the police interrogation. It is not so easy to understand how the untutored who need legal representation in the police station can make a rational decision, on their own, about whether to waive their right to counsel. We seem to fluctuate in common law systems between a conception of a strong criminal defendant, master of his own defense, and a picture of a weak defendant in need of a lawyer to be able to act autonomously.
Though expressed differently in substantive law and procedural institutions, the distinction between subject and object provides an important window on the respect for human autonomy in the criminal law. The requirement of agency or action as a condition for liability means that we punish only individuals who autonomously violate the law. The emphasis on the criminal suspect as a subject of the proceedings carries this idea of a suspect's autonomy further into the structuring of the criminal trial and the assessment of responsibility. The opposing mode of proceeding, once entrenched in the inquisitorial methods of the European Continent, underscores the state's duty to determine liability and to punish offenders. The more the state takes charge, the less room remains for the suspect's role as a subject shaping the trial. Wherever a legal system falls on this spectrum, ranging from treating the suspect as master of the trial to regarding the suspect as object of the state's investigation, the distinction between subject and object provides the best vantage point for understanding the issues at stake.
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Publication information: Book title: Basic Concepts of Criminal Law. Contributors: George P. Fletcher - Author. Publisher: Oxford University Press. Place of publication: New York. Publication year: 1998. Page number: 56.