Midterm Review CRIM 405-002
Popular in Law and Justice Around the World
verified elite notetaker
Popular in Criminology and Criminal Justice
This 57 page Study Guide was uploaded by Cailyn Notetaker on Tuesday October 13, 2015. The Study Guide belongs to CRIM 405-002 at George Mason University taught by Andrew Novak in Fall 2015. Since its upload, it has received 154 views. For similar materials see Law and Justice Around the World in Criminology and Criminal Justice at George Mason University.
Reviews for Midterm Review
Report this Material
What is Karma?
Karma is the currency of StudySoup.
You can buy or earn more Karma at anytime and redeem it for class notes, study guides, flashcards, and more!
Date Created: 10/13/15
CRIM 405 Week One 08312015 Introduction to Comparative Constitutions Constitution Primary documents detailing government powers and rights Judicial Review Judges can nd laws unconstitutional Principles of Comparing Constitutions Drafting constitutions by sharing Certain ground rules Continually improving Constitutions overpower contrary statutory law or regulations US Constitution very vague and leaves a lot of room for interpretation 0 Only protects you from the government and not other people besides slavery 13th amendment 0 AngloAmerica style 0 0 Civil and political rights over economic and social rights Negative rights over positive rights 0 Amendments 4 8 and 14 O O O O 4 protects agains unreasonable searches and seizures probably cause 5 due process of law grand jury double jeopardy etc 6Witnesses can t make anonymous accusations speedy and public trial impartial jury assistance of counsel 7 right of trial by jury 8 no cruel and unusual punishments reasonable bail no excessive nes 14 all people born in the US or naturalize are citizens applies the bill of rights to the states no state can deprive life liberty or property without due process Compared to European Convention of Human Rights Enforced in 1953 Applied to all colonies of European countries Template for drafting independence constituions in the Carribean Africa and Asia Countries need judicial review to eliminate laws that violate this convenUon Creates the European Court of Human Rights 0 Takes complaints from neighbor countries 0 Can impose sanctions or awards for violations 0 Controversial when it loses Article 2 Right to Life 0 Death Penalty is not prohibited Article 3 Torture o No torture or inhuman or degrading treatment or punishment Article 5 Right to Liberty and Security 0 Right to liberty unless after arrest or unauthorized entry into the country Article 6 Right to a Fair trial 0 Innocent until guilty 0 Minimal rights Informed promptly Have time before his defense Legal assistance provided if can t afford it Witnesses Assistance of an interpreter Article 7 No Punishment without Law 0 Prohibits ex post facto laws except when prohibiting general principles of law mostly regarding genocide Ex genocide wasn t illegal under German law during the Holocaust but it doesn t count as an ex post facto law 0 Article 15 Derogation in time of emergency 0 High Contracting Party can take measures to suspend parts of this constitution in times or war or emergencies that threaten the life of the nation Compared to South African Constitution 0 Effective 1996 Replaced apartheid constitutions Many social and economic rights 0 Many positive rights 0 Article 9 Equality O O 0 Everyone is equal before the law State can t discriminate by nearly any means Protects or advances people who were previously disadvantaged by unfair discrimination 0 Article 11 Right to life 0 121 o o o 122 o o o 0 352 o 0 right to freedom and security of the person not to be detained without trial prohibits both public or private forms of violence right to bodily and psychological integrity decisions about reproduction control over mind and body prohibits medical or scienti c experiments without consent Criminal Rights right to a lawyer conditions of detention consistent with human dignity at state expense communication and visits while detained CRIM 405 Week 2 Lecture Notes Common and Civil Law I Historical Origins 09142015 The Folklore Common Law Civil Law quotjudgemade quotcodebased judges and lawyers are most powerful actors problem solvers distinction doesn t exist between public and private law emphasis on oral proceedings abstract principles extrapolated from facts favors justice unjust laws changed by judges academic intellectual scholarly University professors are most powerful actors system builders public v private law emphasis on written proceedings abstract principles applied to facts favors certainty unjust laws amended by legislature THE REALITY All modern countries have constitutions legislative statues and regulations with judges lling in necessary gaps 0 Difference between common law and civil law is historical and cultural not always a description of the world as it is The Resurgence of the Later Roman Empire 0 Roman law begins in 450 BC with Twelve Tables jurisconsults Roman legal scholars emerge end of 3d century BC 0 First professional lawyers judges turn to them for advice 0 Opinions of jurisconsults form Roman law and remain intact after fall of Rome in 400 BC Byzantine Empire reviews Roman Law ideas 0 justinian uses huge amount of Roman law to publish most noteworthy code in history Corpus juris Civilis The Code of Emperorjustinian The Institutes 0 Introduction 0 Summary of roman law 0 The Code 0 Collection of Roman legislation 0 The Digest 0 Treatise compiled from best Roman scholars and jurists 0 Most in uential part of code 0 The Novels 0 Legislation enacted after code and digest completed After the Fall Byzantine Empire retreated from Western Europe 0 New legal in uences arose o CANON LAW dominated family law 0 LAW MERCHANT Roman law didn t deal with modern commercial relations Law of commercial dealing that arose with trade 0 CUSTOMARY LAW Local traditions survived and mixed with Roman law 0 Very slow travel spread of ideas no mass printing Local laws varied from town to town The Revival University of Bologna became principal legal center 1100 AD TookJustinian s code studied and carried law back to newly established European universities 0 These laws mixed with local traditions to form national laws 0 Roman law most in uential in Holy Empire served as default law The Intellectual Tradition oRoman law uni ed the western world 0 Split into national laws national churches national languages after 15th century 0 By 1600 Roman law dominated continental Europe but rise of quotnation statequot created distinct quotnationalquot legal systems 0 National legislatures con rmed modi ed changed Roman law as they saw it to create their own laws oDifferent schools of thought 0 Humansists France Focus on Roman law in its entirety 0 Natural law Netherlands Legal principles based in inherent nature of man Origin of international criminal law 0 Historicists Germany No universal law law is a cultural characteristic of a community The Napoleonic Code of 1804 0 Development of national legal systems led to attempts to codify these new national laws 0 Two most in uential in the civil law world French Civil Code German Civil Code 0 French Civil Code rst modern code Similar to Justinian s Code but created new substantive law 0 State emphasized protection of private property enforce freedom of contract and promoted patriarchal family 0 Designed to be simple clear easy to read by the common person The German Civil Code of 1896 0 Complete opposite of French Code Drafted over 20 years Accompanied uni cation attempting to adapt Roman law to contemporary conditions Emphasized science of law Most precise code of its time logically closed system full of cross references 0 Very detailed articulates almost any given problem Drafted later than the French Code re ects changing European values General Characteristics of Civil Law Systems oDistinguish between public law and private law 0 Public law governs relationship between citizen and the state o Private law governs the relationship among citizens o Distinction is criticized and becoming less important o Comprehensive codes do not codify public law because it developed later Civil law systems have more than one court system usually divided between public and private law o Common law countries tend to have uni ed court system Origins of English Common Law oWith fall of Roman Empire tribal law triumphed in Britain including AngloSaxon traditions and customs Necessity not design developed common law Messy fragmented based on convenience rather than logic Judges traveled around resolving disputes using local customs and common sensethese rules repeated again and again and crystallized and became law Characteristics of English Common Law oBritain had rst centralized court system Kings power encroaches on those of the barons and local feudal lords o BaronsFeudal lords rebelled against King Magna Carta of 1215demise of local rural courts and the rise of single centralized court system Stare decisis Judges in UK bound by decisions of higher courts 0 Case law forms precedent Fragmented court system separate courts for law damages equity unjust people admiralty controlled the seas and ecclesiastical courts family law 0 Eventually merged into a single court system English Common Law Worldwide Messy