Procedural Justice and the Discursive Construction of Narratives at Trial: Global Perspectives
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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. -
Richard F. Munzinger
Shartsis Friese LLP Richard F. Munzinger PARTNER [email protected] | 415-773-7340 AREAS OF EXPERTISE Litigation, Intellectual Property, Employment, Real Estate, Government Representation, Wine Industry Overview Mr. Munzinger is a civil trial lawyer with substantial courtroom experience, who focuses on delivering the best possible result at the lowest possible cost for his clients. Mr. Munzinger has litigation experience in many subject matter areas of the law, including: “Business divorces” and other disputes between co-owners of companies of all forms; breach of fiduciary duty, including claims against officers, directors, majority shareholders and advisors; misappropriation of trade secrets, unfair competition, copyright/trademark infringement and false advertising; disputes involving venture capital financing and internet and technology companies, including start-up companies; litigation involving government entities, including representing the State of California, the County of Alameda and the California Department of Insurance; litigation involving wineries; employment disputes; real estate, construction defect and trespass/nuisance litigation; legal malpractice, professional responsibility and other cases involving attorneys; trespass and nuisance cases; and lawsuits involving defamation, invasion of privacy and civil extortion. In addition to his litigation practice, Mr. Munzinger also advises and negotiates on behalf of CEOs and other executives, shareholders and directors in connection with employment issues or internal corporate governance. Mr. Munzinger’s executive clients include Joey Gonzalez, the CEO of Barry’s Bootcamp, and James Mayo, the CEO of SOS Hydration. Experience Avidity Partners LLC as Trustee of the SPC Litigation Trust v. State of California, Sacramento Superior Court, Case No. 34-2009-00042016. Prevailed on a motion for summary judgment in favor of the defendant State of California in a breach of contract case, resulting in a dismissal of a claim for $1.6 billion by the Plaintiff. -
Trial Tactics: Sponsorship Costs of the Adversary System
Book Reviews Trial Tactics: Sponsorship Costs of the Adversary System Sponsorship Strategy: Evidentiary Tactics for Winning Jury Trials. By Robert H. Klonoff * & Paul L. Colby.** Charlottesville: The Michie Company, 1990. Pp. xvii, 291. $55.00. Floyd Abramst Any book that commences with a foreword written by a United States Deputy Attorney General proclaiming it the result of "inspired thinking"' and the legal equivalent of Darwin's Origin of Species2 demands attention, even if mixed with some incredulity. When the first review of the book, written by a prominent practitioner, deems it "a bible on how to save the advocacy sys- tem,"3 incredulity grows. All this for a book about trial strategy? The authors * Former Assistant to the Solicitor General of the United States and Assistant United States Attorney (District of Columbia). ** Former White House Attorney-Adviser (Iran/Contra Investigation) and Assistant United States Attorney (District of Columbia). t Partner, Cahill Gordon & Reindel. I would like to thank my associate Kate Sonnenberg for her assistance in the preparation of this Review. 1. ROBERT H. KLONOFF & PAUL L. COLBY, SPONSORSHIP STRATEGY: EVIDENTIARY TACTICS FOR WINNING JURY TRIALS, at xiii (1990) [hereinafter cited by page number only]. 2. P.xv. 3. Robert F. Hanley, A New Perspective on Trial Practice, INSIDE LTIG., Oct. 1990, at 12. 1159 1160 The Yale Law Journal [Vol. 101: 1159 of Sponsorship Strategy plainly agree that they deserve just reverential acco- lades: unlike other books, they claim, theirs alone brings "order to the chaos."4 Lawyers should not discount the significance of the issues raised in Spon- sorship Strategy simply because of the evident confusion of its authors and admirers in mistaking it for holy writ. -
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. -
Access to Justice for Children: Mexico
