DOCSLIB.ORG

The Future of Adversarial Systems: an Introduction to the Papers from the First Conference

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Future of Adversarial Systems: an Introduction to the Papers from the First Conference NORTH CAROLINA JOURNAL OF INTERNATIONAL LAW Volume 35 Number 2 Article 1 Winter 2010 The Future of Adversarial Systems: An Introduction to the Papers from the First Conference Michael Louis Corrado Follow this and additional works at: https://scholarship.law.unc.edu/ncilj Recommended Citation Michael L. Corrado, The Future of Adversarial Systems: An Introduction to the Papers from the First Conference, 35 N.C. J. INT'L L. 285 (2009). Available at: https://scholarship.law.unc.edu/ncilj/vol35/iss2/1 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Journal of International Law by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. The Future of Adversarial Systems: An Introduction to the Papers from the First Conference Cover Page Footnote International Law; Commercial Law; Law This article is available in North Carolina Journal of International Law: https://scholarship.law.unc.edu/ncilj/vol35/ iss2/1 The Future of Adversarial Systems: An Introduction to the Papers from the First Conference Michael Louis Corradot" The four papers that follow are from a conference that took place on the campus of the University of North Carolina at Chapel Hill on April 8, 2009. The conference was the first in a planned series of conferences,' the aim of which is to stimulate comparative conversations on the future of adversarial systems, in particular in connection with criminal procedure. I. What an adversarial system is. Our system of criminal procedure is adversarial. 2 The parties to criminal litigation-the adversaries-are the accused on one hand and the state on the other. The criminal investigation and the criminal trial are run by these parties. The prosecutor gathers and presents evidence to prove the defendant's guilt, and the defendant may respond by rebutting the state's evidence and by gathering evidence of his own to prove his innocence. The important elements of an adversary system, for our purposes here, are these: 1. Litigation is run by the parties, and not by the judge. The parties decide who the witnesses will be and what evidence will be tArch T. Allen Distinguished Professor of Law and Professor of Philosophy, University of North Carolina (UNC) School of Law. Thanks to the participants at the conference for helpful suggestions, and thanks to my assistants, Laura Ross, Matt Lewis, and Megan Lambert. I The series is supported by the UNC Center for European Studies (CES), with funds from Title VI and the European Commission, and by the UNC School of Law. The success of the application for funding was largely due to the work of Ruth Mitchell- Pitts of the CES. 2 For more on the adversary and inquisitorial system, see RENE DAVID, FRENCH LAW: ITS STRUCTURE, SOURCES, AND METHODOLOGY 116-22 (Michael Kindred trans., La. State Univ. Press 1972); F.H. LAWSON, A COMMON LAWYER LOOKS AT THE CIVIL LAW passim (Univ. of Mich. 1953); JOHN HENRY MERRYMAN & ROGELIO PEREZ-PERDOMO, THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL SYSTEMS OF WESTERN EUROPE AND LATIN AMERICA 130-31 (3d ed. 2007). N.C. J. INT'L L. & COM. REG. [Vol. XXXV presented. The two parties are, at least in theory, of equal status before the court.3 2. The defendant, through his counsel, is entitled to confront and cross-examine his accuser.4 3. The defendant is entitled to have a jury of laymen decide the facts of his case.5 4. The fact-finder (the jury, or in some cases the judge) may take into account only the evidence presented in court at trial, and may not consider evidence in the pre-trial record which is not presented at trial; this is understood in our tradition as part of the presumption of innocence.6 5. The victim has no role in the prosecution of the case.7 Some of these features are incorporated into our constitution, and some are simply part of the common law tradition which we inherited from England.8 II. The inquisitorial tradition. The adversarial tradition is one of two dominant traditions in criminal procedure; the other is the inquisitorial. The French system of criminal procedure is an example of an inquisitorial system.9 The elements of the traditional inquisitorial system are these: 0 3 FRANCIS PAKES, COMPARATIVE CRIMINAL JUSTICE 50-59 (2004). 4 MERRYMAN & PEREZ-PERDOMO, supra note 2, at 130-31. 5 The United States uses trial by jury more than any other common law nation. See HARRY R. DAMMER & ERIKA FAIRCHILD WITH JAY S. ALBANESE, COMPARATIVE CRIMINAL JUSTICE SYSTEMS 140 (Eve Howard ed., 3d ed. 2006). 6 See Giulio Illuminati, The FrustratedTurn To Adversarial Procedure in Italy (ItalianCriminal Procedure Code of 1988), 4 WASH. U. GLOBAL STUD. L. REV. 567,569- 70 (2005). 