with a matrix of cases and statutes oCharacterized by overwhelming exibility to adapt to local conditions which make it durable 0 Flexible nature of British empire made welcome of common law easy in various locations worldwide The American Legal System FEDERALISM State and federal govt are separate but overlapping 0 States have plenary power states come rst unless US constitution says otherwise 0 Federal system 94 district courtsgt13 appeals courtsgt1 supreme court States vary 0 Ex Virginia court system is old DC is new court system Virginia s system arose organically DC s was planned much simpler The United Kingdom 0 Highest court for England wale and Northern Ireland Supreme Court of The UK 0 Established in 2005 went into operation in 2009 0 Prior to 2005 highest court in UK was House of Lords o 12 members UKJudges appointed byJudicial Appointments Commission based on merit oDifferent from US 0 More formal o Not fused UK Ireland South Africa Hong Kong 2 states on Australia Barristers can argue in court Solicitors represent clients Parliament House of Commons o Single member districts firstpastthepost elections at least every 5 years o Prime Minister represents largest party in Commons cabinet composed of Members of Parliament selected by Prime Minister 0 Major legislation originate in Commons House of Lords 0 Role reduced in recent years o Traditionally hereditary few seats pass at death o Lords only have ability to delay bills no veto o Three types of lords Spiritual 25 Temporal 100 hereditary 600 lifetime Law Lords 25 0 Major reforms in 1999 with House of Lords Act controversial and expecting more reforms The Law Lords Used to be the highest court in House of Lords until 2009 0 Not formal judicial body each Lord gives separate speeches instead ofjudicial opinions Staffjudicial Committee of the Privy council 0 Highest court of the British Empire 0 Still highest court for British overseas dependencies and former colonies that chose to save it as an appellate court O Staffed by Law Lords and seniorjudges drawn from around Commonwealth The UK Court System SUPREME COURT COURT OF APPEALS o Hears appeals from Crown Courts in criminal cases or High Court in civil cases o 40 judges 0 Decisions made by panels of three judges CROWN COURTS oTria court for higher level criminal cases 0 Single judge HIGH COURT oTria court for civil cases o Queen s Bench Division hears disputes 0 Separate divisions for family law etc MAGISTRATE S COURTS o Lower level criminal court summary offenses traffic offenses Appeals to Crown Court COUNTY COURTS 0 Equivalent of small claims court Devolution and Eurooean Integration DEVOLUTION o Centralization of GB reversed with Ireland s independence Decentralization of power from National Parliament to regional parliaments of Wales Northern Ireland Scotland and Greater London Scotland and Northern Ireland powerful control of internal affairs Incudes criminal justice law enforcement and corrections EUROPEAN INTEGRATION o European Court ofJustice UK has to comply with complete European Union Law European Court of Human Rights UK Citizens can le complaints under European Convention on Human Rights European law incorporated into English law 0 O O O Exporting the Common Law India British took advantage of internal divisions in India to take over entire subcontinent India bene ted from law reform during early Victorian era when Bloody Code replaced by more humane penal code Written constitution of 1949 longest in world Bicameral Legislator o Lok Sabha directlyelected lower house 0 Rajya Sabha indirectlyelected upper house Strong prime minister and weak president Court system o Supreme Court o 24 High Courts o 600 District Courts District courts have original jurisdiction over serious crimes o Appeal to High and Supreme Courts Lesser crimes begin in magistrates courts o Appeal to district courts Federal system power shared between Union govt and 29 states and 7 union territories Crim405 Week 3 Lecture Notes 09212015 Common and Civil Law II Courts Lawyers Judges and Sources of Law Topics Covered Common law workshop 0 Organization and sources of law 0 Lawyers in the common and civil law 0 The judicial branches 0 Legal education 0 Legal system of France 0 Legal system of Germany How the Common Law Evolves Seixas v Woods 1804 0 Plaintiff purchases wood from defendant Both parties believed it was very expensive wood Turns out it was actually very cheap 0 Court defendant made no warranty about the type of wood and didn t try to attempt to deceive or defraud the plaintiffno liability 0 Common law rule Caveat emptor buyer beware 0 Thomas v Winchester 1852 0 Plaintiff purchases dandelion oil from defendant Bottle labeled quotdandelion oilquot but was actually poisonous and plaintiff becomes deathly ill 0 Court Defendant is liable Distinguishes Seixas v Woods and makes new exception to the common law rule Loop v Litch eld 1870 O 0 Manufacturer sells machinery to buys with defects in it and points out defects to buyer After 5 years buyer loans machine to neighbor and neighbor is killed because of original defects Neighbor sues manufacturer Court Manufacturer not responsible bc no relationship with neighbor Ful lled duty by pointing out defects to buyer Losee v Clute 1873 O O Plaintiff s property damaged due to nearby steam boiler explosion of nearby paper mill Paper mill sues boiler manufacturer claiming boiler was defectively made Court Even though explosion was dangerous like Thomas v Winchester manufacturer had no duty to plaintiff because it was a third party Follows Loop v Litch eld Devlin v Smith 1882 O O 0 Plaintiff died when scaffolding collapsed while painting courthouse dome Plaintiff s estate sued employer Smith Smith argues he subcontracted scaffolding to Defendant Stevenson an expertscaffold builder Stevenson negligent in building scaffold Court Stevenson third party is to blame not Smith employer even though Stevenson had no relationship with plaintiff Didn t follow Loop v Litch eld didn t ful ll his duty by forewarning buyer Follows Thomas v Winchester MacPherson v Buick Motor Co 1916 O 0 Plaintiff injured when wooden wheel on car collapsed bc made from defective wood Defendant was manufacturer who sold the car to the car dealer Plaintiff purchased car from the dealer Court Car manufacturer is liable for defect Manufacturer could have determined wheel was defective with an inspchon Reverses Loop v Litch eld manufacturers are now liable for defects in their products Changes in the US especially during the industrial revolution were made so that it would be put in the best position to prevent harm With increased technology and expertise we expect the knowledgeable to protect buyers Rise of liability insurance because manufacturers sued constantly Organization of Law and Sources of Law Basic Principles In a civil law system legislatures are supreme Separation of powers much more rigid Rare for court to invalidate a government action Common law in many civil law countries to have separate constitutional court that only decides constitutional questions 0 Hears pure abstract constitutional disputes not appeals o No live controversy necessary similar to making an advisory opinion 0 Germany Italy Austria Hungary Russia French speaking Historic skepticism ofjudges descends from French Revolution Ordinary courts not permitted to review legality of government actions at all Civil Law Distinction between public law and private law 0 Public law governs relationship between citizen and state 0 Private law governs relationships among citizensprivate actors 0 Court system divided btwn public and private law 0 Criminal law treated with private law even though it is a form of public law Legal profession tends to be divided as well Public law includes constitutional law administrative law and criminal law Private law includes civil law and commercial law Distinction is declining Private law historically more important than public law Public law court system either in executive branch or part ofjudicial branch Ordinarily public law disputes treated separately from other legal issues 0 Require mechanism for determining which court system can hear a dispute 0 French has a special tribunal Germany allows courts to transfer cases to another court system where appropriate Private law traditional divisions 0 Civil law Law of persons Family law Marital property law Property law Succession law Law of obligations a Contract law a Tort law a Unjust enrichment Commercial law Labor Law Common Law Sources of Law 0 Judicial precedent stare decisis 0 Legislation 0 Legal conventions o In the UK a legal convention is a tradition that is legally binding on a government but can t be enforced in a court of law 0 Ex Prime Minister must be selected from the majority party Prime minister comes from house of commons should resign after failure of a vote 0 Royal Prerogative o Residue of royal power Queen sti summons and dissolves parliament confers honors assents to bills grants pardons approving cabinet appointments concluding treaties Most duties only symbolic real power held by others 0 Constitution of UK 0 Doesn t have written constitution but said to be a constitutional system Not enforceable in court but quotfounding documentsquot prevail over ordinary legislation 0 Various acts Magna Carta Petition