ACCESS TO JUSTICE FOR CHILDREN: MEXICO This report was produced by White & Case LLP in November 2013 but may have been subsequently edited by Child Rights International Network (CRIN). CRIN takes full responsibility for any errors or inaccuracies in the report. I. What is the legal status of the Convention on the Rights of the Child (CRC)? A. What is the status of the CRC and other relevant ratified international instruments in the national legal system? The CRC was signed by Mexico on 26 January 1990, ratified on 21 November 1990, and published in the Federal Official Gazette (Diario Oficial de la Federación) on 25 January 1991. In addition to the CRC, Mexico has ratified the Optional Protocols relating to the involvement of children in armed conflict and the sale of children, child prostitution and child pornography. All treaties signed by the President of Mexico, with the approval of the Senate, are deemed to constitute the supreme law of Mexico, together with the Constitution and the laws of the Congress of the Union.1 The CRC is therefore part of national law and may serve as a legal basis in any proceedings before the national courts. It is also part of the supreme law of Mexico as a whole and must be implemented at federal level and in all the individual states.2 B. Does the CRC take precedence over national law The CRC has been interpreted to take precedence over national laws, but not the Constitution. According to doctrinal thesis LXXVII/99 of November 1999, international treaties are ranked second immediately after the Constitution and ahead of federal and local laws.3 On several occasions, Mexico’s Supreme Court has stated that international treaties take precedence over national law, mainly in the case of human rights.4 C. -
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JOBNAME: Ross PAGE: 1 SESS: 2 OUTPUT: Fri May 27 10:11:14 2016 Index acquittals 81, 88, 162, 245, 376, 442 conditions 137 directed verdict 75, 109, 373, 375 final orders 136, 137 double jeopardy and appeals of 37–8, First Information Report (FIR) 135 56 historical background 123 Japan 85, 86, 404, 406, 407, 410, 414 developments since 1973 129–34 judge as investigator 89 Independence to section 438 126–9 judgment reasons 96–9 Indian PoliceAct 1861 to acquittals overturned: inadequacy Independence in 1947 123–6 of 101–4 interim orders 136–7 jury 38, 54, 56, 57, 80, 81, 82, 85, 86, key features of s 438(1) 137 88, 373–4, 378, 439 knowledge of imminent arrest 135–6 Spain 86, 377, 380 lawyers’fees 137 pre-trial detention 192 text of s 438 136, 159–60 relative disappearance of 85–6 appeals 78, 79, 85, 371, 521 transcripts of trial testimony: acquittals 89, 442 overturn 91 double jeopardy and 37–8, 56 adversarial-inquisitorial dichotomy 4, Japan’s lay judge system 404 13, 16, 35, 36, 58–9, 245 jury verdicts 38, 54, 56, 57, 80, 81, appeals of acquittals 37–8 82, 373–4, 377, 378, 439 re-prosecution 39 ‘cassation’and ‘appeal’90–91, 440 endurance of 519–33 cassational courts, efficacy of 90–93 strengths 523–6 Japan 404, 410, 414 tradition 520–523 jury verdicts 38, 54, 56, 57, 58, 80, weaknesses 526–32 81, 82, 373–4, 377–8, 423–4, exclusionary rules 13, 18–19, 39–41, 438–42 44, 244 reasons on appeal 427–8 history 80–83 negotiated verdicts 47, 51 ‘innocence-weighted’approach 36–7 non-prosecution decision 225, 241–2 juries 14, 55–6 Spain 85, 92, 375–6, -
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 -
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. -
Introduction to Law and Legal Reasoning Law Is
CHAPTER 1: INTRODUCTION TO LAW AND LEGAL REASONING LAW IS "MAN MADE" IT CHANGES OVER TIME TO ACCOMMODATE SOCIETY'S NEEDS LAW IS MADE BY LEGISLATURE LAW IS INTERPRETED BY COURTS TO DETERMINE 1)WHETHER IT IS "CONSTITUTIONAL" 2)WHO IS RIGHT OR WRONG THERE IS A PROCESS WHICH MUST BE FOLLOWED (CALLED "PROCEDURAL LAW") I. Thomas Jefferson: "The study of the law qualifies a man to be useful to himself, to his neighbors, and to the public." II. Ask Several Students to give their definition of "Law." A. Even after years and thousands of dollars, "LAW" still is not easy to define B. What does law Consist of ? Law consists of enforceable rule governing relationships among individuals and between individuals and their society. 1. Students Need to Understand. a. The law is a set of general ideas b. When these general ideas are applied, a judge cannot fit a case to suit a rule; he must fit (or find) a rule to suit the unique case at hand. c. The judge must also supply legitimate reasons for his decisions. C. So, How was the Law Created. The law considered in this text are "man made" law. This law can (and will) change over time in response to the changes and needs of society. D. Example. Grandma, who is 87 years old, walks into a pawn shop. She wants to sell her ring that has been in the family for 200 years. Grandma asks the dealer, "how much will you give me for this ring." The dealer, in good faith, tells Grandma he doesn't know what kind of metal is in the ring, but he will give her $150. -
Trial Advocacy Manual About the Manual
