Chapter 7 Flashcards
Judicial Independence and Judicial Impartiality
2 basic functions
Judicial independence - a principle that holds that courts and judges are bound to the law and should make decisions without being under the influence, direct or indirect, of other governmental or political agents. In authoritarian states, the independence of the judiciary is often nonexistent. Judges on the side of those in power merely enforce the law of the ruling party or leader in power.
Pure judicial independence is an ideal that hardly exists.
Judicial impartiality - somewhat tied to judicial independence. It is a broader concept that calls for judicial authorities to treat parties in court as equals. “Equality before the law,” is a cherished precept of modern justice systems. A judge who distinguished among plaintiffs based on race, religion, or creed would not be practicing judicial impartiality.
Actors in the Legal Profession
Adjudicators - professional judges or magistrates who are authorized to hear civil, criminal, and other cases, including in appeals courts. Make dispositions in a court of law. Lay judges and magistrates are persons who perform the same functions as professional judges but are not considered career members of the judiciary.
England: Appointed in magistrates’ courts.
Germany and France: Self-selected candidates take extensive exams and apprenticeships.
China: Elected and appointed by peoples’ congresses and standing committee respectively.
Japan: Self-selected. Must go through exams and apprenticeship and then promoted by merit.
Saudi Arabia: Self-selected. Must qualify and go through apprenticeship.
USA: Elected and appointed.
Advocates - are expected to be partisan and contain zeal in pursuing the interests of their clients. They are legal representatives who present the evidence and the arguments that allow adjudicators to make their decisions. They work for the state or the criminally accused. Advocates working for the state are called prosecutors or procurators, although their roles vary considerably from country to country. Like adjudicators, advocates are subject to economic, social, and political pressures that affect their work.
Advisors - Paralegals, paraprofessionals, experts, discovery specialists, jury experts, etc. Many are legally trained individuals who work outside the courtroom to advise and instruct individuals who have legal problems or needs, both civil and criminal. They handle a large proportion of the paperwork that is necessary for the functioning of large bureaucratic societies: wills, contracts, tax analysis. Legal advisors are also the first point of contact in criminal cases. They do investigations and advise clients prior to the start of formal adjudication processes. The position of advisors is often seen as less prestigious than that of advocates because they do not handle cases in the public arena. But in reality they handle many of the same legal tasks.
Legal Scholars - play an important role in shaping the law and clarifying meaning. Legal scholars often work behind the scenes, doing the research and writing opinions. Their role has been much larger in Civil and Islamic Law countries.
Types of Courts
Courts of limited jurisdiction - handle minor criminal cases and may also conduct preliminary hearings for cases that will be handled at the next level of courts, e.g. magistrates, traffic court, justice of the peace.
Courts of general jurisdiction - major trial courts that have jurisdiction over any cases involving criminal law and sometimes civil law, e.g. Federal District Court.
Intermediate courts of appeal - handle appeals from lower courts, e.g. Federal Circuit Court of Appeals.
Courts of last resort - those that are authorized by law to hear the final appeal on legal matters, e.g. Supreme Court.
England Courts
Courts of Limited Jurisdiction:
- Magistrates Court:
Minor Criminal cases. Preliminary hearings for upper courts. Serve in lieu of grand juries – hold a preliminary hearing and decide to bind the case over for trial.
Two types:
Stipendiary: Professional lawyers paid by the state.
Lay Magistrates: appointed to serve as volunteer judges – also called justices of the peace.
- County Courts:
Minor civil actions. If appealed it goes to the High Court of Justice.
High Court of Justice:
Both a court of original jurisdiction and a court of appeal for both criminal and civil cases. Cases of original jurisdiction handled by one judge and appeals handled by two to three judges.
Divided into three branches:
Queen’s Bench: handles majority of civil and criminal matters of original and appellate jurisdiction.
Chancery Division: handles matters involving property, trusts, and wills.
Family Division: deals with matrimony and guardian issues.
Courts of Intermediate Appeal:
Intermediate court of appeal. Handles both civil and criminal cases. Judges can actually add time to the defendants sentence if they believe the appeal by the convicted person was frivolous (up to 3 months).
Courts of last resort:
Supreme Court of the United Kingdom (formerly House of Lords). Main function is to hear appeals from courts in England, Wales, Northern Ireland, and Scotland. Twelve person Court. Has authority to hear disputes among the three governments (House of Commons, House of Lords, Prime Minister) and hear appeals on arguable points of law of public importance.
