# O.J. Civil Trial.. Why? **URL:** \ **Category:** Factual Questions\ **Created:** [December 10, 2008, 9:28am UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537 "2008-12-10T09:28:21Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [December 13, 2008, 1:02am UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/101 "2008-12-13T01:02:35Z")
> [@](#): > > And please, no more analogies about birds and car wrecks. I’d like to know how, in the specific OJ civil case, the finding of the jury could mean anything other than that OJ killed Ronald Goldman. I’ve enjoyed the explanations and the attempted explanations to clear this up, but I’m still a little bit hung up on Roadfood’s question. I think that most of us, in explaning why a criminal and civil suit can differ in burden of proof, use the OJ example while assuming he was guilty, or try to navigate the tricky legal question with analogies (to birds and car wrecks) where guilt is obvious. Perhaps I can try the opposite: “OJ is innocent and didnt kill Ron and Nicole. He was found not guilty in the criminal trial. How then, can we have another trial which, while asking a different question, posits to come to the same conclusion? Peeping toms and car wrecks aside, we know he didnt do it, yet in the civil trial we’re saying an innocent man can be held responsible. Because it was established in the criminal trial that he had nothing to do with the deaths whatsoever, how can he logically be found guilty of causing the harm to Fred Goldman that resulted from the death of his son? OJ didnt have anything to do with the killings, it was someone else. But because Fred thought OJ did it, that means he’s responsible? Yes, we are asking different questions than the criminal case, but if the reality is that its all for the purpose of proving OJ is a murderer, which he isnt, then it should make sense that the civil court take the criminal case’s verdict into consideration” > [@](#): > > Marcia Clark not stepping down when it was shown that the female jurors hated her personally, etc.), They did?? :eek: ---
**Author:** ![Hello\_Again](https://avatars.discourse-cdn.com/v4/letter/h/85e7bf/32.png) [@Hello\_Again](https://boards.straightdope.com/u/Hello_Again)\ **Post date:** [December 13, 2008, 1:05am UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/102 "2008-12-13T01:05:12Z")
> [@pravnik](#): > > Okay, I follow you now. In my state (and in the federal courts), new trials are appropriate remedies in some appeals, but not in others. I appealed one case where the trial judge improperly allowed the district attorney to impeach the defendant with some prior convictions that were too remote to legally use against him under state law, and the remedy in that case was a reversal and a remand to the trial court for a new trial. On the other hand, I have a case up on an issue of legal and factual sufficiency right now, and the if that one goes our way the remedy would be a reversal and remand to the trial court with an instruction to enter a judgment of acquittal. Yeah. I don’t think I was very clear, but the chances of new trials “continuing _ad infinitum_” because of appeals is… well, impossible (infinity… no on ever gets there, but you can try!) - but even getting a third trial would be extremely, extremely unlikely. It was **Roadfood** in post #90 who posited the infinite loop of new trials, and in doing so appeared to believe that an appeal IS a new trial, and not something rather different & limited to the facts presented at trial (which can, at times, result in a new trial). ---
**Author:** ![whorfin](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@whorfin](https://boards.straightdope.com/u/whorfin)\ **Post date:** [December 13, 2008, 1:55am UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/103 "2008-12-13T01:55:06Z")
> [@YogSosoth](#): > > “OJ is innocent and didnt kill Ron and Nicole. He was found not guilty in the criminal trial. How then, can we have another trial which, while asking a different question, posits to come to the same conclusion? Peeping toms and car wrecks aside, we know he didnt do it, yet in the civil trial we’re saying an innocent man can be held responsible. Because it was established in the criminal trial that he had nothing to do with the deaths whatsoever, how can he logically be found guilty of causing the harm to Fred Goldman that resulted from the death of his son? OJ didnt have anything to do with the killings, it was someone else. But because Fred thought OJ did it, that means he’s responsible? Yes, we are asking different questions than the criminal case, but if the reality is that its all for the purpose of proving OJ is a murderer, which he isnt, then it should make sense that the civil court take the criminal case’s verdict into consideration” I’m not sure what you’re asking. If you’re asking if the civil trial jury was asked to decide if OJ killed Ron goldman, the answer is