial Prosecutorial Discretion Guilty Plea Agreements Jury Trials Impartial Judge Prosecutor is an advocate for the government and presents evidence in an open trial, attempting to prove the defendant guilty beyond a reasonable doubt Defense allowed to present its own case, through witnesses and documents Both prosecutor and defense conduct investigations Extensive Rules of Evidence Prosecutor and Defense Advocates Conduct Examination and Cross- Examination of Witnesses Mandatory Prosecution Mandatory Trial Bench Trials – Judge Plays Active Role in Investigation and Search for Truth Judge and Prosecutor Conduct Official Investigation Judge Receives Full Dossier of Official Investigation Limited Rules of Evidence Judge Questions Witnesses

Mixed Systems – Importations and Transplants Guilty Plea Agreements Germany, France, Italy, Argentina, Ukraine Elimination of Dossier Ukraine, Italy Examination and Cross Examination of Witnesses Italy, France, Ukraine, Serbia Citizen Jury System (pure or mixed) Russia, Ukraine, Georgia, France, Spain

American Judges

Adversarial System Limits the role of judges Requires “Equality of Arms” between advocates Strong oral advocacy skills required Prosecutors are not part of judiciary Cross examination is critical to challenge evidence

Jury Trials "Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right trial by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.” Duncan v. Louisiana, 391 U.S. 145 (1968).

Jury Trials Constitution guarantees jury trial in most criminal cases Jury selection procedures eliminate unqualified jurors The judge provides the jury with agreed upon jury instructions that describe: What evidence the jury may consider; How the jury may assess the evidence; The law that applies to the case; The elements that the jury must find in order to find a defendant guilty or a party liable.

Rules of Evidence Extensive Rules of Evidence limit what information may be considered by the jury/judge, and how it may be presented. Examples: Only “relevant” evidence is admissible “Hearsay” evidence is ordinarily not admissible Both Prosecutor and Defense Advocate may present expert testimony. Judge must conclude that the witness is in fact an expert on the subject of testimony Certain privileged information is inadmissible

Enhanced Role of Prosecutors and Defense Advocates The adversarial system requires well-trained and effective defense advocates and prosecutors in all stages of the process: Investigative Charging decision – prosecutorial discretion Post-charge, pretrial stage Trial stage Appellate stages Constitutional right to effective free legal aid in criminal cases

Continuous Trials With limited exceptions, once a trial begins it continues on a day-by-day basis until concluded. Trial lawyers are responsible for preparing witnesses and evidence and presenting it in sequence; Trial judge must carefully manage his/her docket to allow for trials; Most trials take a day or two, but some take months.

Double Jeopardy The U.S. Constitution does not allow a person to be tried more than once for the same criminal offense. Therefore, if a defendant is found not guilty at the conclusion of a trial, the state may not appeal.

Guilty vs. Not Guilty At the conclusion of a continuous trial, the judge or jury must find the defendant either “guilty” or “not guilty” of each crime charged. “Not Guilty” does not necessarily mean the person is innocent Not Guilty means that the jury (or judge) concluded that the evidence admitted at trial did not prove beyond a reasonable doubt that the defendant committed the crime as charged.

(4) The government must prove every element of the crime charged beyond a reasonable doubt. Proof beyond a reasonable doubt does not mean proof beyond all possible doubt. Possible doubts or doubts based purely on speculation are not reasonable doubts. A reasonable doubt is a doubt based on reason and common sense. It may arise from the evidence, the lack of evidence, or the nature of the evidence. (5) Proof beyond a reasonable doubt means proof which is so convincing that you would not hesitate to rely and act on it in making the most important decisions in your own lives. If you are convinced that the government has proved the defendant guilty beyond a reasonable doubt, say so by returning a guilty verdict. If you are not convinced, say so by returning a not guilty verdict. What is “proof beyond a reasonable doubt”? 16

Faster adjudication and resolution of cases – 95% of cases resolved by plea bargain Certainty of outcome Defendant usually receives a lesser sentence for admitting at least in part his/her guilt Government can prosecute more wrongdoers and focus on more serious crimes Reduces overall cost of prosecution and defense The defendant publically accepts responsibility “Closure” for victims – no public testimony Judge still maintains ultimate control of case Guilty Plea Procedures

In some written plea agreements, the defendant not only agrees to plead guilty, but also agrees to assist the government in the prosecution of others. Cooperation might include: Complete debriefing regarding all criminal activity and identification of all criminal associates Active participation in further investigation Identification of “criminal” assets; voluntary forfeiture of assets Future truthful testimony Agrees to future polygraph tests if requested Plea Agreements with Cooperation Agreements

John Engstrom Resident Legal Advisor U.S. Department of Justice