Trial Advocacy Manual About the Manual This manual contains the National District Attorneys Association’s (NDAA) Trial Advocacy method in a book form. The NDAA method has been taught in several different courses including Boot Camp, Trial Advocacy 1, Trial Advocacy 2, Cross-Examination, and the Career Prosecutor Course. This manual is intended to be a best practice guide for prosecutors at all levels of experience. It is the hope of the Committee that this book will be read cover-to-cover at the beginning of a prosecutor’s career. Then, as one’s career progresses, the manual can serve as a quick reference guide to review specific trial advocacy skills. We hope the manual will be well-read, the pages dog-eared, text underlined, and the margins note-filled. Use this book! This manual is written for a national audience. Some of the advice and techniques may be too aggressive for some jurisdictions and not aggressive enough for other jurisdictions. The manual reflects advice and techniques which will be applicable to most situations confronted by prosecutors in the courtrooms of the country. However, some of the advice and techniques may not be applicable or appropriate in your home jurisdiction. Your trial work must be appropriate for where you prosecute cases. Therefore, it is important for you to know the procedures, rules, and caselaw of your jurisdiction. Apply the advice and techniques which are permissible in your jurisdiction. When the advice and techniques presented in this manual conflict, feel free to adapt the advice and techniques in this manual to reflect your local practices. -
Criminal Procedure Code of the Republic of Armenia
(not official copy) CRIMINAL PROCEDURE CODE OF THE REPUBLIC OF ARMENIA GENERAL PART Section One : GENERAL PROVISIONS CHAPTER 1. LEGISLATION ON CRIMINAL PROCEDURE Article 1. Legislation Governing Criminal Proceedings Article 2. Objectives of the Criminal-Procedure Legislation Article 3. Territory of Effect of the Criminal-procedure Law Article 4. Effect of the Criminal-Procedure Law in the Course of Time Article 5. Peculiarities in the Effect of the Criminal-Procedure Law Article 6. Definitions of the Basic Notions Used in the Criminal-procedure Code CHAPTER 2. PRINCIPLES OF CRIMINAL PROCEEDINGS Article 7. Legitimacy Article 8. Equality of All Before the Law Article 9. Respect for the Rights, Freedoms and Dignity of an Individual Article 10. Ensuring the Right to Legal Assistance Article 11. Immunity of Person Article 12. Immunity of Residence Article 13. Security of Property Article 14. Confidentiality of Correspondence, Telephone Conversations, Mail, Telegraph and Other Communications Article 15. Language of Criminal Proceedings Article 16. Public Trial Article 17. Fair Trial Article 18. Presumption of Innocence Article 19. The Right to Defense of the Suspect and the Accused and Guarantees for this Right Article 20. Privilege Against Self-Incrimination (not official copy) Article 21. Inadmissibility of Repeated Conviction and Criminal Prosecution for the Same Crime Article 22. Rehabilitation of the Rights of the Persons who suffered from Judicial Mistakes Article 23. Adversarial System of Criminal Proceedings Article 24. Administration of Justice Exclusively by the Court Article 25. Independent Assessment of Evidence CHAPTER 3. CONDUCT OF CRIMINAL CASE Article 26. Conduct of Criminal Case Article 27. The Obligation to institute a criminal case and resolution of the crime Article 28. -
Judging As Judgment: Tying Judicial Education to Adjudication Theory
Journal of Dispute Resolution Volume 2015 Issue 1 Article 8 2015 Judging as Judgment: Tying Judicial Education to Adjudication Theory Robert G. Bone Follow this and additional works at: https://scholarship.law.missouri.edu/jdr Part of the Dispute Resolution and Arbitration Commons, and the Judges Commons Recommended Citation Robert G. Bone, Judging as Judgment: Tying Judicial Education to Adjudication Theory, 2015 J. Disp. Resol. (2015) Available at: https://scholarship.law.missouri.edu/jdr/vol2015/iss1/8 This Conference is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Journal of Dispute Resolution by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. Bone: Judging as Judgment: Tying Judicial Education to Adjudication The Judging as Judgment: Tying Judicial Education to Adjudication Theory ROBERT G. BONE* INTRODUCTION The thesis of this Article, simply stated, is that judicial education makes sense only against the backdrop of general ideas and beliefs about law, courts, and adju- dication. These ideas and beliefs motivate a focus on educating judges and help guide more specific pedagogical choices. I explore this broad thesis from both a historical and a normative perspective.1 Historically, I argue that interest in judi- cial education caught fire in the 1960s in large part because of prevailing beliefs about law and the proper function of courts. Normatively, I argue that the connec- tion between judicial education and normative views of courts and adjudication continues to be important today, although in a different way.