7 See Mirjan Damalka, Problematic Featuresof InternationalCriminal Justice, in THE OXFORD COMPANION TO INTERNATIONAL CRIMINAL JUSTICE 175, 180-81 (Antonio Cassese ed., 2009). 8 The right to confrontation, for example, and the right to jury trial are contained in the Constitution. See U.S. CONST. amends. V, VI. Other features of the adversarial tradition were handed down in the common-law tradition. See generally Amalia Kessler, Our Inquisitorial Tradition: Equity Procedure, Due Process, and the Search for an Alternative to the Adversarial, 90 CORNELL L. REv. 1181 (2005) (discussing the history of the American legal system and its development from European traditions). 9 Jacqueline Hodgson, Hierarchy,Bureaucracy, and Ideology in French Criminal Justice: Some Empirical Observations, 29 J. L. SOC'Y 227, 228 (2002) [hereinafter Empirical Observations]. 10 See, e.g., Bron McKillop, Anatomy of a French Murder Case, 45 AM. J. COMp. 2010) THE FUTURE OF ADVERSARIAL SYSTEMS 1. Trials are run by judges, often more than one." Questioning of defendant and witnesses is done by the presiding judge, and the order of evidence at trial is also determined by the presiding judge. 12 Counsel for the parties play a very minor role in the actual conduct of the trial. 3 2. In serious criminal cases, the pretrial investigation is also conducted by a judge, the juge d'instruction.14 This judge, who is presumed to be neutral, compiles a dossier in which, among other things, all evidence, inculpatory and exculpatory, is noted.15 3. The dossier is handed forward to the trial judges, who therefore have before them a record of everything that transpired in the pretrial investigation. 16 There is no requirement that evidence that may be relied on to convict the defendant should be presented to the fact-finder for the first time at trial.17 This lack of insulation between pretrial investigation and what goes on at trial is one of the most significant differences between the two systems. Judges sometimes convict entirely on the basis of evidence gathered before trial, and without any evidence being presented at the trial itself.8 Although it may not be fair to say that there is no L. 527 (1997) (providing a good overview of French procedure, which is mostly still accurate today, despite some changes in the system since 1997). 11 See JACQUELINE HODGSON, FRENCH CRIMINAL JUSTICE: A COMPARATIVE ACCOUNT OF THE INVESTIGATION AND PROSECUTION OF CRIME IN FRANCE 69 (Hart Publ'g, 2005) [hereinafter FRENCH CRIMINAL JUSTICE]. 12 See CLIFF ROBERSON & DILIP K. DAS, AN INTRODUCTION TO COMPARATIVE LEGAL MODELS OF CRIMINAL JUSTICE 120, 110 (Ctr. for Disease Control Press 2008). 13 See FRENCH CRIMINAL JUSTICE, supra note 11, at 101, 105. 14 Jacqueline Hodgson, Constructing the Pre-Trial Role of the Defense in French Criminal Procedure: An Adversarial Outsider in an InquisitorialProcess?, 6 INT'L J. EVIDENCE AND PROOF 1,3 (2002). 15 Id. at 3-4; FRENCH CRIMINAL JUSTICE, supra note 11, at 191-95; see also Rend Lvy, Police and the Judiciary in France since the Nineteenth Century: The Decline of the Examining Magistrate, 33 BRIT. J. CRIMINOLOGY 167 (1993). 16 FRENCH CRIMINAL JUSTICE, supra note 11, at 32. 17 See Hodgson, supra note 14, at 3-4; FRENCH CRIMINAL JUSTICE, supra note 11, at 191-95. 18 See, for example, Bron McKillop, Readings and Hearings in French Criminal Justice: Five Cases in the Tribunal Correctional,46 AM. J. CoMP. L. 757, 761 (1998), which explains how French judges may consider minimal testimony at trial and may convict primarily based on the evidence gathered before trial. There is also an excellent documentary film showing a series of trials of misdemeanors, 10E CHAMBRE-INSTANTS N.C. J. INT'L L. & COM. REG. [Vol. XXXV presumption of innocence in such a system, the role of the dossier certainly raises a question about that presumption.19 4. The prosecutor has a special role at trial; the defense counsel is not the equal of the prosecutor. The special role is indicated by the elevated seat the prosecutor occupies; he sits on the same level as the judges,2 ° whereas the defense counsel sits at a lower level. The prosecutor is considered a magistrate, and the training of prosecutors is in large part the same as the training of judges: both take place in the Ecole Nationale de la Magistrature.21 Prosecutors and judges are considered associates; in French terminology judges are called "sitting judges" (' Juges du siege") and prosecutors are called "standing judges" ('juges du parquet"--to indicate that when arguing the case they stand on the floor parquet).22 5. There is a limited sort of jury for felonies. But the jury does not retire to decide the facts by itself. It retires with the judges to consider the application of the law to the facts, and it is accepted as fact that the professional judges control the proceedings in the jury room.