of Right Habeas Corpus Act English Bill of Rights Act of Settlement Act of Union with Scotland European Communities Act a European Union law prevails over con icting British law Human Rights Act a UK must comply with European Convention on Human Rights Various acts of Parliament delegating power to Wales Scotland and Northern Ireland The Legal Profession in the Common and Civil Law Role of a Lawyer in Society 0 quotRule of lawquot vs quotRule by lawquot 0 Rule of law Law is supreme over political actors Even executives must follow it 0 Rule by law Legal system with lots of laws but without considering the substance Lawyers in a Common Law Society 0 Powerful closed class Controls access to legal knowledge Emphasis on problem solving 0 Doesn t focus on theory or structure of the code 0 In the US loosely divided between litigators and transactional lawyers 0 Our legal profession is fused Outside US distinction between oral advocates and legal advisors much more prominent Legal education requires more of a practical component than civil law 0 Usually requires apprenticeship in addition to examinations o Apprenticeships not required in US but are in some other common law countries Lawyers in the United Kingdom 0 Not fused bifurcated Distinction between lawyer as pleader and lawyer as agent 0 Also bifurcated in South Africa Hong Kong Ireland and 2 Australian states Barristers Courtroom advocates who appear before judges 0 Professional association called a Bar Association 0 Apprenticeship called pupilage and includes ancient Inns of Cou 0 Traditionally landed lower upper class often top of their class very proactive of their highly prestigious position Solicitors Attorneys who provide legal advice 0 Professional association called a Law Society 0 Apprenticeship called quotarticles of clerkshipquot 0 Traditionally middle class 0 Economic pressure to fuse the profession O SolicitorAdvocate Small category of solicitors who admitted to argue cases before higher courts in the UK Since 2004 barristers allowed to have direct access to clients Solicitors allowed to form partnerships that includes pro t sharing among partners Barristers traditionally not allowed to form partnerships with other barristers or with solicitors Barristers may work together in chambers to get economies of scale but without pro tsharing Barristers with 10yrs experience can become Queen s Council 0 Better compensation nancially risky quotCab Rank Rulequot 0 O Barristers must take the next case that walk through the door as long as the fee is acceptable Can t pick and chooses cases based on merits of the case Ensures everyone representation Norm exists in USA too less strictly enforced Innocence lawyer O 0 Picks and chooses cases based on guilt or innocence Concerned about safety of the verdict Arose because of advances in forensic evidence Involved in wrongful convictions and postconviction relief Legal Aid 0 Models for providing legal aid for defendants who can t afford a lawyer O O O O Jucicare model Private lawyers paid on a casebycase basis by the govt for taking a case Public defender model Staff attorneys employed by an independentagency Legal Clinic Model Nonpro t organization with salaried staff attorneys modeled on a community health clinic Maybe community based or attached to a law school Pro bono representation Lawyers representing clients for free Contingency fee arrangements Lawyer is paid a portion of winnings but only if they win Legal Education Common Law 0 In all of the common law world except US and Canada law is an undergraduate profession o LLB o LLM o LLD Most jurisdictions lawyerstobe must do an apprenticeship andor a year of practical legal education at a special institute 0 UK Legal Practice Course 0 Then graduate becomes either a trainee solicitor or a pupil barrister o Barristers must maintain quotdining termsquot at one of the four Inns of Court in London 0 Eating meals with senior barristers at the Inn replaced residence but this is being replaced by lecture events etc Legal Education Civil Law 0 Systematic framework for entire legal system Students learn from the structure and logic of code 0 Not taught with quotcase law methodquot like common law 0 Classroom materials include treatises and annotated copies of code 0 Lectures less concerned with practical application or with concrete social problems than that in the common law system Europeanization of legal education 0 European Union law increasingly harmonizing in the legal profession across borders EU has several directives aimed at allowing lawyers licenses in one country to practice in other EU member states 0 Standardization of diplomas 0 Integration still slow language differences and different structures of legal profession from country to country Lawyers in the Civil Law World 0 Law graduates must choose at graduation a career path that is most likely nal o Practicing lawyer de facto division of labor between lawyers who advise and lawyers who argue in court 0 Notary drafts certain documents certi es documents serves as an of cial depository for original copies 0 Judge separate schools forjudicial training 0 Civil Servant lncludes procurator A procurator is not adversarial to the defendant like a common law prosecutor they are trained as judges o Scholar difficult competitive path with low salary often part time Women as Justice Professionals 0 Women are underrepresented in criminal justice careers worldwide 0 Perceived physicality of policing jobs vs perceived quotcold rationalityquot of lawyer jobs 0 ln civil law systems judging is often parttime less prestigious position 0 Islamic countries women tend to be excluded from lslamic court or even ordinary court positions juries and judicial panels behave differently if they are cogender 0 Women judges more sympathetic to sex discrimination plaintiffs but male judges more sympathetic if women are present as judges 0 Police units with women more likely to take sexual assault crimes seriously 0 Women bring unique viewpoints to gendered forms of crime such as domestic violence and sexual assault 0 International Criminal Court 0 Gender parity equal number of female and male judges and other staff must be appointed 0 Rome statute requires staff members and advisors be appointed who have special training in sexual assault trauma Moral hazard 0 Risk that women will be segregated in careers or on projects that are speci cally gendered 0 Not unique to the criminal justice eld exists in many institutional environments The Legal System of Germany German Court System Federal state with power share between federal govt and states Executive power held by chancellor Angela Merkel Head of state is the ceremonial president Joachim Gauck Parliament 0 Bundestag mixture of singlemember districts and proportional representation 0 Bundesrat indirectly elected Federal Constitutional Court Highest court in Germany 0 No case or live controversy needed 0 Court can make advisory opinions 0 Any citizens can bring suit against any law 0 Doesn t hear appeals can only hear original constitutional petitions Known for many specialized courts None can hear constitutional cases all are the court of nal appeal in their subject matter jurisdiction 0 Federal Court ofjustice 0 Federal Administrative Court 0 Federal Finance Court 0 Federal Labor Court 0 Federal Social Court Unlike France very robust judicial review Constitutional court very powerful and invalidates govt actions frequently The Legal System of France 0 Unitary very centralized 0 Executive power held by powerful president Francois Hollande Head of govt is a weaker prime minister Manual Valls Constitution of 1958 0 Parliament 0 National Assembly 0 Senate 0 More institutional than German system Strict separation of powers resolve public law disputes in executive branch judges not allowed to scrutinize administrative agencies or the legislature Constitutional Council Not a court authorized to review the constitutionality of pending legislation 0 Can only review legislature before it is declared to ensure it works with the constitution Council of State Highest appellate court for public law disputes and may review legality or constitutionality of executive action on informal basis 0 Ordinary court system Various courts of rst instance appeal to Court of Appeals which appeals to the Court of Causation Crim 405 Week 4 Common Law and Civil Law lll 09282015 Criminal Procedure Adversarial and Inquisitorial Proceedings Review Globalization of the Legal Profession Legal Aid Gap 0 Lawyers are scarce and in high demand in developing countnes o Affects criminal cases too 0 How to expand o Paralegal training ll gaps that lawyers would do especially in developing world 0 Law students allowed to appear in court under lawyer supervision 0 Lawyers that take public interest human rights or pro bono cases are rare in some countries 0 Global trade in services is liberalizing o Lawyer licensing is barrier to trade 0 EU lawyers licensed in one jurisdiction can practice in others E o Legal Literacy o Street Law movement Many countries are reducing barriers to foreign lawyers American Bar Association has new model rules Teaching law to high school students lncudes practical law education programs world wide 0 Public consultations in the community in constitution drafting Comparative