Pre-trial Procedure Research Articles

Procedural Economy in Pre-Trial Procedure: Developments in Germany and the United States

In this article, I compare pre-trial procedures in Germany and the United States and probe the extent to which prosecutor’s decision-making practices deviate from each system’s normative goals. In both countries, the daily practice of the key players in both criminal justice systems continues to shift as the result of ever-increasing resource constraints and a varied array of organizational incentives. These shifts have created areas of both convergence and divergence. On the one-hand, in an era in both countries in which the number of cases resolved through a full-fledged public trial is decreasing, the course of pre-trial practice has become more outcome-determinative. Faced with a heavy caseload, a German prosecutor who receives a file in which the initial facts appear to be weak, may dismiss the case right out of the gate. On the other hand, carrying the mantle of a “party” rather than as an “organ of justice,” an American prosecutor who views the same investigation file may be more likely to seek some level of conviction through a plea agreement. Viewed solely through the goal of “finding the truth,” the shortened investigation process in both cases raises questions about whether the outcome fulfilled the retributive and rehabilitative objectives of the criminal law. On the other hand, in an era of tight resources, both outcomes appear to efficiently resolve the dispute at issue. In both cases, the shortened process also impacts, and perhaps undercuts, the traditional role of the fact-finder, be it a jury in the United States or a German judicial panel. Consequently, in many cases, bureaucrats in both countries are functioning as the arbiters of justice rather than simply as the head of the investigation process. This shift in institutional roles casts doubt on the degree to which the normative vision underlying each system’s path to “truth” informs prosecutors’ practice routines. By highlighting this development, this chapter will explore the widening disconnect between the law in action and these two normative visions of the truth-finding process. I then describe how some facets of pre-trial practice in both in both countries today undermine the objective to find the truth. After highlighting these problematic features, I suggest that the way to right the ship is, not to strengthen the law, but to more closely examine the organizational incentives that guide prosecutorial decision-making today.

Новое в досудебной процедуре урегулирования налоговых споров

Новое в досудебной процедуре урегулирования налоговых споров

Peeling the Onion: Legacy Lawsuit Litigation and Act 779 of 2012

The oil and gas industry has a long history in Louisiana, beginning with the first production well drilled in the state in 1901. However, the first comprehensive environmental regulations for oil and gas exploration and production in Louisiana did not appear until 1986. During the intervening years, production and exploration activity led to environmental damage of surface land and underground water sources that production companies are hesitant to remediate. Landowners, with little other alternative, are forced to seek redress for the environmental damage in the courts through litigation labeled by some, somewhat pejoratively, as legacy lawsuits. This paper discusses the statutory and jurisprudential underpinnings of environmental remediation actions for damages resulting from this production and exploration activity and examines the procedural changes made by Act 779 of the 2012 Regular Legislative Session. This act, codified as Louisiana Revised Statutes 30:29(B)(6), includes provisions that supplant the ordinary pretrial procedure that has hitherto governed these environmental remediation actions. The statute makes available a preliminary hearing procedure for defendants in such suits that amounts to an extra procedural defense. The preliminary hearing procedure is cumulative to existing procedure and enables a defendant to bifurcate the action without the plaintiff’s consent. As new law, appellate review of dismissals under the new procedure remains speculative at best. The new pretrial procedure thus represents a further shift against the property rights of plaintiffs in environmental remediation actions originating from oil and gas operations.

Convergence or Divergence in the Evolution of (Criminal) Rights? A Case Study of the Multiple Incoherencies of the Presumption of Innocence

The presumption of innocence, while almost universally endorsed in different legal systems, is given diverse and often conflicting interpretations in different jurisdictions. These impact everything from pre-trial procedures to the trial itself (and its treatment by the press). Even if we select the most promising versions of the presumption, they turn out to be either incoherent, tautologous, or completely at odds with existing investigative practices.

