1. CJ343 Comparative Justice Systems Unit 6 Seminar

2. Unit 6 Read Chapter 5 in your textbook Attend the weekly Seminar Complete and Submit the Unit 6 Creative Project 2

3. 3 Introduction Does the search for truth differ in a adversarial from the search in a inquisitorial system How does criminal responsibility differ between countries?

4. 4 International Trivia In Saudi Arabia criminal responsibility is linked to puberty In Argentina the police are not allowed to interrogate suspects United States is unique in allowing pretrial motions Laypersons serve as part of the bench in Germany In South Africa a sentence of more than 3 months is automatically appealed if the judge has less than seven years on the bench

5. 5 Substantive Criminal Law Defines criminal behavior Provides information about what is required or prohibited and explains what happens to people who violate Substantive law comes from a legitimate authority and is applied in an unbiased manner

6. 6 Substantive Criminal Law Four general characteristics of substantive law 1.Specificity 2.Penal action 3.Politicality 4.Uniformity

7. 7 Substantive Law in the Common Legal Tradition Common law was unwritten No lists of crimes and punishments identifying criminal actions determined by judges in earlier decisions and by reference to folkways Earliest offenses identified as felonies Later misdemeanors identified Custom provided specificity

8. 8 Substantive Law in the Common Legal Tradition Most common law countries consider legislation as the appropriate task for lawmakers Scotland continues common law tradition of judge make law in addition to and legislation based law As populations grow common law countries are finding it difficult to rely on customs to inform citizens of their obligations

9. 9 Substantive Law in the Civil Legal Tradition Some people in civil law countries find the common law to be crude, unorganized, and culturally inferior to civil law Civil law lawyers feel superior to common law lawyers and thus has become part of the civil law tradition Civil law holds the principle that every crime and every penalty must be specified by statue

10. 10 Substantive Law in the Civil Legal Tradition In civil law tradition a crime exist only after it had been specified in a statue and embraced by a legitimate authority France is to Civil law as England to Common law

11. 11 Substantive Law in the Civil Legal Tradition The French Penal Code has five books: Book I general provisions for all crimes Book II describes felonies and misdemeanors against the person Book III describes felonies and misdemeanors against property Book IV describes felonies and misdemeanors against the nation Book V describes other felonies and misdemeanors

12. 12 Substantive Law in the Civil Legal Tradition Organization of crimes and jurisdictions is exactly what proponents of civil law say that give and advantage over common law Criminal codes under civil law are clear and have no conflicting provisions Consequently civil laws are very comprehensive that tries to anticipate all arguments or exceptions

13. 13 Substantive Law in the Socialist Legal Tradition Most of the language and structure is borrowed from the Criminal Code of the Russian Soviet Federated Socialist Republic Socialist law is codified But code may not provide citizens with much information about what is allowed or disallowed Specific descriptions of criminal acts do not have to be described because anything “socially dangerous” was criminal A crime is defined as: “Any socially dangerous act or omission which threatens the foundations to the foundations of the Soviet structure.”

14. 14 Substantive Law in the Socialist Legal Tradition Criminal Code in the Peoples Republic of China is based on the Russian Republic Code Crime is defined as “any socially dangerous act or omission which threatens the foundations of the Soviet structure”

15. 15 Article 13 of the Code of the Criminal Law of the Peoples Republic of China, 1997 A crime refers to an act that endangers the sovereignty, territorial integrity and security of the State, splits the State, subverts the States power of the democratic dictatorship and overthrows the socialist system, undermines public and economic order, violates State-owned property, property collectively owned by the working people, or property privately owned by citizens, infringes on the citizens rights of the person, their democratic or other rights, and any other act that endangers society and is subject and is subject to punishment according to law.

16. 16 Article 13 of the Code of the Criminal Law of the Peoples Republic of China, 1997 However, if the circumstances are obviously minor and the harm done is not serious, the act shall not be considered a crime.

