5. Responses to crime (2016)Apunte Inglés
Apunts de l'assignatura criminological language, de primer de criminologia a la UAB amb la professora Bettina Steible, de l'any 2016
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1º Criminologia UAB
UNIT 5: RESPONSES TO CRIME
5.1: COMMON LAW – ADVERSARIAL SYSTEM
Society’s formal response to crime. Decisions taken by criminal justice systems.
a) Role of the parties The parties of the trial are extremely important. Two or more opposing parties gather evidence and present the evidence and their arguments to a judge or jury. They are the ones who collect the evidence.
The trial is seen as the confrontation if the prosecution and the defense, and as a result, we will have the truth.
There are two branches: a) UK – different types of lawyers - Solicitors: offer legal advice, they do office work, and barristers usually rely on them to get cases.
- Barristers: The ones who participate in trials, they legally represent clients in trials, they do trial work.
So, in the UK, the term lawyer is a broad term.
b) US – lawyers (attorneys, attorneys-at-law, counsels, counselors, counselors-at-law) There is no difference between counseling and trial lawyers - Role of the American Bar Association and of the Association of American Law Schools.
- The legal profession is regulated by each state which sets its own requirements for admission to practice.
- No demarcation line among advocacy and counseling.
b) Role of the judge The fact finder, the judge or the jury remains neutral and passive during the proceedings, he does not know nothing, but based on the evidences presented by the parties, he decides whether the accused is guilty or not.
1 Criminological language 1º Criminologia UAB a) UK – two types of courts - The Crown Court: Mot serious crimes. Composed by the judge and the jury (12 people). The judge is the legal advisor to the jury, which assess the evidence and arguments and makes decisions about the fact. The jury decides whether the accused is guilty or not, and the judge decides de punishment, the sentence.
- The Magistrates’ Court: Less serious offences, most criminal cases.
Volunteers from the law community, who are not paid and decide whether the accused is guilty or not. There is no jury.
c) Role of the accused The defendant in a criminal trial is not required to testify.
d) Role of the victim The victim’s role is usually limited to that of witness.
It is not an active part, to ensure the rights of the accused are well implemented.
The addition of a “third party” would disrupt the balance of the criminal process.
e) Objective Find the truth by pitting the parties against each other in the hope that this competition will reveal it.
- Procedural definition of justice: what has been debated by the parties is fair.
5.2: CIVIL LAW – INQUISITORIAL SYSTEM Uses case law as a source of law.
a) Origins - First developed by the Catholic Church during the medieval period.
- After the French Revolution, a more refined version of the inquisitorial system developed in France and Germany.
b) Role of the judge The judge is active and very important, questions witnesses and it is involved in the collection of evidences. It is not a passive recipient of information, controls evidence.
The presiding judge is primarily responsible for supervising the gathering of the evidence necessary to resolve the case.
2 Criminological language - 1º Criminologia UAB Judge investigator: asks questions and controls the procedure.
c) Role of parties The attorneys play a more passive role; they do not have to collect all the evidences to present them to the judge.
d) Role of the accused - The criminal defendant is the first to testify.
A criminal defendant does not have to answer questions about the crime itself but may be required to answer all other questions at trial.
They have the right to remain silence, but it is not very well seen.
The defendant is allowed to see the government’s case, and then testify.
e) Role of the victims Active and central role in criminal proceedings, permitting them to participate and claim reparation.
They have legal representation.
f) Objective - The inquisitorial system seeks the truth by questioning those most familiar with the events in dispute.
- Idea that criminal justice system is not limited to arbitrate disputes but that it also interests the society itself.
Substantial conception of justice.
Most scholars agree that the two systems generally reach the same results by different means.
Even though there are important differences, we should not caricaturize them.
5.3: ENFORCEMENT OF INTERNATIONAL CRIMES International courts Genesis International military tribunal at Nuremberg. The objective was to punish crimes committed during the second world war. It was established by the winning party, the allies, so they just prosecuted crimes committed by the other party. Is it impartial? 3 Criminological language 1º Criminologia UAB - Landmark in international criminal law.
- Individual responsibility.
Not states Regardless of the status of the suspect Though there are critics for these tribunals, they are very important for the development of international criminal laws, because the judged are not individuals but states. The status of the suspect was irrelevant. Start to think about genocides and crimes against humanity.
Further developments Ad hoc international criminal tribunals.
Not permanent, made for some specific situation.
- The international Criminal Tribunal for ex-Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were created by the UN.
Important development of international criminal law.
Recent conviction of Radovan Karadzic.
Consolidation International Criminal Court (ICC) - The Rome Statute was adapted in 1998 and entered into force 4 years later.
- First permanent international criminal court.
- Jurisdiction: international core crimes.
National Prosecution Universal jurisdiction - Legal principle allowing or requiring a State to bring legal proceedings in respect of certain crimes irrespective of the location of the crime and the nationality of the perpetrator or the victim.
