DOCSLIB.ORG

Downloaded from Elgar Online at 09/25/2021 05:39:10PM Via Free Access

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Downloaded from Elgar Online at 09/25/2021 05:39:10PM Via Free Access JOBNAME: Ross PAGE: 1 SESS: 2 OUTPUT: Fri May 27 10:11:14 2016 Index acquittals 81, 88, 162, 245, 376, 442 conditions 137 directed verdict 75, 109, 373, 375 final orders 136, 137 double jeopardy and appeals of 37–8, First Information Report (FIR) 135 56 historical background 123 Japan 85, 86, 404, 406, 407, 410, 414 developments since 1973 129–34 judge as investigator 89 Independence to section 438 126–9 judgment reasons 96–9 Indian PoliceAct 1861 to acquittals overturned: inadequacy Independence in 1947 123–6 of 101–4 interim orders 136–7 jury 38, 54, 56, 57, 80, 81, 82, 85, 86, key features of s 438(1) 137 88, 373–4, 378, 439 knowledge of imminent arrest 135–6 Spain 86, 377, 380 lawyers’fees 137 pre-trial detention 192 text of s 438 136, 159–60 relative disappearance of 85–6 appeals 78, 79, 85, 371, 521 transcripts of trial testimony: acquittals 89, 442 overturn 91 double jeopardy and 37–8, 56 adversarial-inquisitorial dichotomy 4, Japan’s lay judge system 404 13, 16, 35, 36, 58–9, 245 jury verdicts 38, 54, 56, 57, 80, 81, appeals of acquittals 37–8 82, 373–4, 377, 378, 439 re-prosecution 39 ‘cassation’and ‘appeal’90–91, 440 endurance of 519–33 cassational courts, efficacy of 90–93 strengths 523–6 Japan 404, 410, 414 tradition 520–523 jury verdicts 38, 54, 56, 57, 58, 80, weaknesses 526–32 81, 82, 373–4, 377–8, 423–4, exclusionary rules 13, 18–19, 39–41, 438–42 44, 244 reasons on appeal 427–8 history 80–83 negotiated verdicts 47, 51 ‘innocence-weighted’approach 36–7 non-prosecution decision 225, 241–2 juries 14, 55–6 Spain 85, 92, 375–6, 377, 378, 380 normative assumptions 221 Taiwan 178 plea bargaining 13, 45, 47, 48–52, Argentina 220, 525 exclusionary rules 40, 292, 293 poverty and pre-trial practice 223 Armenia 453, 455, 456, 458, 460, 464, prosecutors and judges 234, 243–4 465, 466–7, 469 tango justice vs rumba justice 366–7, exclusionary rules 41 372, 522, 525 arrest 7, 191, 192–3, 209–10, 294 agency capture 234 EuropeanArrest Warrant 204, 263 Alford pleas 51 flagrancy 194, 210 American BarAssociation 222 continental Europe 200–204 American Civil Liberties Union human rights 193–4, 203 (ACLU) 485–6 probable cause 194, 210 anticipatory bail in India 7–8, 17, US 166, 197–200 119–50 reasonable suspicion 194, 210 537 Jacqueline E. Ross and Stephen C. Thaman - 9781781007198 Downloaded from Elgar Online at 09/25/2021 05:39:10PM via free access Columns Design XML Ltd / Job: Ross-Comparative_criminal_procedure / Division: Index /Pg. Position: 1 / Date: 23/5 JOBNAME: Ross PAGE: 2 SESS: 2 OUTPUT: Fri May 27 10:11:14 2016 538 Comparative criminal procedure continental Europe 203 exclusionary rules 40, 41, 43 ECHR 193–4 search and seizure 287, 290, 297 England and Wales 195–7, 210 juries 54, 56 ICC 194 plea bargaining 46 Ashcroft, John 488 wiretapping 465, 466 attorneys see counsel, right to charging decisions 7, 228 audio-recording of hearings 439–40 Germany 224–5, 228, 234, 235 Australia mandatory prosecution 86, 224–5, bail/pre-trial detention 207, 208 226–7, 251, 481 double jeopardy India 135 re-prosecution 