The Failure of the Criminal Procedure Revolution

It is particularly useful to examine the laws of other countries in the area of criminal procedure. While American lawyers and lawmakers are largely unaware of the laws of foreign jurisdictions, especially of non-English speaking countries, the reverse is not true. Foreign lawyers, many of whom have attended graduate school in America, are acutely aware of American developments. Consequently, these countries, in formulating their rules of criminal procedure, have adopted those American innovations that seem sensible to them and rejected those that do not. Thus, while the Supreme Court's cooption of this field has essentially eliminated the states as "laboratories," where new ideas can be tested, foreign countries can play the same role. However, care must be taken. No other country studied has the high level of crime of the United States, nor the same level of racial, ethnic, and economic diversity. Consequently, just because something works in Italy or Australia does not necessarily mean that it will work in the United States. However, if a certain approach has been accepted or rejected by most of the other major countries of the world, it behooves American lawmakers to take heed.

In this chapter, the criminal procedure systems of six countries will be considered. These are the four largest countries in Western Europe -- England, France, Germany, and Italy, -- plus Canada and Australia. As noted in the Introduction, all of these countries have a legislatively enacted code of criminal procedure.^* In all but one of them, Australia, this is a national code, applicable throughout the

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