A Study On Criminal Disclosure System

Criminal disclosure is one of the basic systems in the realm of criminal procedure law among common law countries which aims to safeguard fair trial and enhance efficiency of criminal process. This thesis provides a comprehensive and in-depth discussion on the issue of criminal discloure among countries which adopt adversarial system in criminal process. The object of this study is to learn lessions of the experience of law and practice from these jurisdictions and resolve the problems triggered by the 1996 amendments to the criminal procedure law in China.In the thesis, after providing a general introduction of criminal disclosure in Chapter 1, the author examines respectively both the history development of criminal disclosure and current discloure regime including prosecution's general obligation to discloure, the content of disclosure, timing of discloure, form of discloure and remedies for non-disclosure. Chapter 2 presents a full study on the history of criminal discloure in England and examines the current criminal disclosure system which contains statutes and case law, especially CPIA 1996, CJA 2003,Code of Practice (2005),and the Attorney General's Guidelines on disclosure (2005). In the pages that follow, three fictitious cases are introduced to explain how the criminal disclosure system operates in Magistrates' Courts and Crown Courts in England. Chapter 3 examines the evolution of criminal discovery in USA and provides a comprehensive research on prosecution disclosure and defence disclosure in this country, along with a comparison between criminal discovery rules in federal and ABA's Third Edition Discovery Standards. Chapter 4 explains every aspects of Canadian criminal disclosure regime which contains prosecution's general duty to disclosure, content of disclosure, exceptions to disclosure, timing of disclosure, form of disclosure, and remedies for non-disclosure.Chapter 5 is centred on the Japanese criminal disclosure which not only presents a discussion of Japanese regulations,theories and practice relating to criminal disclosure before year 2004,but also introduces the three-phase criminal disclosure regime which is established in 2004. After having a thorough discussion on the law and practice of criminal disclosure, Chapter 6 concerns the issue of basic theories involving criminal disclosure in the context of the debate over the advantages and disadvantages of prosecution disclosure and defence disclosure .The author considers that criminal disclosure have dual values of promoting the fair administration of criminal justice system and increasing the efficiency of the criminal justice process. Chapter 7 provides a comparative research on criminal disclosure in four aspects.In chapter 8, on the basis of the examination of the law and practice of criminal disclosure in common law countries, the author concludes that criminal disclosure is a comparatively better solution to the curent problems existing in Chinese criminal justice system. The author considers that in the context of departing from inquisitorial procedure and moving towards an adversarial model of criminal procedure, it is necessary to adopt a reciprocal criminal disclosure regime, even the amended Law of PRC on Lawyers expanding attorney's right to access to dossier. The author suggests that a party-oriented three-phase criminal disclosure regime should be established.In the first phase,the prosecution should disclose evidence assisting the police's charge by means of allowing attorney to access to dossier. In the second phase, the prosecution should disclosure not only additonal evidence assisting prosecution but also unused material. In the third phase, after the defence disclosure, the prosecution should continue to disclose material which relates to the arguments of the defence.The author argues that the establishing of three-phase criminal disclosure regime will improve fairness and efficiency of the criminal process to the greatest extent.