39 Japan 400–401, 406–8, 409, 410, exclusionary rules 40, 43 412, 415 search and seizure 288 judges in inquisitorial systems 49 juries 53, 54 mandatory prosecution 86 question-list verdicts 95 Germany 86, 224–5, 226–7, 251, Azerbaijan 453, 455, 456, 457, 458, 481 460, 469 plea bargaining 46, 48–9, 230–231 US 228, 230–231, 232, 233, 234 bail see also prosecutorial charging human rights 204–5 decisions in US and Taiwan, India 135 screening anticipatory bail in see separate Chesterton, G.K. 414–15 entry Chicago Public Schools (CPS) 496–7 Japan 411, 413 China pre-trial preventative detention 207–9 acquittals 85 presumption in favour of release flagrancy 200 205–7 pre-trial detention 209 Belarus 453, 454, 455–6, 457, 461, 462, circumstantial evidence 79, 80, 81 467, 469 Germany: Carolina (1532) 81 Belgium 83 inadequacy of judgment reasons arrest 203 100–104 exclusionary rules mega-evaluation approach 102, 104 search and seizure 288, 289 negative formal rules of evidence 109 Juries 57, 76 cognitive biases 5, 20–21, 54, 367 question-list verdicts 95 Colombia 291 reasons 429, 434 computer fraud 482, 492 blood samples 314, 341 conditional dismissals 224 Brazil 291 confession bargaining 13, 25, 107 burden of proof 311 equilibrium point: plea bargaining instructions to juries 96 and 248–9 Taiwan 172, 173–4, 181 Germany 10, 11, 16, 77, 87, 108, 220, business records 315 226, 227–8, 242, 247, 248–9 see also plea bargaining Canada confessions 8, 9, 81, 369, 521 appeals 56 bargains see confession bargaining acquittals 38 exclusionary rule 9, 19, 40–41, 310, bail/pre-trial detention 206–7, 208, 469 209 France 329 Jacqueline E. Ross and Stephen C. Thaman - 9781781007198 Downloaded from Elgar Online at 09/25/2021 05:39:10PM via free access Columns Design XML Ltd / Job: Ross-Comparative_criminal_procedure / Division: Index /Pg. Position: 2 / Date: 23/5 JOBNAME: Ross PAGE: 3 SESS: 2 OUTPUT: Fri May 27 10:11:14 2016 Index 539 Germany 331–2, 333–4 data mining 27–8, 494–5, 497, 498 UK 321–3 Germany: limitations on bulk data US 312–13, 315, 318, 333, 334 collection and 500–506 false 244, 308, 311, 318 link analysis 484 wrongful convictions 75, 107–8, ethnicity 488, 489, 490 230 FISA (Foreign Intelligence France 329, 330 SurveillanceAct of 1978) Ireland 291 482–4, 486–7, 494, 499 Japan 6, 412–13 intelligence operation bypass negative formal rules of evidence 109 491–3 retraction 107 FourthAmendment 477, 478, 480, sole basis for verdict prohibition 50 489, 507 Taiwan 181 foreign intelligence exception uncorroborated 79, 107 480–481, 484 US 107–8, 230, 252, 284, 312–13, PRISM 499 315, 318, 332 ‘special needs’operations 480, 500 video-taping 6, 413 Germany: limitations on bulk data wrongful convictions: false 75, collection and data mining 107–8, 230 500–506 confidentiality 272, 461 new surveillance paradigm 477, Japan 403, 404, 416 494–7, 507–9 juries 55 bulk metadata about phone calls mixed courts 96 495, 498, 499 confirmation bias 6, 8, 229–30 over-collection 477, 497–500, 509 conspiracy law 479 PRISM 496, 498–9 cooperation agreements 47 social media 496, 498–9, 502 corporations PatriotAct 481, 482, 483, 484–5, 486, US: self-incrimination 313 487–8, 495 corruption 120, 128, 132, 148, 150, 162, political organizations 488–9, 183, 372–3, 