week 4

Literature Review

Due Process and Comparative Criminal Justice Protections in Modern Legal Systems

Globalization, technology and shifts in human rights norms have an impact on criminal justice in all aspects. The literature review will give a background on research studies in the domains of due process, procedural fairness, evidentiary standards, and constitutional protections related to the criminal justice system across different jurisdictions. Applies to comparative legal worlds, not in the USA, and focuses on rights of due process, search and seizure, self-incrimination, and rights to counsel. Another area of current concern under the law highlighted in the literature is the way in which the laws are changing in response to new issues regarding artificial intelligence, digital evidence, and transnational crime.

Due Process in Criminal Justice

Amagnya (2022) examines police prosecutions and the possibility that hybridization of the investigator roles and the prosecutor working hand in hand can affect the rights to due process. The study indicates that the impartial investigative (as well as prosecutive) authority needed for fair trials could become more suspectable because of overlapping duties of the police officers involved in the investigation and prosecution of the case. The study suggests that having the officer control both investigations and prosecution may make neutrality necessary for a fair trial more problematic and create the risk of bias and wrongful conviction. This is an extension of worries about the separation of powers in criminal procedure.

Similarly, Dhami & van den Brink (2022) examine the decision on pre-trial detention in jurisdictions in their study and define that there is great variation in practices regarding detention. Their study findings suggest that subjective opinions have a greater impact on detention decisions than the generally accepted legal standards, which is a concern regarding the arbitrary deprivation of freedom. They are in favor of evidence-based reforms to make the procedures consistent and are eager to safeguard the rights of the suspects during pre-trial proceedings.

In addition, Schaap & Saarikkomäki (2022) add procedural justice by critiquing versions of it that only include perceptions of fairness. True procedural justice must consider structural inequalities and inequalities in the power of institutions as well, they say. Certain values play a crucial role in comparative criminal justice analysis, which is why they are discussed here using the example of the French and German systems of norms.

Artificial Intelligence and Due Process Protections.

In cases where AI is increasingly being incorporated into the criminal justice systems, it raises new challenges for constitutional rights protection. As AI becomes a more common feature of criminal justice systems, constitutional rights protection presents new challenges. AI has been used in crime prevention, while it has many potential applications as described by Blount (2022). The problem with these systems is that they are often opaque and cannot be explained, and if those systems are not accountable, it might be considered a violation of due process. Bias in policing by using AI tools may reinforce the existing bias and result in discriminatory policing patterns that will adversely affect marginalized communities. Algorithmic governance in the criminal justice system in the UK is also explored by Zilka et al. (2022). They are focusing their studies on the need to be transparent, have oversight on, and be explained by algorithmic decision-making.

Digital Evidence, Search and Seizure, and Cross-Border Challenges

A systematic review of the challenges in the management of digital evidence from different jurisdictions has been done by Casino et al. (2022). They identified laws of access to data, data privacy provisions, and jurisdiction provisions that cause conflicts. All of these create challenges for (traditional) search and seizure procedures aimed at collecting physical evidence rather than in digital spaces.

Panzavolta & Maes (2022) tackle illegal Evidence exclusion in the era of Mass Surveillance. They find increasing tension between the security interests and individual rights in this analysis within the framework of European Union law. The authors recommend clearing out illegal evidence using inclusive rules and advocate for principled exclusionary rules to exclude evidence obtained in an illegal search, thus reinforcing the protections against illegal search and seizure.

This international aspect has been included in Rose (2022), who writes about transnational crimes and the necessity of PIL to uphold legal obligations. Crime crosses the border, bringing with it certain problems and difficulties about the boundaries of jurisdiction, but with certain respect for the standards of due process, there is a need for cooperation with other states.

Equality Before the Law

McConnell (2022) indicates that there are systematic discrepancies in legal decision-making, even if one's approach is formal law and has an emphasis on neutrality. Newburn and Jones (2022) show that not only is there variation in punishment practices between countries, but also differences in crime rates, which can be explained as being influenced by political, cultural, and institutional features. They found that the overall values of society affect the laws and may lead to bias and proportionality in sentencing.

Winterdyk 2022 offers a comparison and contrast of the various African criminal justice systems, with a focus on the historical, political, and economic backgrounds. This study suggests that constraints on resources and structural inequalities are a problem that commonly confronts post-colonial legal systems, and that such constraints impact upon equality of constitutional protections for fair trial rights and representation.

