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

Abstract

The United States' and Australian laws of criminal procedure exhibit many common features which derive from their common English origin. These include the presumption of innocence, the neutral role of the trial judge, and the use of the jury trial. However, between the jurisdictions there are also significant divergent approaches especially in relation to the treatment of illegally obtained evidence, improperly obtained confessions and entrapment. The transparency of the jury is also an important distinguishing feature of the United States' system not evident in Australia.

The authors examine the various approaches to the common issues arising in criminal procedure and theorise that the underlying cause for the difference between the United States and Australia lies in the way in which the courts in each jurisdiction view their role in society and the rationale they thereby ascribe for criminal procedural rules. The authors conclude that the approach in the United States is essentially a 'rights based jurisprudence', whereas the Australian approach is centred around preserving the rule of law and the integrity of the courts within the legal system as a whole.

Each country adopted very different pathways to nationhood. The authors argue that it was these different pathways to nationhood that played a formative role in the development of norms regarding the relationship between individual and state which currently characterise the distinct approaches to criminal justice in each jurisdiction.

Keywords: Comparative Criminal Procedure

JEL Classification: K42