531 490–491 mandatory prosecution 165 predictive analysis 494, 496–7, 499 pre-trial detention 192 preventive policing and law counsel, right to 8, 15–16, 23, 258–9, enforcement 478–81 275–7, 369–70, 521, 522, 523–4, profiling 499, 503 525 religious groups 488–91 ECtHR 258, 259–60, 268, 275–6, social network analysis 495 327, 330, 345, 347 undercover agents 488–91 EU legislation and 264–5 warrant requirements avoided 477, Salduz v Turkey 261–3, 325–6 481–93, 507 police and suspects’rights 273–5, emails 482, 491, 496, 499, 502 316, 317, 319 financial data and records 484, 494, US 50, 229, 489 497 Miranda 316, 317 FISA (Foreign Intelligence preliminary hearing 167, 169, 183 SurveillanceAct of 1978) waiver 50, 274, 275, 317, 327 482–4, 486–7, 491–3, 494, counterterrorism surveillance by US 499 through German lenses 27–9, 31, hackers 482, 492 475–509 ‘lone wolf’483–4 Jacqueline E. Ross and Stephen C. Thaman - 9781781007198 Downloaded from Elgar Online at 09/25/2021 05:39:10PM via free access Columns Design XML Ltd / Job: Ross-Comparative_criminal_procedure / Division: Index /Pg. Position: 3 / Date: 23/5 JOBNAME: Ross PAGE: 4 SESS: 2 OUTPUT: Fri May 27 10:11:14 2016 540 Comparative criminal procedure national security letters 484–6, appeals of acquittals and 37–8, 56 492, 497 drug crimes 465, 476, 490 sneak and peak searches 487–8, ethnic discrimination 196 492 France 324, 325, 328 voicemails 482, 492 Germany 234, 236, 253 Croatia 465, 466 Japan 401, 408 Taiwan 181 damages 376 drugs and exclusionary rule 283, 290, searches, illegal 281, 298, 299–300, 294, 296, 341, 342, 346 302 drugs purchases: special investigative data mining 27–8, 494–5, 497, 498 techniques (SITs) 462, 463 Germany: limitations on bulk data collection and 500–506 economic crimes 226, 235, 236, 240 link analysis 484 Egypt 292, 293 databases 498 electronic surveillance/eavesdropping Chicago Public Schools (CPS) 289, 301, 462, 478, 480, 481–3, 496–7 486–7, 491–3 Germany 502–6 databases in Germany 503, 504, 505, street gangs 496, 508 506 death penalty 5, 75, 81, 83, 86, 93, emails 482, 491, 496, 499, 502 105–6, 400, 409–10 EU: bulk telecommunications data democracy 10, 438, 478, 522 501 Japan’s lay judge system 25, 397, PRISM 496, 498–9 414, 416, 523 XKeyScore 496, 502 juries and 10, 18, 53–4, 58, 80, 435 emails 482, 491, 496, 499, 502 reasoned court decisions and 425 England and Wales 268, 520, 527 Denmark 463 appeals of acquittals 38 detention 324 arrest 195–7, 210 pre-trial 24, 191, 192–3, 202–3, bail/custody 24, 205, 206, 207, 208 204–10, 369, 529–30 double jeopardy bail and presumption in favour of appeals of acquittals 38 release 205–7 re-prosecution 39 human rights 204–5, 208 exclusionary rules 13, 468 Japan 411, 413 confessions 321–3 preventive 207–9, 210 search and seizure 287–8, 289 Russia 468 juries 80, 81, 205, 320–321, 368, 422, disclosure/discovery 427 Japan 411–12 judge: comments and instructions plea bargaining 46, 48, 222–3 to 96, 106, 321, 346–7, 434 pre-plea 46, 222–3, 230, 232, 233 lawyer, right to 266–7, 268–9, United States 222–3, 231 270–272, 345, 523, 524 exculpatory evidence 46, 221, suspects’rights and police 266–7, 222–3, 230, 232, 233 273, 274, 275, 319–20, 321 preliminary hearing 168 plea bargaining 46 discrimination.
