Comparative Law Without Leaving Home: What Civil Procedure Can Teach Criminal Procedure, and Vice Versa

Abstract:     
Civil and criminal procedure have parted ways - to their mutual detriment. Although civil and criminal processes grow from the same roots, practitioners, academics, rule-makers, and judges who create, critique, and operate the two systems usually behave as if the two systems had little to teach each other. This article seeks to explain the divergence of the two systems and to imagine what a dialogue between the two might sound like. We examine three situations in which systems resolve analogous problems in different ways - settlement and plea bargains, discovery, double jeopardy and former adjudication - and suggest some modest borrowings. We examine one area - remedies for basic procedural failures (i.e., legal malpractice, re-opened judgments, and habeas corpus) - in which the divergent approaches lay bare unexamined systemic preferences. Finally, we examine two areas - professional ethics and the law of evidence - in which the systems have remained largely unified, and explore the implications of that choice.

Number of Pages in PDF File: 56

Keywords: Criminal and civil procedure, procedural failures, law of evidence, professional ethics

Accepted Paper Series