Felony Trials Without a Jury

1931 ◽  
Vol 25 (4) ◽  
pp. 980-995 ◽  
Author(s):  
J. A. C. Grant
Keyword(s):  
Supreme Court ◽  
Jury Trial ◽  
Administrative Discretion ◽  
Criminal Cases ◽  
Open Court ◽  
Jury Trials ◽  
The Supreme Court ◽  
Judicial Procedure ◽  
The Right ◽  
Federal Supreme

Recent crime surveys have shown that the majority of contested felony cases are never tried in open court, being settled instead by the striking of a “bargain” between the defendant and the prosecuting officer. Administrative discretion has thus largely supplanted judge and jury alike. The practice has been severely criticized by Professor Moley, who characterizes it as “ psychologically more akin to a game of poker than to a process of justice,” being “an attempt to get as much as possible from an unwilling giver” rather than “a search for truth.” In view of the technicalities and delay that were permitted to develop in connection with jury trials, the utilization of some such avenue of escape would seem to have been inevitable. The practice may be expected to develop still further unless judicial procedure is improved to a point where a trial becomes an efficient means of disposing of contested criminal cases.In most jurisdictions, the only alternative to such a compromise agreement has been a jury trial. Trial by a judge alone, the right to a jury being waived, has been regarded as of doubtful constitutionality. Recent decisions of the federal Supreme Court and of the supreme court of Illinois, sustaining such non-jury trials even in the absence of statutory authorization, have gone far toward dispelling this doubt, and warrant an examination of the practical working of the waiver plan in those jurisdictions where it has been given a trial.

scholarly journals The Jury is Out: The Controversy About Jury Trials Under the Alberta Securities Act

2020 ◽  
pp. 1025
Author(s):  
Robert Stack
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Jury Trial ◽  
Court System ◽  
Securities Law ◽  
Division Of Powers ◽  
Jury Trials ◽  
The Supreme Court ◽  
The Right ◽  
Securities Laws

After reviewing the place of securities law enforcement within the Canadian court system, the author traces the Peers and Aitkens decisions from the Provincial Court to the Supreme Court and outlines how these cases dealt with the question of what penalties trigger the right to a jury trial under section 11(f) of the Charter. The author explains how section 11(f) impacts the division of powers by creating a constitutional cap on the prison sentences that are available for violations of provincial law. In light of stiff maximum penalties for violations of securities laws, the Peers and Aitkens decisions raise the question of whether there are constitutional reasons to continue to try regulatory offences by judge alone in provincially appointed courts.

9 Criminal Justice

2019 ◽  
Author(s):  
Dickson Brice
Keyword(s):  
Criminal Justice ◽  
Supreme Court ◽  
Final Section ◽  
Common Law ◽  
Criminal Court ◽  
Criminal Cases ◽  
The Supreme Court ◽  
The Right

This chapter selects five issues within the sphere of criminal justice to exemplify how the Irish Supreme Court has made its mark in the field. It looks first at the Court’s approach to the principle that prosecutions should be ended if they are unfair to the defendant and then moves to related issues surrounding use of the Special Criminal Court. It considers whether the Supreme Court has done enough to police the Special Criminal Court and whether reforms are necessary in that domain. In examining the Supreme Court’s views on the right to bail and on the admissibility of evidence which has been obtained unconstitutionally or otherwise illegally (with particular reference to the Damache and JC cases), comparisons are made with other common law jurisdictions. A final section looks at the Supreme Court’s position regarding the retrospectivity of declarations of incompatibility in criminal cases.

scholarly journals The Practice of Introducing Restrictions on the Right to Freedom of Peaceful Assembly within Administrative Proceedings and the Place of the Judicial Branch of Power in Determining the Admissibility of Such Restrictions

2020 ◽  
Vol 90 (3) ◽  
pp. 162-176
Author(s):  
М. А. Самбор
Keyword(s):  
Supreme Court ◽  
Executive Branch ◽  
Constitutional Court ◽  
Administrative Discretion ◽  
The Supreme Court ◽  
Executive Agencies ◽  
Administrative Proceedings ◽  
The Right ◽  
Legal Understanding

