Thursday, February 27, 2014
One of the many issues arising from the wrongful convictions/innocence movement is the standard for compensating individuals who have been acquitted or whose convictions have been vacated and whose charges have been dismissed. In the United States, the focus of the innocence movement has been on correcting factually erroneous convictions through the admission of post-conviction newly discovered evidence. In the United Kingdom (here, England and Wales), however, the focus of the movement has been on correcting miscarriages of justice, a far broader term than erroneous convictions, that includes unfair or illegal as well as factually erroneous convictions. Indeed, the remit of the Criminal Cases Review Commission, the independent body formed to examine challenged convictions, requires that they determine whether a miscarriage of justice has occurred.
It is not surprising that both jurisdictions have had to face the issue of what sort of post-conviction showing warrants monetary compensation to someone who has been exonerated. Clearly, neither jurisdiction awards damages simply because someone has been acquitted by a jury. Similarly, neither jurisdiction awards damages simply because an appellate court quashes a conviction. Whether under the UK’s appellate standard of “unsafe,” or the US’s appellate standards of prejudicial error or against the weight of the evidence, more is required. Indeed, in the case of Lorraine Allen, whose conviction for killing her instant son was quashed by the English court of appeal based on newly discovered medical evidence, the European Court of Human rights held that article 6.2 of the European Conviction on human rights did not guarantee compensation based simply on a finding that the conviction was unsafe.
Although the showing required for compensation of exonerees in the United States varies state by state, generally speaking, the exoneree must have been convicted of a felony, served time in prison, had the conviction reversed on a ground consistent with innocence, had the indictment dismissed or been acquitted after the reversal, AND be able to show by clear and convincing evidence that the exoneree is, in fact, innocent. Although extremely demanding, this standard is at least consistent with the US focus on correcting factually erroneous convictions. The UK parliament is now grappling with defining the showing required for compensation for exonerees. The government's proposed amendment to section 133 of the Criminal Justice Act 1988 would permit compensation for a miscarriage of justice “if and only if the new or newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence.” This standard is even more demanding than the US standard.
It goes without saying that proving “innocence” post-conviction, absent conclusive DNA test results, is extremely difficult, both practically and definitionally. This is true in the United States and in England and Wales. But so far, Parliament and the English court of appeal have been willing to grant relatively broad post-conviction relief to correct what they view as a miscarriage of justice. The proposed extremely narrow definition of compensable harm is inconsistent with this position. No doubt it reflects the economic difficulty today. Hopefully, however, if adopted, it will not have a negative impact on the UK’s willingness to grant non-monetary, judicial relief in miscarriage of justice cases.
Sunday, February 23, 2014
Comparativists are often quick to attack the fact that American prosecutors, at least on the state and county levels, are often elected. By requiring prosecutors to maintain the public's approval, as the criticism goes, we create an institution beholden to the wims of the electorate, rather than to the standards of the law. Indeed, we have seen how the hand of politics often skews prosecutorial decisions-making. One case in point is the infamous Duke Lacrosse case where, a prosecutor facing reelection, withheld exculpatory evidence and made inflammatory statements concerning the guilt of three suspects who were charged with first degree sexual offenses. Although the charges were eventually dismissed and the prosecutor disbarred, the reputational damage to the three suspects was enormous.
Yet prosecutors in civil law countries are not immune from political influence. In Germany, prosecutors are subservient to the Ministry of Justice at the federal and Land levels. One requirement of this hierarchical structure is that prosecutors are required to bring potentially newsworthy case investigations to the attention of their superiors. Although one can see the need to keep a superior in the loop of an investigation, there is a downside to this lack of secrecy. As the information is passed up the chain of command, the possibility arises that information of the investigation will leak or the investigating prosecutor may face informal pressure to dispose of the case.
One recent case in Germany is an example of this dilemma. While Chancellor Merkel was engaged in conversations with the Social Democratic Party (SPD) concerning forming a coalition government, a Christian Social Union (CSU) Minister apparently leaked details of an ongoing investigation involving a rising star in the to SPD parliamentarian Sebastian Edathy on charges involving the possession of child pornography. The CSU Minister, Hans-Peter Friedrich, has now resigned as the Berlin Public Prosecutor's Office is investigating the release of the confidential information. It is not yet clear, who leaked the information to Friedrich. However, by the time the police searched Sebastian Edathy's house, they found the remains of what appeared to be a destroyed hard drive. The police have yet to determined who tipped off Edathy.
