Texte Juridice Sem 2

7/27/2019 Texte Juridice Sem 2

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TEXTE JURIDICE SEM 2

COURTS OF JUSTICE

The word courtoriginally meant the enclosed space in a courtyard where aking or other ruler sat to settle disputes and to decide upon punishments

for crimes. Today the word has several meanings. It may mean the roomwhere a trial is held. It may also refer to the judge, several judges sitting in

a group, or the judges and other officers of the court.There are many different types of courts and several ways to classify

them. A basic distinction must be made between trial courts and courts of

appeal.Courts can also be classified by the types of cases they handle either

civil or criminal. In some countries there are courts of general jurisdiction,

meaning that they may deal with cases of both kinds. There are specializedtribunals that deal with specific types of cases such as divorce or labordisputes. The armed services have their own legal system and courts.

Criminal courts deal with individuals accused of crimes. The purpose of

the trial, normally held before a jury, is to decide whether the accused isguilty or not and, if guilty, what the punishment should be. Prosecution in

criminal trials is undertaken on behalf of the public by a public official

who is usually a lawyer, such as a district attorney or states attorney.Civil courts are not involved with offences against government. They

deal with private problems between individuals or corporations in dispute

over such matters as the responsibility for an automobile accident or overthe terms of a contract. Civil suits produce the most massive and rapidly

growing number of cases in the court systems. Some common examples ofcivil cases are suits for medical malpractice or damages from libel, and

those filed by relatives of disaster victims. Civil suits are not prosecuted

by the state as are criminal cases. In a civil suit each party engages a

lawyer to present the evidence and to question the witnesses. The mostcommon decision in such cases is an order to the defendant to pay money

to the wronged party.

There are occasions in which civil and criminal acts overlap. In a hit andrun accident, for instance, if someone is killed and the driver is found to

be at fault, he may also be sued for damages in a civil trial. In the US there

are two separate trials for such cases. In France and some other nationsboth types of responsibility civil and criminal can be determined in a

single proceeding. This means that the injured party is allowed to make a


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civil claim during the criminal prosecution, agreeing to abide by its

outcome.

Courts of limited jurisdiction

Every nation has tribunals that deal only with specific kinds of cases.Probate courts, for example, deal only with estates of people who have

died. There are commercial courts for disputes between merchants, laborcourts for controversies between employees and employers, juvenile

courts, divorce courts, and traffic courts.

Inferior courts

In many jurisdictions there are what are called inferior courts. Oftenmanned by part time judges, they handle minor civil and criminal cases. In

addition, they may also deal with preliminary phases of serious criminal

cases, such as setting bail, advising defendants of their rights, appointingdefense counsel.

Appellate courts

All of the above mentioned courts are trial courts. Above them, to reviewtheir work, are the appellate, or appeals, courts.

The responsibilities of appellate courts are normally general. Such courts

handle cases in which the fairness of other courts decisions is questioned,or appealed. An appellate court is usually presided over by several judges

instead of the single judge who presides over a trial court.

After the verdict has been rendered in a trial, an appeal is not automatic.It must be sought by some party who feels wronged by the trial ruling. An

exception to this practice is acquittal in a murder case. An individual whohas been found not guilty of a murder may not be tried again, nor may the

state appeal the acquittal to a higher court.

STEPS IN A TRIAL

The following is a short explanation of the steps in either a criminal or a

civil trial.

Step 1. Opening Statement by plaintiff or prosecutor


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Plaintiffs attorney (in civil cases) or the prosecutor (in criminal cases)

explains to the tries of fact the evidence to be presented as proof of theallegations (unproven statements) in the written papers filed with the court.

Step 2. Opening statement by defense

Defendants attorney explains evidence to be presented to disprove theallegations made by the plaintiff or prosecutor.

Step 3. Direct examination by plaintiff or prosecutor

Each witness for the plaintiff or prosecution is questioned. Other evidence

(such as documents and physical evidence) in favor of the plaintiff or

prosecution is presented.

Step 4. Cross-examination by defense

The defense has the opportunity to question each witness. Questioning isdesigned to break down the story or to discredit the witness in the eyes ofthe jury.

