68 Pages Posted: 4 Mar 2011
Date Written: March 1, 2011
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: 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