by Frederick T. Davis*
Since 2017 I have been teaching a course at Columbia Law School called “Comparative Criminal Justice,” which explores the very fundamental differences among criminal procedures around the world. It focuses particularly on the split between the “common law/accusatorial” world of criminal justice associated with English traditions and the “civil law/inquisitorial” world associated with continental Europe; those traditions are visible around the globe, including of course in the United States but also in many countries in South America, Africa and Asia whose legal traditions, at least in part, derive from one or another system. The course is fun. And I believe its message is important: the world is globalizing quickly, and crimes do not respect borders; prosecutors, law enforcement personnel, and others involved in criminal justice are increasingly confronted with legal systems different from the one in which they are trained, and do not always respond appropriately. My opinion is that many transnational criminal investigations have ended in sub-optimal outcomes because one or another participant did not understand the procedures and dynamics of the system within which an adversary was acting. Separately, international criminal tribunals hold trials in which important people, including in several instances a former head of state, have been charged with international crimes such as war crimes, torture, genocide, and crimes against humanity; my opinion is that many of those tribunals work inefficiently because they have not developed a coherent set of “international” criminal procedures, but rather tend to use a crude admixture of procedures drawn from very different legal systems that happen to be the only ones its participants understand.
My Columbia course was born of some experience in these areas: I am a former federal prosecutor and a New York trial lawyer, a Fellow of the American College of Trial Lawyers, but in 2006 I moved to France, sat for the Paris Bar, and engaged in quite a few criminal matters in France, including two trials; along the way, I have worked extensively at several of the international criminal tribunals, serving as an advisor to the Prosecutor at the (now former) International Criminal Tribunal for Rwanda as well as for the Prosecutor at the International Criminal Court in The Hague, and I advised a large group of victims in the (successful) prosecution of former Chadian dictator Hissène Habré for crimes against humanity in a trial in Senegal. I started organizing my comparative course based on this experience, and have enjoyed learning – and in a modest way, contributing to – the limited but useful academic literature on comparative criminal procedures.
My academic career took a huge boost when I stumbled upon 2014 article called A Survey of Comparative Criminal Procedure Through Foreign Films, published in Opinion Juris in Compatione, Vol I, Special Issue (2014) by Samuel W. Bettwy, an Assistant United States Attorney in the Southern District of California and an Adjunct Professor of Law at the Thomas Jefferson School of Law, where he teaches a course – which long anticipated mine! – on comparative criminal procedures. The article makes a simple but profound point: differences in criminal procedures reflect differences in culture. It then explores these differences in a visual and concrete way by analyzing films from around the world that portray investigations, interrogations, trials and other criminal procedures – not through documentaries so much as via mass-audience movies that unconsciously but accurately reflect cultural values. The article contains a clear exploration of the “common law / civil law” dichotomy, as well as variants, and then links them to specific films from around the world. A few years later Mr. Bettwy developed this article into a book, called Comparative Criminal Procedure Through Film: Analytical Tools and Law and Film Summaries by Legal Tradition and Country, which is available on Amazon and elsewhere. And in 2019 he took this remarkable work a huge step forward, publishing an “e-book” that not only contains his exploration of various legal traditions around the world, but includes actual, clickable links to over 400 film clips, extracted at great effort from films in 55 countries around the world, organized by the criminal procedure that they involve. This innovative “book” is available online, and is a unique resource for anyone interested in criminal justice – as well as a source of infinite amusement for film buffs.
On June 30, 2021, Sam Bettwy and I conducted a one-hour webinar on the theme of Comparative Criminal Procedures, Viewed Through Film, which took place at Columbia Law School; a recording of it is publicly available here. In it we showed six clips relating to two well-known criminal issues (the right to silence and the role of a judge and counsel during trial), three from England (including clips from two classics – The Paradine Case from 1948 starring Gregory Peck as a London barrister and Witness for the Prosecution, starring Charles Laughton), comparing them with three well-known French films that involved the same procedural issue. We ended up with an extract from A Separation, a classic 2011 film from Iran that includes some incomparable trial scenes quite different from either of the main Western traditions.
Our one-hour discussion was the barest introduction to the fascinating subject that Sam and I examine in our courses, and which can be explored through his book. Core criminal principles such as the right to confront witnesses and the right to counsel, as well as crucial procedures such as cross-examination, are not immutable: they are often implemented differently around the world. It is important to understand that these differences are not a matter of one country’s process being “better” than another, different procedures simply respond to different histories, traditions, and norms. And there is no better way to visualize this important point than through film.
*Davis is a member of the New York and Paris Bars. He is a Lecturer in Law at Columbia Law School where in addition to his course on Comparative Criminal Justice he also teaches on International Criminal Investigations, and he teaches or speaks frequently in Europe. His writings can be found at https://freddavisnylaw.com/
My colleague Anna Gressel and I have written an article, published in the current ABA Litigation Journal, which attempts to make sense out of the CLOUD Act adopted by the US Congress last year. You will find it here. (For French-speakers, a copy in that language is here).
The Act addresses an intriguing and difficult issue: how should national criminal and privacy laws deal with so-called “deterritorialized” data? Traditionally, laws protecting privacy have been local: there is an intuitive connection between the place where I am or store things and the laws that protect me and my information. So to arrest me, or get access to my home or papers, the local police must turn to local procedures that restrain their conduct. But today, the physical location of data is often meaningless: sensitive, important information that I easily access and handle in my home or office may be stored in a distant country, or may have no identifiable location at all — some service providers automatically divide even simple emails into “shards” that are constantly redistributed among servers in different countries to achieve efficiency. So if my most precious personal and financial information is stored someplace “in the cloud,” what country’s laws protect it?
The Supreme Court was faced with this question in March 2018 in a case where Microsoft was ordered to turn over emails to which it could easily gain access in the US, but which were physically stored on a server in Ireland because the account holder was from there. The core question was whether Ireland had an interest in regulating police access to data stored on its territory, or whether US investigative authorities could simply go ahead and get an order for their production in the US without even informing Ireland. On this the parties and scores of amici curiae were starkly divided. Before the question could be decided, however, Congress passed the CLOUD Act, which mooted the pending case. The Act’s core provision is that if a service provider in the United States is appropriately ordered to turn over information to which it has access, it must do so no matter where the information is stored – unless it can show that the data involved is stored in a friendly country whose privacy laws would thereby be violated. The CLOUD Act‘s substitution of access location for storage location, coupled with international coordination, is certainly an innovative, and probably a positive, step forward. The key may be whether other countries ultimately pursue the invitation to work with US lawmakers and investigators, or come up with an alternative, so that an appropriate and internationally acceptable balance can be found.
I would be especially interested in thoughts any of you may have about whether this approach is likely to gain support in your own communities.
Fred Davis is Of Counsel in the New York and Paris offices of Debevoise & Plimpton LLP, and a member of the New York and Paris Bars. He is also a Lecturer in Law at Columbia Law School where he teaches courses on comparative criminal procedures and cross-border criminal investigations. His book American Criminal Justice: An Introduction will be published soon by the Cambridge University Press.