Prosecution and Defense:
The clear distinction between prosecution and the defense doesn’t exist in England. Barristers are the lawyers who are trained and allowed to try cases before the bench and serve as either prosecutor or defense depending on how they are assigned to the case. Solicitors are lawyers trained to be lawyers but who are not allowed to try cases before the bench. Solicitors handle all the preliminary contacts with the client, gather the evidence, and share their findings with the Barrister who actually tries the case.
Legal education and training:
Solicitors - 3 year university law degree, serve an apprenticeship with a solicitor for two and a half years, or attend college of law for one year and then serve a four year apprenticeship.
Barristers - three year law degree from a university, membership in one of the Inns of Court, one year apprenticeship under the supervision of a junior barrister.
France Courts
3 levels of trial courts:
- Courts of Limited Jurisdiction:
Try minor offenses.
Police Courts: Handle more than half of the criminal cases, minor misdemeanors, and violations.
Correctional Courts: More serious misdemeanors (delits).Three or more judges hear the cases and a verdict is by majority vote.
Assizes Courts: Have original jurisdiction over major felony cases and appeals from lower courts. Appeals handled by three judges. Trials under original jurisdiction have 3 professional judges and 9 lay judges – no juries. Verdicts by a plurality of 8 votes.
- Courts of intermediate appeal:
Civil and Criminal cases decided below the Assizes courts go to the intermediate court of appeals. Three to five judges rule on cases and decide points of law and fact. - Highest Level of Appeal:
Court of Cassation hears appeals from the court of Assizes and the courts of appeal. Seven judges hear a case. Criminal appeals are mandatory, but civil cases are discretionary.
Legal Training and Education:
Baccalaureate degree, three year law degree, one year for Master of Law, three year apprenticeship, and must pass national exam.
Germany Courts
Similar to France.
Three types of Courts:
Ordinary Courts: handle criminal and most civil cases.
Specialized Courts: handle cases involving administrative issues.
Constitutional Courts: handle judicial review and constitutional interpretation.
Ordinary Courts have four tiers:
1. Courts of Limited Jurisdiction: hear minor criminal and civil cases at the local level.
2. Courts of General Jurisdiction: hear major criminal and civil cases and hear appeals from the courts of limited jurisdiction.
3. Courts of Intermediate Appeal: hear points of law raised on appeal in the lower courts.
4. Federal Court of Justice: a court of last resort that hears final appeals from all lower courts except cases involving constitutional interpretation.
Federal Constitutional Court:
Any judge in Germany who believes he has a case involving a constitutional question may refer the case directly to the Federal Constitutional Court. Individual litigants who believe their constitutional rights have been violated may not remove the case to the Federal Constitutional Court but must go through the ordinary appellate process.
Consists of sixteen judges.
Does not decide the outcome of cases, it only rules on the constitutional questions and remands the case to the lower court to decide the outcome of the case.
Judges in the Courts:
Lower Criminal Courts:
No juries. Two lay judges and one professional judge.
Courts who hear more serious cases: No juries. Three professional judges and one lay judge.
Decisions: Verdict is majority vote. Professional judges instruct the lay judges about the law to be applied to the case.
Differences between German trials and U.S. trials:
Expert witnesses are called and paid for by the state. Prosecutors may appeal acquittals. There are a large number of specialty courts in Germany: Social Security courts, labor, tax, administrative, civil, and criminal.
China Courts
Chinese courts are highly centralized and organized along four levels:
Basic or Primary People’s Courts.
Intermediate People’s Courts.
Higher People’s Courts.
Supreme People’s Courts.
People’s Mediation Committees (PMCs):
One of three informal social control mechanisms implemented throughout China. Five to Seven members who use the force of public opinion and education to persuade those involved in minor disputes and misdemeanors to resolve their problems. Only the most series of issues are dealt with by the formal court system, the less serious criminal behaviors and civil matters are generally disposed of by the PMCs.
Primary People’s Court (court of limited jurisdiction):
What doesn’t go to the PMCS, goes to the Primary People’s Court. Handles most criminal, civil, and economic matters of first instance unless a “special” case.
“Special” case: severity, provincial or national importance.
Two more courts that have equal “jurisdiction” to the PPC:
- People’s Tribunal: Handle cases that would go to the PPC in rural areas and in inner cities.
- Special People’s Court: Handle military, railway, and maritime matters.