Load more

Recommended publications
  • Locating the Survivor in the Indian Criminal Justice System: Decoding the Law I
    Locating the Survivor in the Indian Criminal Justice System: Decoding the Law i Locating the Survivorin the Indian Criminal Justice System: Decoding the Law LAWYERS COLLECTIVE WOMEN’S RIGHTS INITIATIVE Contents Contents v Foreword ix Acknowledgments xi Abbreviations xiii Introduction I. Kinds of Offences and Cases 2 1. Bailable Offence 2 2. Non Bailable Offence 2 3. Cognisable Offences 2 4. Non Cognisable Offences 2 5. Cognisable Offences and Police Responsibility 3 6. Procedure for Trial of Cases 3 II. First Information Report 4 1. Process of Recording Complaint 4 2. Mandatory Reporting under Section 19 of the POCSO Act 4 3. Special Procedure for Children 5 4. Woman Officer to Record Information in Specified Offences 5 5. Special Process for Differently-abled Complainant 6 6. Non Registration of FIR 6 7. Registration of FIR and Territorial Jurisdiction 8 III. Magisterial Response 9 1. Remedy against Police Inaction 10 IV. Investigation 11 1. Steps in Investigation 12 2. Preliminary, Pre-FIR Inquiry by the Police 12 Locating the Survivor in the Indian Criminal Justice System: Decoding the Law v 3. Process of Investigation 13 4. Fair Police Investigation 14 5. Statement and Confessions 14 (i) Examination and statements of witnesses 14 (ii) Confessions to the magistrate 16 (iii) Recording the confession 16 (iv) Statements to the magistrate 16 (v) Statement of woman survivor 17 (vi) Statement of differently abled survivor 17 6. Medical Examination of the Survivor 17 (i) Examination only by consent 17 (ii) Medical examination of a child 17 (iii) Medical examination report 18 (iv) Medical treatment of a survivor 18 7.
    [Show full text]
  • Access to Justice for Children: Mexico
    ACCESS TO JUSTICE FOR CHILDREN: MEXICO This report was produced by White & Case LLP in November 2013 but may have been subsequently edited by Child Rights International Network (CRIN). CRIN takes full responsibility for any errors or inaccuracies in the report. I. What is the legal status of the Convention on the Rights of the Child (CRC)? ​ A. What is the status of the CRC and other relevant ratified international instruments in the national legal system? ​ The CRC was signed by Mexico on 26 January 1990, ratified on 21 November 1990, and published in the Federal Official Gazette (Diario Oficial de la Federación) on 25 ​ ​ January 1991. In addition to the CRC, Mexico has ratified the Optional Protocols relating to the involvement of children in armed conflict and the sale of children, child prostitution and child pornography. All treaties signed by the President of Mexico, with the approval of the Senate, are deemed to constitute the supreme law of Mexico, together with the Constitution and the laws of the Congress of the Union.1 The CRC is therefore part of national law and may serve as a legal basis in any proceedings before the national courts. It is also part of the supreme law of Mexico as a whole and must be implemented at federal level and in all the individual states.2 B. Does the CRC take precedence over national law The CRC has been interpreted to take precedence over national laws, but not the Constitution. According to doctrinal thesis LXXVII/99 of November 1999, international treaties are ranked second immediately after the Constitution and ahead of federal and local laws.3 On several occasions, Mexico’s Supreme Court has stated that international ​ treaties take precedence over national law, mainly in the case of human rights.4 C.
    [Show full text]
  • Death-Penalty-Pakistan
    Report Mission of Investigation Slow march to the gallows Death penalty in Pakistan Executive Summary. 5 Foreword: Why mobilise against the death penalty . 8 Introduction and Background . 16 I. The legal framework . 21 II. A deeply flawed and discriminatory process, from arrest to trial to execution. 44 Conclusion and recommendations . 60 Annex: List of persons met by the delegation . 62 n° 464/2 - January 2007 Slow march to the gallows. Death penalty in Pakistan Table of contents Executive Summary. 5 Foreword: Why mobilise against the death penalty . 8 1. The absence of deterrence . 8 2. Arguments founded on human dignity and liberty. 8 3. Arguments from international human rights law . 10 Introduction and Background . 16 1. Introduction . 16 2. Overview of death penalty in Pakistan: expanding its scope, reducing the safeguards. 16 3. A widespread public support of death penalty . 19 I. The legal framework . 21 1. The international legal framework. 21 2. Crimes carrying the death penalty in Pakistan . 21 3. Facts and figures on death penalty in Pakistan. 26 3.1. Figures on executions . 26 3.2. Figures on condemned prisoners . 27 3.2.1. Punjab . 27 3.2.2. NWFP. 27 3.2.3. Balochistan . 28 3.2.4. Sindh . 29 4. The Pakistani legal system and procedure. 30 4.1. The intermingling of common law and Islamic Law . 30 4.2. A defendant's itinerary through the courts . 31 4.2.1. The trial . 31 4.2.2. Appeals . 31 4.2.3. Mercy petition . 31 4.2.4. Stays of execution . 33 4.3. The case law: gradually expanding the scope of death penalty .
