Cje Lecture V Criminal Procedure Introduction to Criminal Law

Cje Lecture V Criminal Procedure Introduction to Criminal Law
Bachelor in Business Administration Cje Lecture V Criminal Procedure Investigation Investigation and the role of the prosecutor in criminal proceedings. Negotiated justice Karolina Kremens, LL.M., Ph.D. Department of Criminal Procedure Faculty of Law, Administration and Economics University of Wrocław

INVESTIGATION IN COMMON LAW AND CONTINENTAL LAW
INVESTIGATION AND THE ROLE OF THE PROSECUTOR NEGOTIATED JUSTICE INVESTIGATION IN COMMON LAW AND CONTINENTAL LAW

INVESTIGATION AND THE ROLE OF THE PROSECUTOR NEGOTIATED JUSTICE
Continental law prosecutor or police conducts investigation if prosecutor does not conduct s/he supervises notable role of the investigative judge in some jurisdictions common law police conducts proceedings generally no engagment of the prosecutor (charging, decision to prosecute)

Continental law established and engaged (if they want to) parties to the proceedings: aggrieved party and accused (suspect) common law no participant granted status of a party particpants treated as objects

Continental law rights and powers of the parties knowledge on investigative actions undertaken partcipation in investigative actions right to demand conduct of investigative actions right to interlocutory appeal (many decisions, including the decision to discontinue/drop/withdraw a case) common law no right to actively particpate in investigation

Continental law high formality and officiality of investigation what is gathered during investigation bears a name of „evidence” (later on to be examined during the trial – practice!) common law lack of formality and officiality of investigation what is gathered cannot be referred to as evidence

Continental law official recording of all evidentiary actions (protocols) for later use the examination of evidence does resemble the examination of evidence during the trial common law some recording available (witness statements) the examination of evidence does not resemble the examination of evidence during the trial

Continental law the evidence may be later during the trial read out from the protocol since the guarantees to witnesses and accused during investigation were given to almost the same extent as during the trial common law only examination of evidence before the judge provides all forms of guarantees

Continental law long investigations most potential evidence must be examined at this stage common law short investigations quickly heading to the trial to examine the evidence

Continental law search for evidence only by the police (prosecutor) at most just supported by parties requesting the conduct of investigative actions common law own investigation conducted by the defense (use of detectives) the court supports in terms of coercive measures

Continental law results of the investigation known both to the parties and to the court disclosure and access to dossier common law complex disclosure obligations imposed in particular on the prosecution access to the dossier by the court (or jury!) - forbidden

POLISH AND US INVESTIGATION IN COMPARATIVE PERSPECTIVE
INVESTIGATION AND THE ROLE OF THE PROSECUTOR NEGOTIATED JUSTICE POLISH AND US INVESTIGATION IN COMPARATIVE PERSPECTIVE

Polish and US Investigation in Comparative Perspective
SCOPE INTRODUCTION INVESTIGATION CHARGING SENDING A CASE FOR A TRIAL NEGOTIATED DISPOSITION WITHOUT A TRIAL

INTRODUCTION US common law system, adversarial system rooted in old English common law Poland Continental system, inquisitorial system rooted in old Catholic Church Inquisition (all procedural roles gathered in one hands) elements who when grounds/treshold how (procedure)

INVESITGATION (US) typically short and rather informal who almost exclusively Police investigative grand jury (!) when no timeframe no formal commencment and closing ground generally – none probable cause necessary for arrest but broad discretion whether to commence and conduct investigation

INVESITGATION (US) procedure no power to summon witnesses or documents the role of grand jury in investigating offences (federal – state) possible prosecutorial involvement in most serious cases more likely prosecutor will be engaged in at least advisory role not formally demanded – more by practice pre-arrest (Police) post-arrest (inspectors) warrants arrest, search, seizure: application by prosecutor – issued by judge

INVESITGATION (Poland) „preparatory stage”; formal and official conducted in semi-adversarial manner (evidentiary motions submitted by defendant at this stage) who Police always supervised by prosecutor investigation – felony, prosecutor inquiry – misdemeanor, Police (supervised) when opened or declined 30 days from complaint prolonged regularly official closing grounds must be commenced always when the „probable cause” that the offence occurred is found (principle of legality)

INVESITGATION (Poland) procedure powers of prosecutor (and police) to summon witnesses and documents some evidentiary actions prosecutor may or must undertake: e.g. always present for CSI and autopsy interrogating witnesses or defendants participation in searches and seizures warrants arrest: application by prosecutor – issued by judge but the prosecutor may choose – instead of applying for warrant of arrest – impose other preventive measures (e.g. financial and non financial surety, police supervision) search and seizure – issued by prosecutor

INVESITGATION - CONCLUSIONS distinct nature and role of investigation Poland – preparing a case in a written from (dossier) allowing a court to deliver the judgment based on preserved evidence summons necessary prosecutor’s active involvement that guarantees a fair conduct at this stage of proceedings; competent to decide on search and seizure (!) US – preparing a case for the State to decide whether to prosecute the defendant or not too much powers of the prosecutor and police with no judicial supervision (e.g. summons) seen as an unacceptable deprivation of civil rights

CHARGING (US) charging EQUALS decision to prosecute who prosecutor – „exclusive power of prosecutor” grand jury (indictment) police (rarely – summons and complaints) but who is REALLY charging – in majority of cases tremendous impact of police reports when most investigations – quickly after arrest some complex and serious investigations – carefully undertaken decision (especially when grand jury is involved)