Judicial Oversight and Accountability Mechanisms

Oversight by judges is very important in guaranteeing fairness in the negotiated justice system. This article from Davis (2022) describes deferred prosecution agreements and the need to hold deferred prosecutors accountable by the judiciary. Without adequate judicial oversight, prosecutorial discretion will lead to disparity in enforcement of the law and to proffer of unclear sentencing. The effects of this do not only apply when attempting a right to counsel and equalization of treatment in plea-like proceedings in different jurisdictions, but this has far-reaching consequences.

Right to Counsel and Fair Trial Protections

Many of the examined studies indirectly reference legal representation in terms of fairness and procedural protections; while these are not always directly related to “right to counsel,” they appear to have a similar purpose to providing access to counsel. Amagnya (2022) and Dhami and van den Brink (2022) emphasize that there are risks in the first steps of the criminal procedure when legal protections are not equally provided. A failure to provide for legal counsel at the pre-trial stages can have a profound effect on various issues – detention, case disposition, punitive sanctions, and so forth.

The literature depicts a close relationship between access to counsel and widespread procedural justice and judicial independence at a jurisdictional level. Legal aid that is robust is more likely to offer a more level playing field in the stages of interrogation, prosecution, and trial.

Conclusion

It is observed that while there are legal differences between different systems and variations in national or uniform approaches, there are common problems that need to be addressed in criminal justice systems today. From jurisdiction to jurisdiction, with the sophistication of technology, crime in other jurisdictions, and systemic inequality facing increased tests of due process protections, search and seizure, and the right to counsel. AI and digital evidence generate additional issues that need new legal protections for a fair and transparent justice system.

References

Amagnya, M. A. (2022). Due process in police-led prosecutions: Views of Ghanaian police prosecutors. International Journal of Police Science & Management, 146135572210895. https://doi.org/10.1177/14613557221089562

Blount, K. (2022). Using artificial intelligence to prevent crime: implications for due process and criminal justice. AI & SOCIETY, 39(1). https://doi.org/10.1007/s00146-022-01513-z

Casino, F., Pina, C., López-Aguilar, P., Batista, E., Solanas, A., & Patsakis, C. (2022). SoK: cross-border criminal investigations and digital evidence. Journal of Cybersecurity, 8(1), 1–18. https://doi.org/10.1093/cybsec/tyac014

Davis, F. (2022). Judicial Review of Deferred Prosecution Agreements: A Comparative Study. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.4072985

Dhami, M. K., & van den Brink, Y. N. (2022). A Multi-disciplinary and Comparative Approach to Evaluating Pre-trial Detention Decisions: Towards Evidence-Based Reform. European Journal on Criminal Policy and Research. https://doi.org/10.1007/s10610-022-09510-0

McConnell, B. (2022). Racial Sentencing Disparities and Differential Progression Through the Criminal Justice System: Evidence From Linked Federal and State Court Data. https://doi.org/10.48550/arxiv.2203.14282

Newburn, T., & Jones, T. (2022). Policing, punishment and comparative penality. British Journal of Criminology, 62(5). https://doi.org/10.1093/bjc/azac032

Panzavolta, M., & Maes, E. (2022). Exclusion of evidence in times of mass surveillance. In search of a principled approach to exclusion of illegally obtained evidence in criminal cases in the European Union. The International Journal of Evidence & Proof, 136571272210883. https://doi.org/10.1177/13657127221088328

Rose, C. (2022). Enforcing the “Community Interest” in Combating Transnational Crimes: The Potential for Public Interest Litigation. Netherlands International Law Review. https://doi.org/10.1007/s40802-022-00214-0

Schaap, D., & Saarikkomäki, E. (2022). Rethinking police procedural justice. Theoretical Criminology, 26(3), 136248062110566. https://doi.org/10.1177/13624806211056680

Winterdyk, J. (2022). Comparative Criminology and Criminal Justice within the African Continent. Strathmore Law Journal, 6(1), 46–70. https://doi.org/10.52907/slj.v6i1.157

Zilka, M., Sargeant, H., & Weller, A. (2022). Transparency, Governance and Regulation of Algorithmic Tools Deployed in the Criminal Justice System: a UK Case Study. Proceedings of the 2022 AAAI/ACM Conference on AI, Ethics, and Society. https://doi.org/10.1145/3514094.3534200

Literature Review

Due Process and Comparative Criminal Justice Protections in Modern Legal Systems

Globalization, technology and shifts in human rights norms have an impact on criminal justice in all aspects. The literature review will give a background on research studies in the domains of due process, procedural fairness, evidentiary standards, and constitutional protections related to the criminal justice system across different jurisdictions. Applies to comparative legal worlds, not in the USA, and focuses on rights of due process, search and seizure, self-incrimination, and rights to counsel. Another area of current concern under the law highlighted in the literature is the way in which the laws are changing in response to new issues regarding artificial intelligence, digital evidence, and transnational crime.

