Vol. 11 No. 6 (June 2001) pp. 275-277.

THE JUDICIAL ROLE IN CRIMINAL PROCEEDINGS by Sean Doran and John Jackson (Editors). Oxford: Hart Publishing, 2000. 337pp. Cloth $104.00. ISBN: 1-84113-045-1.

Reviewed by Christopher E. Smith, School of Criminal Justice, Michigan State University.

Like other scholars in the United States who are self-described students of courts and law, my research and teaching focus almost exclusively on American courts and law. My education in an American law school and an American graduate program in political science provided little attention to legal systems in other countries. In many ways, my knowledge of other systems is defined by descriptions of ideal types that are used to distinguish different countries' courts, such as comparisons between "common law systems" and "civil law systems" or the "adversary system" of criminal trials and the "inquisitorial" approach to judging. With a keen awareness of the limitations of my training and knowledge, I took up the task of evaluating THE JUDICIAL ROLE IN CRIMINAL PROCEEDINGS, a collection of essays edited by Sean Doran and John Jackson that primarily focuses on issues affecting courts in the United Kingdom, with curiosity and trepidation. I wondered whether the essays would prove interesting and beneficial to an Americanist and, moreover, whether I would adequately comprehend the details of scholarly analyses concerning legal cases and trial processes that were foreign and unfamiliar. As I read the book, I quickly discovered this volume's valuable essays both enriched my understanding of criminal case processing elsewhere in the world and unveiled important insights about judging that raise interesting issues about the roles of American trial judges. Moreover, many of the essays incorporated comparative analyses and therefore were less exclusively country-specific than I originally anticipated. Thus several of the authors provided American reference points that were quite useful for understanding the examples from Great Britain and elsewhere.

The book contains twenty essays that are divided among five section headings. Part I contains four essays and is entitled "Judging Law and Fact." "Protection of Rights and Prevention of Unfairness" is Part II and it is comprised of six essays. There are only two essays in the third part, "Case Management." Part IV, "Judges and Judging in Times of Crisis," contains three essays, and the final five essays concern Part V's theme of "Sentencing." Within each of these sections, the essays are not necessarily closely connected. As in other volumes of edited articles, it appears that the section titles were developed after each piece was written in order to provide a basis for organizing and linking the themes.

The essays' authors include scholars from England, Northern Ireland, Scotland, Canada, South Africa, Israel, the Netherlands, and the United States. Because the authors are nearly all law professors (with the exception of two judges, a lawyer, and two criminal justice professors), it is not surprising that these essays do not present empirical studies about courts. Instead, they

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generally describe and analyze issues affecting judges and judging by relying on specific examples drawn from prominent trials, notable appellate decisions, and relevant statutory developments. The authors often make normative arguments about ways to improve criminal court proceedings. The discussions primarily concern legal systems and courts with English ancestry and common law traditions.

Several of the essays discuss common issues that affect judging in different countries with examples typically drawn from Great Britain, Canada, and the United States. For example, Sean Doran's "The Necessarily Expanding Role of the Criminal Trial Judge" discusses questions about the trial judge's ultimate responsibility for the outcome of criminal cases. "Fact Determination: Common Sense Knowledge, Judicial Notice, and Social Science Evidence" by Marilyn MacCrimmon examines common problems in the determination of "facts" in criminal trials. Richard Friedman's "Attempting to Ensure Fairness in the Glare of the Media" provides a comparative analysis of English and American rules concerning the potential clash between providing public information about criminal proceedings and ensuring that the defendant's trial will not be adversely affected by publicity. In "Judicial Discretion and Gender Issues in Sentencing," Marie Fox effectively draws from American and British examples to call into question the intersection of sentencing theories with issues of gender discrimination. For any reader, these authors' comparative approach supplies a valuable basis for reassessing the justifications for and consequences of familiar rules in one's own country.

As an American reader with limited knowledge about the details of other countries' court processes, I found several articles especially illuminating because of what they taught me about courts elsewhere. These articles spurred me to undertake my own comparative evaluations as I reflexively compared these courts and their processes with what I knew about American courts. For example, "The Separation of Questions of Law and Fact in the New Russian and Spanish Jury Verdicts" by Stephen Thaman provides a richer understanding of the roles of juries and legislative choices about designing jury processes. The article also refutes the commonly recited "fact" presented in many American textbooks that juries are only used in common law countries. Mike McConville's essay on "Plea Bargaining: Ethics and Politics" illuminates issues and rules concerning negotiated pleas in English courts. In "Raising Concerns about Magistrates' Clerks," Penny Darbyshire discusses the growing influence of official legal advisors in lay Magistrates' Courts in England and thereby highlights concerns that are distinctive from, yet parallel to, fears about bureaucratization in various levels of American courts.

Two of the four articles written by Americans concern sentencing and seem aimed at informing scholars elsewhere about important issues affecting the diminution of the judge's role in sentencing in the United States. Both Robert Mosteller's "The United States Perspective on the Judicial Role in Sentencing" and "Some Reflections on the Federal Judicial Role During the War on Drugs" by Judge Jack Weinstein and Mae Quinn provide useful analytical summations of developments and debates that continue to affect American courts, especially with respect to sentencing guidelines and mandatory sentences. These

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topics are familiar to many American scholars but may be less prominent elsewhere in the world.

Several essays concern subjects that have little applicability to American courts but instead provide insights about the roles of courts and judges in specific political contexts. In these essays, there is a central concern about the role of judges in developing, applying, or preserving principles of human rights. For example, Justice Albie Sachs provides a first-person account of the genesis of South Africa's Truth and Reconciliation Commission. In "Judicial Roles and the Criminal Process During States of Emergency," Tom Hadden discusses special court proceedings in Northern Ireland, Turkey, and India. John Jackson's essay, "The Impact of Human Rights on Judicial Decision Making in Criminal Cases," concerns the application of transnational agreements on human rights to criminal cases within a specific country. These essays are quite helpful in moving the focal point of analysis away from courts' specific responsibilities for processing criminal cases in order to recognize the broader functions played by criminal courts within a governing system.

As indicated by the foregoing examples, the essays contained in THE JUDICIAL ROLE IN CRIMINAL PROCEEDINGS cover a wide range of topics. Although the essays are not unified by a consistent theme, they make a valuable contribution to scholarship by illuminating and analyzing important issues that are seldom examined in narrowly focused studies or works about a single country. Many of the essays supply important details about the complexity of courts and judging in various countries and thereby provide a welcome antidote to the problematic tendency of many authors-myself included-to use simplistic generalizations to characterize elements of unfamiliar legal systems. The essays should be of great interest to social scientists who study courts as well as to law professors who teach criminal law and procedure.