Abstract

http://ssrn.com/abstract=1942423
 
 

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Rights in the Criminal Process: A Case Study of Convergence and Disclosure Rights


Maximo Langer


University of California, Los Angeles (UCLA) - School of Law

Kent Roach


University of Toronto - Faculty of Law

October 11, 2011

ROUTLEDGE HANDBOOK ON CONSTITUTIONAL LAW, Mark Tushnet, Thomas Fleiner, Cheryl Saunders, eds., Routledge, 2013
UCLA School of Law Research Paper No. 11-33

Abstract:     
This contribution for an edited volume on comparative constitutional law analyzes the claim that common and civil law jurisdictions are converging in criminal procedure because many civil law jurisdictions have moved toward an adversarial system by adopting more rights. By concentrating on the defendant’s constitutional right to disclosure, this chapter shows that the spread of rights is not a simple movement of convergence, but rather a more complex process that achieves convergence while simultaneously maintaining existing divergences and creating new ones between common and civil law. The chapter also analyzes law enforcement and national security considerations as another global converging force that has placed limits on constitutional rights to disclosure and once again shows that they have played out somewhat differently in civil and common law. Finally, the chapter moves beyond the common-civil-law focus of traditional comparative criminal procedure scholarship by briefly comparing American, British and Canadian regulation of the right to disclosure. The differences among these regulations cannot be explained in terms of legal traditions, but rather may depend on the contingencies of when these jurisdictions first recognized constitutional rights to disclosure as well as legislative responses to disclosure rights including legislative assertion of competing rights on behalf of victims or other interests. The recognition of rights within the criminal process emerges as complex. Although some broad patterns of convergence are apparent, they are in turn influenced by legal and institutional traditions and by the concerns of the day.

Number of Pages in PDF File: 15

Keywords: criminal procedure, right to disclosure, right to access the dossier, convergence thesis, adversarial and inquisitorial system, civil and common law

JEL Classification: K14, K40, K41

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Date posted: October 13, 2011 ; Last revised: February 7, 2013

Suggested Citation

Langer, Maximo and Roach, Kent, Rights in the Criminal Process: A Case Study of Convergence and Disclosure Rights (October 11, 2011). ROUTLEDGE HANDBOOK ON CONSTITUTIONAL LAW, Mark Tushnet, Thomas Fleiner, Cheryl Saunders, eds., Routledge, 2013; UCLA School of Law Research Paper No. 11-33. Available at SSRN: http://ssrn.com/abstract=1942423

Contact Information

Maximo Langer (Contact Author)
University of California, Los Angeles (UCLA) - School of Law ( email )
385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
Kent Roach
University of Toronto - Faculty of Law ( email )
Toronto, Ontario M5S 1A1
Canada
416-946-5645 (Phone)
416-978-2648 (Fax)
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