Justice Systems Flashcards
What type of matters can be resolved through ADR?
Civil matters
What is ADR?
Alternative Dispute Resolution - civil disputes being resolved without the court-based adversary system.
What are the two types of dispute resolution?
ADR without third party involvement
ADR with third party involvement
What are forms of ADR without a third party?
Self-help
Abandoning the claim
Consensus
What is self help?
In this method the aggrieved party takes his or her own steps to bring about a conclusion that satisfies him or her. Despite being an inexpensive method, in which the aggrieved party is in total control, it can too easily involve criminal behaviour that could be subject to proceedings in criminal law.
What is abandoning a claim?
An aggrieved person could simply cease pursuing the action
Often because:
- The matter is trivial
- The wrongdoer is a ‘straw person’ and is not in a financial position to provide a remedy
- The aggrieved party would prefer to maintain good relations with the defendant
What is consensus?
In this method the wrongdoer admits liability and settles, usually because that party knows he or she is in the wrong and would be unsuccessful if litigation ensured.
What are the types of third person ADR?
Mediation
Conciliation
Arbitration
What is Mediation?
Informal meting the parties are in control of the procedure
They agree on who the mediator will be and where and when the mediation conference will occur.
Attendance is voluntary and the parties are not legally bound by any agreement reached
What is conciliation?
More formal than mediation, often compulsory in some branches of law, before a matter can proceed to adjudication in a court or tribunal. Unenforcable.
What is arbitration?
Formal method of ADR in which the parties consent, by contractual agreement, to have a matter resolved by an independent arbitrator.
What are some reasons for court hierarchies?
Doctrine of precedent
Judicial review and appeals
Specialisation
Efficiency
What are juries?
A jury is a random selection of people who sit, as peers of the accused, at a criminal trial to decide the verdict of an accused person charged with an indictable offence. Most juries are comprised of 12 adult jurors, although the Juries Act 1927 (SA) allows up to 15 jurors to be empanelled.
What is the role of the jury?
A jury’s fundamental role is to decide whether an accused person is guilty of not guilty (ie decide the verdict) of the crime for which he or she is being tried. A jury must only reach a verdict based solely on the admissible evidence presented at the trial, in accordance with the law as explained by the trial judge.
What are the types of jury verdicts?
Unanimous
Majority
Hung
Perverse
What is an unanimous jury verdict?
All jurors come to the same conclusion
Murder requires it
What is a Majority jury verdict?
Accepted by judge after 4 hours of deliberation 11-1, 10-2 (With 12 jurors).
What is a hung jury verdict?
No statuary majority - Mistrial
What are the strengths of a jury?
- An accused person’s guilt or innocence is determined by his/her peers and not agents of the State.
- This can prevent the abuse of government power
- Democratic
- Shared-decision-making.
Weakness of a jury
- Not a true cross section of the community
- Elderly citizens over 70 years of age are ineligible
- Large proportion of immigrants with a poor command of the English language are excluded
- Large number of people excused eg professionals or business positions.
- Jurors are unqualified in legal matters and many have difficulty weighting and applying evidence to reach a logical conclusion
- Non-disclosure of reasons for a verdict
- Jurors are not held accountable.
- Faulty logic or personal biases.
What are some reforms to jury system?
Juries should somewhat have a say in the sentencing process instead of solely the judge.
Jurors should have a brief education in the legal system before they can sit on the jury.
Juries should give a reason for their verdict.
Have one foreperson for the jury who has had sufficient legal training.
Introduce a ‘not proven guilty’. Like the inquisitorial system, allow the jury to make a ‘not proven guilty’ verdict so if more evidence surfaces after the first trial, the accused can be retrialed.
What is the criminal pre-trial stage?
- Preliminary hearings to determine whether a prime facie case exist
- Police department gathers evidence and presents to DPP
- DPP must present all evidence to defendant at least 14 days before hearing
- Application for bail
- Pleas
What does the criminal trial stage consist of?
- Accused is arrainged - information is read out about them and they plea guilty or not guilty
- Jury is empanneled
- Examination in cheif (DPP)
- Cross-examination (Defence)
- Re-examination (DPP)
- Examination in cheif (Defence)
- Cross-examination (DPP)
- Re-examination (Defence)
Evidence in reply (DPP)
Closing Addresses
Judge’s Summary
Verdict
What does the criminal post-trial stage consist of?
- Sentencing hearing
- DPP and defence make submissions before a sanction is given.
- Prior convictions and factors taken into account
What does the civil pre-trial stage consist of?
- The pleadings
- Statement of claim in the appropriate court.
- Statement of Defence and Appearance
- Discovery
- Parties must disclose all relevant documents.
- Pre-Trial Conferences
- Establishing due process and facillitating the issue being resolved by ADR if possible.
What does the civil trial stage consist of?
- Plaintiff has the burden of proof it presents its case first
- Opening address
- Examination of plaintiff’s witnesses
- Examination-in-chief by the plaintiff
- Cross examination by defence counsel
- Re-examination by plaintiff
- The defence case follows a similar procedure as the plaintiff’s case
- Closing addresses
- Judges sums up the issues of law and fact
- Judge hears submissions re the civil remedy
- Judge’s decides from three options
- Liable
- Not liable
- Contributory liability.