The author has researched the practice of the executive branch of power of Ukraine in establishing a collective (general) ban and restriction of the right to freedom of peaceful assembly under quarantine, as well as the place and role of the judicial branch of power represented by the Supreme Court and the Constitutional Court of Ukraine in determining the constitutionality of such restrictions and prohibitions. The powers of the Supreme Court on the constitutional submission to the Constitutional Court of Ukraine on the constitutionality of the Resolution of the Cabinet of Ministers of Ukraine “On quarantine to prevent the spread of acute respiratory disease COVID-19 caused by coronavirus SARS-CoV-2 and stages of weakening of anti-epidemic measures” dated from May 20, 2020 No. 392 on the establishment of a ban on the exercise of the right to freedom of peaceful assembly within administrative proceedings during the introduction of quarantine in Ukraine, as well as the justification of such a constitutional submission. It is important to analyze and form a legal understanding of the Decision of the Constitutional Court of Ukraine on the unconstitutionality of restricting and prohibiting the exercise of the right to freedom of peaceful assembly during quarantine within administrative proceedings – by adopting the relevant resolution by the Cabinet of Ministers of Ukraine, which was the result of administrative discretion of the highest agency in the system of executive agencies of Ukraine. In this regard, the study focuses on the motivation and validity of the decision of the agency of constitutional jurisdiction and understanding of those legal and social values that were the basis for the judges of the Constitutional Court of Ukraine while adopting the decision dated from August 28, 2020 No 10-r/2020.

scholarly journals To the question of the peculiarities of the protection of the rights of spouses in cases of establishing the regime of separate residence of spouses

2021 ◽  
pp. 154-158
Author(s):  
O.А. Oksanyuk
Keyword(s):  
Supreme Court ◽  
Physical Violence ◽  
Scientific Article ◽  
Criminal Cases ◽  
Common Life ◽  
Joint Management ◽  
The Supreme Court ◽  
The Family ◽  
Legal Position ◽  
The Right

In the scientific article the author conducted a scientific study of the peculiarities of protection of property and personal non-property rights of spouses in cases of establishing a regime of separate residence. Based on the above research, the author notes that the importance of the legal position in cases of establishing a regime of separate residence of spouses is the decision of the Plenum of the Supreme Court of Ukraine №11 of December 21, 2007 “On the practice of law enforcement, divorce, annulment and division of joint property of the spouses “, namely paragraph 12 of this resolution. Unfortunately, this document is the only legal position of the Supreme Court on the establishment of the legal regime of separate residence of spouses, so to determine the approaches of courts of general jurisdiction in considering this category of cases, you should refer to the analysis of individual court deci-sions. The analysis of the conducted case law allows to indicate that the main reasons that indicate the impossibility and / or unwillingness of the spouses to live together may indicate: lack of common life goals and family interests, which makes it impossible to live together and marital relations, long separate residence, lack of joint household , the presence of different views on life, lack of mutual understanding in the family, lack of joint management, lack of desire to continue living together, family disputes and conflicts that led to tense relationships, lack of intention to resume cohabitation, alcohol abuse, lack interest in raising one’s own child, quarrels and physical violence against the other spouse. The decision of the High Specialized Court of the Court of Ukraine on Civil and Criminal Cases in Case №6-27361, according to which the existence of property disputes concerning joint joint ownership of spouses does not deprive the right to establish a separate residence regime, also has a certain legal position.

scholarly journals Kedudukan Kesaksian Polisi Penangkap Dalam Pemeriksaan Perkara Tindak Pidana Penyalahgunaan Narkoba

2019 ◽  
Vol 3 (1) ◽  
pp. 114-128
Author(s):  
Teuku Hendra Gunawan ◽  
Dahlan Ali ◽  
M. Nur Rasyid
Keyword(s):  
Drug Abuse ◽  
Supreme Court ◽  
Criminal Procedure ◽  
Criminal Cases ◽  
Law Enforcement Agencies ◽  
The Supreme Court ◽  
Police Presence ◽  
Article 50 ◽  
The Right ◽  
The Relationship