Load more

Recommended publications
  • Spain: Phase 2
    DIRECTORATE FOR FINANCIAL AND ENTERPRISE AFFAIRS SPAIN: PHASE 2 REPORT ON THE APPLICATION OF THE CONVENTION ON COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL BUSINESS TRANSACTIONS AND THE 1997 RECOMMENDATION ON COMBATING BRIBERY IN INTERNATIONAL BUSINESS TRANSACTIONS This report was approved and adopted by the Working Group on Bribery in International Business Transactions on 24 March 2006. TABLE OF CONTENTS EXECUTIVE SUMMARY ............................................................................................................................ 4 A. INTRODUCTION ............................................................................................................................... 5 1. Economic background and international economic relations........................................................... 5 2. Overview of corruption trends.......................................................................................................... 6 3. Preparation of the on-site visit.......................................................................................................... 6 B. PREVENTION AND DETECTION.................................................................................................... 7 1. Prevention of foreign bribery and related offences .......................................................................... 7 a) Government and public agencies in general ............................................................................... 7 b) Government efforts to improve private sector
    [Show full text]
  • Four Models of the Criminal Process Kent Roach
    Journal of Criminal Law and Criminology Volume 89 Article 5 Issue 2 Winter Winter 1999 Four Models of the Criminal Process Kent Roach Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Kent Roach, Four Models of the Criminal Process, 89 J. Crim. L. & Criminology 671 (1998-1999) This Criminology is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/99/8902-0671 THM JOURNAL OF QMINAL LAW& CRIMINOLOGY Vol. 89, No. 2 Copyright 0 1999 by Northwestem University. School of Law Psisd in USA. CRIMINOLOGY FOUR MODELS OF THE CRIMINAL PROCESS KENT ROACH* I. INTRODUCTION Ever since Herbert Packer published "Two Models of the Criminal Process" in 1964, much thinking about criminal justice has been influenced by the construction of models. Models pro- vide a useful way to cope with the complexity of the criminal pro- cess. They allow details to be simplified and common themes and trends to be highlighted. "As in the physical and social sciences, [models present] a hypothetical but coherent scheme for testing the evidence" produced by decisions made by thousands of actors in the criminal process every day.2 Unlike the sciences, however, it is not possible or desirable to reduce the discretionary and hu- manistic systems of criminal justice to a single truth.
    [Show full text]
  • 20200122201324402 19-161 Bsac Scholars of the Law of Habeas Corpus.Pdf
    No. 19-161 IN THE Supreme Court of the United States DEPARTMENT OF HOMELAND SECURITY, et al., Petitioners, v. VIJAYAKUMAR THURAISSIGIAM, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR SCHOLARS OF THE LAW OF HABEAS CORPUS AS AMICI CURIAE SUPPORTING RESPONDENT NOAH A. LEVINE Counsel of Record WILMER CUTLER PICKERING HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 20007 (212) 230-8875 [email protected] TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........................................... ii INTEREST OF AMICI CURIAE................................... 1 BACKGROUND .................................................................. 1 SUMMARY OF THE ARGUMENT ................................. 3 ARGUMENT ........................................................................ 6 I. THE SUSPENSION CLAUSE GUARANTEES THE AVAILABILITY OF HABEAS TO NONCITIZENS WHO HAVE ENTERED THE UNITED STATES AND ARE DETAINED FOR THE PURPOSES OF REMOVAL ..................................... 6 II. CONGRESS’S POWER OVER IMMIGRATION DOES NOT ALLOW IT TO ENACT A DE FACTO SUSPENSION OF THE WRIT .......................... 11 III. SECTION 1252(e) IS RADICALLY INCONSISTENT WITH THE GUARANTEE OF THE SUSPENSION CLAUSE ........................................ 22 CONCLUSION ................................................................. 24 APPENDIX: List of Amici ............................................. 1a (i) ii TABLE OF AUTHORITIES CASES Page(s) Arabas v. Ivers, 1 Root 92 (Conn.