Due Process in Criminal Justice

Amagnya (2022) examines police prosecutions and the possibility that hybridization of the investigator roles and the prosecutor working hand in hand can affect the rights to due process. The study indicates that the impartial investigative (as well as prosecutive) authority needed for fair trials could become more suspectable because of overlapping duties of the police officers involved in the investigation and prosecution of the case. The study suggests that having the officer control both investigations and prosecution may make neutrality necessary for a fair trial more problematic and create the risk of bias and wrongful conviction. This is an extension of worries about the separation of powers in criminal procedure.

Similarly, Dhami & van den Brink (2022) examine the decision on pre-trial detention in jurisdictions in their study and define that there is great variation in practices regarding detention. Their study findings suggest that subjective opinions have a greater impact on detention decisions than the generally accepted legal standards, which is a concern regarding the arbitrary deprivation of freedom. They are in favor of evidence-based reforms to make the procedures consistent and are eager to safeguard the rights of the suspects during pre-trial proceedings.

In addition, Schaap & Saarikkomäki (2022) add procedural justice by critiquing versions of it that only include perceptions of fairness. True procedural justice must consider structural inequalities and inequalities in the power of institutions as well, they say. Certain values play a crucial role in comparative criminal justice analysis, which is why they are discussed here using the example of the French and German systems of norms.

Artificial Intelligence and Due Process Protections.

In cases where AI is increasingly being incorporated into the criminal justice systems, it raises new challenges for constitutional rights protection. As AI becomes a more common feature of criminal justice systems, constitutional rights protection presents new challenges. AI has been used in crime prevention, while it has many potential applications as described by Blount (2022). The problem with these systems is that they are often opaque and cannot be explained, and if those systems are not accountable, it might be considered a violation of due process. Bias in policing by using AI tools may reinforce the existing bias and result in discriminatory policing patterns that will adversely affect marginalized communities. Algorithmic governance in the criminal justice system in the UK is also explored by Zilka et al. (2022). They are focusing their studies on the need to be transparent, have oversight on, and be explained by algorithmic decision-making.

Digital Evidence, Search and Seizure, and Cross-Border Challenges

A systematic review of the challenges in the management of digital evidence from different jurisdictions has been done by Casino et al. (2022). They identified laws of access to data, data privacy provisions, and jurisdiction provisions that cause conflicts. All of these create challenges for (traditional) search and seizure procedures aimed at collecting physical evidence rather than in digital spaces.

Panzavolta & Maes (2022) tackle illegal Evidence exclusion in the era of Mass Surveillance. They find increasing tension between the security interests and individual rights in this analysis within the framework of European Union law. The authors recommend clearing out illegal evidence using inclusive rules and advocate for principled exclusionary rules to exclude evidence obtained in an illegal search, thus reinforcing the protections against illegal search and seizure.

This international aspect has been included in Rose (2022), who writes about transnational crimes and the necessity of PIL to uphold legal obligations. Crime crosses the border, bringing with it certain problems and difficulties about the boundaries of jurisdiction, but with certain respect for the standards of due process, there is a need for cooperation with other states.

Equality Before the Law

McConnell (2022) indicates that there are systematic discrepancies in legal decision-making, even if one's approach is formal law and has an emphasis on neutrality. Newburn and Jones (2022) show that not only is there variation in punishment practices between countries, but also differences in crime rates, which can be explained as being influenced by political, cultural, and institutional features. They found that the overall values of society affect the laws and may lead to bias and proportionality in sentencing.

Winterdyk 2022 offers a comparison and contrast of the various African criminal justice systems, with a focus on the historical, political, and economic backgrounds. This study suggests that constraints on resources and structural inequalities are a problem that commonly confronts post-colonial legal systems, and that such constraints impact upon equality of constitutional protections for fair trial rights and representation.

