State v. accused

I hate this formulation with a passion. It implies that the State "loses" if the guy is declared innocent, meaning the State is more interested in convicting the guy than finding the actual culprit.

We don't say that here: We have separate civil courts and penal courts.

edited 29th Nov '11 2:24:26 AM by Medinoc

"And as long as a sack of shit is not a good thing to be, chivalry will never die."

And the discussion is?

Fight smart, not fair.

Where does the appellation come from? Is it related to this law system that appears in several countries (this "common law" thing)?" Is anyone else disturbed by it?

"And as long as a sack of shit is not a good thing to be, chivalry will never die."

Maybe it's a terminology that assumes the State and the Court are seperate?

By that I mean, the State is an independent body accusing the defendent of something and is therefore against them. The Court is the independent arbritator between the two entities.

If I'm understanding your point correctly, that is.

And let us pray that come it may (As come it will for a' that)

In an adversarial legal system you have to have at least two parties; one party who petitions the court to grant it a remedy, and the person against whom a remedy is sought. In a civil case it's the person who claims to be injured who brings the case (the plaintiff). In a criminal matter, the State accuses a person of breaking the law, and the case is brought in the name of the State by the prosecuting attorney. The prosecutor petitions the Court to impose a criminal penalty on the accused Defendant. Because the person is accused of breaking a criminal law, only the State can bring a criminal prosecution.

Also, in an adversarial system, the court is an impartial forum. The judge's role is to guide procedure, rule on questions of evidence and pronounce the sentence. If there is a jury, the jury decides the actual question of guilt or innocence. So yes, if the person is acquitted, the State does "lose", in the sense that it does not get the remedy requested because the fact-finder did not find that the person committed the crime beyond a reasonable doubt.

What we obtain too cheap, we esteem too lightly.

It just disturbs me to use an adversarial system for criminal cases. Even if it's simply a matter of names (we still have a D.A.-equivalent, etc.)

"And as long as a sack of shit is not a good thing to be, chivalry will never die."

The alternative, an inquisitorial system, disturbs me. When the court and all the attorneys are on the same side, then who is on the side of the accused?

What we obtain too cheap, we esteem too lightly.

In the UK, its not the state vs. the accused, its the current monarch vs. teh accused.

Dutch Lesbian

That's the point, there ought to be no sides! It's not supposed to be a battle. What should matter is the truth. That's why the adversial system disturbs me - it seems to be so much about procedurial nonsense and enabling sly, underhanded tactics rather than about what actually has happened. From what I observe, US Americans complain about lawyers a lot - but it seems to me the reason having the right lawyer in court is so important in the USA is the adversial system.

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Of course it is. Having adequate counsel is essential to protect the rights of the accused and ensure that the prosecution and judge follow the law and meet their burdens of proof.

What we obtain too cheap, we esteem too lightly.

And lawyers aren't underhanded and obsessed with their records when they use different terminology? Please.

Adversarial systems suck for all the reasons mentioned above. The problem is that people are flawed. In an inquisitorial system people might be motivated for reasons other than truth seeking (money, political power, prestige, pressure to punish someone). In an adversarial system people have the same motivations, but if the lawyers on each side of of roughly equal skill (happens most of the time, there are numerous notable exceptions) the facts of the case should decide the result. If you can figure out a system that selects judges who only care about the truth, and will carefully consider each case before them, and can tell a crying family that this person they hate and have been accusing didn't in fact kill their little girl, then I'll be eager to scrap the adversarial system.

This isn't to say that the system doesn't have all sorts of flaws, but being adversarial isn't one of them.

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Ja. Japan has an inquisitorial system, their conviction rates are ludicrously high, and their mafias are about as entrenched as you can get in the first world.

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If you interpret it as "the interpretation of events presented by the state vs the interpretation of events presented by the accused," that might make things sound less bad.

edited 29th Nov '11 12:04:34 PM by INUH

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As I understand that's more of a problem with their absurdly powerful attorney/prosecution institutions, though.

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No system is perfect, we all admit that much. But I couldn't support a system where the person in charge of determining the accused's guilt is also the person in charge of finding the evidence to support the accusation.

I believe that impartiality of the fact finder is essential for due process. If the inquisitor has already decided that you are guilty, then they will inevitably look only for evidence that implicates you and ignore evidence contrary to the result they've already decided.

