Comparative Evidence and Procedure: Learning from Our Mistakes and Other’s Successes Why do we organize criminal trials in the ways that we do and, more importantly, how could the rules of evidence and procedure be made more reliable instruments for accurately distinguishing the guilty from the innocent? One promising strategy for answering such questions is to look at legal systems besides our own and see how they conduct legal inquiry. The principal aim of the seminar is to figure out what is distinctive and problematic about US law. Blissful ignorance about how foreign legal systems function often blinds us to some of the weaker features of our own. In virtually every other field of inquiry, it is thought important to understand rival systems of ideas. By contrast, American legal culture tends to the view that foreign legal systems have little to teach us. Our aim will be (a) to identify potential weak spots in the ways in which American courts organize the presentation of evidence and b) to cast an eye at the alternative remedies utilized by other systems. For instance, Roman law courts: generally admit prior crimes evidence routinely; they have few qualms about admitting hearsay evidence; they permit adverse inferences from defendant’s silence; many prohibit plea bargains; and most permit the appeal of acquittals. Our question will be: are there lessons to be drawn from such practices? Accordingly, we will examine trial structure in half a dozen countries (England and Wales, Spain, Germany, Mexico and Scotland) not just because their procedures are intrinsically interesting in their own right but, more importantly, because we might be able to learn something about how to refine our own. Among the topics to be examined are: the presumption of innocence, plea bargaining, the right to silence, double jeopardy, the admissibility of prior convictions, and sentencing policies, among others. The seminar will consist of a set of readings, ample and lively discussion of some of the differences between American law and everyone else’s, and a research paper coming at the end of the course.
|Thursday||2:15 - 4:05 pm||TNH 3.115|
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