Judicial Oversight and Accountability Mechanisms

Oversight by judges is very important in guaranteeing fairness in the negotiated justice system. This article from Davis (2022) describes deferred prosecution agreements and the need to hold deferred prosecutors accountable by the judiciary. Without adequate judicial oversight, prosecutorial discretion will lead to disparity in enforcement of the law and to proffer of unclear sentencing. The effects of this do not only apply when attempting a right to counsel and equalization of treatment in plea-like proceedings in different jurisdictions, but this has far-reaching consequences.

Right to Counsel and Fair Trial Protections

Many of the examined studies indirectly reference legal representation in terms of fairness and procedural protections; while these are not always directly related to “right to counsel,” they appear to have a similar purpose to providing access to counsel. Amagnya (2022) and Dhami and van den Brink (2022) emphasize that there are risks in the first steps of the criminal procedure when legal protections are not equally provided. A failure to provide for legal counsel at the pre-trial stages can have a profound effect on various issues – detention, case disposition, punitive sanctions, and so forth.

The literature depicts a close relationship between access to counsel and widespread procedural justice and judicial independence at a jurisdictional level. Legal aid that is robust is more likely to offer a more level playing field in the stages of interrogation, prosecution, and trial.

Conclusion

It is observed that while there are legal differences between different systems and variations in national or uniform approaches, there are common problems that need to be addressed in criminal justice systems today. From jurisdiction to jurisdiction, with the sophistication of technology, crime in other jurisdictions, and systemic inequality facing increased tests of due process protections, search and seizure, and the right to counsel. AI and digital evidence generate additional issues that need new legal protections for a fair and transparent justice system.

References

Amagnya, M. A. (2022). Due process in police-led prosecutions: Views of Ghanaian police prosecutors. International Journal of Police Science & Management, 146135572210895. https://doi.org/10.1177/14613557221089562

Blount, K. (2022). Using artificial intelligence to prevent crime: implications for due process and criminal justice. AI & SOCIETY, 39(1). https://doi.org/10.1007/s00146-022-01513-z

Casino, F., Pina, C., López-Aguilar, P., Batista, E., Solanas, A., & Patsakis, C. (2022). SoK: cross-border criminal investigations and digital evidence. Journal of Cybersecurity, 8(1), 1–18. https://doi.org/10.1093/cybsec/tyac014

Davis, F. (2022). Judicial Review of Deferred Prosecution Agreements: A Comparative Study. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.4072985

Dhami, M. K., & van den Brink, Y. N. (2022). A Multi-disciplinary and Comparative Approach to Evaluating Pre-trial Detention Decisions: Towards Evidence-Based Reform. European Journal on Criminal Policy and Research. https://doi.org/10.1007/s10610-022-09510-0

McConnell, B. (2022). Racial Sentencing Disparities and Differential Progression Through the Criminal Justice System: Evidence From Linked Federal and State Court Data. https://doi.org/10.48550/arxiv.2203.14282

Newburn, T., & Jones, T. (2022). Policing, punishment and comparative penality. British Journal of Criminology, 62(5). https://doi.org/10.1093/bjc/azac032

Panzavolta, M., & Maes, E. (2022). Exclusion of evidence in times of mass surveillance. In search of a principled approach to exclusion of illegally obtained evidence in criminal cases in the European Union. The International Journal of Evidence & Proof, 136571272210883. https://doi.org/10.1177/13657127221088328

Rose, C. (2022). Enforcing the “Community Interest” in Combating Transnational Crimes: The Potential for Public Interest Litigation. Netherlands International Law Review. https://doi.org/10.1007/s40802-022-00214-0

Schaap, D., & Saarikkomäki, E. (2022). Rethinking police procedural justice. Theoretical Criminology, 26(3), 136248062110566. https://doi.org/10.1177/13624806211056680

Winterdyk, J. (2022). Comparative Criminology and Criminal Justice within the African Continent. Strathmore Law Journal, 6(1), 46–70. https://doi.org/10.52907/slj.v6i1.157

Zilka, M., Sargeant, H., & Weller, A. (2022). Transparency, Governance and Regulation of Algorithmic Tools Deployed in the Criminal Justice System: a UK Case Study. Proceedings of the 2022 AAAI/ACM Conference on AI, Ethics, and Society. https://doi.org/10.1145/3514094.3534200