One conclusion is clear, it may be impossible to completely banish the hand of politics from prosecutorial decision-making.
Welcome to the Comparative Law Prof Blog. Please accept this final introduction as we begin our first week of publication.
I just want to share the sentiments of my-coeditors in noting that this is an extremely exciting time to co-edit a comparative law blog. My area of interest – comparative criminal law and procedure – has been blessed with many creative and brilliant scholars all over the world. But our subject has largely been addressed as a domestic one, whatever the jurisdiction. Yes, crime is generally local. But at the same time, as my-coeditors note, technology has brought us all closer. And with this greater intimacy has arisen an understanding that all systems share similar concerns and are coping with the same criminal justice challenges, among them domestic terrorism, technological crimes, the causes and correction of wrongful convictions, and limited economic resources.
My hope is that the comparative law blog can attract information, ideas, and approaches from all over the world.
As co-editor Monica Eppinger so aptly put it, this blog should be a work place and a play space: a work place, obviously, for the sharing of news; legally significant statutory, constitutional, and common law developments; and analysis of important issues. But we need a forum for brainstorming too. As teachers of legal skills well know and as we tell our students, brainstorming - simple thinking and the spinning thoughts and ideas - lies at the heart of creative lawyering. It's my hope that this blog will encourage and inspire colleagues to join and 'meet' in an open discussion and comparative of contemporary legal issues.
Tuesday, February 18, 2014
The Comparative Law Blog is an opportunity to connect and collaborate, and I'm excited to be part of the team. From my first encounter with the American Society of Comparative Law at the 2008 annual meetings at U.C. Hastings, I've been struck by the range of expertise in contemporary comparative law. Fellow participants at subsequent workshops (Yale 2011, Illinois 2013) impressed me with their depth. The blog promises more of both.
One of the most productive aspects of a blog is freedom from the genre constraints of our usual venues. Liberation from the journal article format should open up some interesting innovations. And unlike a panel or workshop, we're not limited to a half an hour discussion. The continuity of a blog opens space for extended dialogue and thoughtful exchange. I'm hoping to supplement my contributions with mini-interviews that give a window into the thinking of others shaping our field.
The blog can be both a workspace and a play space. As a workspace, it can be a place in which to float trial balloons, scrub bad ideas, and sharpen arguments. I'm hoping we can offer each other the kind of insightful comments and rigorous scrutiny that hones. At the same time, the blog allows for spontaneity, ease, and improvisation. And pictures! As a playspace, it allows for different forms of connection that I'm also happily anticipating.
The nature of comparative work -- deriving richness from juxtaposition -- seems particularly well-suited to the collective enterprise of thought that a blog can enable. I'm looking forward to becoming better acquainted with a broad spectrum of comparativists and seeing the community that emerges in this space.
Sunday, February 16, 2014
We are excited to announce the start of the Comparative Law Blog and are happy to be part of the Law Professors Blog Network’s all-star lineup.
Our aim is not only to be a source of information, but also to be a platform for debate. Last April, I had the fortune to co-host the Second Annual Young Comparativists Conference held at Indiana University's Robert H. McKinney School of Law with Mohamed Arafa. The experience of dropping in on multiple panels of "young" comparative law scholars (over 85 individuals) from around the globe and listening to the depth of the debates among panelists led me to find a group of both new and old friends to help me launch this blog. I have also had the good fortune within the past two years of beginning to get involved in the American Society of Comparative Law. The collegiality that I've felt in that organization has strengthened my confidence that the field of comparative law is not on the wane, but rather headed in the opposite direction.
In the coming months, we will be also inviting guest editors to post to the blog.
In many ways, now is an auspicious time to start the blog. Legal education is becoming increasingly globalized. With a handful of exceptions, nation-states are struggling to confront similar long-standing problems associated with a depressed world economy and, in some cases, a widening gap between the rich and the poor. At the same time, rapid developments in technology not only have the capacity to bridge geographic distances, but also suggest that nation-states are less able to protect their own citizen’s privacy. In all of these areas, comparative legal scholars have the ability to highlight the role that a nation's legal system and laws plays in shaping how these changes affect states, societies, and citizens.
On the organizational level, the Young Comparativists Group of the American Society of Comparative Law has developed into an active and dynamic organization under the direction of Richard Albert, the YCC Board, and its various committees. I hope that the membership of that group (and many others) will feel free to post comments to our postings (as well as volunteer to serve as guest contributors).
In the coming days, we will introduce ourselves and the blog to you. Next week we will get down to business....
Shawn Marie Boyne