What are some differences?
The main differences IMO are that :
-The enquiry isn’t led by the prosecution but by an investigative judge whose job isn’t to prove the case but to find relevant evidences. More specifically, he’s duty bound to search for exculpatory evidences too. The prosecution (like the defense) can request such or such investigation but it isn’t in charge. When he has finished, he transmits all informations to the court and doesn’t take part any more in the process (in very rare cases he can be called as a witness, generally when the court thinks he has seriously botched his job and wants some splaining)
-There isn’t any plea system. There will be a trial whether or not the accused admits to the crime. As a consequences, no “deals” offered by the prosecution, either.
-The trial isn’t a kind of game between two sides with the judge acting only as a referee of sort, but more like a debate involving all parties, and directed by the presiding judge (there are three of them sitting). Most questions to the witnesses will be asked directy by the judge, but the prosecutor, the defense attorney, the victim’s attorney will question them too. As I recently noted, a direct exchange between the accused and a witness isn’t uncommon. Also, there aren’t prosecution witnesses and defense witnesses.
-Irrecevable evidences are much more limited. For instance, expressing opinions, reporting second-hand testimonies, recounting the life of the accused are all perfectly fine.
-The prosecution doesn’t have to prove the case. In fact, the prosecutor is perfectly free to request an acquital, and it does sometimes happen. In fact, prosecutor isn’t a really appropriate translation for the word “procureur”. He represents the society, not the accusation (even though, obviously, he’s most often on the accusation’s side). Even if he thinks and says that the accused isn’t guilty the trial will go on. The court has to decide regardless of the opinion of the different actors. As noted above, it’s the same if the accused admits guilt. An absurd situation where the accused would proclaim his guilt and the prosecutor would try to show he’s innocent is theorically possible.
Basically, the general concept would be : instead of having one side trying to prove a case and the other side disprove it (I know the defense doesn’t have to disprove anything in Common Law system. Simplification, OK?), as much relevant information must be gathered and the court as a whole is supposed to help figure out what the truth of the case is so that the jury (that includes also the three judges) can decide on both guilt and sentence.
Note that even though France is typical of the Civil Law system, there are significant variations from one country to another. Italy, for instance, has a system a bit in between Common Law and Civil Law.
now that we’re here, what’s the definition of a common-law wife and why is it(she) called that?
In the most general sense, a common law system is adversarial; a contest between two competing views. Objective truth is less important than who wins. A civil law system is inquisitorial; the point is to find out what the truth is.
Civil law jurisdictions don’t really allow judges to make law. Judges rule solely based on the applicable legislation*. Judges in common law jurisdictions consider not only legislation, but the earlier rulings of equal and higher courts.
Most countries combine civil and common law, including the “classic” common law system, England and Wales.
The prosecutor is perfectly free to request an acquittal in common law systems, too. In fact, the prosecutor can effectively grant an acquittal by dropping one or more of the charges. A prosecutor’s job is to “do justice”, not to obtain convictions.
Of course, as you correctly point out, the trial would not need to continue in that case.
Well, that depends. The prosecution (or plaintiff) bears the burden of proof, but if that burden is met, the defense bears the burden of production- tipping the balance back in their own favor.
*I gather many civil law jurisdictions now allow for judges to create law, to a degree.
A common law marriage is one in which the parties hold themselves out as a married couple despite not having solemnized their union (ie., taken vows). The term is a complete misnomer- the practice was largely disfavored at common law- and I have no idea where it came from.
Wasnt that modified recently for “comparution immediate” trials?
You might say that the French system isnt purely civil Law to start with, but judges do “make the law” in that system. Certainly not to the extent of the Common Law systems, and normally they’re not supposed to. But there have been cases where the Legislative power did pass laws specifically to take down the Cour de Cassation’s own interpretations of the law (Cour de Cassation is our highest working court. I say working court, because our equivalent of the Supreme Court is the Conseil Constitutionnel but it isnt a sitting court. It doesnt judge cases, just makes judgment on the constitutionnality of a law before it is signed by the President after having been voted by Parliament).