Criminal Procedure Common Law Civil Law Adversarial prosecution and defense are against each other and judge is a neutral umpire Emphasis on procedural justice for the defendant Inquisitorial prosecution and defense are not against each other and cooperate with the judge to nd the right result judge controls the proceeding directing the investigation etc Emphasis on truth seeking lax rules of evidence and procedure to nd out what really happened Common Law Trial Characteristics oExtremely procedure heavy o Procedural justice more important that a just or fair outcome o Defendants common law rights more important to prevent prosecutor overreach and jury confusion Right to remain silent lnnocent until proven guilty Right to be confronted with witnesses Prohibition of in absentia trials Exclusion of improperlyobtained evidence Right to a lawyer oquotlegal guiltquot vs quotfactual guiltquot Defendant s factual guilt is irrelevant only thing that matters is if prosecution can prove it beyond reasonable doubt Victims play no role Stages of a Trial Emphasis on oral presentation of evidence 0 Jury trial central to democratic character of common law trial 0 Structure opening statements direct examination cross examination redirect examination recross rest case Other side direct cross redirect recross Closing statements Rules of evidence designed to raise level of reliability n Hearsay excluded as unreliable n Emphasis on relevance Historical Development 0 Balance of royal power and local sensibilities 0 American democratic theory of trial 0 Less aristocratic than british trials 0 Premium on courtroom style oratory and persuasion is more important than legal thinking Strict procedure of due process Civil Law Trial General Characteristics 0 Origins in roman law and ecclesiastical law of the roman Catholic Church 0 Higher importance forjudges than lawyers o Judges decide which witnesses will be called what questions asked and evidence introduced 0 Less emphasis on trial as an event emphasis on preliminary screening process and pretrial investigation 0 quottrial by lequot adjudication is through isolated meetings written communications Evidence is gathered in a dossier or le 0 little emphasis on oral arguments speeches etc 0 long process with series of small meetings over several months 0 witnesses usually testify in the narrative not asked questions 0 only the judge takes notes procedure is more informal Three Stages Investigative phase procurator and investigating judge assemble large les Expectation is that defendant will cooperate because of truthseeking nature 0 Procurator is more important than a prosecutor in common law Serves as a quasijudge and is often hard to distinguish from the judge 0 Investigation done in private evidence examined publicly only at trial Examination phase Investigating judge passes case to examining judge Less public Goal to see if the procurator has sufficient evidence to proceed o No plea bargaining lf defendant confesses and wants to plead guilty it is just treated as evidence at the trial Of cial Trial Examining judges listen to proceedings ask questions of defendant and witnesses and then give a verdict by majority 0 Logical unemotional strict bureaucratic proceedings 0 lnquisitorial proceedings more likely to distinguish factual rather than technical guilt or innocence o Victims through their council they are sometimes allowed to make presentations at trial and take part in proceedings if a civil damages case is joined to the criminal one Commonly said a person is quotguilty until proven innocentquot not technically true Guilt becomes stronger once evidence is compiled and determined to be sufficient to proceed Convergence Both systems have problems 0 Common law systems assume equality between prosecution and defense lf defense is weak a wrongful conviction may result 0 Civil law systems believe that both the judge and the procurator have justice in mind and not their own careers But with the power the procurator and judge have bias is a concern 0 Civil law systems have a problem with long pretrial detention due to how the investigation and trial occur at the same time Long incarceration of innocent person Violates European Convention on Human Rights frequently Both systems absorbing characteristics of the other 0 Rare to have true surprises at trial in common law trials due to disclosure of evidence to other side 0 Diversion from trial plea bargaining becoming common in both systems Community service mental health courts drug treatment options 0 Civil law systems adapt common law mechanisms like ball or bond quotexclusionary rulequot access to a lawyer during interrogation legal aid for defendants limitations on detention without charge etc Toward a New Model Restorative Justice movement seeks to focus criminal proceeding from a perpetrator to a victim family and community 0 Challenge punishing an offender is the best way to restore justice 0 Restorative approach allows victims and perpetrators to be involved in justice process 0 Traditionally common law had no role for victims at all Embraced by transitional justice advocates following mass atrocity and human rights abuses 0 International Criminal Court proceedings are threeway prosecution defense victim s advocatevictimes are allowed to participate in trial Participatory Proceeding 0 Truth and reconciliation commission grants amnesty to perpetrators in exchange for testimony apology and truthtelling Reparations another form of restorative justice perpetrators must pay damages as a part of punishment 0 International Criminal Court has reparations mechanism 0 Intended to help healput victims back together International Investigations Easier for US prosecutorsdefense lawyers to conduct investigations in common law countries 0 In civil law investigation is a judicial process 0 Some civil law countries are extremely restrictive International private law treaties standardize transfer of evidence discovery depositions etc o Subpoenas across boarders etc US government does a recovery of stolen foreign government assets and witness protection Extradition International treaties very important because they govern law of extradition Reciprocity US is more cooperative with other countries in transfer of evidence fugitives and witnesses US negotiated quotmutual legal assistancequot treaties with 60 countries tend to bene t prosecutors o No treaties allow defense council to investigate abroad or work with domestic counterparts US Constitution prevents other countries trying to extradite prisoners o No ex post facto laws US can t prosecute genocide torture or child soldiers that predate authorization of treaty Jury Systems of the World General Trends In decline juries appear to be in decline worldwide Rare in developing world Less common in inquisitorial systems importance of the dossier at trial and less important role played by the trial proceedings in overall resolution of the dispute make juries less important to system More limited role in some systems jurors may not decide nal verdicts in others they don t play a role in sentencing and their verdicts may be appeaabe o jurors often make verdicts in conjunction with judge Alternatives do exist 0 use of lay assessors in Germany who sit through multiple trials for a speci c time period Have equal votes as judges 0 Norway limits juror to well education respected nominees Global Distribution 0 Traditional common law jury system in North America and Australia juries used but have limited roles in countries in South America and some countries in Europe Africa and Asia Workshoo Notes Amanda Knox Trial Italian Legal System 0 Italy is a civil law country that has adopted a more adversarial code of criminal procedure in 1998 0 Not become a fully adversarial system and possesses a mixture of both characteristics Italy has no prohibition on double jeopardy Allows character evidence to be presented at trial juries are not sequestered from the public and media Appellate courts can reverse the ndings of a jury Common Law Citation Logic 0 In common law priorjudicial decisions are binding precedent We have called this stare decisis policy of following rules or principles laid down in previous judicial decisions 0 One will need to know what the law is 0 Decisions are of cially reported in law reporters series of books that contain judicial opinions from a selection of case law decided by courts 0 Can be published by the government or by private legal publishers A Common Law Citation 0 Volume NumberlReporter SerieslPage Number Ex Roe v Wade 410 US 113 1973 n Volume 410 of the Supreme Court Reports a Decision starts on page 113 Logic of a common law citation rests in the nature of a print reporter Federal cases in quotFquot series State cases will be the state abbreviation Other common law jurisdictions have their own cases a Ex UK Supreme court decisions may appear in AC Appeals Cases or 08 Queen s Bench lf jurisdiction is not obvious from the citation it typically appears in parenthesis after citation Problem makes legal information expensive and controlled Three multinational legal conglomerates own most legal information access Verifying Citations May be legal malpractice for common law lawyer to cite quotbad lawquot without rst reviewing it to see if it is good law a