Step 5. Motions

If the prosecutions or plaintiffs basic case has not been established from

the evidence introduced, the judge can end the case by granting a motion

(oral request) made by the defendants attorney.

Step 6. Direct examination by defense

Each defense witness is questioned.

Step 7. Cross-examination by plaintiff

Each defense witness is cross-examined.

Step 8. Closing statement by plaintiff

Prosecutor or plaintiffs attorney reviews all the evidence presented

(noting uncontradicted facts), and asks for a finding of guilty (in criminalcases) or a finding for the plaintiff (in civil cases).

Step 9. Closing statement by defenseSame as closing statement by prosecution/plaintiff. The defense asks for a

finding of not guilty (in criminal cases) or for a finding for the defendant

(in civil cases).

Step 10. Rebuttal argument

Prosecutor or plaintiff has the right to make additional closing arguments.


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Step 11. Jury instructions

Judge instructs jury as to the law that applies in the case.

Step 12. Verdict

In most states, a unanimous decision is required one way or the other. If

the jury cannot reach a unanimous decision, it is said to be a hung jury,and the case may be tried again.

DEFENSES

For a conviction to occur in a criminal case, the prosecutor must establish

beyond a reasonable doubt that the defendant committed the act in questionwith the required intent. The defendant is not required to present a defense

but can instead simply force the government to prove its case. However, anumber of possible defenses are available to defendants in criminal cases.

NO CRIME HAS BEEN COMMITTED

The defendant may present evidence to show either (1) that no crime was

committed or (2) that there was no criminal intent. In the first case, adefendant might attempt to show that he was carrying a gun but had a valid

license, or a defendant might attempt to show that he did not commit rapebecause the woman was of legal age and consented. In the second case, the

defendant might attempt to show that he mistakenly took another personscoat when leaving a restaurant. The defendant is innocent of a charge of

larceny if it was an honest and reasonable mistake.

DEFENDANT DID NOT COMMIT THE CRIME

Often, no doubt exists that a crime has been committed. In such cases, thequestion is, who committed it? In this situation, the defendant may present

evidence of a mistake in identity or may offer an alibi, which is theevidence that the defendant was somewhere else at the time the crime was

committed.


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DEFENDANT COMMITTED A CRIMINAL ACT, BUT THE ACT WAS

EXCUSABLE OR JUSTIFIED

Sometimes, a criminal act may be considered excusable or justified.

Defenses in this category include self-defense and defense of property andothers.

The law recognizes the right of a person unlawfully attacked to usereasonable force in self-defense. It also recognizes the right of one person

to use reasonable force to defend another person from an attack that isabout to occur. There are, however, a number of limitations to these

defenses.

A person who reasonably believes there is imminent danger of bodilyharm can use a reasonable amount of force in self-defense. However, a

person cannot use more force than appears to be necessary. If, after

stopping an attacker, the defender continues to use force, the roles reverse,and the defender can no longer claim self-defense. Deadly force can beused only by a person who reasonably believes that there is imminent

danger of death or serious bodily harm. A person is allowed to use deadly

or nondeadly force to defend a third person if the person defended isentitled to claim self-defense.

Reasonable nondeadly force may be used to protect property. Some states

have enacted controversial laws, which give persons the right to use deadlyforce to defend their property against unwarranted intrusion.

DEFENDANT COMMITTED A CRIMINAL ACT BUT IS NOTCRIMINALLY RESPONSIBLE FOR HIS OR HER ACTIONS

Some defenses rest on the defendants lack of criminal responsibility for

his or her criminal act. In this category are defenses of infancy,

intoxication, insanity, entrapment, duress and necessity.

Infancy Traditionally, children of a very young age, usually under 7, were

considered legally incapable of committing a crime. Children between the

ages of 7 and 14 were generally presumed incapable of committing acrime, but this presumption could be shown to be wrong. Under modern

laws, most stated simply provide that children under a specified age shall

not tried for their crimes but shall be turned over to the juvenile court.Children under the specified age have the defense of infancy.


