Abstract
This paper seeks to compare American and Australian Criminal Justice Systems by providing information regarding the way the two criminal justice systems operate. Some of the various aspects that the paper will be seeking to evaluate within the two systems include the legal traditions; law enforcement; measure of crime; criminal procedure; corrections; terrorism and organized crime; courts and legal profession; and juvenile Justice. The paper starts with an introduction, which provides a general overview of the paper. Consequently, the paper will provide insight regarding the legal traditions that are practiced within the two countries.
Introduction
Comparative studies of criminal justice systems between different jurisdictions involve focusing on the manner in which political institutions try to achieve justice and social order. The criminal justice systems in the United States and Australia have similarities given that they share the same heritage that is England but also have some glaring differences. Besides helping one understand the manner in which individual criminal justice systems function, comparing international jurisdictions play an important role in helping improve various aspects that may not be as developed as those in other countries. It is important to understand that although many policy initiatives within a criminal justice system are homegrown, they are often inspired by more developed policies in other jurisdictions. Ultimately, most nations, including the United States and Australia follow the systems that were introduced to them by their colonizers even thought there may be some new adaptations to the systems to accommodate some of the best practices from other criminal justice systems.
Legal Traditions
Legal traditions are an important part of the criminal justice because the development of criminal justice systems in different jurisdictions has a close relation to the legal traditions unique to particular countries (Glenn, 2004). It is important to note that there are three main legal traditions the world over: the civil law, the English common law, and the religious law. The Australian criminal law system is based on the common law traditions. These traditions were introduced under the British colonial rule and comprises of a body of laws and legal procedures that have been developed in England over many centuries. They are based on the local customary notions of right and wrong, criminality, justice and punishment. It is a tradition that is also derived from centuries of judge-made laws in the course of determining cases. These traditions thrive through a system known as judicial precedents where previous court decisions influence the future outcome in similar cases.
On the other hand, the American criminal justice system is based on a combination of the common law and civil law traditions. The civil law traditions derive from the Roman law and the Justinian traditions, which rely on statutes that are made through legislation in collaboration with the executive branch of government in a given country. The civil law tradition has evolved over centuries in medieval Europe by way of development of statutes through legislative branches within continental Europe and subsequent promulgation through royal decrees. As such, the only difference between the legal traditions in Australia and the United States is that the latter has entrenched the civil law traditions within the common law traditions making it have a mix of legal traditions.
Criminal Procedure
In relation to criminal procedure in Australia, the practice happens at two levels: the state and federal levels. . At the federal level, there is the Commonwealth's Crimes Act of 1914, which significantly codified federal regulations affecting criminal procedure. However, there is a mixed regulation of criminal procedure at the state level in the sense that where there is a conflict between the state laws and the federal laws the latter prevails (Akpet, 2011, p. 76). It is important to note that like the federal level, the criminal procedure rules in Queensland and Victoria states are also codified while the New South Wales and South Australia have statutes that regulate criminal procedure. However, the rest of the states in Australia derive their criminal procedure rules from a mixture of statutes and common law. As such, criminal procedures emanating from common law and statute law apply to diverse matters including arrest, interrogation, detention, bail, prosecution, as well as search and seizure (Davies, 2002).
Just like in Australia, the American system is mainly state oriented and most crimes are prosecuted in the state courts (Brown, 1999). There are few criminal prosecutions in federal courts in comparison with the state courts, most of which are drug-related or crimes arising from federal statutes or the U.S. Constitution. As such, although the criminal procedure in Australia is largely state-oriented the American system is federal-based and relies greatly on the interpretations of the United States Constitution. For instance, the right against self-incrimination and the right to counsel in the United States are based on the interpretations of the U.S. Constitution rather than common law and statutory principles.
With regard to the due process, Australian courts apply common law and statutory rules indirectly through the process of excluding evidence that is obtained without following the due process. This practice originated from the common law system and grants discretionary powers to the courts to enable them exclude evidence is obtained illegally. The federal courts, the Tasmanian courts, the Australian Capital Territory courts, and the South Wales courts apply this principle as set out in the Evidence Act of 1995. However, although the Act was initially intended to apply to all courts throughout Australia as a way of reforming the admissibility rules, some states did not see the need to reform hence retained the common law rules to date. As regards the regulation of the criminal procedure, the Evidence Act of 1995 reproduces the common law position which provides that an abuse of the process can cause the court to exclude evidence on account of illegality. This means that even though the Australian criminal law has undergone considerable statutory reforms at the state and federal levels, the criminal procedure is largely influenced by the common law features such as equal treatment before the law and emphasis to due process.
In the United States, it was not until the 1960s that some states began to exclude evidence that is obtained illegally. This means that prior to the 1960s, the law enforcement personnel had substantial powers to obtain evidence against suspects through whatever means. This is because the courts were not bothered about the due process, but the innocence or otherwise of an accused person. However, the Supreme Court’s decision in the case of Mapp v. Ohio allowed the exclusion of evidence in cases where there were violations of the Fourth Amendment provisions regarding search and seizure (Shahidullah, 2012, p. 159). Following this decision, the courts in both legal systems have adopted the common law principle regarding exclusion of evidence where law enforcement agencies obtain evidence in disregard of the due process. However, the American system is different with regard to the admitting such evidence in cases concerning organized crime. For instance, courts in the United States allow evidence that law enforcement agencies obtain by way of entrapment but courts in Australia are hesitant when it comes to allowing evidence that is not acquired through a proper process notwithstanding the seriousness of crime.
