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Lecture 9

Lecture 9 October 12.docx

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Jane Abray

HIS389H1F October 12, 2010 Lecture – Law and Lawyers Lecture Clerical -> lay or secular courts Felony: a serious crime, which may result in the death penalty What’s the point of Criminal Trials - The point in Medieval theory is : o Redress- if a crime is committed, the moral order is out of balance, therefore the point is to make things right or restore order- which involves Retribution or punishing a person who has violated or broken the law, by inflicting pain on a guilty person you allow them to atone for what they have done, you give them personal an opportunity to make things right, pay fines, restore property… o Communication of community standards – o Deterrence: try to cut the crime rate – specially public rituals of punishment to deter criminals o Display of power: through the criminal courts the state is able to display power over lives and bodies of its subjects  Biblical roots- magistrates created by god to protect weak and punish bad – granted sword which is symbolic of ability to punish  Displays of punishment: to ensure that some do not cross powers- they will use the sword  Ex: soldiers enforcing community norms of state – at public execution: execution as display of state power but also weakness with fear of some revolting, executioner making a mistake - How criminal trials are conducted? Criminal Process Changes from accusatorial into adversarial or inquisitorial - Change from accusatorial to adversarial or inquisitorial- You start in early Middle Ages with an accusatorial system for reasons Levack explains that the accusatorial is unsatisfactory therefore steps taken to modernize it. Thus the adversarial (England) or inquisitorial (borrowed from Church inquisitors) - Accusatorial- results from blood feuds- original system of vigilantly justice of individuals going after other individuals- this is not what governments want so local governments involve selves in delivery of justice – first stage of state moves to monopolize judicial process and monopolize violence in a particular territory - First stage of state power- what happens is different little princes and cities set up courts where there are judges to oversee criminal matters. – One accuses rather than immediately taking law into own hands. The accused person is summoned and then pleads (saying they never did it or they did: confess or deny) If they confess the judge continues and issues a verdict. If a person denies there are a number of ways forward: the person can make a formal denial under oath, and accuser’s compurgators giving a testimony essentially. - Compurgators – those who provide testimony for accused o OR the accuser and accused may dual, taking up arms, and fighting in front of judge (allowing God to settle the dispute). May have one party replaced by a champion if one is not strong enough… the person who can higher the strongest party (problem) o Another method dealing with accusation is a different form of dual- the two sides may argue their cases. o OR by ordeal- like duelling, it is a method letting God decide (by method of water or fire) 1215- clergy not allowed to take part in trial by ordeal because the church decided that ordeals are not good thus clergy not allowed to involve selves. 1215 clergy supposedly cease overseeing trial by ordeal – However it is still persistent as Kramer and Sprenger record problems of ordeals – Prince Henry of Furstenberg – girl let go because wounds healed but Kramer knew she was a witch and said witches have ways of deceiving! - Sum: oath, dual, legal arguments, ordeal nd 2 last stage of trial is when judge pronounces decision which he does on basis of oath swearing or who wanted the dual or who had the better arguments or who came through the ordeal unharmed And last stage is sentence. – If judge decides guilty person that is the end of it- there is right to mercy so thus the initial sentence is much worse than the end result Being able to be merciful is another way to show power. So eventually a real sentence is arrived at which may involve clerical punishment, capital punishment, fines, banishment but hardly ever involves prison. Prisons are not a place to put people for a punishment (too expensive) they are merely to hold people while decisions are made. - Shaming sentences- executioner touching you - Less shaming- no executioner contact - Story of Anne Boleyn- head cut off by swordsman- the executioner never touched her, less shameful - Process of hanging someone- there must be physical contact with executioner- more degrading - Corporal punishments- hands cut off etc. involve contact with executioner which is more shamefully degrading If the judge decides the person is not guilty they are vindicated, released, have the right to accuse the accuser of false accusation. Levack tells there are at least 2 problems with accusatorial process 1. Pure irrationality- guilty people can get off, innocent people can get punished- use