Measuring Rule 16.1: Colorado's Simplified Civil Procedure Experiment

Over eight years ago, the Colorado Supreme Court put in place a new pretrial procedure for district court actions involving claims of $100,000 or less between any two parties. The idea behind Colorado Rule of Civil Procedure 16.1 (“Rule 16.1”) was to provide a simpler process for relatively small cases, with more extensive disclosures and essentially no discovery followed by a more expedited trial. It is an optional procedure, with a corresponding cap on recovery. As interest in streamlined pretrial procedures, case differentiation, and voluntary processes grows, it is important to examine one such rule that has been in place for some time. Through this evaluation, IAALS, the Institute for the Advancement of the American Legal System at the University of Denver, attempts to answer the question: What has happened with Rule 16.1 in Colorado?

The Improvement of Civil Pretrial Procedures in China: the Comparison of Pretrial Procedures in China, Japan and South Korea

Although the Civil Procedure Law of the People's Republic of China has provided procedures for pre-trial preparation, such procedures have serious defects based on current legislative and judicial situations. Therefore, they are unable to perform appropriate functions. We therefore analyzed the defects pretrial procedures and discussed a possible reformation of pre-trial procedures based on the successful experiences in other countries and actual conditions in China. Key words: Pre-trial procedure; Time limit for the burden of proof; The exchange of evidence Resume le code de la procedure civile chinoise a defini les preparations de la procedure civile avant l’audiance au tribunal. Cependant, vu les conditions actuelles en matiere de la legislation et de la juridicition, cette procedure demeure gravement defaillante sans pouvoir fonctionner correctement. Le present document anaylyse les defauts existants dans les preparations de la procedure civile prealable chinoise. Compte tenu des conditions actuelles de la Chine et avec les experiences utiles etrangeres, le present document met en avant la discussion sur les preparations prealable de la procedure civile de la Chine. Mots-cles: Procedure civile preaable; Delai pour l'echange de preuves provisoire des procedures d'une preuv; Echange d’epreuves

Surveys of the Colorado Bench and Bar on Colorado's Simplified Procedure for Civil Actions

This report sets forth the results of the Institute for the Advancement of the American Legal System's surveys of Colorado judges and attorneys on Colorado Rule of Civil Procedure 16.1 (Rule 16.1), conducted in the summer of 2010. Rule 16.1 sets forth a voluntary simplified pretrial procedure for civil actions in general jurisdiction state court involving $100,000 or less. Rule 16.1 arose out of increasing concern over the lack of effective access to civil courts due to the slow, expensive, and often contentious nature of civil discovery, as well as a related concern over declining public confidence in the judicial system. Six years after the rule became effective, these surveys provided Colorado District Court judges and attorneys belonging to the Colorado Bar Association's Litigation Section an opportunity to express their views on the use and effects of the procedure.

РАВЕНСТВО ПРАВ ГРАЖДАН КАК УЧАСТНИКОВ КОРПОРАТИВНЫХ ОТНОШЕНИЙ В СВЕТЕ РЕФОРМЫ АРБИТРАЖНОГО ПРОЦЕССУАЛЬНОГО ПРАВА

The article discusses the theoretical and methodological issues of arbitration procedure. In the article notes the universalisation of arbitration procedure form and the widening of the participation. A lso the author focuses on the issues of equalit y of the participants of the corporate relations – individuals in the arbitration process. According to the author in order to uphold the constitutional principle of equality in the arbitration process there is a need to empower the citizen’s benefits in paying state taxes, as well as the possibility of using pre-trial procedure for the dispute resolution.The article discusses the theoretical and methodological issues of arbitration procedure. In the article notes the universalisation of arbitration procedure form and the widening of the participation. A lso the author focuses on the issues of equalit y of the participants of the corporate relations – individuals in the arbitration process. According to the author in order to uphold the constitutional principle of equality in the arbitration process there is a need to empower the citizen’s benefits in paying state taxes, as well as the possibility of using pre-trial procedure for the dispute resolution.

Recent Reforms in Pre-Trial Procedure in England and Wales

In this paper, focusing on the investigation and prosecution of crime, I would like to outline some of the recent changes and trends within criminal justice in England and Wales, and by way of comparison, to mention how some of these issues are developing in a very different European jurisdiction, that of France. There are two principal themes to my talk: the changing role of the prosecutor and of the defence lawyer in pre-trial investigations. These current developments exemplify not so much best practice, but rather areas of tension to be addressed in ensuring that the integrity of the criminal process and its values are not undermined by efficiency and political policy driven reform.