yes. They were **not** asked to determine if “Fred thought OJ did it.” That has nothing to do with what the jury was asked in either trial. You can avoid asking hypotheticals about what the civil jury was asked-you can look at the actual question the judge asked the jury to answer. I’ve posted it on the second page. I’ll save you the time, though: in the second trial, the jury found that the plaintiff had proven that the preponderance of the evidence supported the conclusion that O.J. wrongfully caused the death of Ron Goldman. (not whether he murdered Ron Goldman-those are two different things.) If you’re saying that “if we start with the assumption that OJ didn’t do it, then we would conclude that the civil trial got it wrong,” the answer would be yes. (of course, that answer ignores the possibility that someone could be factually innocent and yet have it proven to be more likely than not that he was guilty-in which case the defense team, not the jury got it wrong). But in your hypothetical, the important thing is not the first verdict. It’s the premise that OJ is factually innocent. The best way to understand this is as follows: If OJ were innocent, the second jury would still be wrong even if the first jury had found OJ guilty of murder. A dirty little secret: juries sometimes get it wrong. Sometimes juries get it wrong because one of the advocates didn’t prove his case. Sometimes they get it wrong because they misinterpret the facts. Sometimes they’re just stupid. Sometimes they get the right answer for the wrong reasons. But one thing juries don’t do is change history. Ron Goldman was killed on June 12, **1994**. OJ’s criminal trial was in **1995**. OJ’s civil trial was in **1997**. There is a factual answer to what happened in 1994. If there was a camera at the scene of the crime, we’d have a photo that showed who the killer is. That photograph doesn’t magically change to show someone else when a jury gives its verdict one or three years later, regardless of what the jury’s verdict is. Whatever your feeling about what that factual answer is, the verdicts don’t change it. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [December 13, 2008, 2:48am UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/104 "2008-12-13T02:48:30Z")
Okay, let’s take another tack. A killing and a wrongful death suit. Henry is suffering from an intensely painful --and fatal – inoperable cancer. His physician, at his request, gives him a dose of morphine above what is medically acceptable (but insufficient to alleviate his pain). Both Henry and his physician know there is a good chance that that dosage may kill him, and in fact it does. A D.A. wishing to make a name for himself puts the physician on trial for murder, with a lesse4r included charge of homicide by criminal negligence. The physician admits on the stand what he did, stating that it was at the patient’s request, to relieve him of pain, that Henry had been warned of the danger of death and accepted the risk. The jury finds that the doctor did not kill him with malice aforethought (or even in a fit of passion). The jury decides that in the circumstances, the doctor did not commit homicide by criminal negligence. Therefore they acquit him. (This is not quite jury nullification; the facts do not define the crimes with which he has been charged, in their minds.) Here’s a case of a clear causing of death that does not result in a conviction for any homicide-type charge. It can’t be appealed; he’s not guilty of those crimes. Now, Henry’s family sues the doctor for wrongful death. The jury in this case, not being constrained to meet the conditions for convicting on a criminal charge, finds that the doctor did indeed cause Henry’s death, did it wrongfully in their opinion, and accordingly finds for the plaintiffs, the family. Not quite the same circumstances, by a long shot. But it does illustrate the differences between criminal and civil trials over the same set of facts. Rightly or wrongly, the jury in the 1995 trial determined the prosecution had not proven its case beyond reasonable doubt, and therefore acquitted O.J. We set a relatively high standard for convictions, though one that most perpetrators are able to be convicted (or to plea bargain rather than risk the real danger of conviction) on. In a civil case, the standard is, who made their case by a preponderance of the evidence. One side or the other has to have done a better job than the opposing side. And the 1997 jury believee the Goldmans had made their case better than O.J. did, and found for them. Notice they didn’t find O.J. “guilty” of anything – they have no more right to do that than the opinions of any random Doper or blogster about it. They found him culpable of a tort – a civil wrong. If I’m a used car salesman and sell you a lemon, managing not to commit fraud in the process, I’ve committed no crime. But you do have recourse to a civil suit against me for selling you a lemon. That’s a tort, too – quite different from a crime. ---