    [Show full text]
  • Anticipatory Bail
    Anticipatory bail Under Indian criminal law, there is a provision for anticipatory bail under Section 438(1) of the Criminal Procedure Code. Law Commission of India in its 41st report recommended to incorporate this provision in procedure code.[1] This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence. [2] On filing anticipatory bail, the opposing party is notified about the bail application and the opposition can then contest the bail application in court (public prosecutor can also be used to do this). Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested. It is only issued by the Sessions Court and High Court. Eligibility When any person apprehends that there is a move to get him arrested on false or trumped-up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him, he has the right to move the court of Session or the High Court under section 438(1) of the code of Criminal Procedure for grant of bail in the event of his arrest for a cognizable or non- cognizable offence, and the court may if it thinks fit, direct that in the event of such arrest, he shall be released on bail. Anticipatory bail can be granted by [Sessions Court] and High Court. Conditions The High Court or the court of session may include such conditions in the light of the facts of the particular case, as it may think fit, including:[3] a condition that the person shall make himself available for interrogation by the police officer as and when required; a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer; a condition that the person shall not leave India without the previous permission of the court.
    [Show full text]
  • Criminal Misc Anticipatory Bail Application U/S 438 Cr.P.C
    WWW.LIVELAW.IN A.F.R Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 4002 of 2021 Applicant :- Prateek Jain Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Avnish Kumar Srivastava,Priyanka Sharma Counsel for Opposite Party :- G.A.,Vidya Prakash Singh Hon'ble Siddharth,J. 1. As per Resolution dated 07.04.2021 of the Committee of this Court for the purpose of taking preventive and remedial measures and for combating the impending threat of Covid-19, this case is being heard by way of virtual mode. 2. Heard Sri Avnish Kumar Srivastava, learned counsel for the applicant and learned A.G.A for State through video conferencing. 3. The instant anticipatory bail application has been filed with a prayer to grant an anticipatory bail to the applicant, Prateek Jain, in Case Crime No. 1906 of 2020 under Section 420, 467, 468, 471, 506, 406 IPC, Police Station- Sihani Gate, District- Ghaziabad. 4. Prior notice of this bail application was served in the office of Government Advocate and as per Chapter XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 8072 of 2020, Govind Mishra @ Chhotu Versus State of U.P., hence, this anticipatory bail application is being heard. Grant of further time to the learned A.G.A as per Section 438 (3) Cr.P.C. (U.P. Amendment) is not required.
    [Show full text]
  • Interesting Issues in Arrest and Interplay of GST Laws, IPC and PMLA
    Interesting Issues in Arrest and Interplay of GST laws, IPC and PMLA - Contributed by CA Sri Harsha & CA Manindar The recent decision1 of Supreme Court which has upheld the decision of Telangana & Andhra Pradesh High Court in the matter of PV Ramana Reddy & Others v. Union of India & Others2, wherein the High Court has held that arrest under goods & services tax laws (GST laws) is not dependent on the assessment, gives power to the authorities to tackle more efficiently with the economic frauds. In other world, the said judgment also gives power to authorities to intimidate genuine taxpayers and subject them to arrest. Hence, either appropriate changes to the legislation are to be done or instructions shall be laid by Central Board of Indirect Taxes & Customs (CBIC) when it comes for implementing the arrest provisions to see that genuine taxpayers are not harassed or subjected to intimidation and personal liberties are safeguarded. In this article, we shall deal with certain issues pertaining to arrest and related by examining various judgments of different High Courts. Allahabad High Court - Govind Enterprise’s case3: Facts & Allegations: Petitioner has huge inward supplies but very nominal outward supplies. The bank account given at the time of registration has very few transactions. Investigation revealed that there was another bank account and there were huge cash deposits. Revenue filed First Information Report (FIR) under Section 420, 467, 468, 471, 34, 120B of Indian Penal Code (IPC). The Revenue alleged that the Petitioner has dealt fraudulently with a dishonest intention, by submitting false documents, with an intention to evade taxes, obtained registration.
