Comparative Issues in Criminal Procedure: United States and Israel

We all know, or we all think that we know, the basic elements of US Criminal Procedure. Who hasn’t seen at least one of the US Crime / Police / Court Room dramas which are such a successful American export product? And what do does TV shows teach us about US Criminal Procedure? That in the US evidence of major crimes are excluded automatically due to illegal searches, that reliable confessions of guilt by suspects are excluded because they were not Mirandized, that if an evidence is excluded then any evidence that was obtained due to the excluded evidence is also automatically excluded based on The Fruit of the Poisoned Tree Doctrine, that a defendant can remain salient during his interrogation and trial without any price tag, and more. To make a long story short, that the US is a Defendant heaven and a Law Enforcement hell.

This popular perception of American Criminal Justice that is extremely protective of defendant’s rights has percolated as far as the rulings of The Israeli Supreme Court. The Israeli Supreme Court has opined many times in its rulings that Israeli Law should not travel the same extreme road of American Criminal Justice. Israeli scholars that criticized the latest developments in Israeli Criminal Procedure and Evidence Law (like the Israeli Supreme Court’s Exclusionary Rule of the Isscharov Case) have argued that Israeli Law is too restricted in its defense of defendant’s rights in comparison to the US legal system.

But does American Criminal Procedure so extremely defend the legal rights of suspects and defendants?

The object of this course is to refute such popular and superficial perspectives on US Criminal Justice by learning basic principles and issues in US Criminal Procedure. The course will present to the student US Criminal Procedure in a realistic and non-superficial manner. As a legal system similar to our own, but also very different. A system that has similar roots (like The Common Law) but different sources and that chose different balancing points on many issues regarding the conflicting interests of defendant’s rights on the one hand, and the state power to combat crime on the other hand. During the course we will discuss the core issues of Criminal Procedure, compare Israeli law to US law and try to decide which of the two is better at defending the rights of the accused (or as a mirror image, better at allowing the state to combat crime).

The course will present the following issues (subject to change): The Fourth Amendment Exclusionary Rule, Fruit of the Poisoned Tree Doctrine, Basic Search and Seizure Law, The Right to Counsel, Plea Bargaining, Confession and Interrogation Law (Especially the Miranda Ruling and its progeny), Prosecutorial Discretion in Charging, Sentencing and more.

A note to students considering taking this course: due to the nature of the course and subject most of the reading are U.S Supreme Court rulings which are, naturally, in English (but in my opinion will not be difficult to read and understand to the Israeli Law Student). Please take that fact under consideration if selecting this course.