Online databases revolutionized this determines whether the case was affirmed questioned cited reversed on appeal etc An unreported decision is not binding precedent CRIM 405 Week 5 10052015 The Rest European Law and Hybrid Socialist and Customary Legal Traditions Tobics Covered European Legal Tradition Socialist Tradition Legal System of China Hybrid Legal Tradition Legal System ofJapan CustomaryTraditional Criminal Justice Workshop on CustomaryTraditional Law The European Legal Tradition oSupranational legal norms and institutions in Europe have gained power in the last 50 years oAffects legal traditions institutions actors methods and foundations of member legal systems Two most farreaching oThe European Union Originated in 1952 from European Coal and Steel Community between Benelux countries France West Germany and Italy Promotes legal integration through treaties in immigration policy labor policy monetary policy science and technology policy etc oThe European Human Rights System Much larger organization deal sin more limited body of law only human rights democracy and rule of law issues Council of Europe created European Convention on Human Rights set up world s rst multinational human rights court 0 Components of the European Union 0 Council of Ministers Responsible for major policy decisions of EU Consists of one representative rom each state EU s principal lawmaking body makes decisions by majority 0 European Commission Drafts and presents legislative proposals for Council to adopt Guardian of EU treaties Must be independent of governments Divided into 36 departments supported by large civil service in Brussels and Luxembourg Controls most budgetary matters 27 commissioners answerable only to European Parliament 0 European Parliament Parliament is directly elected by universal suffrage from the population of the entire EU Sessions in Strasbourg committees meet in Brussels secretariat based in Luxembourg 0 European Court ofJustice Guarantees proper interpretation and application of EU treaties and other legal instruments Composed of 27 judges Hears appeals from European Court of First Instance relieving caseload of ECj Hears appeals in businesses that are ned for dumping or anticompetitive activity and lots of other areas o Treaty Regime o Four fundamental freedoms free movement of goods workers services and capital must be exercised on basis of equality without discrimination by nationality o Maastricht Treaty 1993 lntegrated European and Coal Community European Atomic Energy Agency and European Economic community into a single European Union Provided authoiry for establishment of common currency common citizenship common foreign policy o Treaty of Amsterdam 1997 and Treaty of Nice 2003 Reformed EU to allow enlargement 10 countries joined in 2004 and 2 more in 2007 o Treaty of Lisbon 2009 EU Charter of Fundamental Rights now legally binding Similar to European Convention on Human Rights EC will now also hear human rights cases Supremacy of EU law in member states o European integration requires that EU member states recognize EU law and supreme over domestic laws o Many laws passed by EU have direct effect in member states laws of member states are automatically changed by changes to EU law EU transformed from legal order based in public international law to one of constitutional law Not all law is directly effective only important laws are o Supremacy of EU law is achieved by ECJ s judicial review o Domestic court is bound by EC interpretation o Not all countries have passively accepted direct application of EU law 0 EU and Convergence O O O O O O O 0 Heavy civil law in uence Only 427 members are common law Binding nature of EC decisions are more reminiscent of English common law EU law con icts with traditional civil law codes in labor banking insurance and consumer law Heavy modi cation of domestic private law Emphasis on establishing a business rights of workers social security freedom of movement insurance all blur traditional distinction between public and private law in traditional civil law theory Will there be a Europeanwide prosecution service in coming years Council of Eurooe Created after WW2 to promote European unity Statute of the Council of Europe 1949 Emphasis on human rights and democratic governance Have the task of drafting the European Convention on Human Rights Eur0pean Convention on Human Rights First supranational human rights system in the world for protection of human rights Gives individuals state right to petition for human rights violations First effective judicial review mechanism for many civil law countnes Protects classic civil and political rights life liberty freedom from torture and slavery thoughtconscience expression assembly marry privatefamily life movementtravel etc Multiple protocols 1st protocol 1952 right to education 4th 1963 Abolition of debtors prison and freedom movement 6th 1983 abolition of capital punishment 7th 1984 protection of due process rights of immigrants right to appeal in criminal cases right to compensation for miscarriage ofjustice ban on double jeopardy and equality for spouses European Court of Human Righs 0 Established in 1998 Previously Convention s norms enforced by the European Commission on Human Rights and a part time court These merged into a fulltime permanent court by Protocol 11 to ECHR 0 Total of 47 judges not necessarily one from each member state Committees 3 judges I Decided whether a case is admissible Chambers 7 judges a First level to decide a case Grand Chamber 17 judges n Serves as appellate court for decision from Chambers n judgments is nal and binding in international law 0 Margin of Appreciation Doctrine Degree of discretion that Court accords to national authorities before it nds violations to have occurred Gay rights broad margin This means greater latitude to states Eur0pean Social Charter 0 Expanded human rights regime to economic and social rights 0 Enforced by European Committee of Social Rights who receive reports from all member states twice yearly Committee of Experts forwards conclusions about whether a country is in compliance with the ESC to a special committee composed of member reps whch can pass resolutions making recommendations to member states Protocol 1998 Allows certain NGOs to lodge complaints directly with the committee This is a naming and shaming mechanism in contrast to the binding court decisions of the ECHR The Socialist World and the Legal System of China 0 Characteristics of Socialist Law 0 Historically grounded in Romanbased civil law but with modi cations lncreased public law sphere with more limited private law sphere Extensive public and social welfare often in exchange for political support of alliances lnquisitorial criminal procedure but usually with a more powerful role for the procurator Preference for collective over individual 0 Chinese legal tradition o Confucian heritage emphasis on social status proper education moral virtue government by example 0 Communism and Chinese legal tradition easily dovetailed both have emphasis on militarism focus on masses unity respect for authority etc 0 Chinese Legal System 0 19491979 China operated a Sovietstyle criminal justice 0 0 system with overall control in hands of Communist Party formal codes of law rejected in favor of edicts passed by ruling party with the goal of destruction of economic class and creation of social order based on rule of the people Cultural Revolution tried to bring China to purer form of communism by abolishing police and legal class causes economic and political disruption instead 1979 First modern codes of criminal law and procedure passed treat political and nonpolitical offenses differently 1997 reforms to depoliticize legal and corrections system and reduce amount of discretion for govt officials still neglects some basic human rights provisions China perceives itself as a success story 0 Chinese Political System 0 0 Fourth Constitution 1982 doesn t limit reach of govt power but authorizes deep involvement of the state in citizens lives Only one recognized political party Chinese Communist Party CCP Struggles with official transparency and corruption o Lawmaking branches National People s Congress Parttime supreme lawmaking authority a All initiatives must be preendorsed by CCP s central committee Standing Committee of NPC Fulltime lawmaking body composed of select members of NPC State Council Cabinet of China headed by the premier The Premier holds executive power like a prime minister n Enormous number of ministries re ecting involvement of state Presidency Head of state with limited powers 0 Court system People s TribunasgtgtBasic People s CourtsgtgtHigher People s Courtsgtgt Supreme People s Court People s Tribunals and Basic People s Courts I Hear oweve disputes n Emphasis on medication and involvement of general populace in decision making a Socialism emphasizes the role of the common man not the legal elite Intermediate People s Courts a General jurisdiction where serious criminal civil and economic cases go Higher People s Courts n Handle criminal civil and economic matters that affect the whole province as well as criminal cases transferred from Intermediate People s Courts and cases protested by the procurator a Basic intermediate and higher courts can use 24 lay