The Process is the Punishment: The Case of Bail in New South Wales

Bail is a most crucial stage of pre-trial procedure for accused persons who are presumed to be innocent. In the context of bail, punitive crime policies in New South Wales have led to the gradual erosion of the presumption in favour of bail in relation to many offences, the conflation of bail conditions and penalty and a steady increase in the number of persons being held as prisoners on remand. Continuing this punitive turn in crime policy, the Bail Act 1978 (NSW) was recently amended by the Bail Amendment Act 2007. It is the amendment in respect of s22A, and in particular the resultant changes to the configuration of bail, that is the subject of this article. It is our contention that s22A is ill thought out and without sufficient empirical foundation. In the absence of a rational base for this law-making, it can be characterised as a blatant ‘get tough’ on crime, law and order strategy that has become all too common.

File work, legal care, and professional habitus—an ethnographic reflection on different styles of advocacy

This article contrasts two English solicitors' styles of file work and aims to spell out some of the styles' respective practical and ethical implications. What I call ‘elaborate style’ relates to the file as the primary means of casework, while the ‘minimalist style’ relates to the file in terms of a compulsory exercise. The contrasts in style are further explored by attempting a set of explanations for them. The paper seeks explanation by relating the styles to the respective cases filed, to gender differences in the legal profession, and to the professional habitus of either solicitor. In conclusion, the inquiry suggests an explanation involving the legal discourse served. There are good reasons for either style under certain pre-trial and trial procedures. To stick habitually to one style while moving towards another procedure may cause unwanted consequences.

Workshop 4 Breath odor trial design and statistics

Workshop 4 Breath odor trial design and statistics

Media reporting and respect of human rights in criminal procedure

In this paper the cases from the practice of criminal courts in Serbia during 2004 are analyzed. On the basis of findings from monitoring of trials the author argues that incorrect media reporting has negative consequences on the right to fair trial political manipulation of media and biased and sensationalistic reporting are stressed. As a possible solution the author suggests education and restricted access to information during pre-trial procedure.

The Problem of Mistaken Identification: Some Observations on Process

This article examines the importance of establishing a coherent system of safeguards against the risks of mistaken eyewitness identification. Memories of previously observed events are susceptible to distortion during encounters between a witness and other persons. It is argued that pre-trial procedures conducted under controlled conditions provide the most effective means of averting the risk of error and subsequent miscarriage of justice. However, these are of little value without a system of safeguards that (1) ensures that the procedures are conducted whenever the risk of error arises, (2) provides adequate regulation of what might occur before such procedures are conducted, and (3) ensures adherence to its prescriptions. These considerations provide the basis for a critical evaluation of some aspects of relevant procedure in England and Wales.

Uloga tužioca u pretkrivičnom postupku

Uloga tužioca u pretkrivičnom postupku

Pretkrivični postupak i ovlašćenja policije po novom ZKP

Pretkrivični postupak i ovlašćenja policije po novom ZKP

European Court of Human Rights Finds Violations of the European Human Rights Convention in German Pre-trial Detention Procedures

European Court of Human Rights Finds Violations of the European Human Rights Convention in German Pre-trial Detention Procedures

Creating Laws of Evidence for International Criminal Law: The ICTY and the Principle of Flexibility

