United States and China
I. Legal System
The United States criminal legal system is based on the British Common Law system. Common law refers to those laws that are created and imposed by judges in the absence of specific a specific code or applicable statute defining the law (LaFave, 2000). Accordingly, during the early years of the nation when a judge was faced with a criminal activity that was not covered by a statute, he would use precedent, or refer to the decisions of similar cases, for guidance. Absent statute and precedent, the judge would simple use his best legal, professional and personal judgment to make the law that would apply to the new criminal activity. Today the majority of criminal laws in the United States are created and regulated by comprehensive criminal statutes (LaFave, 2000). To be sure, crimes that were originally defined by common law such as murder, burglary, and robbery have been retained in criminal statutes ether expressly or by laws that cover the same elements as the common law crimes (LaFave, 2000). Importantly, judges still play an important role in interpreting statutes; and in those rare cases where criminal statutes do not or cannot anticipate a new criminal activity, judges may be called on to “create” new criminal law until an applicable statute can be drafted (LaFave, 2000).
Another aspect of the US criminal justice system that was influenced by the British legal tradition is the adversary system (Jonakait, 2009). The adversary system refers to the method in which legal disputes are resolved by two opposing advocates representing their party’s position before an impartial tribunal (Jonakait, 2009). In criminal trials the interest of the victims are represented by the state’s attorney or prosecutor while the interests of the accused are represented by the defense attorney. In a criminal adversarial proceeding, while the state and the defense both have the right to call their own witnesses, cross-examine the opposition’s witnesses and produce their own evidence there are some characteristics of the system that are particular to each side. For instance, the state has the burden of proving the defendant is guilty “beyond a reasonable doubt,” whereas under the Constitution, the accused is guaranteed the right to have representation by counsel. One special feature of the American adversarial system is the role of the judge. In the US criminal justice system, a judge is responsible for managing the court and court docket, ensuring that court proceedings are fair and equitable for both the state and the defense, making legal and evidentiary rulings and instructing the jury about the applicable laws of a particular case. Judges are generally not allowed to determine the facts of the case or favor one side over the other.
The modern Chinese legal system, like its American counterpart, is one that has been influenced by foreign legal systems. But, unlike the US, the Chinese system incorporates many aspects of its home-grown legal tradition (Donovan, 1987). To be sure, the Chinese legal system is a hybrid civil law system that is based on socialist political thought (Chiu, 1992). One of the fundamental differences between civil (China) and common (US) law countries is the source of law (Hodgson, 2008). In China, the primary source of its criminal law is the Criminal Code. The Criminal Code is a comprehensive statute passed by the national legislature that define and specify all issues capable of being brought before a criminal court. In order to make up for changes in society, the criminal code is continuously updated. Where there are gaps in the law or confusion as to the meaning of a particular code, judges can consult the interpretations of higher courts or legal scholars (Chiu, 1992). Judges cannot make “new” laws in China as that responsibility rest solely with the national legislature.
In contrast to the US system, criminal trials in China follow the inquisitorial system of court proceedings. Under the inquisitorial system, court proceedings are not a contest of opposing advocates trying to prove that their side of the story is the most probable explanation. Instead, the judge, the prosecutor and the defense, in theory work together to establish the truth and by finding evidence that either suggests that the defendant is guilty or not (Hodgson, 2008). Accordingly, in China the judge is far more active. In China, it is the judge who determines the facts of the cases, with the assistance of the prosecutor (and sometimes the defense attorney). Once the facts are determined, the judge is required to apply the relevant provisions of the criminal law to the circumstances of the case to determine a suitable outcome. There are no juries in Chinese criminal trials, although in more serious cases, trials are heard before a panel of three which includes at least one judge and one “lay” person or person without any legal training (Lawrence & Martin, 2013). In carrying out his responsibilities, the judge can perform his own investigation, cross-examine witnesses. Accordingly, trials in China are often judge dominated forums where the general work of the prosecutor is to examine the witness to verify information obtained during the investigation; while defense attorneys examine witnesses to confirm information that might help mitigate punishment if the defendant is found guilty.
