The juxtaposition of two major recent legal developments—the emergence of victims’ rights, and the increasing prevalence of plea bargains in the criminal process—raises profound dilemmas. Ever since the end of the 18th century, criminal proceedings have been conducted by states against defendants, based on the traditional view that crime is an offense against the state. Hence, victims’ participation has been curtailed under different legal systems. In adversarial (Anglo-American) systems, based on common law, the parties dominate the proceeding, and the onus is on the prosecution to prove its case; while in inquisitorial systems (continental), the judge dominates the proceedings, thus reducing the responsibilities of the parties. Although most states display mixed adversarial and inquisitorial characteristics, three systems exemplify different approaches to victims’ rights in plea agreements. The federal US system—the adversarial legal system in which the victim movement began its first steps; the French system—a civil law system, where victims are allocated a formal, albeit limited role; and the Israeli system—a juryless common-law-based system, where professional judges make both legal and evidentiary decisions. In the Anglo-American systems, victims were marginalized, and this lack of standing resulted in one of the more important legal developments of the 20th century—the struggle for victims’ rights. The victims’ movement is a grassroots movement, a social phenomenon that has led to significant legal changes. Consequently, a new perception has seemingly been incorporated into adversarial criminal law systems, whereby victims’ interests should be taken into account. The federal U.S. law enshrined victims’ rights in 2004, and in Israel the major legislation of victims’ rights took place in 2001. In the French system, since the early 20th century, victims have been formally recognized as partie civile—the civil side to the criminal process. The victims have a standing and they can claim compensation. The question of victims’ role in plea agreements is of particular importance, since in recent years, plea agreements have become the rule rather than the exception in Anglo-American criminal proceedings. In 2004, the French law also created a mechanism akin to plea agreements. In the federal U.S. system, victims can express their opinion regarding a plea agreement, and they can apply for a writ of mandamus, should any of their rights be disregarded by the prosecution. Under the Israeli system, victims of severe sexual and violent offenses may speak to the prosecutor and express their views, albeit not in court. In the French system, the victims’ role in plea agreements is limited to claiming compensation. Despite these developments, victims’ rights in plea agreements may still be partial or ineffective. For example, under both U.S. and Israeli law, the victims’ objection to such an agreement may have a very limited effect on the criminal process. Moreover, the prosecution has been granted immunity from any civil lawsuit following infringement upon victims’ rights. Under the French system, the victims’ involvement is limited to an appeal regarding the compensation she has been awarded.
Dana Pugach and Michal Tamir
American courtroom films depicting criminal trials have long resonated with audiences around the world, including viewers in countries whose legal systems are very different from those portrayed in the films. Three principal factors account for the broad popularity of these films. 1. Flexibility of the genre: The crimes with which defendants are charged can be carried out in an infinite number of ways and for an infinite variety of motives. Stories can be comedies or dramas; real or fictional; and “who-dunits,” “why-dunits,” or “how-dunits.” 2. The adversary system of trial: The American adversary system of trial is made to order for screenwriters. The question-and-answer format produces verbal duels between lawyers and witnesses that often result in surprise evidence, sudden plot twists, and in-your-face comeuppances. While the nominal targets of the testimony and the arguments are the jurors who are frequently present, the jurors are proxies for the writers’ ultimate targets, the viewers. 3. Subject matter: Defendants in courtroom films are typically charged with murder or other forms of serious crime, topics to which viewers in all countries can easily relate. For individual courtroom films, the “moment of truth” typically occurs when viewers find out whether a defendant is innocent or guilty. But for the courtroom genre as a whole, “moments of truth” consist of the “macro lessons” that courtroom films “teach” to viewers about the American system of criminal justice. Most viewers, regardless of where they live, have had little or very little exposure to actual criminal trials. For most people, what they think they know about American criminal justice is based on the images of law, lawyers, and criminal justice portrayed in courtroom films.