In many places in the US today, we may as well have an inquisitorial system, particularly in rural areas and in cases involving racial minorities. In the days before public defenders, the accused didn't get an attorney if he couldn't afford one, so innocent people were and are railroaded through the system and wrongfully convicted.

edited 29th Nov '11 12:52:10 PM by Lawyerdude

What we obtain too cheap, we esteem too lightly.

I also remember reading here, in an entry about Phoenix Wright, that Japanese popular culture views judges as morally bankrupt as we view lawyers.

"And as long as a sack of shit is not a good thing to be, chivalry will never die."

Uh, the attorney office/prosecution is independent of the judges, at least here (though both fall under the authority of the respective Ministries of Justice on state and federal level). The difference as I understand it is really in the court procedure - the judge does not need to be passive arbiter who watches that all sides in the process keep to the rules, but can and does play a more active part. And of course, the attorney office's first duty is not to get a conviction, but also to determine the truth, so if evidence is lacking they can (and do) demand acquittal.

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I know that in British case citations, the state is represented as R, which represents the monarch Rex and Regina. It might look like this:

R v Defendant ex parte Appellant (whereby the case is brought by the state on behalf [ex parte] the appellant).

So what are the parties denoted in French criminal cases, if not the government vs. the accused? If I recall correctly, only very recently did France introduce plea bargaining (even that is only for the minor cases). Taking every case to trial is a good way to clutter up the courts forever, so I'd imagine they only try the slam-dunk ones. I read that's why Japan has such a high conviction rate-they only pursue the dead-sure cases. As ones involving the Yakuza are less sure, since they can intimidate witnesses, bribe officials and so on, they get convicted less. Also there is the fact that the Yakuza is not illegal by itself, nor is being a member (gangsters openly display their clan tattoos, and join in public events.) In fact, they even advertise! Yes, as in "put up ads for people to join."

edited 18th Jun '12 9:25:52 PM by Fireblood

Reality is that which, when you stop believing in it, doesn't go away.-Philip K. Dick

To my knowledge, in France there are no "parties" in a criminal case, only in a civil one.

A criminal case is just "<accused> accused of <crime>" or something like that. I'm not sure, we didn't study this part in that much detail in mu Computer Science course's law class.

edited 18th Jan '12 6:51:58 AM by Medinoc

"And as long as a sack of shit is not a good thing to be, chivalry will never die."

I think we might have terms mixed up here (as I learned them).

I think you call it an "adversarial court system" if you have the Inquisition. In that system, the prosecutors and the police force are one and the same. The Inquisitors go about and call witnesses in the local area to see if they think there has been a crime committed and then conduct an inquiry. If the inquiry shows sufficient evidence that there has been a crime (similar to a preliminary hearing) then they go ahead with charging a person and moving into a court case. The court/prosecutor, who are one and the same, will then present a bunch of evidence and then you try to defend yourself. Of course, the problem with that system is that a close relationship between the prosecutor and the court (in that, they are the same thing) typically causes guilty before innocent, which statistically harms the chances of innocent individuals.

We have non-adversarial court systems now, in which the court acts as an impartial judge. The state or crown (HER MAJESTY!) as represented by the state attorneys (or crown prosecutors) will present evidence in a preliminary hearing to show there is sufficient cause for a case to be heard by the courts. If the courts agree, then the two parties are set up in a full trial. Thus, you have the state/crown accusing a person of committing a crime and the court hears the arguments and decides on the truth. So here you get "State vs accused". It of course sounds better in civil cases where it is "A vs B", so that if A loses it's not her majesty or something.

edited 18th Jan '12 7:32:12 AM by breadloaf

No. The terms are used here as I learned them. In the adversarial system prosecuation and defence standing against each other as adversaries, with the court mostly just acting as neutral "referee" between them. In the inquisitorial system, the court takes an active role in inquiring into the case.

No.

edited 18th Jan '12 7:34:11 AM by Octo

Unbent, Unbowed, Unbroken. Unrelated ME1 Fanfic

Hm, oh well.

I don't much care how "state vs. accused" "feels," because that's what it is.

It's the State, as representative of the people, asserting a claim that you have broken a law enacted by the people.

Now, in a non-democratic government, it's a totally different ballgame, but...

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