The United States has a parallel criminal court system, one at the federal level and another at the state level. The federal court system was created by Article III of the US Constitution which confers the “judicial power of the United States” in the United State Supreme Court (USSC) and those inferior courts Congress find necessary to allow the USSC to effectively accomplish its duties. The eventual federal system that Congress agreed to is a three-tier system with the USSC at the top, the US Courts of Appeal (Circuit Court) in the middle and the US District Courts at the bottom. Federal courts have jurisdiction of all “cases and controversies” alleging federal crimes or those which the Constitution gives them authority to hear such as those involving the interpretation of a specific constitutional provision. The USSC is federal system’s “court of last resort.” The USSC can only hear cases brought to it on mandatory appeal or by a discretionary grant of a writ of certiorari from either: (1) a US circuit court or (2) a State Supreme Court where the constitutionality of a federal or state action is called needs to be determined. Originally the circuit courts were the primary criminal trial courts of federal system (US district courts which were limited to hearing admiralty and maritime cases as well as some minor criminal matters) (LaFave, 2000) Which circuit court would hear a case was determined by the judicial regional or circuit in which it was located. By the late-1800s, however, as the case loads and responsibilities of the USSC grew, primary appellate jurisdiction over the lower federal courts was transferred the circuit courts (LaFave, 2000). Currently there are 13 circuits, and at least one court located in each of the 13. In addition to dividing the nation into judicial circuits, Congress also created smaller regions of federal judicial authority called districts. Unlike a circuit which might encompass several states, a district is generally composed of a specific region within a state. Each federal district was assigned a federal district court to, as mentioned; serve as the federal trial courts for admiralty and maritime cases occurring within the district. Eventually, the district courts became the exclusive criminal trial courts for the federal system. Currently there are 94 US district courts with at least one district court in each state.
While states were free to design and implement their own court systems, most state systems mirror the federal court three-tier system. Indeed, similar to the federal system, the top criminal court of each state court systems is a state supreme court or court of last resort. The middle levels of state judiciaries generally consist of intermediate appellate courts, and lastly the third-tier of state courts, unlike the federal system, are separated into trial courts of general jurisdiction and trial courts of limited jurisdiction. State courts of last resort generally have appellate jurisdiction over all criminal matter pertaining to state law. They also have the final say in interpreting state constitutional law. Similar to USSC, cases are brought to state courts of last resort by an appeal from an intermediate appellate. Just as similar, state courts of last resort also enjoy a high degree of discretion in which cases they can choose to hear. The development of state intermediate appellate courts mirrors there development at the federal level, mainly as a means to relieve the workload of the state courts of last resort. Every state has at least one intermediate appellate court and the bigger states have several appellate courts that have jurisdiction over the lower courts within its region. Most states have a number of trial courts of general jurisdiction divided into judicial circuits that are created by a political boundary county. These courts handle the most serious criminal cases. They also often have appellate jurisdiction over lower trial courts. Trial courts of limited jurisdiction are generally the lowest state level courts. They generally have jurisdiction over minor criminal offenses punishable up to a year in jail. Generally, appeals from trial courts of limited jurisdiction are made to the local trial court of general jurisdiction rather than to the state intermediate appellate court.
In contrast to the US, the Chinese court system is a unitary judicial system; all lower provincial, county and city courts answer to one top national court. The Supreme People’s Court (SPC) sits at the top of the Chinese court system. Unlike the USSC, the SPC is at once a trial court, an appeals court and a judicial administrative organization (Donovan, 1987). Furthermore, while the SPC has independent authority to act on its own; it is ultimately answerable to the China’s national legislature, also known as the National People’s Congress (NPC), who actively supervises the work of the SPC (Donovan, 1987). The SPC has authority to hear trials assigned to it by law as well as those cases it determines should be tried before it such as cases that are of national interest, death penalty cases. It also has appellate jurisdiction to reviews cases from the provincial level Higher People’s Courts and where it deems necessary, the cases of al lower level courts (Chiu, 1992). The SPC’s administrative duties include ensuring the effective administration of justice in the lower courts, supervision and training of all judges and interpreting the laws. In contrast with the US, the SPC’s interpretations of the law are not binding on lower courts; nonetheless they are persuasive and lower courts tend to follow them anyway. In contrast to the USSC, there are over 200 judges that sit on one of its four courts (criminal, civil, economic and administrative law) or staff one of its specialized departments. SPC department are responsible for a number of tasks including, legal research, personnel and international exchange (Chiu, 1992).
The next level below the SPC is the Higher People’s Court (HPC). Every province and provincial-level municipalities (Beijing, Shanghai, Tianjin and Chongqing) has one HPC, which have trial and appellate jurisdiction over major criminal cases that have a provincial impact. The Intermediate People’s Courts (IPC) make up the third-tier of courts. IPCs have both trial jurisdiction over serious criminal cases where the potential penalty is life imprisonment or death or criminal cases involving foreigners, and appellate jurisdiction over criminal appeals from lower courts. The fourth and final level of courts in the Chinese system is composed of the Basic People’s Courts (BPC). The BPCs are the courts of first instance for the majority of criminal cases (Donovan, 1987). The number of BPCs in any geographic location depends on the size of the political division (city, town, rural areas). If a BPC’s caseload is too large, it also has the authority to organize ad hoc People’s Tribunals (PT). PTs have the same authority and jurisdiction as a BPC and their decisions can be appealed to the next highest court.
