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26 Buff. L. Rev. 361 (1976-1977)
Comparative Criminal Procedure: A Plea for Utilizing Foreign Experience

handle is hein.journals/buflr26 and id is 369 raw text is: THE 1976 JAMES McCORMICK MITCHELL LECTURE COMPARATIVE CRIMINAL PROCEDURE: A PLEA FOR UTILIZING FOREIGN EXPERIENCE* RUDOLF B. SCHLESINGER** INTRODUCTION C omparison of different systems of criminal procedure can serve a variety of purposes.' With an emphasis on similarities among the legal systems under consideration, the object may be to find a common core of legal solutions and institutions. This, for instance, was one of the main purposes of the studies and negotiations con- ducted by representatives of the Big Four Allied Powers in prepa- ration for the Nuremberg trials. It is not, however, the purpose of this lecture. More frequently, comparative research in the area of criminal procedure will focus on differences rather than similarities. Differ- ences, if at all significant, call for explanations.4 The purpose of such comparative studies may be to explain the differences in terms of their historical roots or in terms of the ideologies and policies underlying the divergent rules and institutions. Again, I must confess that-although historical explanations occasionally will be alluded to-explanation is not my principal objective today. * Presented to the Faculty of Law and Jurisprudence, State University of New York at Buffalo, on October 14, 1976. ** Professor of Law at the Hastings College of the Law, University of California; William Nelson Cromwell Professor of International and Comparative Law Emeritus, Cornell University Law School. D. Jur., Munich, Germany, 1933; LL.B., Columbia Uni- versity, 1942. 1. For a general discussion of the purposes to be served by comparative legal studies, see R. B. SCHLESINGER, COMPAATiVE LAIW 4-37 (3d ed. 1970). See also Winterton, Comparative Law Teaching, 23 Am. J. COMP. L. 69 (1975). 2. The purposes and techniques of modem common core research are discussed in 1 R.B. SCHLESINGER, FORMATION OF CoNTRAcTs-A STUDY OF THE COMMON CORE OF LEGAL SYSTEMS 5-58 (1968). 3. See Bull, Nuremberg Trial, 7 F.R.D. 175 (1948). 4. For a discussion strongly (and perhaps too exclusively) emphasizing explanation as an essential objective of comparative studies, see Merryman, Comparative Law and Scientific Explanation, in LAW IN THE UNITED STATES OF AMERICA IN SOCIAL AND TECH- NOLOGICAL REVOLUTiON 81 (J. Hazard & W. Wagner eds. 1974).

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