Statutes are created when original court cases are heard and ruled upon. Case law is created by rulings that are a result of examining statutes. Case law can either uphold the original statute or strike it down. Case law turns out to be an interpretation, or a “second look” at statutes, determining whether or not they uphold the U.S. Constitution. It seems to me that statutes can be either struck down after interpretation or continue to be enforced.
This is true, but to interpret the laws and judge their constitution are the two special functions of the court. The fact that the courts are charged with determining what the law means does not suggest that they will be justified in substituting their will for that of
With the defendant they get a shot at leniency from the judge. Then there are some that say plea bargaining is unconstitutional. “Plea bargaining rests on the constitutional fiction that our government does not retaliate against individuals who wish to exercise their right to trial by jury.” (Lynch, The Case Against Plea Bargaining, 2003). essentially this means if the defendant believes in their innocence and want to go to trial the will be punished for standing up for their constitutional rights. It is my belief that plea bargaining is an utter necessity, and though it may not seem just at all times; we as a society can see how hectic the court would be if all cases were brought to trial.
The Sixth amendment protects the accused upon the case against him. The Right to Counsel is given to everyone and this constitutional mandate adheres to the constitution. An accused may choose his own if his means permit him to do so. If not, however, and it is upon the court to appoint who shall represent him, the accused has no say of who will be appointed for him since what is contemplated by law is the essence of a competent lawyer’s presence. The right of self-representation may, of course, be opted upon refusal to receive the services of the one appointed by the court, but it shall still be in conformity with the set guidelines for the same right (Tomkovicz,
However they do have the ability to make suggestions to possibly amend the law through highlighting flaws. The judiciary cannot make judgments past the jurisdiction of the law even in interests of natural justice. A strong example of this was the Belmarsh Case, where judges believed the system of holding foreigners against the will under the anti-terrorism act contradicted with human rights. This law was subsequently changed. This could pose some doubt as to the judges power, as although they can not officially change laws, they clearly have the power to suggest changes with ease, and some could argue that despite Lord Neuberger’s claims, they do indeed undermine parliamentary sovereignty through their suggestion of changes.
Other source of America law is administrative law it consist of rules, regulations, orders and decisions of administrative agency or governmental organization. This law performs a specific functions and rules issued by administrative agencies, since they make their own regulations it is not usually found in the statutes, with stringent procedures individuals must follow to obtain assistance from the agency and this is how administrative law is impacted. In addition, the sources that amount to mandatory authority is primary sources it refers to cases, statutes, or regulations that the court must follow because it is binding on the court. Even though, lower courts are required to follow decisions from higher courts in the same jurisdiction. Example: You are in Federal District Court for the Southern District of Florida.
A defendant must be represented; however, they do not have the right to choose which counsel they will receive. The attorney must be knowledgeable and competent, but there cannot be any preferential treatment of one lawyer over another based on reputation or perceived abilities of counsel. As long as the attorney has proven to be effective in representing the case, the defendant must be represented by them. Defendants may be able to show just cause about preferring to self-represent, but again, they must show a clear understanding in making the decision to refuse counsel for their case (Tomkovicz, 2002). There are many other limitations of right to counsel, they include the period that is referred to as “noncritical stages”.
This clearly shows an effective protection of liberty by judges. Furthermore, a vital protection of liberties can be exercised via judicial review. Judicial review is a process that is conducted in the Supreme Court that hears an appeal over lawfulness of a case. It is not focused on the rights and wrongs of a case, this would be a case for appeal courts following the above methods, judicial review is simply an examination of the lawfulness of a case. For example, in the case of Home Secretary v. AP 2010 an appeal allowing the government to detain AP on a control order
To the extent that expert evidence relies upon an earlier report, the report will be hearsay. However, as per section 127, it may be admissible, but Running head: UNIT 4 ASSIGNMENT 7 only if the person who provided the original information can reasonably be supposed to have had personal knowledge of the matters stated. When expert evidence relies on such a statement, notice must be given to the defence, who must be given the name and address of the person whose statement is relied upon. The defence will then have an opportunity to object and where this occurs, the court must decide whether it is in the interests of justice to permit the expert to base his or her conclusion on the hearsay statement, or whether the supplier of the original information should also be called as a
What is a case of first impression?! — Binding authority is any source of law that a court must follow when deciding a case. Persuasive authority is when court review persuasive precedents when no binding authority exist.! —Courts can depart from precedents if the precedent is based on a clearly erroneous application of the law. When there is no precedent to base a decision is called first impression.