    [Show full text]
  • Constitutional Law -- Criminal Law -- Habeas Corpus -- the 1963 Trilogy, 42 N.C
    NORTH CAROLINA LAW REVIEW Volume 42 | Number 2 Article 9 2-1-1964 Constitutional Law -- Criminal Law -- Habeas Corpus -- The 1963 rT ilogy Robert Baynes Richard Dailey DeWitt cM Cotter Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Robert Baynes, Richard Dailey & DeWitt cM Cotter, Constitutional Law -- Criminal Law -- Habeas Corpus -- The 1963 Trilogy, 42 N.C. L. Rev. 352 (1964). Available at: http://scholarship.law.unc.edu/nclr/vol42/iss2/9 This Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. NOTES AND COMMENTS Constitutional Law-Criminal Law-Habeas Corpus- The 1963 Trilogy A merely representative list, not intended to be exhaustive, of the allegations of denial of due process in violation of the fourteenth amendment which the Supreme Court has deemed cognizable on 1 2 habeas would include jury prejudice, use of coerced confessions, the knowing introduction of perjured testimony by the prosecution,8 mob domination of the trial,4 discrimination in jury selection" and denial of counsel.' And the currently expanding concepts of what constitutes due process of law will in the future present an even greater variety of situations in which habeas corpus will lie to test the constitutionality of state criminal proceedings.1 In 1963 the Supreme Court of the United States handed down three decisions which will greatly increase the importance of the writ of habeas corpus as a means of protecting the constitutional rights of those convicted of crimes.
    [Show full text]
  • Is an Adversarial Legal System Well Suited For
    could probably chalk up the results to any number of imperfections—dispro- portionate access to evidence, disparate On Reconsideration advocacy skills, a misunderstood ques- tion, a mis-phrased answer, a key docu- ment that somehow disappeared and nev- IS AN ADVERSARIAL er became part of the evidence, a witness whose distorted memory was persuasively LEGAL SYSTEM WELL communicated and unjustifiably believed, an ambiguous email that created a false SUITED FOR DELIVERING impression, a litigation budget that sank under the weight of crippling discovery, JUSTICE? an arbitrary evidentiary ruling, a confus- ing jury instruction, an unfortunate gap between what someone said and what that person meant, an adjudicator whose hid- KENNETH R. BERMAN den biases led to an erroneous credibility Kenneth R. Berman is a partner at Nutter McClennen & Fish LLP in Boston and the author of Reinventing assessment or a mistaken legal ruling. The Witness Preparation: Unlocking the Secrets to Testimonial Success (ABA 2018). list goes on and on. In an adversarial system, the search for truth is a battle of narratives. The side with the more sympathetic, more plausible story usually wins, even if the truth belongs elsewhere. Generally, our “On Reconsideration.” That’s the banner of narratives, each of which is then put adversary system favors the better story, this new column. Here, we’ll test our as- through intensive questioning and critiqu- not necessarily the truer one. Emotion sumptions about how justice is dispensed, ing by the opposing lawyer, who fires ver- prevailing over logic. how truth is proven, how we litigators are bal cannonballs at everything attackable.
    [Show full text]
  • Administration of Criminal Justice in France: an Introductory Analysis George W
    Louisiana Law Review Volume 23 | Number 1 Louisiana Legislation of 1962: A Symposium December 1962 Administration of Criminal Justice in France: An Introductory Analysis George W. Pugh Repository Citation George W. Pugh, Administration of Criminal Justice in France: An Introductory Analysis, 23 La. L. Rev. (1962) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol23/iss1/5 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. LOUISIANA Volume XXIII December, 1962 LAW REVIEW Number 1 ADMINISTRATION OF CRIMINAL JUSTICE IN FRANCE: AN INTRODUCTORY ANALYSIS George W. Pugh* A system for administering criminal justice is a detailed tap- estry woven of many varied threads. It is often difficult to understand the nature and significance of any particular fiber without at least a general appreciation of the function of other threads, and also a realization of the impact of the whole. This is certainly true of the French system. An attempt at a comparative study of another procedural system is fraught with difficulty, for one becomes so accustomed to his own procedural patterns that he is tempted to make un- warranted translations in terms of his own institutional frame of reference. Comparative evaluation of a procedural device, on the other hand, is even more difficult, for it involves at least two aspects: whether the device functions satisfactorily in its own institutional setting, and whether utilization of the mechanism in the context of another given system would be feasible or desirable.
