非表示:
キーワード:
comparative law, criminal procedure, common law, civil law, exclusionary rule, impeachment of witnesses, plea bargaining, truth, fairness
要旨:
An important part of the academic contributions on criminal procedure tries to make sense of the differences between US and German criminal procedure in terms of the ends pursued. According to these contributions, US criminal procedure is oriented towards fairness and the German system aims at truth (ends-based narrative). However, at a closer look, both countries pursue truth as the overarching goal of criminal procedure and both countries try to obtain it through procedural tools. Their respective criminal justice systems do not differ so much in terms of the ends pursued but rather in terms of the concrete means applied (means-based narrative). This article wants to provide support for this means-based narrative by examining the legal origins of both systems, the presence or absence of jury trials, plea bargaining, exclusionary rules, especially the fruit of the poisonous tree doctrine, and rules concerning the impeachment of witnesses. I will first interpret each of these points according to the ends-based narrative, associating the US adversarial model with fairness and the German inquisitorial system with truth. Then, I will show that just as we can interpret US rules in terms of truth, we can make sense of the German legal institutions in terms of fairness. In a brief conclusion, I will suggest that the means-based analysis should focus on the different design of legal norms in both systems.