**Author:** ![caligulathegod](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/caligulathegod/32/9685_2.png) [@caligulathegod](https://boards.straightdope.com/u/caligulathegod)\ **Post date:** [December 13, 2008, 6:17am UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/105 "2008-12-13T06:17:43Z")
> [@Guinastasia](#): > > I don’t believe it was ever about the money-Goldman wanted revenge, and whether that’s right or not, that’s what it was about. And let’s face it-the criminal trial was a joke. Right, and I had said that. I am just unclear on the whole concept of why Fred Goldman was entitled to _any_ money, let alone such a substantial sum. Ronald Goldman was not the breadwinner or financially responsible for Fred in any way. In addition, Ronald was the adult son rather then minor child of Fred, so he was no longer responsible for him, either. I can understand, perhaps, if a person’s child was killed, but once that child is an adult, then he’s on his own. Yeah, you grieve and it sucks that the guy got away with it for whatever reason, but why do you even think that some one owes you money for that, and why would a jury feel so? > [@YogSosoth](#): > > They did?? :eek: You don’t remember reports at the time that female jurors, and black ones in particular, did not care for her and she thought she could win them over? Regardless, I was just listing examples of the problems with the case and was on no way attempting to be exhaustive. ---
**Author:** ![alterego](https://avatars.discourse-cdn.com/v4/letter/a/6bbea6/32.png) [@alterego](https://boards.straightdope.com/u/alterego)\ **Post date:** [December 13, 2008, 6:29am UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/106 "2008-12-13T06:29:54Z")
I don’t have time to read this whole thread, but the civil case strikes me as totally backwards. OJ, having been found not guilty in the criminal domain, should have been given a large amount of money from the family who caused him all this distress. You can say it was the state who pressed charges, whatever. It was up to the familiy, he was found innocent, they ruined years of his life. That’s it, they owe him money. I agree with the poster who says it makes a mockery of our legal system. Regardless of what the laws say this simply was not logical, which is what I think rubs me and others the wrong way here. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [December 13, 2008, 8:59am UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/107 "2008-12-13T08:59:38Z")
> [@Hello\_Again](#): > > You’re only ever going to get one trial. An appeal is not a new trial. It’s a review limited to the facts, evidence, and conclusions raised in the trial court. The Appeals court will decide if the trial court interpreted and applied the law correctly as far as procedural things that can impact the merits of the case (like suppression of evidence, jury instructions). Knowing that bothers me because it runs contrary to my understanding of the cause of a relatively recent reform of the French criminal system. I’d really to know if it’s true also in the UK. Let me explain : Until recently, there was no proper appeal courts in France for criminal cases. The only appeal possible was to the “Cour de Cassation”, that would review the case only on legal/procedural grounds, as far as I can tell similar to what \*\* Hello again \*\* describes for Appeal Courts in the US system and would “void” (don’t know the proper term in English) if it found the trial lacking and order a new trial. Here’s my problem. The ECHR (European Court of Human Rights) had a problem with that and stated that France didn’t have a proper right of Appeal. So, France eventually gave in, and introduced Appeal Courts, besides the “Cour de Cassation”. Now, everybody has a right to a new criminal trial without needing any other reason besides “I’m unhappy with the outcome of the first one”. My previous assumption had been that all other western countries had previously such an absolute right to be retried, explaining why the ECHR found France to be sorely lacking in this regard. But now, I discover that at least in the USA, there’s no such right. So, I’m left to suppose that this right was only existing in all (or at least most) European countries. But a second assumption of mine was that the British criminal system was essentially similar to the American one. It doesn’t compute. So, I have to ask : how do appeals work in the United Kingdom? Is there an “automatic” right to appeal or does it work as described by \*\* Hello again \*\* for the USA? Did it change/evolve relatively recently? Did the UK had to change the rules governing the right to appeal as France did? Does somebody know? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 13, 2008, 1:33pm UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/108 "2008-12-13T13:33:12Z")