It should be noted, in contrast to the US, each criminal case in China is may be heard twice. A defendant can appeal a decision to the next highest court. Similarly, a prosecutor can also “protest” a decision to the next highest court. The court hearing the appeal has discretion to simply review the record of the case below (as is done in the US) and make a decision as to whether there was an incorrect application of the law or can “rehear” the case as a new trial (Chiu, 1992). Moreover, lower courts can request that a case is transferred to the next higher court before a trial is heard. This often occurs if the lower court determines that the case is too important or too complex for it to handle.
Police forces in the US follow the parallel system of US courts; namely a federal police force and a separate state or local police force. Federal police forces have the authority to enforce federal crimes. Federal crimes are those that: (1) occur in federal owned or controlled territory such as the District of Columbia or to a federal official; (2) involve interstate or cross-border activity such as cybercrime; (3) Americans abroad or all persons travelling aboard American ships or aircraft; and (4) is founded on an express or implied grant of constitutional authority such as tax evasion (LaFave, 2000). The Federal Bureau of Investigation (FBI) is the primary federal law enforcement agency. It has general jurisdiction over most federal crimes not specifically undertaken by another federal law enforcement agency. For example, the FBI would be the lead investigator in terrorism, counterintelligence or cybercrime cases. As mentioned, in additional to the FBI there are a range of other specialized law enforcement agencies that work with or independently of the FBI. For instance, the United States Secret Service is the lead federal law enforcement agency in investigation the counterfeiting of US currency.
Under the Constitution, every state was granted power to regulate the behavior of its citizens and regulate the affairs within its territory to ensure the “health, safety, morals and general welfare” of its people (LaFave, 2000). This power, which is known as the police power, gives state and local law enforcement agencies the authority to enforce state criminal laws for criminal activity that happens within the territory of the state. Law enforcement agencies at the state and local level can generally be divided into state police, sheriffs or county police and city or municipal police departments (Potter, 2013). State police, who are under the authority of the governor, are mainly responsible for enforcing state wide criminal laws. However, since most criminal law is a creation of local government, state police generally are responsible for patrolling the state highways, providing security to state officials and state facilities and performing primary law enforcement duties for those cities, towns and rural areas that do not have a police force of their own. Sheriff or county police are often deployed fill the law enforcement gap between state and city police agencies. In must jurisdictions that have sheriffs, however, their primary responsibility is providing security to the local trial courts of general and limited jurisdiction and the transport of inmates between court and the jails. Lastly, the most common type of law enforcement agency in the US is the city or municipal police department. City police departments are responsible for enforcing all city criminal laws, conducting criminal investigations and ensuring the safety and security of the community. Moreover, they generally serve under the authority of the mayor or city administration who set police department budgets, strategic priorities and can dismiss it chief. As with all participants in the US criminal justice system, the correctional system is also divided into federal, state and local administration. The Bureau of Prisons (BOP) is the federal agency responsible for the administration of prison system of the United States. The BOP is an independent law enforcement agency of the Department of Justice (DOJ). The BOP manages the full range of correctional activity from transportation and housing of federal inmates to federal inmate reentry services to ensuring the health and safety of the federal inmate population as well as BOP correctional officers. At the state level corrections are further divided into State Department of Corrections (DOC) and county or municipal jails. DOC is responsible for managing state prisons which house inmates convicted of crimes punishable by more than a year of imprisonment. County or municipal jails are operated by city or county personnel and house inmates who have been sentenced to one year or less.
Law enforcement in China follows the unitary system of its courts. The Ministry of Public Security (MPS) is the nation’s highest law enforcement department. Below the MPS are the provincial level Public Security Bureaus (PSB), followed by the County Public Security Departments, and lastly the local police stations. Each level of police operates under the authority of both the next higher law enforcement agency and the local government (Donovan, 1987). For example, a local police station would under the authority of the city mayor as well as the County Public Security Department. Law enforcement agencies in China are not only responsible for enforcing the criminal laws and ensuring the safety and security of the community but they are also charge with a number of administrative duties such as managing the registration system within its territory. This involves compiling the details, such as the living arrangements, marriages, births, deaths of all citizens in a given area. Moreover, police in China are responsible for overseeing immigration and visitor affairs and firefighting.
Like their US counterparts, police in China have independent power to initiate and manage criminal investigations as they see fit. However, all criminal investigations are subject to supervision by the prosecutor’s office that can check to ensure that police personnel are acting according to the law (Chiu, 1992). Moreover, prosecutors and the courts can have access when they want or need to run their own criminal investigations as allowed to them under the law. Similar to the US, corrections and prison administration falls under the responsibility of the law enforcement. However, in China all corrections administration falls under the jurisdiction of the MPS and its subordinate authorities at the provincial, municipal and local levels.
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