    [Show full text]
  • FIR an FIR Or First Information Report Is a Written Document That Is Filed By
    FIR An FIR or First Information Report is a written document that is filed by the police. It is different from a police complaint. An FIR is filled if a cognizable offence has occurred, i.e. an offence for which police can take action without prior court approval (a warrant). A police complaint can be filled both in the case of a cognizable as well as a non-cognizable offence (offence where police cannot arrest without a warrant). In the Section 154 of the Criminal Procedure Code, 1973 ('CrPC') defines what amounts to first information. The need to file an FIR arises in the case of loss or theft of important documents like Educational Certificates, Birth Certificate, PAN Card, Election Card (Voter ID), Driving Licence, Passport, Property sale-purchase papers etc. Loss of mobile phone is another common occurrence when one needs to file an FIR. In order to get a duplicate of any lost documents one has to attach a copy of the F.I.R along with the application. In addition any unauthorized person can misuse your lost original documents. Hence it is important to lodge a F.I.R for the lost documents with the local Police station and get a copy of the same which will serve as an evidential proof for you. Three or more copies of the application should be made. Namely one for police station record, another copy for duplicate Document Application and finally a copy for one’s own record. The report should be duly signed by the Police Officer In-charge with his name and designation, Police station Address Stamp.
    [Show full text]
  • Grant of Anticipatory Bail
    October-2014 View this email in your browser GRANT OF ANTICIPATORY BAIL In India, the Criminal Procedure Code 1973 provides protection to persons anticipating or fearing arrest. The essential difference between regular bail and anticipatory bail is that while a regular bail is applied for by a person/ accused only after his arrest, anticipatory bail ("Anticipatory Bail") is applied for by a person in anticipation of his arrest and to secure orders from court to prevent the actual arrest. Also, no one deserves to face disgrace in case he is implicated in false cases. However, there are certain conditions under which an application for grant of Anticipatory Bail may be considered and it is not granted in a routine manner and depends on facts of the case To illustrate, in cases of economic offences, the protection of Anticipatory Bail is not a matter of right. However, if the Applicant is an established businessman, has roots in society then his application for Anticipatory Bail may not be denied merely because he has been accused of having committed an economic offence of any nature. In case of any violations under Foreign Exchange and Regulation Act, 1973 ("FERA"), if a person establishes that he is being unnecessarily harassed by the investigating agency, then the Court may grant Anticipatory Bail in his favour. EMPOWERMENT OF COURTS The High Courts and Court of Sessions ("Courts") in India are empowered to make an Order granting anticipatory bail that in the event of arrest; a person shall be forthwith released on bail without having to undergo the rigor of jail.
    [Show full text]
  • The Nature and Function of Prosecutorial Power, 106 J
    Journal of Criminal Law and Criminology Volume 106 | Issue 3 Article 2 Summer 2016 The aN ture and Function of Prosecutorial Power Jordan A. Sklansky Follow this and additional works at: http://scholarlycommons.law.northwestern.edu/jclc Recommended Citation Jordan A. Sklansky, The Nature and Function of Prosecutorial Power, 106 J. Crim. L. & Criminology (2016). http://scholarlycommons.law.northwestern.edu/jclc/vol106/iss3/2 This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 2. SKLANSKY 3/31/2017 2:20 PM 0091-4169/16/10603-0473 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 106, No. 3 Copyright © 2017 by David Alan Sklansky Printed in U.S.A. THE NATURE AND FUNCTION OF PROSECUTORIAL POWER DAVID ALAN SKLANSKY* The key to the growing prominence of prosecutors, both in the United States and elsewhere, lies in the prosecutor’s preeminent ability to bridge organizational and conceptual divides in criminal justice. Above all else, prosecutors are mediating figures, straddling the frontiers between adversarial and inquisitorial justice, between the police and the courts, and between law and discretion. By blurring these boundaries, prosecutors provide the criminal justice system with three different kinds of flexibility— ideological, institutional, and operational—and they strengthen their own hands in a legal culture that increasingly disfavors institutional rigidity and hard-and-fast commitments. At the same time, though, the mediating role of the prosecutor frustrates traditional strategies for holding government accountable.
