Week 4: Common and Civil Law Part 3
Week 4: Common and Civil Law Part 3 CRIM 405-002
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This 8 page Class Notes was uploaded by Cailyn Notetaker on Monday September 28, 2015. The Class Notes belongs to CRIM 405-002 at George Mason University taught by Andrew Novak in Fall 2015. Since its upload, it has received 24 views. For similar materials see Law and Justice Around the World in Criminology and Criminal Justice at George Mason University.
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Date Created: 09/28/15
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
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