17. 17 Substantive Law in the Socialist Legal Tradition Criminal responsibility under Chinese socialist law is accorded to anyone who has reached the age of 16 Persons age 14 and 15 who commit murder, serious injury to another, robbery, arson, habitual theft, or other crimes seriously undermining social order are also held criminally responsible. Persons 14 -18 are given lesser punishments for crime they commit Mental illness – family must provide surveillance and medical treatment Deaf-mute and blind persons may be exempted from punishment or receive a lesser sentence

18. 18 Substantive Law in Islamic Tradition Three categories of crime: 1.Hudud Most serious because these are offenses against God 2.Qisas Serious but their harm is to the individual rather than God 3.Tazir Other crimes

19. 19 Substantive Law in Islamic Tradition Hudud crimes Most serious crimes because they are mentioned in the Qur’an and Sunna 1.Adultery 2.Unsupported accusation of adultery 3.Uses of intoxicants 4.Theft 5.Highway robbery 6.Apostasy

20. 20 Substantive Law in Islamic Tradition Qisas Crimes Western equal of crimes against the person Murder intentional and unintentional killing Assault intentional and unintentional Qisas is translated as “the equivalent” or “equitable retribution” is the infliction of a harm upon the offender Qisas crimes offenses requiring equivalent retaliation by the victim or the victims family Qur’an clearly prescribes retaliation for qisas offences but also encourages forgeiveness

21. 21 Substantive Law in Islamic Tradition Tazia offenses Least serious in Islamic law They are not mentioned in the Qur’an or Sunna They have been identified through the process of consensus (ijma) Examples: Violating proper Muslin conduct Provocative dress Eating pork obscenity Petty theft Attempted adultery homosexuality

22. 22 Procedural Criminal Law Two models of procedural law 1.Due process 2.Crime control Neither represents reality or an ideal system Both are techniques to understand how the legal process works

23. 23 Procedural Criminal Law Adjudicatory processes: 1.Adversarial 2.Inquisitorial Both systems attempt to find the truth Each believes the guilty should be punished Each believes the innocent should be left alone

24. 24 Procedural Criminal Law Inquisitorial process Major characteristics: Prosecutor is a party to the suit in every criminal case Two magistrates during investigation and trial Judge is at the center of the fact finding process Required in all French courts Sides do not compete Trial is more like a continuing investigation

25. 25 Procedural Criminal Law Inquisitorial process, cont. Judges call and examine witnesses No provision for a guilty plea Confession of guilt is additional evidence to be evaluated No provision for plea bargaining Procedural active judge and passive attorneys

26. 26 Procedural Criminal Law Adversarial process Assumes that truth will arise from a free and open competition over who has the correct facts Derived from trial by combat This process emphasizes procedure over substance Each side plays a game in which the players use the law to gain an advantage

27. 27 Procedural Criminal Law Adversarial process Safeguards: Cross-examination to challenge testimony Power is shared by prosecution, defense, judge and jury Prosecutor represents state Defense attorney assumes innocence Judge serves as referee

28. 28 Procedural Criminal Law Adversarial process Not the same in all common legal traditions English tend to approach trial as something to be decided on the basis of contested facts

29. 29 Procedural Criminal Law Contrasting adversarial and inquisitorial processes 1.Inquisitorial systems emphasize the screening phase of the criminal process Adversarial systems emphasize the trial phase 2.Adversarial systems are more likely to restrict involvement of the judiciary in the investigatory and adjudicatory process In inquisitorial systems the judge is an integral part of the investigation and judicial process

30. 30 Procedural Criminal Law Contrasting adversarial and inquisitorial processes 3.Inquisitorial system assumes all involved persons are seeking the truth, defendant is expected to be cooperative The adversarial system neither expects or requires the defendant to assist investigators. The burden of proof is on the persecutor

31. 31 Procedural Criminal Law Contrasting adversarial and inquisitorial processes 4.The judge in the adversarial process is primarily a referee. Attorneys develop the case and the jury decides In the inquisitorial process the judge is another investigator with added power of being able to decide the case. The judge asks most of the questions and develops facts while the attorneys exists to argue the interpretation that the court should give to those facts.