The issue of admissibility of evidence is coupled with the law regarding confessions. The criminal courts in the two countries examine the process of taking confessions by using the traditional voluntary standards to evaluate the validity of confessions. The American courts consider the validity of confessions with regard to the privilege against self-incrimination and the right to counsel. In this regard, the courts assess the independent will of the person confessing and the circumstances under which the confession was made. According to the 1961 case of Culombe v. Connecticut courts in America concern themselves with whether the freewill of the suspect was compromised and whether their self-determination capacity was impaired. As such, the law enforcement personnel in the United States can only interrogate suspects using approaches that can only encourage voluntary statements from the suspects. Consequently, if the law enforcement personnel obtain confessions in violation of the Miranda rights such confessions cannot be admitted as evidence in a court of law (Shahidullah, 2012, p. 157). Ultimately, courts in the United States and Australia zealously guard the rules pertaining to confessions.
Other similarities between the two systems are in relation to proof beyond reasonable doubt and the presumption of innocence. Presumption of innocence is the most fundamental element of the criminal justice system and is a core feature of the American and Australian systems. In both jurisdictions the burden to persuade the court to find the accused culpable rests wholly on the prosecutor. Accordingly, proof beyond a reasonable doubt requires a high standard of proof in both jurisdictions. This standard of proof is based on the fact that a person’s life or freedom is at stake and the fact that the accused would be greatly affected if they are wrongly convicted. The Australian courts apply this standard in a bid to minimize the chances of condemning people for crimes that they did not commit. It also recognizes the grave consequences that an erroneous guilty verdict is likely to have on the accused person, the entire system, and the society in general.
The trial courts play an important role in ensuring that the presumption of innocence is upheld regardless of the crime that criminal defendants are accused of. Both the American and Australian criminal justice systems are adversarial, which means that the judges neither have prosecutorial responsibilities nor liaise with the lay persons for a fact finding mission, they are expected to be neutral arbiters hence do not involve themselves in the investigative processes. In this regard, the courts in the two countries are resolute regarding the impartiality of the judges, hence judges can neither direct a party to present their evidence in a particular way, nor can they express their views about the cases that are still pending in court outside the courtroom. Accordingly, judges in the two criminal justice systems cannot adduce evidence on their own motion and they should not have any personal interests in the outcome of the cases where they sit as umpires.
Major Differences
Right to Counsel
The right to counsel is a right that is deeply entrenched in the adversarial systems. However, it is important to note that the right to counsel can be construed in two ways: that courts should not prevent an accused person from contracting the services of a lawyer and secondly, that an accused person must be provided with a counsel at the expense of the government. The Australian criminal justice system recognizes the right to a fair trial but does not recognize an accused person’s right to counsel at the expense of the government. However, it recognizes that depending on the circumstances of some cases, failure of the accused person to secure legal representation may impair the ability of the accused to receive a fair trial. Although the Australian law does not recognize the right to be provided counsel at the expense of the public, the court in the 1992 case of Dietrich v The Queen held that in the instances where an accused person is charged with a serious crime, only on exceptional circumstances does the court proceed without representation (Australian Law Reform Commission, 2015, p. 26).
On the other hand, courts in different states in America had inconsistent requirements regarding the right to counsel for the criminal defendants. While some states required the accused persons to be provided with lawyers to help them prepare their defenses, some did not have this requirement. It was not until the decision of the Supreme Court in the case of Gideon v. Wainwright that criminal defendants were mandated the right to counsel in state and federal criminal prosecutions (Shahidullah, 2012, p. 159). The right to counsel in the United States originates from the Fifth and Sixth Amendments to the U.S. Constitution. While the Sixth Amendment confers the right of a criminal defendant to conduct their defense, the Fifth Amendment indirectly advocates for the right to counsel. It is worth noting that in order for an accused to waive their right to counsel under the Sixth Amendment, the court must be satisfied that the defendant knows the possible consequences of such waiver. As such, the difference regarding the right to legal counsel between Australian and American criminal justice systems is that the latter recognizes the right of an accused person to acquire the services of a counsel in virtually all criminal matters at the expense of the public while Australia does not have an obligation to provide counsel to a criminal defendant.
Search and Seizure
There are considerable differences regarding search and seizures in the United States and in Australia. In Australia, the principles regarding search and seizure relate to the provision of specific powers to the law enforcement agencies whenever there is reasonable suspicion. Generally, Australian laws are not aimed at protecting individuals from unjustified interference from law enforcement agents, but they only confer powers to the law enforcement agencies in the course of obtaining evidence. The law in Australia is therefore geared towards assisting the law enforcement bodies with investigations rather than protect individuals from unreasonable invasion of their privacy. It is notable that Australia does not have constitutional safeguards against unjustifiable search and seizure hence it is for the courts to interpret whether the conduct of law enforcement agencies is within the law. As such, depending on specific jurisdictions within Australia, it is possible for the law enforcement agencies to search, seize and arrest without a warrant. For instance, in Queensland as well as South Australia, the police have broad powers to search vehicles and persons if they have reasonable suspicion that they are likely to find evidence of an offense.