assessors in addition to a professional judge a Judges are often poorly educated Supreme People s Courts n Deals with matters of national importance I Usually appeals from Higher People s Courts n Provides examinations and advice and interprets law a Legal training is regulated by Minister ofJustice with a lot of new law schools a Legal profession is controlled by CCP The Hvbrid World and the Legal System of lapan 0 Hybrid legal system with deep roots in more than one legal tradition 0 Legal systems that were colonized by both a common law and civil law country and have characteristics of both Louisiana Quebec Puerto Rico 0 Japan modeled after European civil law but in uenced by common law after American occupation o Americanin uenced constitution mandated three branches of govt Diet bicameral legislature a House of Representatives a House of Councilors Executive Branch n Prime Minister and cabinet a Head of state is emperor hereditary monarch Supreme Court on American model 0 Japanese Legal system 0 Supreme Court rarely strikes down laws 0 Criminal Cases Summary courts limited lowlevel jurisdiction 438 Distric courts civilcriminal jurisdiction with family juvenile divisions 50 n One judge presides over most but important criminal cases are heard by panel of 3 judges High courts intermediate appeal 8 n Typically threejudge panels but may be ve judges n Decisions are written and by majority Supreme court court of nal appeal I Has not developed into signi cant political force as in USA 0 judges have a bureaucratic career japan has very few lawyers Nonlawyers can perform some legal functions but japan is also much less litigious 0 Less litigious ldeals of harmony and conciliation are strong in japan Emphasis on mediation Legal profession very closed bar passage rate is very low Emphasis on shame and stigma 95 of defendants plead guilty prison reserved for the worst of the worst a Lowest rate of incarceration in the industrialized world 0 Adversarial system with a powerful procurator Procurator investigates and collects evidence and provides info to the judge to assist in sentencing Procurator able to suspend and cancel prosecutions even when he or she can prove that the offender committed a crime 0 Saibanin Use of lay assessors for serious cases where there is a considerable public interest A type of mixed jury system Lay assessors selected from pool of candidates and asked to serve for one year panels with 46 lay assessors and 13 professional judges Other Hybrids Scotland 0 Legal system never merged with that of the United Kingdom after Act of Union in 1701 o Remains uncodi ed Roman law but in uenced by English common law and European law 0 Some differences Age of majority 16 in Scotland 18 in UK Juries 15 members in Scotland 12 in UK Three verdicts guilty not guilty not proven 0 College ofjustice is highest court with judges called Senators of the College Court of Session civil cases High Court ofjusticiary criminal cases Court Accountant probate law 0 The public prosecutor is called a procurator scal but this is an adversarial system 0 South Africa 0 Seized by British in 1803 when Napoleon overran the Netherlands never received Dutch civil code 0 Court structure is English common law but substance of law is based on uncodi ed RomanDutch law Property law is Dutch 18th century law but criminal law based on modern English penal code As in civil law system writings of 16 quot17th century Dutch scholars are sources of law and can be cited in court 0 Legal systems of Botswana Namibia Lesotho Swaziland and Zimbabwe based on South African law 0 Constitution of 1995 Magistrate s Courts gtgt High Court gtgt Supreme Court of Appeal Constitutional Court 0 During apartheid strong turn toward Dutch law as Afrikaans law and Dutch law similar Since end of apartheid English common law paramount Customarv Indigenous and Traditional Criminal lustice Characteristics of customary law NonWestern law exists especially in family law probate law or customary land tenure Very rare in criminal law 0 Most common in former British colonies In pretty much every country modern penal and criminal procedure codes have replaced precolonial criminal law 0 Some elements still exist in some countries penal codes Common law civil law and Islamic law are all based on written law 0 Legal professions formed to interpret these written sources 0 Assumption not true in rest of world law was oral passed through tradition generally owned by elders and community as a whole Impossible to separate from spiritual world Outside of Europe historical shortage of labor and surplus of land 0 As a result crime resulted in an economic loss to the victim s community Result compensation from perpetrator to victim 0 Crime could cause spiritual harm for the perpetrator and the community compensation or retaliation could restore harmony No quotstatequot as we de ne state 0 Policing done by community punishments carried out by community 0 Capital punishment highly culturally contingent on religious notions of death burial and afterlife BE CAUTIOUS about overromanticizing this form of comparative criminal justice it tends to privilege older men over women children single men and outsiders Glocalization o Glocalizationquot is the portmanteau of globalization and localization 0 Theory The world s legal systems are becoming more different not more similar They will never be more similar than when the British imposed the same legal system on all their colonies 0 Because of globalization technology including the internet and travel local issues and languages are nding expression in the global marketplace for the rst time Crim 405 Week 6 10132015 Islamic Law and Juvenile Justice Agenda Islamic Law Legal System of Saudi Arabia Islamic Law Workshop JuvenHeJusUce Comparative ClemencyPardons Clemency Workshop Islamic Law The starting point oTraditional Islamic law was not subject ot the authority of the state o Unlike Christianity the concept of the state is foreign to traditional Islamic law The state didn t appear until the modernization of the Ottoman Empire Can t assume quotseparation of church and statequot Ulslam emphasizes praxis practice rather than belief in theology doxa It is not ordinarily practiced privately oThe introduction of the state changed Islamic law Coonization and the rise of secular modern rulers subordinated Islamic law to the law of the state especially including criminal law Colonialism led to codi cation of Islamic law It became a static body of rules rather than a exible series of principles administered by Islamic jurists The Traditional Organization of Law 0 Communities ruled themselves and Islamic law governed all aspects of personal familial and societal relations 0 Powerful legal class included muftis and qadis o Muftis were private legal specialists who issued fatwas which are legal answers to questions Law was found in these juristic writings qh jurisprudence not in decisions by judges Authoritativeness of a mufti s writings depended on how widely respected the muftiwas and how persuasive his writings were Legal training involved study circles madhhab where students would personally learn from a muftior master jurist n As these study circles became coopted by ruling elites such as in Ottoman Empire study circles replaced by permanent and endowed law colleges the madrasa n Several very prominent personal study circles developed into widespread doctrinal schools of jurisprudence o Oadis were judges often appointed by the ruler but not subject to the ruler s control until later Ottoman Empire when it became salaried role Sources of Islamic Law 0 Sacred texts o Quran Most sacred source of law embodying knowledge about God himself and how the believer should conduct himherself Revealed to the Prophet Mohammed God s chosen messenger Superior to all other con icting sources of law 0 Hadith Sayings of the Prophet Mohammed compiled after his death to elaborate on principles in the Quran For a hadith to be credible the text must be conveyed through multiple sources from generation to generation based on veri able origins In essence must have clear quotchain of custodyquot lf hadith con ict jurist must weigh them Which have textual support in the Quran Which was transmitted by reliable source with personal knowledge of Prophet Which is more speci c o Sunnah The Prophet s exemplary biography including his deeds and acts ReLoninq Where sources of law unclear juristsjudges permitted reason by analogy Sharia composes that which is required eg prayer recommended almsgiving neutral discouraged divorce or prohibited murder 0 Reasoning process known as ijtihad Islamic Legal Process 0 Islamic law is overwhelmingly the product of ijtihadreasoning process since sacred sources are usually not explicit or detailed o For every scenario there could be two three or a dozen or more opinions as to what the law is each held by a different jurist 0 Traditional Islamic law is characterized by exibility and adaptability and an ability to change and develop over time Reasoning process includes several factors 0 Logical or rational analogy o Consensus of the community 0 Public interest 0 Preference of the jurists o The rise of the state changed this 0 Codi cation of Islamic law and its subordination to state law removed the inherent exibility