32. 32 Procedural Criminal Law Procedural law in the Islamic legal tradition Mixed system combining adversarial and inquisitorial systems Religious law therefore did not develop through president of codification Islamic law prescribes penalties for criminal acts. Apprehension and bring him to justice is left up to the state. The accused is considered innocent until proven guilty

33. 33 Procedural Criminal Law Procedural law in the Islamic legal tradition Burden of proof lies with the accuser When in doubt the case is decided in the favor of the defendant Sunna requires that punishment to be prevented in case of doubt because it is better to be wrong in forgiving than wrong in punishing

34. 34 Procedural Criminal Law Procedural law in the Islamic legal tradition Forms of criminal evidence: Testimony Religious oath Confession

35. 35 Procedural Criminal Law Procedural law in the Islamic legal tradition Testimony Hallmark of Islamic law It is the responsibility of the victim or victims family to bring the crime to the attention of the authorities. To show your truthfulness you must have the specified number of witnesses and oaths. Qur'as and Sunna set the number of witnesses. (Theft 2 adultery 4)

36. 36 Procedural Criminal Law Procedural law in the Islamic legal tradition Testimony Witnesses must be male adult Muslims Sometimes two woman can count as one man Must testify about their direct knowledge about the crime Hearsay evidence is not admitted Circumstantial evidence may be accepted when it is strong Primary way to ensure witness is telling the truth is through the oath

37. 37 Procedural Criminal Law Procedural law in the Islamic legal tradition Oaths Witnesses are not sworn before testifying, no punishment for perjury The law assumes that a person may well make statements that do not bear on the truth Comparable to marketplace bartering – statements are often made just to judge reaction In the courtroom witnesses speak freely and judges inquire cleverly no one is held to the truth until there is an oath

38. 38 Procedural Criminal Law Procedural law in the Islamic legal tradition Oaths It is incumbent on the accused to take an oath denying the allegations If the defendant takes the oath the case is dismissed If he declines after three requests, Judgment is entered for the plaintiff

39. 39 Procedural Criminal Law Procedural law in the Islamic legal tradition Confession Considered to have been provided when the accused voluntary admits to the charges Confessor must be mature person capable of understanding the nature and consequences of his actions It should be voluntary, explicit, and clear regarding the act

40. 40 Procedural Criminal Law Judicial Review “Laws change but the law must remain”

41. 41 Procedural Criminal Law Judicial Review Is law or government supreme? In order to have laws a nation must establish certain fundamental values Values can be secular or Devine

42. 42 Procedural Criminal Law Achieving Rule of Law Values reduced to written form Substantive and administrative procedures are established to hold the nations government to the fundamental principles Supremacy of fundamental values is recognized Steps to Rule of Law

43. 43 Procedural Criminal Law Judicial Review The process by which governments are held accountable is called judicial review This refers to the power of a court to hold unconstitutional any law, any official action, or other action by a public official that the courts deem in conflict with the countries basic law

44. 44 Procedural Criminal Law Judicial Review Three models Diffuse Entire judiciary has duty of constitutional control with the potential inconsistency of decisions being lessened through stare decisis a structured equiseta Concentrated Specific government entity rules on the constitutionality of laws, and problems of inconsistent decisions accordingly minimal Mixed A specific government entity reviews the constitutionality of laws, and all courts have the power to ignore laws they deem unconstitutional

45. 45 Procedural Criminal Law Judicial review in Islamic and Socialist Traditions Under Islamic law fundamental values are presented in the Qur’an and Sunna Under Socialism law is subordinate to policy

46. Unit 7 Read Chapters 6 and 7 in your textbook Attend the weekly Seminar Make postings to the Discussion boards Complete and Submit the Unit 7 Creative Project Holiday Schedule 46