CHARGING (US) grounds „probable cause” but with a perspective of „beyond reasonable doubt” some limitations on prosecution (e.g.): evidentiary limits – whether case can be proven beyond reasonable doubt court’s jurisdiction statute of limitations affirmative defenses discretion (IF charge and WHAT charge) public interest in prosecuting the case guidelines – internal, ethics etc. selective prosecution – „unjustifiable standard” vindictive prosecution – retaliation

CHARGING (US) procedure form of charging document information (complaint) vs. indictment how detailed some basic information – in many case just personal data and statute charged Bill of Particulars notice during arraignment, before the judge notification of rights amendments and substitutions majority of cases – very common serious cases – less common (more thought-through decision)

CHARGING (Poland) charging NOT equal to decision to prosecute who felonies – prosecutor misdemeanors – police when no timeframe grounds same as for commencing investigation – probable cause that the suspect committed the offence no discretion (principle of legality)

CHARGING (Poland) procedure form of the charging document detailed description of the committed criminal act and statute charged evidence supporting the charge must be indicated in the written form upon the request of defendant notice no arraignment, no involvement of judicial authority charges presented by the issuing authority (police or prosecutor) followed by an initial plea and interrogation notification of rights

CHARGING – CONCLUSIONS in both cases crucial moment in the course of proceedings rights are getting attached to defendant (e.g. right to counsel) defendant is notified of charges that are brought against him or her distinct purpose of notice on charges US – arraignment in the presence of judge often combined with verification of probable cause in case of arrest a chance to enter a plea and immediately finish the case Poland – no judicial involvement just a stage in the course of proceedings not a chance to close a case

SENDING CASE FOR TRIAL (US) decision to charge is the decision to prosecute – no need to issue separate decision initial charging decision may be ultimately changed when it comes to nature and number of charges case may be disposed without trial: discontinuation of a case (nolle prosequi) diversionary programs guilty pleas – commonly negotiated more than 95 % cases countrywide are disposed without trial since jury is taking part in trial the efficiency of the system demands limiting the number of trials this calls for higher level of prosecutorial discretion to dispose as many cases as possible without trial

SENDING CASE FOR TRIAL (Poland) decision to charge a person with an offence and decision to prosecute are two separate acts who decision to prosecute (issued in the form of indictment) is ALWAYS and EXCLUSIVELY issued by the prosecutor when 14 days after official closing of investigation 7 days – if defendant is detained grounds the same as for charging – probable cause that the charged person committed offence no discretion (principle of legality)

SENDING CASE FOR TRIAL (Poland) procedure sending indictment opens court proceedings and ultimately ends the investigation trial is the ONLY choice after indictment is send to the court form of the indictment official document detailed description of the offence list of evidence (real and testimonial) long justification indictment accompanied by the dossier file of ALL documented findings from investigation accessible to defense and judge (!)

NEGOTIATED DISPOSITION OF A CASE WITHOUT TRIAL (US) plea bargaining, out of court settlements (95 % of cases) who negotiations between prosecutor and defendant (counsel); judicial involvement in negotiations (!) agreement accepted by the judge (no jury) when no timeframe (even during the trial!) grounds no limits on type of crime factual basis of the plea defendant’s consent (voluntariness of plea) Alford pleas accepted (not everywhere) consent of victim – formally unnecessary

NEGOTIATED DISPOSITION WITHOUT TRIAL (US) procedure scope – both charge and sentence achieving agreement informal discussions often defendant not present for discussions agreement not recorded nor preserved disposition conference/hearing entering plea before judge canvass (presence of defendant) judicial authority not bound by the agreement verification of voluntariness of the plea in reality lack of acceptance not frequent factual basis verified orally and not established through gathered evidence

NEGOTIATED DISPOSITION WITHOUT TRIAL (Poland) negotiated justice, consensual methods or resolving a case (65 %) who agreement between prosecutor and defendant pleading in front of prosecutor personally when before indictment send to court (alternative) grounds only in case of misdemeanors factual basis must be clearly established consent of the defendant Alford pleas accepted (!) – cannot oppose the facts consent of victim – necessary for accepting agreement by judicial authority

NEGOTIATED DISPOSITION WITHOUT TRIAL (Poland) procedure scope – only sentence, never charges achieving agreement informal discussions no judicial involvement (unregulated sphere) plea and agreement recorded in defendant’s statement (always in presence of defendant) disposition hearing motion of prosecutor to dispose a case presence of defendant not demanded judicial authority not bound by agreement factual basis strongly supported (judicial access to the dossier) reality – high percentage of acceptance

NEGOTIATED DISPOSITION WITHOUT TRIAL – CONCLUSIONS difference in numbers explained scope – no charge bargaining in Poland grounds – impossible for felonies (Poland) factual basis – more important in Poland benefits – no real effect on sentence (Poland) result – lack of acceptance means moving for trial (Poland) distinct approach toward venue US – pleading guilty before the judge Poland – pleading guilty during formal interrogation verification of voluntariness judgments more alligned with the truth in Poland (?) no possibility to bargain abouth charges necessity to establish all facts during investigation judicial access to the dossier

Cje Lecture V Criminal Procedure Introduction to Criminal Law

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