And then there’s the case of Administrative law which is almost purely ruled by case law (quite close to the workings of a Common Law system).
So it is less a matter of principle than a matter of degree.
Not everywhere in the US, though - a court recently ruled that a prosecutor who actively suppressed evidence of innocence /in favor of the accused was doing nothing illegal and it was also not his duty to instruct his subordinates (all, presumably, trained lawyers who might have been expected to know this already) to turn evidence in favour over to the defense attorney.
So, just as defense attorneys are not required to be awake during the trial in all US states, they are also not really required to do justice in all US states. (But based on the rules of precedence, I guess this court decision lays a new interpretation for the rest of the US).
Previous thread on topic: Diff between common and civil law.
In which I posted as follows:
Do you have a link to that ruling? Because everything I’ve ever heard about criminal law (which admittedly isn’t comprehensive) is that the prosecution is required to turn all possibly exculpatory evidence over to the defense.
I think that he is referring to the recent case involving Harry Connick Sr. That had more to do with with civil liability. Prosecutors are supposed to turn over exculpatory evidence.
This Supreme Court ruling was what I was thinking of - so since it’s the supreme Court, it does apply to the whole US, right?
(I think there was also a pit thread just several days ago about this, but I can’t find it now).
A common-law spouse is someone who married under the common law rather than any licensing scheme.
It’s not what the public tends to think. It has all the force of law that a licensed marriage does, and requires a divorce just the same to end it.
3 elements must be satisifed to form a common law marriage (at least in my state. Most states have outlawed it by statute.)
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Capacity. You must be 18 years old, be unmarried to anyone else, be the opposite sex of your partner, you must be a resident of the state in which you are common-law married, and you must have the mental capacity to understand what a marriage is.
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Intent. There must be a meeting in the minds of the marriage partners. You can’t accidentally become common-law married, or have it happen unawares, you both must agree to be married. It does not have to be in writing.
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Holding out to the public: This can be carried out a number of ways. The only required one is cohabitation; without cohabitation, no marriage can occur. Other forms include: The woman taking the man’s last name; having a child; acting married in public; filing joint income tax returns; joint ownership of property. Anything that husbands and wives do, really.
There is no time element as is commonly believed. A common law marriage can form as quickly as you can cohabit, but doesn’t necessarily happen after six months of cohabitation either.
The idea “they’ve lived together six months, so they are common-law married,” is a bunch of poo.
It does apply to all the states and the federal government, but not merely because it was the supreme court.
The S. Ct. tends to pick cases that have nationwide significance, but they do not have to. Some cases turn on a question of state law and therefore only apply to that state or states with the same law, for instance.
In this case, the question involves the fifth amendment’s due process clause, and since the due process clause applies to all the states, territories, and the federal govenrment, it is a nationwide ruling.
Your summation of Connick v. Thompson is in error. The court did not find it was “ok” to withhold exculpatory evidence.
They found that Thompson could not sue a local government under 42 U.S.C. §1983 for this because it was not an “official policy” to purposely undertrain prosecutors not to withhold exculpatory evidence. Thompson should have stuck to suing the D.A. personally rather than the government.
I think it’s a load of horsepoo, but they did nothing to change the idea that withholding exculpatory evidence is illegal under the due process clause.
Ummm…I’m a little sleepy yet. It also has nationwide significance because §1983 has nationwide effect.
This isn’t quite right. It was unquestionably a violation of the accused’s rights for the prosecution not to turn over that evidence, and his criminal conviction was accordingly overturned. The recent Supreme Court case, however, held that the accused could not then bring a civil suit against the prosecutors for money damages based on the misconduct in that case. (The ruling was somewhat fact-specific. Under other circumstances, such a suit would be permitted to proceed).
