Abstract
The United States and Australian laws of criminal procedure show many common features which originate from their common English origin. These include the presumption of innocence, the neutral role of the trial judge, and the use of the jury trial. However, between the jurisdictions there are also significant different approaches especially in relation to the treatment of illegally obtained evidence, improperly obtained confessions and entrapment. The transparency of the jury is also an important distinguishing feature of the United States' system not evident in Australia.
Introduction Australia and the United States of America share a common heritage, close ties to their mother country of England, the same language, and a…show more content… Unlike in Australia, where criminal procedure tends to be state based, American criminal procedure is federal, is not of recent origin, and relies overwhelmingly on constructions of the United States Constitution by federal courts, and to a lesser extent state courts.
For a considerable period of time, various states had conflicting requirements regarding lawyers for indigent defendants in criminal cases. It took the United States Supreme Court's decision in Gideon v. Wainwright, and later cases, to mandate the right to counsel for virtually all criminal defendants at the critical stages of both federal and state criminal prosecutions. Similarly, while some states excluded unlawfully obtained evidence in criminal cases prior to the 1960s, most did not. Exclusion became the norm in all criminal cases involving violations of the search and seizure provision of the Fourth Amendment.
The United States Supreme Court's construction of constitutional rights superseded state law and soon dominated the national debate, as seen clearly in the confession cases dealing with the right to remain silent. Once the Court's decision in Miranda v. Arizona was issued in 1966, the debate concerning the use of the privilege against self incrimination turned almost entirely on issues surrounding Miranda such as definitions of custody, interrogation, and waiver. Independent state rules on this important point became almost nonexistent.