of ordeal is deliberately irrational because some force other than reason dictates verdict 2. They miss a lot of crime because the wrong party is responsible for starting the trial- the wrong party may be afraid of consequences. People are afraid to bring accusations As people thought crime was increasing, they get more worried about unreported crime and ineffectiveness of criminal process and so accusatorial process involves into a more modern form – evolves into processes in which the state has a larger and larger role. The state takes responsibility for initiating a prosecution and for at least some evidence gathering. By the time we look at witchcraft and witch trials they are taking place under the new inquisitorial or adversarial system. English adversarial system ex officio prosecution - Adversarial: English system- they make the fewest changes, although the few they make are considerable. This system has the juries decide guilty or not, judges do sentencing, parties argue cases in front of judge and jury (public trial preserved) - Inquisitorial system- moves from church court to lay court- the judge gathers information and evidence, so you have an investigating judge, that investigating judge may or may not be the person who determines innocence of guilt. The dossier contains written evidence and decision of guilt is based on contents of dossier rather than having witnesses come before judge and have cross examination. - So the English system changes more slowly, more traditional, stays closer to accusatorial – the state of England holds role of accuser, evidence must be heard at trial and decisions made by contentions of parties at trial… - Middle of 16 century- the English “Justice of the Peace” gets new responsibilities to gather evidence- the justice of the peace is a locally prominent individual who may not have legal training but who is used over and over again by the tutor and the steward kings and queens as the means to enforce royal rule – The Justice of the Peace are being asked to carry out at least preliminary investigations to confirm a crime has been committed and to look at an accused person and see if bail should be granted or whether the person should be held in custody. Very slowly these people are taking on some of the functions we associate with Crown attorney, they present evidence to judge and jury and J.P part of witness testimony for arresting, this evidence can be contested by person accused. - English criminal law most unlike continental trials is the use of the jury and the absence of torture! English common law does not allow torture, they cannot be tortured. But the Tower of London had treason cases which was based on Roman Law – treason is an exceptional crime in England dealt with by other means - Right of appeal exists in England against verdict- but it was very expensive and no one really did it - Sentencing in English in adversarial the judge pronounces sentence the jury decides – penalties drawn from common or statute law, judges have a wide range of discretion of which sentence they want to pronounce there is little regulation in judging - Adversarial- sentencing, trial, punishment are all public INQUISTORIAL - Tried on the continent, this comes from the Church courts and strongly influenced by old law of Roman Empire - Roman Law- came roaring back as an intellectual modernism as a result of Renaissance Humanists, interests in ancient Greeks and Romans - Roman law allowed torture and by this root torture re-entered continental criminal process - It was not a normal practice in early middle ages for courts to torture accused people – this was new in the course of the high middle ages – it was introduced in 13 century – import that does not reach England - The criminal processes in early modern period are prosecutions which are ex officio- you do not wait for accuser, anyone can inform the judge! The judge will then go over dossier and begin investigation but first establish if there was a crime! - So rather than waiting for the victim, the state operates independently, ex officio to do justice- similar to “state-building” process- development of ways for a strong territorial state to th emerge and make self-felt- traced back to 13 century Italy and then moves northwards and westwards - 16 century- you find the ideas of inquisitorial process codified in all big states o Aragon 1521 o Holy roman Empire: Constitutio Criminalis Carolina, 1532- enacted in name of Charles V (holy roman emperor at time) o France: Royal ordinance of Villers-Cotteret, 1539 o Spanish Netherlands: Criminal Ordinance of 1570: Phillip II’s criminal ordinance - The continent- the secular and lay criminal courts- inquisitorial process rules the day! Inquisitorial continued - Judges job is to find out truth, by hearing witness and committing testimony to record - Examining of people is done in private- when written record is complete the examining judge will think or lower judge will send dossier off - No jury - The inquiring judge
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