    [Show full text]
  • Individual Access to Constitutional Justice
    Strasbourg, 27 January 2011 CDL-AD(2010)039rev. Study N° 538 / 2009 Or. Engl. EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) STUDY ON INDIVIDUAL ACCESS TO CONSTITUTIONAL JUSTICE Adopted by the Venice Commission at its 85th Plenary Session (Venice, 17-18 December 2010) on the basis of comments by Mr Gagik HARUTYUNYAN (Member, Armenia) Ms Angelika NUSSBERGER (Substitute Member, Germany) Mr Peter PACZOLAY (Member, Hungary) This document will not be distributed at the meeting. Please bring this copy. http://www.venice.coe.int CDL-AD(2010)039 - 2 - Table of contents INTRODUCTION.............................................................................................................6 GENERAL REMARKS....................................................................................................6 I. ACCESS TO CONSTITUTIONAL REVIEW ...............................................................15 I.1. TYPES OF ACCESS .................................................................................................17 I.1.1. Indirect access...................................................................................................17 I.1.2. Direct access.....................................................................................................20 I.2. THE ACTS UNDER REVIEW ......................................................................................28 I.3. PROTECTED RIGHTS ..............................................................................................29 PARTIAL CONCLUSIONS OF CHAPTER
    [Show full text]
  • You Are Victim You Are Victim of an Offence1
    You are victim You are victim of an offence1. As this is a far-reaching event, you probably have all sorts of questions: what are my rights? How can I receive compensation? Who can help me? This leaflet briefly outlines the course of the proceedings, the rights you can exer- cise in the framework of these proceed- ings and the steps that you can take. Summary Report to the police services ........................................................4 General .......................................................................................................................................................18 After the report .................................................................................................5 Request for restoration of the damage ................................................................................19 Investigation and possible consequences ..............................................5 No compensation notwithstanding the decision of the judge ............................21 Hearing.....................................................................................................................................................9 Rights as a victim during Appeal ...................................................................................................................................................10 the sentence enforcement .......................................................................................22 The victim’s rights and role Request to be involved ....................................................................................................................22
    [Show full text]
  • Unpacking the Mexican Federal Judiciary: an Inner Look at the Ethos of the Judicial Branch
    Esta revista forma parte del acervo de la Biblioteca Jurídica Virtual del Instituto de Investigaciones Jurídicas de la UNAM http://www.juridicas.unam.mx/ https://biblio.juridicas.unam.mx/bjv https://revistas.juridicas.unam.mx/ DOI: http://dx.doi.org/10.22201/iij.24485306e.2018.1.12511 exican M Review aw New Series L V O L U M E XI Number 1 UNPACKING THE MEXICAN FEDERAL JUDICIARY: AN INNER LOOK AT THE ETHOS OF THE JUDICIAL BRANCH Gabriel FERREYRA* ABSTRACT: Based on 45 interviews conducted in 6 different jurisdictions in Mexico, this article presents a close examination of the distinctive attributes and practices that characterize the Mexican Federal Judiciary (Poder Judicial Fed- eral). Interviewees included typists, clerks and court clerks, judges, and justices, as well as scholars and experts with an in-depth knowledge of this institution. From an insider perspective, the article sheds light on idiosyncrasies, customs, and orga- nizational patterns that are not well known outside the MFJ, such as its strong hierarchical structure, the nature of the work done, employee salaries, the practices of legalism, the risks of drug-related trials, and structural gender inequalities. It also discusses phenomena like influence peddling, cronyism, and nepotism, all of which are widely practiced within the MFJ but kept undisclosed. These practices do not necessarily have a negative connotation within the federal judiciary because they have become normalized due to their widespread use. In fact, the notion of corruption is somehow ambiguous for many judicial employees. Despite all this, the MFJ has become a more professionalized branch where the vast majority of employees performed their job competently and efficiently.
