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Criminal law and criminal justice are becoming increasingly globalised. In open societies, the era in which individual jurisdictions developed their own codes, statutes and systems of justice with no regard to other systems and countries is long over. There is a growing desire to develop common approaches to common problems and to learn from the diversity of current practice in different countries. This development has been reinforced by the internationalisation of criminal justice in international and mixed criminal tribunals. However, attempts at trans-jurisdictional discourse are often hampered by mutual misunderstandings. Some problems are linguistic: although English is the new lingua franca of international and comparative criminal law, not all foundational concepts of criminal law and justice originate in the English-speaking world; some of them are rooted in civil law jurisdictions, such as France, Germany and Italy. The translation of these concepts into English is subject to ambiguity and potential error: the same term may assume different meanings in different legal contexts.
Witness evidence continues to occupy a central place in criminal trials. Laypersons who have witnessed crimes are called to narrate their experiences in court and experts are frequently called as witnesses to explain, interpret and justify an ever-expanding range of different types of forensic evidence collected before trial.1 Given concerns about the reliability of witness evidence, it is not surprising that it has been much discussed and is specially mentioned in the various conventions and constitutional provisions guaranteeing a fair trial.2 Much attention has focused on the different methods for controlling the manner in which such evidence is heard and challenged through the lens of the adversarial and inquisitorial categories that have long dominated and polarised comparative scholarship.3 More recently, however, it has been argued that although the methods for questioning witnesses still differ greatly, a convergence between common law and civil law systems is occurring as systems adapt towards adversarial influences and human rights requirements.4
The trans-jurisdictional discourse on criminal justice is often hampered by mutual misunderstandings. The translation of legal concepts from English into other languages and vice versa is subject to ambiguity and potential error: the same term may assume different meanings in different legal contexts. More importantly, legal systems may choose differing theoretical or policy approaches to resolving the same issues, which sometimes – but not always – lead to similar outcomes. This book is the second volume of a series in which eminent scholars from German-speaking and Anglo-American jurisdictions work together on comparative essays that explore foundational concepts of criminal law and procedure. Each topic is illuminated from German and Anglo-American perspectives, and differences and similarities are analysed.
In the United States, the Supreme Court recently acknowledged that ‘criminal justice today is for the most part a system of pleas, not a system of trials’. More than 95 per cent of convictions in the federal and state systems are the product of negotiated guilty pleas. In England and Wales, that number is about 90 per cent.