The Rules of Procedure and Evidence of the ICTY are the first coherent body of principles governing the prosecution of violations of international humanitarian law, or indeed international law, to be constructed. The Rules and the practice of the ICTY in their creation and application reveal a profoundly ambitious exercise: the moulding of rules of evidence and procedure which encapsulate fundamental principles specific to the trying of international crimes. The need for expedition in the trying of enormously complex cases and the requirements of fairness and strict adherence to human rights principles compete inside a framework devoid of the history and structure of rules and procedures developed in domestic criminal law jurisdictions. While the framework of the International Tribunal is ostensibly adversarial, the Rules encapsulate concepts borrowed from the continental and common law systems of criminal law. To achieve this, the ICTY has pursued a level of flexibility in the process of creating, amending and interpreting its Rules with a frequency unknown to any other jurisdiction before it. This article will first examine the human rights guarantees enshrined in the Statute of the ICTY and how they have been interpreted given the sometimes competing need to expedite proceedings. Secondly, the unique rules governing the presentation and admissibility of evidence, and in particular Rule 89 and relevant jurisprudence, will be considered. Thirdly, it will discuss some of the case management innovations which have been implemented to increase the flexibility in pre-trial and trial procedures in an attempt to expedite trials. In particular, the procedures implemented in the Kordic case, the longest and most complex trial tried before the International Tribunal, are studied. The article concludes with an analysis of some recent amendments to the Rules. In doing so, the ICTY approach will occasionally be compared with that taken in the Statute and Rules of Procedure and Evidence of the International Criminal Court (ICC). The tension in the ICTY between the expedition of trials and the protection of the rights of the accused will be revealed. The increasing move toward flexibility in the rules of admissibility of evidence reveals such a tension, for instance, with the right of an accused to cross-examine witnesses.

Rape Trauma Syndrome: Its Corroborative and Educational Roles

Within the criminal justice system the treatment of women who have been raped has been the subject of much criticism. This has come from those participating professionally in the legal system, from academics conducting research on it, and from women who have been affected by their personal experience of the criminal justice system.1 Such criticism focuses on a number of themes, including the stereotyping of victims, the portrayal of rape as a sexual rather than a violent crime, and victim-blaming. In the face of these criticisms, various strategies have been pursued in reforming the law and pre-trial procedures with the intention of making it easier for women to report rape and to survive the judicial process. Police awareness has been increased of the need for sensitivity in handling the interviewing and medical examination of rape victims.2 Rape shield laws circumscribing crossexamination of a complainant's sexual history have been enacted in many states in the United States of America, Canada, New Zealand, England and Wales, and Scotland. One recent further strategy to emerge in some jurisdictions has been the introduction of expert testimony on Rape Trauma Syndrome (RTS) to support the evidence of the woman complainant. Testimony in regard to this syndrome has developed in response to the failures of the substantive and procedural laws to secure convictions and to accord civilized treatment in court to rape victims. While the admission of evidence on RTS is not yet a practice accepted in the United Kingdom courts, experience of the gradual admissibility of other syndromes such as Battered Woman's Syndrome, in cases where women kill their violent partners,3 or False Memory Syndrome, in cases where the claims of adult survivors of child abuse are alleged to be distortions of memory,4 suggests that it may only be a matter of time before

Mini-Trials in Alberta

The Alberta Court of Queen's Bench has been offering the mini-trial, a specialized dispute resolution process, to litigants and the bar for the last four years. The impetus for this move was the length and time often involved in litigation. The attraction of the mini-trial is that it is a method of expediting dispute resolution and that the costs associated with it are considerably less than those for a regular trial. The author outlines the history of the mini-trial, explaining how it developed in the U.S. as a private dispute resolution mechanism. The Alberta mini-trial is essentially an expanded pre-trial procedure, and is offered by the Court at no cost to participants. There is no rigid, formal procedure to the Alberta mini-trial, and its great strength is in fact flexibility and informality. The only requirement the Court has is that the actual parties must be present for the arguments and at the end of the mini-trial, when the judge gives his or her opinion. The author outlines the key elements of the mini-trial, as they have evolved to date, including the role of the judge and the nature of the actual process. The mini-trial has been enormously successful at encouraging settlements, which have followed or resulted from the mini-trial in over 90 percent of cases. Additionally, both counsel and clients appear to be quite pleased with the process. Despite this success, however, it should be noted that the mini-trial may not be appropriate in all cases. The author describes the types of cases to which the mini-trial both is and is not well-suited. He offers a case study, of a mini-trial over which he presided. This mini-trial was successful and led to a settlement. In closing, the author provides information to interested counsel and parties as to how and when they can access the mini-trial. The article closes with a recommendation that mini-trials always be considered as an option in lawsuits.