Prosecutors can sometimes get away with misconduct as it is extremely difficult to prove that misconduct had actually taken place. Often times the prosecutor is viewed as being on the side of justice and as a result it is difficult for the defendant (who is accused of a crime) to turn the tide against the prosecution. Although during the trial both the defense as well as the judge may report a prosecutor for misconduct, this rarely happens as these reports are often dismissed. This is because as long as the prosecutions misconduct does not affect the outcome of the case, then it is tolerated, meaning that a prosecutor can harass a witness or the defendant so long as the harassment did not have anything to do with the outcome of the trial. The fact that the prosecutor works in the interests of the state can be seen as the underlying factor here.
1. Describe these two judicial philosophies. Judicial Activism is when judges/courts do not strictly stick to the interpretation of a law, but create a new one. Easily explained, when an issue is being ruled upon, courts establish a new law to rule broadly on the issue rather than limit their verdict. A lot of magistrates go beyond the constitution and statutes words and use their own political and personal thoughts.
Criminal and Civil Law Unit 8 Project Ginnifer Wood Paralegal Professional There are two major types of legal actions criminal law and civil law. While the systems for each are very similar they are also very different at the same time. The differences between civil and criminal law range from the parties and their roles in the cases to the level of proof required in each case. As well as there are constitutional implications that are designed to protect someone in a criminal proceeding that do not apply in civil cases. Criminal Actions are generally brought by the people through the government against the person or persons accused of a crime because society has been wronged in the commission of said crime, the government prosecutes on behalf of society therefore the government is always the plaintiff.
The protective principle: 4. Disciplinary Principle: - Evidence law is principally about the search for the truth but sometimes needs to be changed to protect people and to look at the purpose of the people. - In relation to this particular act – the government have said that the main objectives of this act are to set in place rules that allow any information that is reliable/likely to lead to the right outcome and relevant (so we don’t let in anything) unless the information will unfairly prejudice a person involved in the court proceeding → seems to embody most objectives except the disciplinary principle. - NB: when unclear about the way evidence law ought to apply in particular scenario, refer to the 3 objectives to determine what outcome would advance the goals in this scenario. Longman warnings: Source: http://www.alrc.gov.au/publications/28.%20Other%20Trial%20Processes/longman-warning 8.36 In Longman,[54] a complaint was made more than 20 years after the alleged offence.
The judge guides the juries in determining the facts they can admit into evidence and the ones they must exclude. Many jurors encounter complicated problems far beyond their training and experience. The lack of legal knowledge allows prosecutors to easily convince and persuade jurors to believe their assertions. Also a jury trial presents a disadvantage for defendants when prejudice is an issue. Local biases and prejudices influence the outcome of many trials.
While plea bargaining is beneficial mostly for the state, it can sometimes be a curse for a defendant. For example, an innocent person may have some damning evidence against him or her even he or she is innocent. The prosecution will often pressure the defendant into believing that the jury will not find him not guilty. Therefore, the defendant will agree to the plea bargain and opt for a lesser sentence believing him or she does not have a chance of winning with a trial by jury. “Statistics show that 94% of state criminal cases and slightly more than 96% of federal criminal cases are eventually resolved through a negotiated plea.” (Schmalleger
Plea bargaining is the out coming solution between the defendant, the prosecutor, and the defense counsel in which they all conclude to an agreement that benefits each side. Plea bargaining avoids the trail process and reduces the time required for the resolution of a criminal case. Judges sometimes will accept the please that are the result of a bargaining process because such pleas reduce the court’s workload. There are moments when Defense Attorneys and their clients will negotiate to a plea of guilty when they are uncertain of their power to win acquittal at trial. Also in other moments Prosecutors will negotiate because lack of evidence they have against the defendant.
Advantages of using compromise include faster issue resolution, so therefore may be more practical when time is a factor. It can also be used to provide a temporary solution while parties still look for a win-win solution to the conflict. It also enables the levels of tension and stress to be lowered therefore making it a better working environment for the time being. There are also disadvantages which include requiring close monitoring of the situation to ensure that agreements are met, it doesn’t help build trust in the staff team in the long run and could also result in a situation where both parties are not satisfied with the outcome derived and so you could be back to the beginning with trying to solve the original
The adversary system is a system where there are two opposing sides in a court room, the prosecution and the defense. Both sides are trying to convince an impartial person, such as a judge or jury that there side can prove the other side as being wrong in order to prove guilt or innocence of the accused offender. The reason we use this system is to provide a fair and impartial trial. Instead of just presenting the evidence against the defendant, which would be partial and one sided, since the defendant would not get to defend them self. The adversary system is a much needed way for all societies to have their judicial and criminal justice system.
If they were to regard themselves and offenders as members of the same group, a competition over status and power would be less likely, as they would focus more on what they have in common than on what separates them. Indeed, as members of the same group they could even have power through powerful other in-group members. Conversely, a transgression is more likely to be interpreted as a threat to one’s status or power when one conceptualizes oneself as different from the offender. Assuming that retributive justice is primarily motivated by status/power concerns, this justice notion should therefore be more salient when the involved parties are perceived to have different