of it working to disadvantage of women minorities 0 Traditional endowments waqf in which inheritance from wealthy patrons paid for community madrasa public fountains hospitals bridges lodges etc were eventually seized or absorbed by the state 0 Independent legal profession absorbed by state became paid officials Overview of Shari a 0 First quarter Personal relationship with God 0 Ritual purity washing fasting almsgiving food and drink hunting and butchering of animals pilgrimages Second quarter Commercial relations with others 0 Sales loanmaking agricultural leases charitable trusts gifts insolvency inheritance rent partnerships banking 0 Third quarter Family obligations 0 Marriage dower dissolution of marriage sexual intercourse foster relationships child custody spousal and child support payments 0 Fourth quarter Book of wrongs o Torts 2 compensation 2 hudud offenses 5 discretionary criminal punishments 1 war and peace jihad 15 manumission of slaves 2 lawsuits and evidence 1 testimony in court 2 etc 0 Note that the law of wrongs and criminal law in particular is only a very small part of the total body of shari a lslamic Criminal Law Hudud offenses crime and punishment prescribed in the Qur an o Prescribed punishments and very strict standards of proof 0 Considered most severe because they impact relationship with God 0 Full list theft amputation highwav robberv cruci xion if death results otherwise amputation illegal sexual intercourse ogging if unmarried stoning if married false accusation of illegal sexual intercourse ogging drinking alcohol ogging and apostasy death Tazir offenses 0 Based on judge s discretion Often corporal punishment Less strict burdens of proof than in hudud offenses Qisas retaliation o Allows victim s family to pardon or seek execution of murderer 0 Murder is typically treated as this category of offense Unlike hudud crimes treated as private matter and punishments not mandatory 0 Diyya monetary compensation 0 Schools of jurisprudence vary as to amount of compensation whether it is fully payable if the victim is nonMuslim or a slave etc Schools of luriSprudence madhhab School ofjurisprudence nonformal association ofjurists who share loyalty to a particular set of legal principles and a particular methodology of interpretation 0 ln Sunni lslam legal authority resided in collective school of jurisprudence not in ruler or doctrine of single jurist jurists could not operate independently of them 0 Lay persons were free to follow any of the schools for personal conduct but each school tended to have sway in particular regions Could not quotpick and choosequot from among the schools 0 Four traditional schools of thought in Sunni lslam o Hana Official school of the Ottoman Empire Emphasizes public interest 0 Sha 39i Indian Ocean school prominent in Southeast Asia and East Africa Emphasizes logic reasoning by analogy o Maliki Traditional school of Islamic Spain now holds sway across North Africa Strong scienti c methods 0 Hanbali Prominent in Saudi Arabia Most conservative textual fundamentalist school of jurisprudence Two major schools in Shia Islam 0 Twelver ja fari school Iran Bahrain Iraq Lebanon Azerbaijan 0 Zaydi school Predominates in Yemen Sunni vs Shia o Doctrinal dispute between Sunni Muslims and Shia Muslims o Sunnis believe that Ali the Prophet Muhammad s soninlaw was his proper successor o Shia believe that his fatherinlaw Abu Bakr was his proper successon 1012 of all Muslims 80 of whom live in Iran Pakistan Iraq or India About 85 of Shia Muslims are Twelvers jafari school who believe that 12 imams followed the Prophet the last in hiding who will return 0 Important legal difference 0 Caliph In Sunni Islam a caliph is the traditional political and religious head of Islamic government abolished in 1924 A caliph cannot make law he is only the law s interpreter o Imam In Sunni Islam an imam often describes a leader of prayer In Shia Islam an imam has a much more central role the true rightful successors of the Prophet who have divine knowledge and authority a Those rulers who stand in for the imam have the ability to make law like the Prophet Done by supreme jurist in Iran after 1979 0 IN SHIA ISLAM BUTNOTSUNNI ISLAM LAW IS STILL LIVING IT IS STILL BEING MADE DECREES BY SUPREME IURISTS ARE SOURCE OF ISLAMIC LAW Islamic Law in the Modern World o In modern world Islamic countries wrestle with division among modernists traditionalists and in later 20th century fundamentalists o This threesided political division colors politics in most Muslim countries and each faction s in uence waxes and wanes Modernists include socialists and secularists in uenced by Marxism and democracy In uential in Turkey Palestine Egypt Traditionalists are those who purport to return to pre modern Islamic roots before rise of the state Rule by the uama legallytrained class In uential in Iran Pakistan SE Asia Fundamentalists Islamists are those who adhere to a modern aggressive evangelical version of Islam who radically seek to transform society along Islamic lines a In uenced by Wahhabi sect of Islam based in Saudi Arabia but includes political parties such as Muslim Brotherhood as well as more radical elements and even terrorists 0 Different Islamic countries have different coalitionsalliances Legal System of Saudi Arabia 0 Absolute monarchy 0 Saudi Arabia has Basic Law but not true constitution limiting King s power 0 All law is the prerogative of the King who may consult with the Council of Ministers largely composed of the royal family In addition larger Consultative Council composed of about 150 appointed members but no ability to legislate Only King Iegislates Saudi Arabia has no legislative branch and no national elections 0 King does not have religious authority and cannot interpret Islamic law different from Shia ayatollahs in Iran 0 Highly peculiar legal system even for other Islamic countries Fusion of archconservative Wahhabi sect with House of Saud ruling family 0 Due process problem since criminal law is not written Criminal law is contained in King s decrees NonIslamic religions banned very unusual 0 Religious police powerful vigilante force punish deviance from Islam can whip women for driving suspected homosexualChristianJewish activity Secular disputes go to Administrative Tribunal eg oil contract disputes Criminal cases go to High Court gt Court of Appeal gt Sharia courts 0 Special review process for hudud offenses including amputationstoning Special Criminal Court 2011 prosecutes terrorists and human rights activists Juvenile Justice The Challenge of Delinquency Delinquency Crime committed by a juvenile The tension that exists in the adult criminal justice system between rehabilitation and punishment exists in the juvenile justice system as well Parens patriae State obliged to serve as guardian over delinquent youth 0 In the United States today punishment is the predominant rationale and youth may be incarcerated even for life and tried in adult courts The world s juvenile justice systems exist on a spectrum between a purely welfarebased model and a purely justicebased model 0 These differ as to formality of the procedure the role of lawyers and prosecutors incarceration etc International Minimum Standards Convention on the Rights of the Child 1990 o Rati ed by 194 state parties every one except the United States making it most rati ed human rights treaties Protections forjuveniles in justice proceedings n Due process and legal aid required in juvenile proceedings n Prohibition on corporal and capital punishment n Minimal protections in detention 0 Enforcement Convention created Committee on Rights of the Child which sits in Geneva and can hear individual complaints Optional Protocols on child soldiers and child prostitutionchild pornography create special rapporteur positions to visit countries Mandatory reporting requirements from member countnes n Vatican faced signi cant questioning re child sexualabuse Nonbinding international instruments 0 Beijing Rules 1985 Incorporated into CRC Set due process minimums 0 UN Rules for Protection ofjuveniles Deprived of Liberty 1990 Standards for detention emphasizing incarceration as last resort 0 Riyadh Rules 1990 Prevention decriminalize status offenses Global Perspectives on Youth Crime Childrearing supervision and education is a hidhlv culturallv contingent phenomenon that varies widely around the world 0 Societies with more parental supervision have lower rates of delinquency Juveniles more likely to commit delinquent behavior when with peers In societies that are conservative strongly communitarian and have a high rate of compliance with social norms generally have lower youth crime rates 0 Egypt Low rates of alcohol use rearm possession drug use Conservative familycentered society create some social control Today juvenile crime is highly politicized and youth have taken part in Arab Springrelated crime and terrorism Consider link between juvenile delinquency armed con ict and economic underdevelopment Hiqh unemplovment rates large number of orphans contribute Emerging global consensus on juvenile justice minimums 0 Same due process rights as adults with additional safeguards 0 Should be diverted from formal justice system where possible 0 Specialized training for personnel involved in juvenile justice proceedings