Australia and the United States: Two Common Criminal Justice Systems Uncommonly at Odds Part 2

68 Pages Posted: 4 Mar 2011  

Paul Marcus

William & Mary Law School

Vicki C. Waye

University of South Australia - School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: March 1, 2011

Abstract

In many ways, the Australian and United States criminal justice systems look strikingly similar. With common law roots from England, they both – as we noted in an earlier article – emphasize the adversary system, the role of the advocate, the presumption of innocence, and an appeals process. Upon closer review, though, they appear starkly distinct. From Australia and U.S. perspectives, we explore those differences. Our earlier work examined features such as the exclusion of evidence, rules regarding interrogation, the entrapment defense, and the open nature of trials. In this article, we consider prosecutorial discretion, especially in charging and plea bargaining; double jeopardy; sentencing; and alternatives to incarceration as punishment. Once again, we analyze the reasons for those important distinctions, reasons that relate to very different constitutional traditions and attitudes regarding the role of government.

Keywords: Australia, United States, common law, adversary, advocate, presumption, innocence, appeal, evidence, exclusion, interrogation, entrapment, defense, plea bargaining, double jeopardy, and punishment

Suggested Citation

Marcus, Paul and Waye, Vicki C., Australia and the United States: Two Common Criminal Justice Systems Uncommonly at Odds Part 2 (March 1, 2011). Tulane Journal of International & Comparative Law, Vol. 18, No. 2, 2010; William & Mary Law School Research Paper No. 09-78. Available at SSRN: https://ssrn.com/abstract=1773781

Paul Marcus (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
757-221-3900 (Phone)
757-221-3261 (Fax)

Vicki C. Waye

University of South Australia - School of Law ( email )

GPO Box 2471
Adelaide SA 5001
Australia

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