Yesterday, our colleague Professor Olga Semukhina of the Marquette Department of Social and Cultural Sciences gave a presentation entitled Criminal Procedure in Modern Russia: The Path of Reforms as part of our faculty workshop series. She outlined the structure of the Russian Criminal Procedure Code (adopted in 2002), explained how the criminal process works, and offered her sense of the system’s shortcomings. Not surprisingly, the system looks very different from that in the United States. The Russian system has Continental roots, and consistent with that is considerably less adversarial than our own. Indeed, defense lawyers play an almost entirely reactive role. The defense has no ability to gather evidence, and until trial (which is the only adversarial component of the system) is limited to lodging objections to the work of the criminal investigator (a lawyer who is in theory an independent investigator, but whose physical location amongst the police and prosecutors tends to generate an affinity for the state). Plea bargaining is non-existent. Every case goes to trial, and 99 percent of those result in convictions.
For me, the presentation underscored the value of the comparative perspective. It is easy to conflate familiarity with necessity, and exposure to the workings of another system has the tendency to dislodge some of our assumptions about the way the world works. Another example: in Russia, a crime victim’s claim for restitution is part of the same case as the criminal prosecution, and the victim has a right to appeal the verdict in the criminal portion of the appeal. It’s an intriguing process to someone, like me, who is interested in the boundaries between the civil and criminal processes.
I found the presentation fascinating. The idea of combining the civil and criminal processes was startling for me, too. I also was interested to realize that (other than the prospect of bribery) money does little to help the criminal defendant in the Russian system. Once that system’s pitted against you, hiring the best lawyers and experts does little to help.
Jim Troupis, a Madison lawyer, taught the rule of law and litigation in the American legal system to law students at Baikal State University of Economics & Law in Irkutsk, Russia last spring. His account of his time there can be found at http://www.fromrussiawithlaw.blogspot.com
I share your interest in the boundaries between criminal and civil processes. As an intern in a DA’s office, I observed restitution hearings, and in my work now, I see such cases on appeal. Among other things, Wisconsin’s restitution statute (Wis. Stat. 973.20) gives an advantage to a person making claims in a criminal proceeding (such as that the court may waive pesky evidentiary rules) that would be unavailable in a civil proceeding on the same claim. (There’s also a provision that converts unpaid restitution to a civil judgment anyway, further blurring the lines between the two systems.) However, at a restitution hearing, under most circumstances, an indigent defendant has the benefit of counsel to cross-examine witnesses and argue to the judge; at least for a typical indigent defendant, that’s better than what would happen in a civil case, which would likely result in a default judgment.