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

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.

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