I do not know how this case would have been decided in a civil-law system. Perhaps someone more familiar with European law could describe whether or under what circumstances a wrongfully-convicted person may sue prosecutors for money damages.
If it was not wrong of the prosecotur to withhold the evidence, then why did the Supreme Court not punish him? Why was the damaged person, the wrongly accused, not compensated?
I’m not a lawyer, but occasionally, cases of wrong convictions turn up in the press, so I know the basics. As soon as the innocence of the accused is proven - whether it’s new evidence come to light, new techniques for old evidence or uncovering of wrong doings at the original trial - the old verdict is lifted, the person released and the state pays a compensation for the time the person spent in prison. There is a fixed table for how much one day is worth.
Also, besides the difference between adversial and bench trial system explained above, the prosecuting attorney (Staatsanwalt, lit. attorney of the state) is an employee of the judiskative, called by the state, not elected by the population based on how often he has won. He’s also a proper lawyer and knows his duty is not to convict, but to find the truth. So there’s far less zeal to get a “guilty” verdict for PR reasons because there is no PR for prosecutors.
It doesn’t matter if the judicative system made an intentional error or if nobody could have known at that time - if somebody was innocently imprisoned by the state, he receives compensation by the state. Seems obvious to me, and the system Cecil describes, where it not only varies from state to state, but that the victim must take active steps, go through a new trial, with a varying degree of amount of compensation, is hard for me to understand.
Worst of all, that some parts of the US system can excuse themselves from ever being brought to charges for wrongdoings at all sounds … extremly wrong to me.
But then, we don’t have the best justice system money can buy of the greatest state of the world, we try to have a good justice system as humanely possible.
I was going by the summation in the linked article.
I see nothing in there that says that the prosecutor, who missed up intentionally and several times, will in any way be held responsible, fiscally or otherwise, or be punished by removal from office, let alone anything about safeguards to prevent this in the future.
This makes me conclude that it’s more of a guideline that’s nice to follow than a real rule or even a law that needs to be obeyed.
If prosecutors are actually bound to turn over evidence, then why does nothing happen to them if they break the rule?
Because of sovereign immunity, which limits the liability of agents of the government. The suit was filed against the district attorney’s office, not the district attorney himself. It’s not an American concept; it’s present to some degree in every nation.
ETA: there’s nothing in there about the prosecutor being punished by removal from office because it’s not the job of the trial court or appeals courts to remove prosecutors from their jobs. They don’t have that authority.
The government will remove the offending prosecutor from office if appropriate, or his state bar association may revoke his license.
The office is not responsible for what their DA does? Nobody is responsible, do I understand that correctly?
I meant there’s nothing in the article. If the state, whoever has the authority necessary, had noticed somewhere during this trial that this DA did something illegal, surely he would have at the very least suspended that DA, fired his ass after looking at the evidence and done everything else to undo the damage. To show that this is not ok, that this is not how things are done.
Because that is what I expect of my system. Humans can screw up, and assholes can slip through everywhere, but if a law is broken, if it actually, really, is illegal to withhold evidence (and it’s proven that this DA even destroyed evidence, which goes a bit beyond withholding), then whoever is his superior in charge takes steps. That’s how a system corrects itself.
Moreover, if it turns out that such an egregious miscarriage of justice (at least, that’s what I consider this to be) has gone on in not only one, but several case, I would expect whoever’s in charge in that city, or state, most certainly the minister of justice for that state, to clearly tell what measures he will take to ensure that such going-ons will be prevented in the future.
Now, if you mean that this article left all that out, and the DA has been kicked out on his ass, and a new policy been implemented, than I’ll change my opinion.
So far it fits right in with the other … problems in the US justice system I’ve read and heard about.
If it really is illegal what this DA did - then why did nobody from his office take him to court, not for damages like the victim, but for breaking the law? Why isn’t he in prison or paying a fine of half a million for breaking the law?
People who break the speeding limit get a ticket with a fine, but breaking the rules about the justice process has no consequences aside from what the victim does in civil court?