Interstate Conflict and Cooperation in Criminal Cases: An American Perspective
European Criminal Law Review, 2014, Forthcoming
52 Pages Posted: 30 Jul 2014 Last revised: 5 Nov 2014
Date Written: July 28, 2014
Over the last decade, the European Union has adopted legislation that calls for the mutual recognition of arrest warrants, investigation orders, and penal judgments. These laws have aimed to strengthen the Union’s response to transnational crime, and EU policymakers are currently considering legislation to further harmonize the Union's law enforcement efforts. This Article compares these developments within the EU to the U.S. legal framework on mutual recognition in criminal matters. It examines the individual, state and systemic interests that U.S. state courts have considered in deciding whether to recognize other states' judgments, warrants, or investigative actions. These competing interests have produced relatively uniform rules on extradition, but much more diverse and fragmented laws concerning the gathering of evidence, the admissibility of evidence, and the recognition of foreign penal judgments.
The Article argues that three key factors explain the diversity of U.S. legal rules in many of these areas: 1) the tradition of federalism, which values local control over criminal matters; 2) the baseline harmonization of criminal procedures under the U.S. Constitution, which guarantees a high level of procedural fairness and strengthens mutual trust among states in criminal matters; and 3) the regular intervention by the U.S. federal government in investigations and prosecutions of cases with interstate elements, which reduces the pressure on states to devise a more uniform approach. The Article concludes by examining how these insights may be useful to ongoing debates within the European Union about the direction and scope of mutual recognition in criminal matters.
Keywords: criminal procedure, conflicts of law, extradition, recognition of penal judgments, admissibility of evidence, gathering of evidence, European Arrest Warrant, European Investigation Order, European Union criminal procedure, comparative criminal procedure
JEL Classification: K14, K42
Suggested Citation: Suggested Citation