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Intoxication Defendants sometimes claim intoxication as a defense- that

is, they claim that at the time of a crime, they were so drunk on alcoholthat they did not know what they were doing. As a general rule, voluntary

intoxication is not a defense to a crime. However, it may sometimes be a

valid defense if the crime requires proof of a specific mental state. Forexample, when Grady is charged with assault with intent to kill, he claims

he was drunk. If he can prove this, his intoxication may be a valid defense,because it may negate the specific mental state (the intent to kill) required

to prove the crime. Grady can still be convicted of the crime of assault,because specific intent is not required to prove that crime.

Insanity Over the centuries, the insanity defense has evolved as animportant legal concept. Ancient Greeks and Romans believed that insane

people were not responsible for thei r actions and should not be punished

like ordinary criminals. Since the 14th

century, English courts haveexcused offenders who were mentally unable to control their conduct. Themodern standard grew out of an 1843 case involving the attempted murder

of a British prime minister.

The basic idea is that people who have a mental disease or defect shouldnot be convicted if they dont know what they are doing or i f they dont

know the difference between right and wrong. During the proceedings, the

accuseds mental state can be an issue in determining (1) whether thedefendant is competent to stand trial, (2) whether the defendant was sane at

the time of the criminal act, and (3) whether the defendant is sane after the

trial. The insanity defense applies only if the accused was insane at thetime of the crime. Insanity at the time of trial may delay the proceedings

until the accused can understand what is taking place. But insanity duringor after the trial does not affect criminal liability. In most states, there are

three possible verdicts: guilty, innocent, or not guilty by reason of

insanity. The last verdict results in automatic commitment to a mental

institution. In recent years, a number of states have come up with a newverdict: guilty but mentally ill. Defendants found guilty but mentally ill

can be sent to a hospital and later transferred to a prison after they have

recovered.

Entrapment The entrapment defense applies when the defendant admits

committing a criminal act but claims that he or she was induced, orpersuaded, to commit the crime by a law enforcement officer. Entrapment

is difficult to prove and cannot be claimed as a defense involving seriousphysical injury, such as rape or murder.


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Duress A person acts under duress when he or she does something as aresult of a threat of immediate danger to life or personal safety. Under

duress, an individual lacks the ability to exercise free will. For example,

suppose someone points a gun at your head and demands that you stealmoney or be killed. Duress would be a good defense in this case if you

were prosecuted for theft. Duress is not a defense to homicide.

Necessity An individual acts under necessity when he or she is compelledto react to a situation that is unavoidable in order to protect life. Suppose,

for example, that a group of people is left adrift in a lifeboat and the

lifeboat is so heavy with cargo that is in danger of sinking. The groupthrows the cargo overboard to make the li feboat lighter. In this case,

necessity would be a good defense to a charge of destruction of property.

Necessity is not a defense to homicide.

Criminal Justice Process: The Trial

The U.S. Constitution entitles accused people with certain rights.

Right to Trial by Jury The Sixth Amendment guarantees the right to a jury trialin most criminal cases. However, a jury is not required in every case, and most

trials proceed without one. Jury panels are selected from voter registration or taxlists and aim to be representative of the community. A preemptory challenge

allows an attorney to exclude a limited number of jurors without giving a reason.

However, the Supreme Court has ruled in a number of cases that a juror may not beexcluded on the basis of race.

Right to Speedy and Public Trial The Sixth Amendment provides defendantswith a right to a speedy trial in all criminal cases. Without this requirement, an

innocent person might be denied fundamental liberties while awaiting trial in jailfor something he or she did not do. The case may be dismissed if the person does

not receive a speedy trial. Defendants often waive, or give up, their right to aspeedy trial because they may need more time to prepare.


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Right to Compulsory Process and to Confront Witnesses Defendants in a

criminal case have a right to compel, or force, witnesses to testify through the useof a subpoenaa court order that requires witnesses to testify. The Sixth

Amendment also provides defendants with the right to face the witnesses testifyingagainst them and to ask them questions through cross examination.

Freedom from Self-Incrimination The Fifth Amendment protects a defendant

from having to testify against himself or herself in a criminal case. The prosecutor

cannot use the decision not to testify as evidence of the defendant's guilt.Regardless of innocence or guilt, defense attorneys often believe it is better that

their clients do not take the stand. A witness who is given immunity cannot be

prosecuted based on any information provided in testimony. Sometimes thegovernment will grant immunity when the information a person has is more

important than prosecuting that person.