    [Show full text]
  • Reportable in the Supreme Court of India Criminal Appellate Jurisdiction Special Leave Petition (Criminal) Nos.7281­7282/2017
    REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CRIMINAL) NOS.7281-7282/2017 Sushila Aggarwal and others ¼Petitioners Versus State (NCT of Delhi) and another ¼Respondents J U D G M E N T M.R. SHAH, J. In the light of the conflicting views of the different Benches of varying strength, more particularly in the cases of Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565; Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694; Bhadresh Bipinbhai Sheth v. State of Gujarat 1 (2016) 1 SCC 152 on one side and in the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra (1996) 1 SCC 667, subsequently followed in the case of K.L. Verma v. State and another (1998) 9 SCC 348; Sunita Devi v. State of Bihar (2005) 1 SCC 608; Nirmal Jeet Kaur v. State of M.P. (2004) 7 SCC 558; HDFC Bank Limited v. J.J. Mannan (2010) 1 SCC 679; and Satpal Singh v. State of Punjab (2018) 4 SCC 303, the following questions are referred for consideration by a larger Bench: ª(1) Whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail. (2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.º 2. Shri Harin P. Raval, learned Senior Advocate appearing as Amicus Curiae relying upon the decision of this Court in the case of Balchand Jain v.
    [Show full text]
  • Criminal Prosecution and the Rationalization of Criminal Justice Final Report
    If you have issues viewing or accessing this file contact us at NCJRS.gov. 1337?11 Criminal Prosecution and The Rationalization of Criminal Justice Final Report by William F. McDonald National Institute of Justice Fellow 133787 U.S. Department of Justice National Institute of Justice This document has been reproduced exactly as received from the person or organization originating it. Points of view or opinions stated in this document are those of the authors and do not necessarily represent the official position or policies of the National Institute of Justice. Permission to reproduce this 1_ I material has been gr~{l'bblic DOD.ain/NI~T u.s. Department of dustlce to the National Criminal Justice Reference Service (NCJRS). Further reproduction oUlside of the NCJRS systern requires perrnis- sion of the • I owner. National Institute of Justice u.s. Department of Justice December, 1991 Acknowledgments This study was supported by Grant No. 88-IJ-CX-0026 from the National Institute of Justice, Office of Justice Programs, u.s. Department of Justice to Georgetown University which made possible my participation in the NIJ Fellowship Program. It was also supported by my sabbatical grant from Georgetown University, which allowed me to conduct interviews and observations on the Italian justice system. And, it was supported by a travel' grant from the Institute of Criminal Law and Procedure, Georgetown University Law Center. I would like to acknowledge my appreciation to the many people who made this entire undertaking the kind of intellectually and personally rewarding experience that one usually only dreams about. I hope that their generosity and support will be repaid to some extent by this report and by other contributions to the criminal justice literature which emerge from my thirteen months of uninterrupted exploration of the subject of this Fellowship.
    [Show full text]
  • Functions, Roles and Duties of Police in General
    Chapter 1 Functions, Roles and Duties of Police in General Introduction 1. Police are one of the most ubiquitous organisations of the society. The policemen, therefore, happen to be the most visible representatives of the government. In an hour of need, danger, crisis and difficulty, when a citizen does not know, what to do and whom to approach, the police station and a policeman happen to be the most appropriate and approachable unit and person for him. The police are expected to be the most accessible, interactive and dynamic organisation of any society. Their roles, functions and duties in the society are natural to be varied, and multifarious on the one hand; and complicated, knotty and complex on the other. Broadly speaking the twin roles, which the police are expected to play in a society are maintenance of law and maintenance of order. However, the ramifications of these two duties are numerous, which result in making a large inventory of duties, functions, powers, roles and responsibilities of the police organisation. Role, Functions and Duties of the Police in General 2. The role and functions of the police in general are: (a) to uphold and enforce the law impartially, and to protect life, liberty, property, human rights, and dignity of the members of the public; (b) to promote and preserve public order; (c) to protect internal security, to prevent and control terrorist activities, breaches of communal harmony, militant activities and other situations affecting Internal Security; (d) to protect public properties including roads,
    [Show full text]