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Civil Trial & Criminal Procedure

Trial

  1. Civil Procedure
    1. US
      1. Complaint w/Ct
        1. P sends D copy of complaint
        2. Ct sets trial date & have long discov.
      2. Things in Complaint
        1. All C/A
        2. Evid. w/authentication reqt 4 jury
          1. Could stipulate & not authenticate
          2. Now accept as long as no obj.
    2. Euro.
      1. Complaint w/Ct
        1. Ct sends D copy of complaint & gets ans.
      2. Things in Complaint
        1. Date of 1st hrg
        2. Give all facts, even damaging
        3. All evid.
          1. Doc's assumed authentic unless obj'ed & obj'ing party has b/p
          2. Who W's R
        4. No law
      3. No
        1. Jury trial
        2. Motions 2 end sooner
        3. Discov.
      4. Inquisitorial Style
        1. Chamber / panel of judges
          1. Jr. & 2 Sr. judges but gen'ly jr. finished by self
        2. Judge gen'ly helps atty
        3. Record hrg of W
          1. Summary instead of Q & A
        4. Free access & fair legal hrg cl's
          1. Judge can appt own expert on own motion
          2. Can do anything 2 get evid. except call own W 4 own motion
  2. Evid.
    1. Hearsay
      1. US
        1. Have lots b/c
          1. Better chance 2 eval. reliability
          2. Not trust jury
          3. Rt 2 confront
        2. If bench trial, flexible
        3. If arb., no evid. rules
      2. Euro.
        1. Jury asked 4 pers'al opinion / conviction after free eval.
        2. Not trust judges after French Rev.
        3. Now that jury's gone, judge eval. all by own conviction
    2. Party's Oath
      1. Decisory Oath in Euro.
        1. Parties & judge can ask that 1 party take dec. oath
        2. If not take, concl'ly against party
        3. Based on relig. & superstition
    3. Statute of Fraud
      1. US
        1. Req. writing 4 sale of goods of $500 / more
        2. Can't use other extrinsic evid. 2 prove K
      2. France
        1. Same but not apply 2 comm'l trxn
        2. But 4 proof, not need full written K but any extrinsic evid. besides human is ok
    4. Exam of W's
      1. Euro.
        1. Judge asks W's 2 ans. in narrative format about subj.
        2. Judge can ask quest's 2 clarify, compl., / cross exam type of quest's
        3. Judge has preconceived ideas before asking quest's
    5. Experts
      1. US
        1. Judge not appt. b/c can't pay
        2. Parties pay 4 own experts
      2. Euro
        1. Judges pay from tax so can appt experts only from roster
  3. Atty Gen's Role in Euro
    1. Govt Can Partic. in All Case
      1. File official brief
      2. Oral arg.'s
      3. Retire w/ct & delib. but no final vote
  4. Ct Dec.
    1. US & Germ. Dec.
      1. Jgmt + opinion w/holding, facts, & rsn
    2. France
      1. Brief w/o rsning / compl. facts
      2. Historical rsn b/c Napoleon Code said judge can't dec. by gen. issue
  5. Ct Appeals
    1. First Appeal
      1. Law & facts appealed
      2. Trial de novo
      3. In US, from municipal level 2 dist. level
      4. In Euro, from dist ct. 2 app. ct.
        1. Not full W's but judge picks W's after reading full dossier
        2. Gen'ly just extensive arg's
    2. Second Appeal
      1. Euro as of rt.
    3. Crim Appeal Dif's
      1. US, can't appeal subst. legal issues so much
      2. Euro, app judge looks @ why some subst. law not applied
    4. Ct of Last Resort's Double Fn
      1. Dec. indiv. case / break the case & remand
        1. In France, must remand
      2. Dec. cases 4 future cases / overturn & dec.

Crim Proc.

  1. Euro.
    1. Inquisition
      1. Prosec. & Judge
        1. Pretrial prcg, prosec. investig.
        2. Trial, judge dec's
    2. More Adversary Style
      1. Except Germ. b/c of minor steps
    3. Prosec.
      1. Germ. gave no discretion in prosec'ing
        1. Some discretion 4 minor crimes + minor guilt s
      2. Rest of Euro. gave lots of discretion
    4. Lay Judges
      1. Jury phased out b/c acquitted 2 much
      2. Lay judges out# prof'l judges in Germ. murder trials
    5. Discov.
      1. D can inspect prosec'or whole dossier b/c by then, already 2 late 2 influence W's
    6. Accused as Source of Info
      1. Invites accused 2 talk
      2. No Miranda rts & no rule 2 excl. evid. if warning not given
      3. Deception can't B used 2 get confession
      4. When take stand
        1. In Germ., judges asks so D pressured 2 talk
        2. In Eng., incentive 2 take stand b/c not asked about prior crime & judge can cmt why D didn't take stand
  2. US
    1. Prosec.
      1. Discretion but must B reelected
    2. Discov.
      1. Trial by surprise 4 D sometimes
    3. Accused as Source of Info
      1. Miranda rts so not have 2 talk
      2. Excl rule 2 encourage police 2 do rt things
      3. Incentive 2 not talk in ct b/c
        1. Prosec. can ask about prior crimes
        2. Judge can't cmt why D not on stand
      4. Can use deception 2 get confession after Miranda rts

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Ms. Haeji Hong

10/26/1997