See the [wiki article on criminal appeals in England & Wales](http://en.wikipedia.org/wiki/Courts_of_England_and_Wales#Appeals). There’s two or three levels of appeal, depending on whether the matter was tried summarily or by indictment. Can you provide any further information on the decision of the European Court, **clairobscur**? If i could read it, I’d be in a better position to respond to your inquiry. ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [December 13, 2008, 1:52pm UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/109 "2008-12-13T13:52:17Z")
> [@alterego](#): > > I don’t have time to read this whole thread, but the civil case strikes me as totally backwards. I find this drive-by pretty rude. ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [December 13, 2008, 2:04pm UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/110 "2008-12-13T14:04:56Z")
> [@clairobscur](#): > > Now, everybody has a right to a new criminal trial without needing any other reason besides “I’m unhappy with the outcome of the first one”. I find this _extremely_ hard to believe and it sounds to me like you have probably misunderstood something. AFAIK it is not true in other European countries. Certainly not in Spain. I would like to see some evidence of that. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [December 13, 2008, 2:16pm UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/111 "2008-12-13T14:16:52Z")
> [@alterego](#): > > I don’t have time to read this whole thread, but the civil case strikes me as totally backwards. Perhaps reading the thread or some other material about the legal system would help you then. > [@](#): > > OJ, having been found not guilty in the criminal domain, should have been given a large amount of money from the family who caused him all this distress. You can say it was the state who pressed charges, whatever. It was up to the familiy, he was found innocent, they ruined years of his life. That’s it, they owe him money. > > I agree with the poster who says it makes a mockery of our legal system. Regardless of what the laws say this simply was not logical, which is what I think rubs me and others the wrong way here. The criminal trial did not conclude that O.J. didn’t kill them. All it concluded was that he would not face criminal punishment. It did not conclude that he might not be subjected to some other kind of liability. It’s that simple. ---
**Author:** ![guizot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guizot/32/3636_2.png) [@guizot](https://boards.straightdope.com/u/guizot)\ **Post date:** [December 13, 2008, 3:18pm UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/112 "2008-12-13T15:18:03Z")
> [@acsenray](#): > > The criminal trial did not conclude that O.J. didn’t kill them. All it concluded was that he would not face criminal punishment. It did not conclude that he might not be subjected to some other kind of liability. It’s that simple. How often is it that when a personal is indeed convicted of a criminal action and imprisoned, that they then get sued in civil court? What if they’d found Simpson guilty, and then set about suing him for three million dollars? Or let’s say I’m an owner of a corner market that gets robbed at gunpoint. In the process, he shoots me in the shoulder. They catch the guy and convict him. Is there anything to stop me from suing the guy for pain and suffering (beyond the cost of medical treatment)? ---
**Author:** ![whorfin](https://avatars.discourse-cdn.com/v4/letter/w/6f9a4e/32.png) [@whorfin](https://boards.straightdope.com/u/whorfin)\ **Post date:** [December 13, 2008, 4:26pm UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/113 "2008-12-13T16:26:06Z")
> [@guizot](#): > > How often is it that when a personal is indeed convicted of a criminal action and imprisoned, that they then get sued in civil court? What if they’d found Simpson guilty, and then set about suing him for three million dollars? > > Or let’s say I’m an owner of a corner market that gets robbed at gunpoint. In the process, he shoots me in the shoulder. They catch the guy and convict him. Is there anything to stop me from suing the guy for pain and suffering (beyond the cost of medical treatment)? Well, often the defendant doesn’t have any money. For example, the guy who shot you in the corner market probably wouldn’t be robbing corner markets if he had enough money to make a civil suit worthwhile.–as suits cost money, time, and effort. There are other complications–remember that OJ has lots of money, but has also been very effective at hiding/protecting it from the civil judgment) So while I don’t know how often it happens, my intuition is that there are very few cases in which it makes sense. We’re starting with a very small subset of criminal cases in which the defendant even has enough assets to make a civil suit worthwhile–and then those are exactly the people who’re probably good at protecting those assets from judgments. ---
