Pre-Trial Detention

This research paper outlines and then compares and contrasts the differing approaches of the American, English and French legal systems to the investigative custody or pre-trial detention of ordinary criminal suspects (those who are not aliens, spies, terrorists, juveniles or mental incompetents). For historical and constitutional reasons, stricter limits are placed on the ability of the authorities to hold suspects in custody in England and the United States than is true in France. The English system relies primarily on voluntary self-restraint by the police, operating within established judicial case law and, more recently, statutory codification of the rules regarding pre-trial detention. The American system relies primarily on federal and state procedural statutes, all subject to a written Bill of Rights and court decisions safeguarding the rights of the criminally accused. The French operate under a Code of Penal Procedure which affords the authorities, prosecution and police, especially when they act pursuant to the mandates of a juge d'instruction (JI) or investigating magistrate, broad latitude to detain for extended periods suspects in serious cases. In practice, the differences among the three systems are less striking and less protective of the rights of criminal defendants than they are in theory.

1. Historical and Constitutional Framework

Codes of Criminal Procedure. Decisions to hold suspects in custody are governed directly by codes of criminal procedu

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racticable and in any case before he is questioned about any offence." An elaborate system was established under which a police constable appointed a custody officer, who must keep a written record of questioning. What then follows are 'gentlemanly interviews' of the suspect, who, while he has the right to have counsel present, will be held legally accountable for whatever he says. In R. v. Samuel [1988] 2 WLR 920, a Court of Appeal reversed a conviction based on a confession by the accused where he was denied access to a solicitor for 36 hours. Juss says later cases have watered the Samuel doctrine down, making it unclear whether denial of access to counsel during questioning has any practical effect. The difficulty with this 'honor system' is that no sanctions are provided for violations of the law regarding questioning of suspects. Traditionally, confessions, before they were admissible or could be used as the sole basis for a conviction, had to be voluntary, which was a question of fact to be determined by the Court. However, the American exclusionary rule (see Brown v. Illinois (1975) 422 U.S. 590) under which involuntary or coerced confessions are not admissible as evidence and convictions based on them must be thrown ou

Category: Government - P