- Losing party generally pays all court costs
What is the civil post-trial stage?
Remedy hearing
Damages (general and special)
Injunctions
Contributory negligences
Appeals
What are the catagories of admisible evidence?
Direct
Indirect
Primary
Secondary
Opinion
What is direct evidence?
A witness testimony
What is indirect evidence?
Circumstantial evidence, fingerprints of accused at the scene
What is primary evidence?
Objects and documents relevant to the case, murder weapon
What is secondary evidence?
Evidence that suggests the existence of primary evidence, photocopies
What is opinion evidence?
Evidence that can be deduced from direct evidence, given by experts
What are the catagories of inadmissible evidence?
Hearsay
Illegally obtained
Opinion
Past criminal records
What is Hearsay evidence?
Evidence relayed from one person to another
What is Illegally obtained evidence?
Confession under duress
What is opinion evidence that is inadmissable?
Tendered by someone who is not an expert
What is the the Adversary system?
The Adversary system is a method of administering justice premised on the philosophy that a just outcome will occur if the two opposing parties have the lawful authority to present their conflicting cases to an independent judge and, if selected, an impartial jury.
What is the Inquisitorial system?
The inquisitorial system is a method of administering justice premised on the principle that a just outcome will only occur if the fact-finding role is vested in the authority of an independent judge, and not the two parties to the dispute.
What is the role of the judge in the adversary system?
Pppointed to the bench by the Attorney General
The main role of the judge in the adversary system is to enforce the rules of evidence and procedure to give both parties a fair, equal, and lawful opportunity to present their conflicting cases to court.
The judge is the chief advisor of the jury
If there is no jury, the judge decides the verdict and provides reasons for it
The trial judge presides over the sentence hearing to determine the most appropriate sanction
What is the role of the judge in the inquisitorial system?
Students complete a course at university and are appointed to the bench by the means of a formal application process
To oversee the investigation of a crime
Question witnesses and the accused person and record written statements
Prepares and maintains a dossier consisting of all the evidence collected
Rules of evidence are less strictly applied and the dossier contains - Overseas all aspects of the trial process, including the examination of witnesses and the enforcing of the rules of court. - Decides a verdict and the sanction to be imposed on a convicted offender. • The profession of judge in the inquisitorial system is separated into two into two branches: one involving the investigation, including the gathering of evidence and the giving advice on the points of law, and the other to supervise the case prior to and during the trial, being in charge of the examination of witnesses and the presentation of evidence. • One judge is assigned to each branch with the latter forming the verdict.
What is the role of the defence representation in the inquisitorial system?
In the inquisitorial system the legal representative of the accused assists to help the judge find the truth and ensures their client is given a fair trial.
Rights in the inquisition
The accused has the right to remain silent - Accused is expected to answer questions put to them by the judge - Resistance to answer questions is frowned upon • Innocent until proven guilty • Both systems accommodate the right of appeal, however there are fewer grounds in the inquisitorial system as the rules of evidence are less strictly applied.
Who is eligible to serve on the Jury?
Prospective jurors must be between 17 and 71 years of age and registered on the House of Assembly electoral roll.
What are the factors of staturoy ineligibility for jury duty?
The Juries Act determines those employed in the Criminal Justice system are ineligible. This includes.
- Police officers (and their spouses)
- Judges (and their spouses)
- People employed in the courts administration process
- Practising lawyers
Which persons are disqualified from Jury Duty?
People who have committed a serious offence in the past or who are currently awaiting trial, sentencing or on parole.
What is the process for jury selection?
Jury manager request 6,000 eligible names each year from the electoral role
Vetting by the police commissioner (400 randomly selected names are vetted by the PC who checks eligibility)
Summoning (Jury manager sends out 220 summons to potential jurors for that month)
Final vetting (individual jurors must identify themselves as ineligible or disqualified, apply to be excused or advise the jury they will report - 140 jurors identified to do a months jury service)
Monthly jury induction ( 140 jurors assemble where they are registered, issued a jury number and sworn in, judge or justice will inform them of their responsibilities and roles)
Empanelment
Empanelment
This is the formal selection of 12-15 jurors to sit on the jury panel from the jury section assembled in the public gallery of a criminal court room before the parties begin to present their cases.
Jury sections assemble in the public gallery and the Judge calls the prosecution to call all witnesses.
Jurors can be excused of they have an “association”
Jurors names are selected randomly, thejuror moves towards the jury box
Defence and prosecution each permitted:
3 peremptory challenges (without cause)
Unlimited challenges with cause (judge approval)
The judge decides whether or not to approve the application for dismissal of a juror
The parties are given the opportunity to challenge jurors
The Juries Act allows up to 15 jurors to be empaneled at the discretion of the judge, but only 12 jurors will deliver a verdict.
If more than 12 jurors are still on the panel at the end of the trial, a ballot is conducted to remove the excess
The jury foreperson cannot be excluded by this process
What is the role of the defence representation in the Adversary System?
To create doubt in the prosecution’s case and argue to achieve a not guilty verdict or a reduced sentence.
What rights are provided for in the adversary system?