**Author:** ![Hello\_Again](https://avatars.discourse-cdn.com/v4/letter/h/85e7bf/32.png) [@Hello\_Again](https://boards.straightdope.com/u/Hello_Again)\ **Post date:** [December 13, 2008, 6:22pm UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/114 "2008-12-13T18:22:58Z")
> [@clairobscur](#): > > But a second assumption of mine was that the British criminal system was essentially similar to the American one. It doesn’t compute. So, I have to ask : how do appeals work in the United Kingdom? Is there an “automatic” right to appeal or does it work as described by \*\* Hello again \*\* for the USA? Did it change/evolve relatively recently? Did the UK had to change the rules governing the right to appeal as France did? Does somebody know? I found this article which seems apropros to your question, comparing the current French Appeals process with that of the UK and Australia. [http://www.law.usyd.edu.au/slr/slr28\_2/McKillop.pdf](http://www.law.usyd.edu.au/slr/slr28_2/McKillop.pdf) It appears that in UK/Australia, an new trial is not as of right, but the Appeals court has the power to order it, as in the U.S. _A French accused convicted by a cour d’assises has a right of appeal to a cour d’assises d’appel, provided the Cour de cassation is satisfied that the appeal is in time and in proper form. The appeal is then by way of a new trial. A convicted British or Australian accused may arrive at a new trial but by a more circuitous route. The leave of the Court of (Criminal) Appeal or a certificate of the trial judge may be required to launch an appeal. The appeal must then be allowed, and for an Australian appellant the ‘proviso’ not applied to dismiss the appeal. The Court may then order a new trial rather than an acquittal. Thus for a French appellant a retrial is virtually automatic while for a British or Australian appellant it may be the dubious consequence of a successful appeal. But at least then a second jury trial, as in France, becomes available._ ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [December 14, 2008, 12:36am UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/115 "2008-12-14T00:36:02Z")
> [@caligulathegod](#): > > You don’t remember reports at the time that female jurors, and black ones in particular, did not care for her and she thought she could win them over? Regardless, I was just listing examples of the problems with the case and was on no way attempting to be exhaustive. > [@](#): > > The misdirection was successful, Toobin writes, because it was played out before a sympathetic jury. That jury also disliked the lead prosecuting attorney, Marcia Clark, whose conduct of the trial was, in his estimation and that of untold others, incompetent from start to finish. Marcia Clark made the decision to try the case as a domestic violence case that led to the ultimate act of battery that you could commit against a woman. She was convinced that the female jurors would share her NOW, '70s-liberal-Jewish-feminist outrage at Simpson and sympathy for Nicole as the battered woman. Of course, most lower middle class or poor black women come from a very different background than that. Pundits at the time speculated that (unfortunately), black women from the underclass might not view a history of domestic violence as particularly damning, as many of them may well have viewed it as a fairly commonplace cost of doing business when you want to be the Alpha Thug’s woman. Recall that one of the female jurors threw up something like a black power salute to O.J. while leaving the jury box after the acquittal. Shades of Chris Rock on Anita Hill: “Oooohh, Denzel, you _nasty!_” Finally, Marcia Clark seems to have given no thought at all, in her effort to get the black women on Nicole’s side as advocates, to the historical and sometimes severe resentment black women have been discussed as having against white trophy wives taking “their” men out of circulation the minute the guys become successful. Duh. ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [December 14, 2008, 2:10am UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/116 "2008-12-14T02:10:06Z")
> [@Hello\_Again](#): > > I found this article which seems apropros to your question, comparing the current French Appeals process with that of the UK and Australia. > [http://www.law.usyd.edu.au/slr/slr28\_2/McKillop.pdf](http://www.law.usyd.edu.au/slr/slr28_2/McKillop.pdf) > It appears that in UK/Australia, an new trial is not as of right, but the Appeals court has the power to order it, as in the U.S. > > _A French accused convicted by a cour d’assises has a right of appeal to a cour d’assises d’appel, provided the Cour de cassation is satisfied that the appeal is in time and in proper form. The appeal is then by way of a new trial. A convicted British or Australian accused may arrive at a new trial but by a more circuitous route. The leave of the Court