In contrast, courts in the United States have been very strict about invasion of privacy. In order to stop and frisk someone, the police in the United States must have probable cause. The police cannot just stop and seize a person who is not engaged in suspicious behavior. The Fourth Amendment reinforces the personal privacy but also allows the law enforcement agents to carry out their investigations responsibly without causing an indignity to individuals and their property. In this regard, the American system is more concerned about individual privacy than legitimate concerns of the law enforcement agents. Accordingly, courts in America are not as eager to recognize the concerns of the law enforcement agents prior to carrying out search and seizure as the Australian courts are.
Courts and the Legal Profession
The Australian judicial system consists of judges and courts that are arranged in a hierarchy. The duties of the courts in the hierarchy vary depending on the territory of the state they are situate given that Australia has a federal system of governance. Every state has its own parliament and courts, but the federal laws take precedence over the state laws. Accordingly, the decisions made by the highest court, which is the High Court of Australia, are binding on all other state and federal courts (Akpet, 2011, p. 86).
Like Australia, the American system of governance is federal in nature and has federal and state courts. The U.S. federal court system is divided into three levels: the district courts, the circuit courts, and the U.S. Supreme Court. The district courts are the trial courts, the circuit courts provide the first level of appeal, and like the High Court of Australia the U.S. Supreme Court is the highest court in America. The fact that cases that are determined in the federal courts are those arising from the U.S. Constitution and federal statutes shows that the federal court system in the United States and Australia is considerably similar.
With regard to the legal profession, the Australian profession is divided into two: the solicitors and the barristers. The difference between these branches is that the solicitors are general legal practitioners while the barristers tend to focus more on specific areas of the law. Despite the difference both classes of lawyers are answerable to the Law Council of Australia, but are independently regulated by The Law Society and The Bar Association. As such, much of the difference between the solicitors and the barristers are on the basis of the territory or state they are situated and their level of education.
On the other hand, the American legal profession is fused in the sense that there is no division like the solicitors and barristers in Australia. As such, there is no group of lawyers that have a monopoly of duties like the barristers in Australia. For a person to be admitted as a lawyer in America, one has to acquire bachelor’s degree from either of the law schools authorized to offer legal education by the American Bar Association. It is important to note that in certain administrative hearings in America layers are not allowed to participate. This is a deliberate effort that is meant to ensure that the hearings preserve their informal status. With regard to regulation of the American profession, there are various regulatory laws that are geared towards guiding providers of legal services and their organization. Accordingly, there is considerable regulation of legal service providers by the government at the federal and state levels in America (Johnstone, 2008, p. 749), a task that is carried out by the Law Council of Australia in Australia.
Corrections
Corrections in the United States entail various agencies that perform the sentencing order. Some of the agencies include the probation authority, jails, prisons, and paroling authorities. It is important to note that Australia also has similar agencies. Probation and parole enable convicted persons to remain within the community and continue working in their jobs, but they are under supervision of the probation officers. Accordingly, in both systems special juvenile agencies are tasked with dealing with the juvenile convicts. As such, corrections in both countries are considerably similar
Conclusion
There are various similarities within the two systems regarding corrections, criminal procedure, law enforcement, juvenile justice and other aspects. Accordingly, the two systems have considerable differences that would make them alien if they were to be swapped in their current status given that the main differences are on the basis of culture. While the American criminal justice system tends to provide greater protection to individual rights, the Australian system does not provide as much protection perhaps fearing that such a move would diminish the confidence of the community towards the courts. Like many criminal justice systems in contemporary societies, the two jurisdictions do not exist as purely common law or civil law systems.
References
Akpet, K. (2011). The Australian Legal System: The Legal Profession and the Judiciary.
Ankara Bar Review.
Australian Law Reform Commission (ALRC ) (2015). “Traditional Rights and Freedoms –
Encroachments by Commonwealth Laws”. Interim Report 127. Retrieved from: https://www.alrc.gov.au/sites/default/files/pdfs/publications/alrc_127_interim_report.pdf
Brown, J. and Langan, P. (1999). Felony Sentences in the United States, 1996. Bureau of Justice
Statistics. Retrieved from: http://www.bjs.gov/content/pub/pdf/fsus96.pdf
Culombe v. Connecticut, 367 U.S. 568,602 (1961)
Davies, G. L. (2002). 'Exclusion of Evidence Illegally or Improperly Obtained'. Australian Law
Johnstone, Q. (2008). An Overview of the Legal Profession in the United States, How That
Profession Recently Has Been Changing, And Its Future Prospects. Faculty Scholarship Series. Retrieved from: http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2908&context=fss_papers
Shahidullah, S. (2012). Comparative Criminal Justice Systems. Jones & Bartlett Publishers.