Intermediate People’s Courts: Courts of general jurisdiction. Handle serious criminal, civil, and economic cases of first instance, and those cases transferred from the basic/primary people’s courts. Murder, robbery, bombing, arson, counterrevolution, death penalty, life imprisonment, and cases involving foreigners.
Higher People’s Courts:
Handle criminal, civil, and economic matters of first instance that impact larger geographic areas or of national interest; and appeals from the Intermediate People’s Courts.
The Supreme People’s Court of China:
Handles matters of national importance. Most cases are appeals from the Higher People’s Courts.
Divided into seven permanent divisions:
1. Two Criminal divisions
2. One Administrative Issues
3. One Civil Matters
4. One Communications and Transport
5. One Complaints and Petitions
6. Economic Matters
Every court at every level consists of a President, two or more Vice Presidents, one Chief Judge, several Deputy Judges and Assistant Judges. Trying of cases in the basic, intermediate and higher people’s courts is generally done by one judge.
The Role of Legal Counsel:
Individuals can represent themselves or allow another to represent them and the other needn’t be a trained lawyer. Defense attorneys are encouraged to help the court render a just verdict. Defense counsel in most cases may only act to mitigate the severity of the sentence and not guilt/innocence Defense counsel may not be allowed to meet with their clients prior to trial, see
transcripts such as confessions, or avoid personal intimidation and detention. Chinese judges at most levels are poorly educated.
Japan Courts
Summary Courts (Courts of limited jurisdiction):
If the case would result in imprisonment of more than 3 years or a civil fine of more than 1.4 million yen, the case is out of the jurisdiction of the court and is filed before the District Court. Handle minor criminal and civil cases. Judge is not necessarily a trained lawyer. Parties can agree not to be in court personally and allow the judge to decide the case from the record.
District Courts:
Courts of general jurisdiction. Handle civil and criminal cases and matters that have been appealed from the Summary Courts by either the prosecution or the defense. A single judge presides over most cases, but more serious cases will have a three judge panel.
High Courts (intermediate appellate courts.):
Courts of immediate appeal. Handle cases appealed from the District Courts, Summary Courts, and original jurisdiction over insurrection and sedition cases. Appeals are heard by a panel of three judges.
Supreme Court:
The final court of appeal in both civil and criminal cases. A 15 member court that generally hears cases in panels of 5, unless it is questions of constitutionality in which all 15 members hear the case and 8 judges decide the issue. Supreme Court also determines the constitutionality of any law, order, regulation or official act. Nominates judges to the lower courts. Judges are not appointed to the Supreme Court until age 64 and are required to retire at age 70.
There are very few lawyers in Japan per capita, and it is very difficult to become a lawyer in Japan. Only public prosecutors (procurators) are allowed to institute the prosecution of criminal cases.
The two major roles of Prosecutors:
1. To investigate and collect evidence in the case.
2. To provide information to the judge about the suspect to assist in sentencing.
Defense Attorneys:
Provided for all accused of crimes and indigent offenders are eligible for court appointed counsel.
Saudi Arabia Courts
Three primary court levels:
First Degree Courts.
Courts of Appeal.
Hight Courts
First Degree Courts (courts of general jurisdiction):
Handle cases including labor, commercial, criminal, personal (divorce), traffic.
Criminal Court: Specialized Circuits.
Retaliatory Punishment, Prescribed Punishment, Discretionary Punishment, and Juvenile. Criminal cases are heard by a three judge panel, in the other courts cases heard by one judge.
Courts of Appeal (Intermediate Appeals Courts):
Hear appeals from the lower courts with the power to overturn cases. Circuits with three judge panels, except serious criminal cases that have five judge panels. Circuits: Labor, Commercial, Criminal, Personal, and Civil.
High Court (Court of Last Resort):
Reviews all rulings issued or upheld by the courts of appeal.
King of Saudi Arabia: Can give pardons or serve as a final appeal to determine whether a verdict is consistent with Shari’a law.
Judges require significant training and study of Islamic law. Attorneys and judges are required to attend religious preparatory schools for five years prior to attending the Shari’a colleges. After graduation, future judges must attend a Judicial Academy and Institute of Public Administration. Saudi Lawyers must be male, and Muslim – it is not necessary to be trained as an advocate. The accused are expected to defend themselves. Courts are quite informal and generally meet in small rooms and the trials are quick. Proceedings are often held in secret.