    [Show full text]
  • Amended Petition for Writ of Habeas Corpus to BE FILED
    Case 2:19-cv-01263-JCC-MLP Document 6 Filed 08/13/19 Page 1 of 14 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 ELILE ADAMS, NO. 2:19-cv-01263 11 Petitioner, AMENDED PETITION FOR WRIT 12 OF HABEAS CORPUS v. 13 BILL ELFO, Whatcom County Sheriff; and 14 WENDY JONES, Whatcom County Chief of Corrections, 15 16 Respondents. 17 I. PETITION 18 1. Petitioner Elile Adams, a pretrial detainee in the custody of Whatcom County, 19 Washington, respectfully requests that this Court issue a writ of habeas corpus pursuant to 28 20 U.S.C. § 2241 and/or 25 U.S.C. § 1303. 21 II. PARTIES 22 2. Petitioner Elile Adams is a 33-year-old woman and Lummi Nation member who 23 resides on off-reservation trust lands at 7098 #4, Mission Road, Deming, Washington. She is not 24 an enrolled member of the Nooksack Indian Tribe. 25 AMENDED PETITION FOR WRIT OF HABEAS CORPUS - 1 GALANDA BROADMAN, PLLC 8606 35th Avenue, NE, Ste. L1 Mailing: P.O. Box 15146 Seattle, Washington 98115 (206) 557-7509 Case 2:19-cv-01263-JCC-MLP Document 6 Filed 08/13/19 Page 2 of 14 1 3. Wendy Jones is the Whatcom County (“County”) Chief of Corrections. In that 2 position, Ms. Jones is responsible for administration and operations oversight for Whatcom 3 County Corrections Bureau, which includes the downtown County Jail (“Jail”), the Work Center, 4 and all of the jail-alternative programs that the County runs.
    [Show full text]
  • Chapter 13: Federal Habeas Corpus
    CHAPTER 13 FEDERAL HABEAS CORPUS*1 A. Introduction This Chapter explains an important right—the writ of habeas corpus. Habeas corpus is guaranteed by the Constitution to incarcerated people in federal custody whose arrest, trial, or actual sentence violated a federal statute, treaty, or the U.S. Constitution. Because the Constitution is the only federal law that governs state criminal procedures, if you are incarcerated in state custody, you must show a violation of the U.S. Constitution for your habeas petition to succeed. As an incarcerated person (regardless of whether you are in state or federal prison), you can challenge your conviction or sentence by petitioning for a writ of habeas corpus in federal court. By petitioning for a writ, you are asking the court to determine whether your conviction or sentence is illegal. A writ of habeas corpus can be very powerful because if the court accepts your argument, the court can order your immediate release, a new trial, or a new sentencing hearing. This Chapter will teach you more about federal habeas corpus and how to petition for it. Part A will introduce and explain a few basic concepts about federal habeas. The rest of the Chapter will go into more detail. Please note that the term, “federal habeas corpus,” refers to habeas corpus in a federal court. Though subject to different rules, incarcerated people in both state or federal custody may petition for a federal writ of habeas corpus. What Is Habeas Corpus? Habeas corpus is a kind of petition that you can file in federal court to claim that your imprisonment violates federal law.2 The term “federal law” includes not only federal statutes, but also U.S.
    [Show full text]
  • Drew V. State of Ohio Ex Rel Jim Neil
    IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO GEOFFREY DREW APPEAL NO. C-190609 : TRIAL NO. B-1904419 Petitioner, : vs. O P I N I O N. : THE STATE OF OHIO, EX REL. JIM NEIL, : Respondent. : Original Action in Habeas Corpus Judgment of Court: Petition Denied Date of Judgment Entry: September 9, 2020 L. Patrick Mulligan & Associates, LLC, and Brandon A. Moermond, for petitioner Geoffrey Drew. Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex S. Havlin, Assistant Prosecuting Attorney, for Respondent State of Ohio ex rel. Jim Neil, OHIO FIRST DISTRICT COURT OF APPEALS BERGERON, Judge. {¶1} Indicted on nine counts of rape in August 2019 for conduct occurring decades ago, petitioner Geoffrey Drew challenged the staggering $5,000,000 bail set by the trial court at arraignment. He first requested that the trial court reduce the amount of the bail, but to no avail—the court denied his motion. This ultimately prompted Mr. Drew to seek relief from this court through the mechanism of a petition for a writ of habeas corpus claiming excessive bail. The state, on behalf of respondent Hamilton County Sheriff Jim Neil, requested that we deny the petition, maintaining that the trial court acted within its discretion, and highlighting Mr. Drew’s failure to meet his burden in order to establish entitlement to relief. Based on the record at hand, we agree with the state and deny the writ. {¶2} In Ohio, appellate courts enjoy original jurisdiction over writs of habeas corpus and are empowered with the authority to grant such relief.
    [Show full text]