of (Criminal) Appeal or a certificate of the trial judge may be required to launch an appeal. The appeal must then be allowed, and for an Australian appellant the ‘proviso’ not applied to dismiss the appeal. The Court may then order a new trial rather than an acquittal. Thus for a French appellant a retrial is virtually automatic while for a British or Australian appellant it may be the dubious consequence of a successful appeal. But at least then a second jury trial, as in France, becomes available._ I think the general rule, taking into account all jurisdictions, is that every convicted person has the right to appeal but this is not a new trial, it is an appeal to a superior court on the grounds that there was defect with the trial. The appeals court can then either confirm the lower court’s sentence, change the judgment in what it sees correct or order a new trial if the original trial was so botched that it cannot be salvaged. I do not think it would be normal anywhere that one can just ask for a new trial all over again just because he does not like the results. An appeal takes the form of a review of the original trial, not a new trial. You can’t just keep asking for a new trial until you get the result you want. At the same time the option of appeal is considered a basic guarantee of any trial and that is one reason that the sham tribunals which were set up in Guantanamo were not considered anything but a sham by the international community. They lacked many of the guarantees required for a system to be considered fair and the possibility of appealing is one. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [December 14, 2008, 8:32am UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/117 "2008-12-14T08:32:47Z")
> [@Northern\_Piper](#): > > Can you provide any further information on the decision of the European Court, **clairobscur**? If i could read it, I’d be in a better position to respond to your inquiry. I couldn’t find anything. This right to an appeal has been introduced in a broad reform of the french criminal procedure (including things as the status of suspects not yet formally accused, the rights of the victims, presumption of innocence, winesses, etc…etc…). And amongst other things it include two elements that are related to the ECHR but not to this new right of appeal : a reform related to the right to a speedy trial (France had been condemned several times by the EHCR on this issue) and dispositions related to the review of a final decision in a criminal case following a decision of the ECHR. So, I’m left with four hypothesis : -This “automatic” right of appeal has indeed been introduced in response to a decision by the ECHR, but I was unable to find a reference (I didn’t spend hours searching for it) -The government at the time mispresented its reasons to introduce this right of appeal -Given there was other elements of this statute that were introduced in response to previous decisions of the ECHR, the medias mixed up everything at the time. -_I_ mixed up everything at the time. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [December 14, 2008, 9:07am UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/118 "2008-12-14T09:07:27Z")
> [@sailor](#): > > I do not think it would be normal anywhere that one can just ask for a new trial all over again just because he does not like the results. That’s definitely the case here since 2000. The only difference between the two trials is the presence of more jurors (12 instead of 9). > [@](#): > > An appeal takes the form of a review of the original trial, not a new trial. That was the situation in France before 2000. > [@](#): > > You can’t just keep asking for a new trial until you get the result you want. Well… You can only be retried once. After that, you can only appeal to the “cour de cassation”, in the same way you could prior to the reform. And there has been a number of cases where the new trial resulted in a harsher sentence. Besides, both the defendant and the prosecution can use this new appeal procedure. Which, I believe, is an oddity (by comparison with other countries), and let me not really convinced that this reform is beneficial for the defendants generally speaking even though it might be so more often than not. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [December 14, 2008, 9:50am UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/119 "2008-12-14T09:50:01Z")