5.4: CRIMINAL COURTS AND THE COURT PROCESS Once the suspect is arrested and questioned, police can either release them or bring charges and start with the prosecution process.
1. Pre-trial decisions Ways to arrive in court People arrive in court in a number of different ways: 4 Criminological language 1º Criminologia UAB - They may receive the summons (orden de comparescencia) through the post.
- If arrested, they may be released on bail (= fiança) by the police to attend court.
- They may be kept in police custody overnight and from there taken to court.
- They may be remanded in prison and be taken to court from there.
At this stage, there are a number of options that the police and judges may consider: defendants may be released with or without bail, or they may be remanded to custody for a fixed length of time to await the trial.
- Bail: A sum of money which a person who has been accused of a crime pays to a law court so that they can be released until their trial.
Remanded on bail: to be allowed to leave a court after you have been accused of committing a crime to wait until the trial begins, after paying a sum of money.
Remanded in custody Kept in prison until the trial.
Why are people held in custody? - Previous convictions for similar offences.
- The individual may scape, not show up at the trial - The individual may destroy evidences.
- The individual may commit further offences or hurt the victim again.
- The individual may interfere with witnesses.
“It is generally assumed that people will be granted bail. In most cases we assume detention without trial is wrong” – Ashworth and Redmayne (2005) The prosecutor must always justify the custody. Why? A presumption of both liberty and innocence on the part of the defendant.
Respect of human rights. Courts should wherever possible impose the least restrictive conditions on a defendant awaiting trial.
Purpose of custody: ensuring the return of the accused at subsequent proceedings.
2. Arraignment It is the first time the defendant appears in court.
- The judge tells the defendant what the charges are and his or her constitutional rights.
The defendant may then respond to the charges by entering into a plea.
5 Criminological language 1º Criminologia UAB 3. Plea bargaining - In some jurisdictions it is common for the prosecutors to meet with the defendant and his or her attorney to discuss a possible plea bargain.
- If plea-bargaining is successful, the accused pleads guilty as charged, thus enduring the criminal trial processes.
- Not guilty Guilty Variety of charges: the prosecution may drop one or more of the charges in exchange for plea of guilty to one or more of the others.
- One serious charge: In discussion with the prosecutor, they agree to plead guilty to a lesser charge and the more serious one is withdrawn.
Example: press charges for manslaughter instead of murder.
Pros and cons of plea bargaining Pros Cons -Saves money (it is cheaper) -What if the defendant has not committed the -Administrative efficiency.
offence? -More time to more serious cases, and more -The presumption of innocence is undermined.
-Privileges against self-incrimination could be -Prospect of a lower sentence.
viewed as undermined.
-The right of fair trial and a fair and public hearing is not respected.
4. Sentencing - If the defendant is found not guilty, it is called an “acquittal” and the defendant will be released.
- If the defendant is found guilty he or she will be sentenced.
The sentencing judge will consider punishments and sentencing ranges identified in the applicable criminal law, as well as certain specific factors.
Types of sentence - Discharge: Absolute discharge: It means that the person is released without further punishment being imposed.
6 Criminological language 1º Criminologia UAB Conditional discharge: it also frees the defendant without penalty but it requires them to avoid future offending.
- Fines and other financial penalties: The most long-standing of the non-custodial penalties which currently exists in the fine.
- The level of the fine depends on the seriousness of the offence.
Community punishment: Instead of sending the criminal to prison, the courts put some limitations on them and give them some duties.
- Suspended sentence of punishment: A judge can suspend a prison or jail sentence. The individual is convicted of a crime and given a sentence for that crime.
If the offender commits a crime while on a suspended sentence, he or she will go straight to prison for the amount of time sentenced by the judge when ordering the suspended sentence.
- Probation: It refers to the supervision of offenders in conditions of freedom by designated officers of the court. The defendant remains free as long as the terms of the probation are being met.
Hamai et al. (1995) 4 key elements: Selection (following an assessment that the offender is “suitable”) A conditional supervision of punishment.
Guidance and / or treatment.
If the offenders break the terms of the probation… Harsher punishment and probably a prison sentence.
- Incarceration: In jail: short sentence In prison: long-term confinement 5. Appeal The right to appeal stems from the right to a fair trial.
- An appellate court may review the trial procedures in order to determine whether an error was made or whether these has been a fair trial.
7 Criminological language 1º Criminologia UAB Possibility to appeal further to a higher tribunal until the supreme court, which has the final say.
- The appellant court may uphold the appeal, dismiss it, or order a new trial before another court.
- The appeal is not a new trial.
From suspect to trial Offence Police Suspect is not detected Suspect is detected - Release - Caution The police acts: - Charge - Summons or - Arrest Prosecution Court Guilty: Not guilty - Incarceration - Non-custodial sentence 8 ...