Right to an Attorney The Sixth Amendment provides each defendant with the

right to have a lawyer assist with his or her defense. In cases for whichimprisonment is a possible punishment, the government provides defense counselfor indigent (poor) defendants.

Criminal Appeals If the jury returns a verdict of "not guilty," the case is usuallyover. If the jury finds the defendant guilty, the defense may ask the judge to

overturn the jury's verdict. The defense may also appeal to a higher court, known

as an appellate court, claiming that there were legal errors made by the judge

during the trial.

The criminal justice process includes everything that happens to a person from the

moment of arrest, through prosecution and conviction, to release from jail orprison. There are separate state and federal criminal justice systems.

Arrest An arrest takes place when a person suspected of a crime is taken intocustody. The police may have an arrest warrant, which shows that a judge agrees

there is probable cause for the arrest. To show probable cause, there must be some

facts that connect the person to the crime. A police officer may use as muchphysical force as is reasonably necessary to make an arrest. However a police

officer who uses too much force or violates a citizen's rights can be sued under thefederal Civil Rights Act.

A police officer does not need probable cause to stop and question an individual on

the street. However, the officer must have reasonable suspicion to believe theindividual is involved in criminal activity. The reasonable suspicion standard does


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not require as much evidence as probable cause. Therefore, it is easier for police tostop and question a person than it is to arrest a person.

Search and Seizure The Fourth Amendment entitles each individual to be freefrom unreasonable searches and seizures and sets forth conditions under which

search warrants may be issued. In evaluating Fourth Amendment cases, the courtsseek to balance the government's need to gather evidence against an individual's

right to expect privacy. Traditionally, courts have found searches and seizures of

private homes reasonable only when authorized by a valid search warrant. A searchwarrant is a court order issued by a judge who agrees that the police have probable

cause to conduct a search of a particular person or place. However, there are many

circumstances in which searches may be conducted withouta warrant. Even so,these searches must be reasonable under the Fourth Amendment. If a court finds

that evidence was collected as the result of an unlawful search, the evidence cannot

be used against the defendant at trial. In general, school officials are allowed tosearch students and their possessions without violating students' FourthAmendment rights.

THE INTERNATIONAL COURT OF JUSTICE

The '''International Court of Justice''' (known colloquially as the '''World

Court''' or '''ICJ''') is the principal judicial organ of the United Nations.

Established in 1946, its main functions are to sett le disputes submitted to it

by states and to give advisory opinions on legal questions submitted to it

by the UN General Assembly or UN Security Council, or by such

specialized agencies as may be authorized to do so by the General

Assembly in accordance with the United Nations Charter.

This court is different from the International Criminal Court and the WarCrimes Law (Belgium), both of which have been confused with the

International Court of Justice.

The seat of the Court is in Hague, Netherlands. It is composed of fifteen

judges elected by the UN General Assembly and the UN Security Council


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from a list of persons nominated by the national groups in the Permanent

Court of Arbitration. Judges serve for nine years and may be re-elected. No

two may be nationals of the same country. One-third of the Court is elected

every three years. Each of the five permanent members of the Security

Council (France, the People's Republic of China, Russia, the United

Kingdom, and the United States) have always had a judge on the Court.

Questions before the Court are decided by a majority of judges present.

Article 38 of the Statute provides that in arriving at its decisions the Court

shall apply international conventions, international custom, the "general

principles of law recognized by civilized nations". It may also refer to

academic writing and previous judicial decisions to help interpret the law,

although the Court is not formally bound by its previous decisions. If the

parties agree, the Court may also decide ''ex aequo et bono'' , or "in justice

and fairness", in which the Court makes a decision based on general

principles of fairness rather than specific law.

There are two distinct types of cases upon which the court may rule:

'''contentious issues between states''' in which the court produces binding

rulings between states that agree, or have previously agreed, to submit to

the ruling of the court, and '''advisory opinions,''' which provide reasoned,

but non-binding, rulings on properly submitted questions of international

law, usually at the request of the United Nations General Assembly.

Advisory opinions do not have to concern particular controversies between

states, though they often do.


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Texte Juridice Sem 2