especially re victims of neglect abuse trafficking or armed con ict 0 Countries must set minimum age of criminal responsibility not too low Comparinq luvenile lustice Svstems Status offenses Does a country criminalize truancy disobedience curfew violations running away Age of criminal responsibility Wide variation worldwide from 7 to 16 Age of involvement in juvenile justice system May be up to ages 21 or 22 Role of parents in proceeding Do parents participate Is their presence required What are the difficulties Are juveniles less likely to tell the truth Role of defense counsel and judges Do they have special training Juvenile judges in UK and New Zealand required to have training Role of media Are juvenile proceedings public Can newspapers print names of juveniles Are records sealed at age of majority 0 Can records in juvenile proceedings be used later in adult proceedings Yes under certain circumstances USA England Ireland Australia No Canada Scotland Northern Ireland New Zealand Role of police Are there separate juvenile divisions yes Ireland Australia Special problem for resource constrained legal systems How to prove age when many residents are missing official documents or poor recordkeeping Model Country Studies lapan United Kingdom System most similar to the United States Ages 14 to 18 and serious crimes by children between 10 and 14 are prosecuted in juvenile court homicideserious crimes tried in adult courts Antisocial behavior order can punish youth for noncriminal behaviors violating curfew skipping school Traditionally delinquency dealt with through vocational training counseling and education but high recividism rate led to more robust approach France Like the UK formal justicebased process Procurator involved in prosecution before a juvenile judge parents required to attend hearings Germany Unlike France and UK clearly takes rehabilitativewelfare approach Virtually all juvenile offenders tried in juvenile court Higher age of criminal responsibility 14 involvement in juvenile system 20 Cultural context Society places emphasis on subtle social relationships shame politeness Low crime rates including low youth crime Education is academically rigorous which leaves behind students who do poorly in school and makes them susceptible to deanuency Policing is personal and communitybased and police play the role of juvenile counselor Parameters of youth crime China Juvenile justice system reaches quotpredelinquentsquot who have not yet committed a crime for truancy disobedience Youth may be funneled into the system for control Because of cultural context value on relationships even petty youth crime gives a sense of social dislocation Juveniles under age 16 cannot be sentenced to prison by law 0 Cultural context 0 Follows the justice model more than japan does 0 Political nature of justice combination of education discipline and labor used to treat youth crime 0 Parameters of juvenile justice 0 Chinese state punishes misbehavior by youth as well as crime such as running away truancy 0 Youth may be sent to centers where they face rigid discipline educann 0 Rehabilitation with mandatory labor is typical punishment but traditional incarceration also used 0 As elsewhere juvenile justice courts are more informal than adult courts Comparative Mercy and Pardons What is Clemency 0 Virtually every legal system in the world has a mechanism allowing the executive or legislature to cancel convictions or reduce punishments outside the court system 0 In common law world this descends from King s prerogative of mercy Since crime prosecuted in King s name he could pardon it In civil law world structures more diverse May include individual pardon mechanism or amnesty provision Amnesties are more controversial than pardons and are not universally accepted 0 Four common types 0 O O O Pardon Annul or cancel a criminal conviction Commutation ofsentence Reduce severity of punishment Reprieve Delay or temporarily suspend a punishment Remission cancellation of monetary ne or forfeiture of property 0 Unlike most instances of clemency an amnesty often is made before investigation or conviction in order to prevent prosecution usually for political purposes Decline of Clemencv Clemency has declined in most legal systems for two reasons 0 Abolition of the mandatory death penalty in favor of discretionary death penalty systems in which judges consider mitigating factors Rise of the modern institution of parole which is a bureaucratic and routine version of clemency without the political dangers of pardons o In the United States grants of clemency are the lowest ever 0 O 0 President Obama issued about 67 so far the lowest of any president In the US Department ofJustice the Office of the Pardon Attorney is controlled by career prosecutors who rarely secondguess federal district attorneys so pressure must come from Attorney General or President President Clinton was the last president to pardon outside of the DOJ process and made controversial pardons that caused a major scandal Exceonns Some states have very active pardon processes while in others pardons are vanishingly rare Gov Jerry Brown in California has made a lot of pardons mostly to nonviolent drug offenders to relieve prison overcrowding Why do executives pardon Factors unique to the individual case 0 Punishment too harsh for the crime 0 Consideration of nonlegal factors Examples Remorse religious conversion prisoner has young children prisoner last of hisher blood line execution will orphan prisoner s children prisoner is nursing a child etc 0 Medical reasons eg prisoner terminally ill 0 To prevent wrongful conviction 0 To prevent deportation of an immigrant Policybased grants of pardon 0 Opposition to the death penalty or another punishment Largest commutation in American history was Gov George Ryan s commutation of lllinois s entire death row in 2003 o Commemoration of a holiday or important event 0 Restore harmonyprevent political con ict 0 Resolve prison overcrowding Whv Shouldn t Executives Pardon MANY controversial pardons Gerald Ford s pardon of Richard Nixon Carter s pardons for Vietnam draft dodgers George HW Bush s pardon of IranContra rebels Bill Clinton s pardons to family members and to Democratic Party donors OOOO O 0 George W Bush s pardon of Scooter Libby Dick Cheney s chief of staff Obama has had no scandals yet 0 Should executives be allowed to O O O O O Pardon themselves or their family members Pardon someone who is dead Pardon someone who has not yet been convicted of a crime Pardon treason corruption impeachment Pardon secretly In many countries the executive39s decision is not subject to judicial re vie w 0 South Africa President pardoned and released all mothers of small children Sued by a father of small children for gender discrimination Was the pardon constitutional Constitutional Court said yes International Law and Clemency o The Ceiling 0 Under the International Covenant on Civil and Political Rights every country that retains the death penalty must have a pardon mechanism available in death penalty cases Current controversy President of Indonesia Joko Widodo said he will deny clemency for anyone on death row for drug trafficking Are blanket denials permitted or must individual consideration of clemency petitions be genuine o The Floor 0 O 0 International law prohibits clemency or amnesty in order to give impunity to a human rights violator Clemency or amnesty not permitted for war crimes genocide or crimes against humanity Zimbabwe Uruguay Chile Peru etc have lost cases before human rights tribunals where they granted blanket amnesties to human rights violators International Criminal Court can still prosecute persons who receive amnesty for international crimes Is there a justiceforpeace tradeoff What if rebels will not lay down arms without an amnesty Who makes the clemencv decision Executive acting alone Executive acting on advice of another minister usually minister of justice or attorney general Executive acting on advice of the cabinet Executive acting on advice of a speciallyappointed mercy committee Executive may only pardon with favorable recommendation from the pardon board or mercy committee Pardon power is held entirely by the pardon board or mercy committee the executive cannot pardon Executive pardons must be rati ed by the legislature Some combination Who is on a Clemency Committee In most common law jurisdictions a pardon board or mercy committee often plays an advisory or binding role in clemency decisionmaking process Who serves on these committees Why does it matter 0 Career federal prosecutors or law enforcement 0 Social workers or medical practitioners 0 Crime victims or persons who were wrongly convicted 0 Corrections experts or officials o Elected officials How are the committee members chosen 0 By the executive alone 0 By the executive with approval from an elected official such as a prime minister cabinet member or full cabinet 0 Members selected by executive approved by legislature 0 Members vetted by judicial appointments authority
Are you sure you want to buy this material for
You're already Subscribed!
Looks like you've already subscribed to StudySoup, you won't need to purchase another subscription to get this material. To access this material simply click 'View Full Document'