Due Process for the Global Crime Age: A Proposal
36 Pages Posted: 17 Dec 2008
Date Written: December 16, 2008
This article argues that the adjudication of transnational criminal cases in the United States raises troubling questions about the government's commitment to principled criminal process standards. Concern over global crime has resulted in a criminal process that inadequately protects fairness and legitimacy norms. Over 40 years ago, in his seminal work on the domestic criminal process, Herbert Packer described two models of criminal procedure: the crime control model and the due process model. The crime control model posits that the most important function of the criminal justice system is to suppress crime. The due process model focuses on the fallibility of the process. Its primary concern is with fairness and reliability. Balancing the norms of the two models is challenging, but necessary. No such balancing exists in the global crime era. Instead, crime control norms usurp due process values as a result of Mutual Legal Assistance Treaties (MLATs) which regularize foreign evidence gathering for prosecutors while explicitly preventing defendants from using them. This article breaks new ground by constructing a framework that will both protect due process norms and simultaneously preserve effective crime control. Under the framework, U.S. prosecutors must obtain important foreign evidence needed by defendants in domestic prosecutions. The framework is consistent with existing doctrine, is familiar to the courts and the parties, and will leave MLATs intact so that their benefits can inure to both prosecutors and defendants.
Keywords: Criminal procedure, transnational crime, global crime, MLAT, mutual legal assistance, due process, prosecutor, discovery
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