TY - JOUR
T1 - The Right to Confrontation in Common Law Systems: A Critical Comparison
AU - Gray, Anthony
N1 - Publisher Copyright:
© 2015 by the Regents of the University of California. All rights reserved.
PY - 2015/2/1
Y1 - 2015/2/1
N2 - Recent years have seen a departure from traditional criminal due process requirements in the wake of 9/11, one feature of which has been the increased use of closed court hearings in relation to the introduction of evidence considered particularly sensitive to national security. Typically, both the person affected by the proceedings and their legal adviser are excluded from such a hearing. These developments contradict long-established and fundamental characteristics of proceedings in a criminal law trial in common law systems, such as the open court principle and the adversarial nature of proceedings. They also contradict the right to confront accusers, a right traceable to Roman times, and a feature of the British system for more than four centuries, and of the American system for more than two. This article highlights the latest case law developments in key jurisdictions around the world before critically appraising trends evident in the recent jurisprudence. It is critical of the fact that courts in some jurisdictions have permitted substantial departures from the right of an individual to confront witnesses being used against them.
AB - Recent years have seen a departure from traditional criminal due process requirements in the wake of 9/11, one feature of which has been the increased use of closed court hearings in relation to the introduction of evidence considered particularly sensitive to national security. Typically, both the person affected by the proceedings and their legal adviser are excluded from such a hearing. These developments contradict long-established and fundamental characteristics of proceedings in a criminal law trial in common law systems, such as the open court principle and the adversarial nature of proceedings. They also contradict the right to confront accusers, a right traceable to Roman times, and a feature of the British system for more than four centuries, and of the American system for more than two. This article highlights the latest case law developments in key jurisdictions around the world before critically appraising trends evident in the recent jurisprudence. It is critical of the fact that courts in some jurisdictions have permitted substantial departures from the right of an individual to confront witnesses being used against them.
UR - http://www.scopus.com/inward/record.url?scp=84920744423&partnerID=8YFLogxK
U2 - 10.1525/nclr.2015.18.1.129
DO - 10.1525/nclr.2015.18.1.129
M3 - Article
SN - 1093-3514
VL - 18
SP - 129
EP - 165
JO - New Criminal Law Review
JF - New Criminal Law Review
IS - 1
ER -