> [@Hello\_Again](#): > > I found this article which seems apropros to your question, comparing the current French Appeals process with that of the UK and Australia. > [http://www.law.usyd.edu.au/slr/slr28\_2/McKillop.pdf](http://www.law.usyd.edu.au/slr/slr28_2/McKillop.pdf) I’ve now read this article and it explains quite well the causes and consequences of the introduction of the appeal courts in France. I bookmarked it. Amongst other things, it mentions the following (later explained with a bit more details) : > [@Bron Mc Killop](#): > > That the French did not regard the Cour de cassation as a true court of appeal > is evidenced by the French reservation to their ratification in 1988 of article 2 of > the 7th Protocol to the European Convention on Human Rights.9 This article > recognised the right of any person convicted of a criminal offence to have that > conviction re-examined by a superior court. The French reservation was that such > re-examination could be limited to a review of the application of the law such as > by a pourvoi en cassation. Despite this reservation commentators recognised that > the French position was not tenable over the long term.10 I now suspect that my confusion arose from hearing at the time references to the Convention on Human Rights and the recent French reservation clause, and that no decision by the ECHR was involved. Thanks for the link. (And sorry for having derailled the thread so much) ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 14, 2008, 4:19pm UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/120 "2008-12-14T16:19:10Z")
I’ll have to read that article in detail, but the reference to a pourvoi en cassation helps me to understand the issue, I think. The powers of a cour de cassation in a civil system are different from a court of appeal in the Anglo common law system. From our perspective, the Cour de cassation’s powers are limited, more in the nature of judicial review (administrative law sense, not constitutional sense). That is, it can review the lower court decision and set it aside, but it cannot give any directions to the lower court how to deal with the issue on a re-hearing, other than by declaring the state of the law - and even then the lower court may reach the same conclusion on the law that it previously reached, since the civil law system does not have the principle of _stare decisis_. In the Anglo-Canadian tradition, a court of appeal has much broader powers. In addition to reviewing the law and setting aside the lower court decision for failure to follow the law, the appellate courts normally have the power to review the merits of the decision, to some extent. For example, the English [Criminal Appeal Act 1968](http://www.opsi.gov.uk/acts/acts1968/pdf/ukpga_19680019_en.pdf) provides: > [@](#): > > **Grounds for allowing appeal under s. 1 > 2.**—(1) Except as provided by this Act, the Court of Appeal shall allow an appeal against conviction if they think— > > (a) that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or > > (b) that the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law; or > > (c) that there was a material irregularity in the course of the trial, > > and in any other case shall dismiss the appeal: > > Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no miscarriage of justice has actually occurred. (The Canadian appellate courts have similar powers. I won’t bother quoting that section, since you asked specifically about the English system, but it gives me some comfort talking about the issue since I’m familiar with how the Canadian courts implement the similar powers.) So an Anglo-Canadian appellate court can declare what the law is and the lower courts are bound to follow it, under the principle of _stare decisis_. The appellate court can also consider the merits of the conviction, as well as the procedure followed at trial. These are much broader grounds to appeal than is allowed by the pourvoi en cassation, to my understanding. The French government evidently concluded that the pourvoi en cassation was not sufficient to meet its obligations, hence the reservation, but there can be more than one way to meet a human rights obligation under an international treaty. Bodies that implement international treaties, such as international courts, recognize that different legal systems may take different routes to comply with their treaty obligations. So the French government was not necessarily obliged to implement an appellate system modelled on the English system to protect the individual’s right to appellate review guaranteed by the treaty. What it had to do was provide some process that would satisfy the substance of that right. Introducing an appellate court with the powers of an English court, including _stare decisis_, would have been a major change to the civil law court structure that France uses. So instead, it looks like the French government settled on a trial de novo by the appellate court as a way to provide the necessary protection to an accused person. (Trials de novo by a higher court are not unknown in the English common law system either, but I don’t think they’re used very much any more. They’ve been abolished in Canada in favour of the broad powers of the apppellate courts.) [Previous page](https://boards.straightdope.com/t/o-j-civil-trial-why/476537.md?page=5) [Next page](https://boards.straightdope.com/t/o-j-civil-trial-why/476537.md?page=7)