Putusan No. 1531 K/Pid.Sus/2010 Mahkamah Agung memutus bebas terdakwa tindak pidana narkotikabernama Ket San.Salah satu pertimbangan utama Mahkamah Agung adalah perihal kedudukan 2 (dua) orang polisi yang menangkap Ket San yang kemudian juga hadir sebagai saksi dipersidangan. Permasalahan yang perlu dikaji yaitu hubungan antara tersangka dengan polisi penangkapdan pembuktian kesaksian polisi penangkap dalam perkara tindak pidana penyalahgunaan narkoba.Tujuan penulisan untuk mengetahui hubungan antara tersangka dengan polisi penangkap dan bagaimana kekuatan pembuktian saksipolisi penangkap dalam perkara penyalahgunaan narkoba.Metode penelitian yang digunakan yaitu yuridis empiris. Hasil penelitian diketahui bahwa selama proses pemeriksaan berlangsung, seseorang yang disangka atau didakwa melakukan sesuatu tindak pidana dilindungi oleh hukum sebagaimana diatur dalam Pasal 50 sampai Pasal 68 KUHAP. Polisi Penangkap boleh bersaksi sepanjang memenuhi kualifikasi saksi sebagaimana diatur Pasal 1 angka 26 dan 27 KUHAP dan tidak dapat dipertimbangkan apabila keterangan saksi tersebut bertentangan dengan Pasal 185 ayat (6) KUHAP, secara formal kehadiran polisi penangkap di persidangan pada saat memberi keterangan yang sifatnya verbalisan. Disarankan bagi instansi penegak hukum untuk profesionalisme, wajib menghormati hak orang yang melakukan tindak pidana dalam memperoleh hak-haknya danketerangan saksi yang berasal dari Polisi Penangkap saja dalam satu perkara pidana sebaiknya dihindari kecuali Penuntut Umum memiliki alat bukti lain yang untuk mendukung pembuktian di persidangan.Ruling No. 1531 K/Pid. Sus/2010 Supreme Court break free of narcotics crime defendants named Ket San. One of the main considerations of the Supreme Court is about the position of two policemen who arrested Ket San which is then also present as witness in the courts. Problems that need to be examined are; the relationship between the suspect with police catcher and  the strength of police testimony in the case Crime Catcher drug abuse. The purpose of writing to find out the relationship between the suspect and catcher with the police how the strength of police testimony in the case Crime Catcher drug abuse. The research method used i.e. empirical juridical. The results of the research it is known that during the review process progresses, a person who is suspected or claimed to do something criminal acts are protected by law as set forth in article 50 to Article 68 Code of Criminal Procedure (KUHAP). Police Capture may testify all meet the qualifications of the witness as provided for article 1 numbers 26 and 27 Code of Criminal Procedure and cannot be taken into consideration when the witnesses are contrary to Article 185 paragraph (6) of the Code of Criminal Procedure, formally capture police presence is used at the time of giving the information to its verbalisan. Recommended for law enforcement agencies to work are professionalism, respect the right of the person obligated to perform criminal acts in obtaining his rights. And witnesses who came from the police only Catcher in one criminal cases should be avoided unless the Prosecutor has evidence sufficient to support another proof in court.

scholarly journals CONTROLE JUDICIAL DA EFETIVAÇÃO DO DIREITO À SAÚDE E O PRINCÍPIO DA ESCASSEZ

2017 ◽  
Vol 4 (1) ◽  
pp. 198
Author(s):  
Alexandre Machado De Oliveira ◽  
Celso De Barros Correia Neto
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Right To Health ◽  
Health Law ◽  
Judicial Control ◽  
Scarce Resources ◽  
Finance Law ◽  
The Supreme Court ◽  
The Right ◽  
Federal Supreme

RESUMO: O artigo discute os parâmetros do controle judicial da efetivação do direito à saúde, considerando especialmente o princípio da escassez. A metodologia adotada abrange revisão bibliográfica da doutrina de direito constitucional, financeiro e sanitário, conjugada com a análise da jurisprudência do Supremo Tribunal Federal. O artigo compreende oito tópicos, que envolvem uma abordagem do direito fundamental à saúde; a escassez dos recursos para a efetivação deste direito fundamental social; para, enfim, ingressar na questão do controle judicial de sua efetivação, abordando os desafios da realização de uma justiça distributiva, a necessidade de uma abordagem centrada na população, os critérios estabelecidos pelo Supremo Tribunal Federal, resultando na proposta de uma decisão que se afaste da regra de resgate e passível de uma audiência universal.PALAVRAS-CHAVE: Direito Financeiro. Direito à Saúde. Princípio da Escassez. Controle Judicial. SUMMARY: This article studies the judicial control of the effetuation of the right to health considering the lack of scarce resources. The methodology includes a literature review of the constitutional, finance and health law doctrine, combined with the analysis of the Brazilian Federal Supreme Court jurisprudence. This article comprises eight topics, which involve a fundamental right to health approach; the scarce resources for the effetuation of this fundamental social right; finally, to enter the issue of judicial review of its effectiveness, addressing the challenges of achieving distributive justice, the need for an approach based on population, the criteria established by the Supreme Court, resulting in the proposal for a decision that departs the rescue rule and be subject to an universal audience.KEYWORDS: Public Finance Law. Right to Health. Scarcity Principle. Judicial control.

scholarly journals Coercion or Extortion? (On the Problems of Delimiting Articles 179 and 163 of the Criminal Code of the Russian Federation)

2021 ◽  
Vol 2 ◽  
pp. 32-38
Author(s):  
Viktor I. Gladkikh ◽  
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Preliminary Investigation ◽  
Criminal Code ◽  
Criminal Cases ◽  
The Supreme Court ◽  
The Russian Federation ◽  
The Right

The article discusses the issues of distinguishing two types of crimes: extortion (Article 163 of the Criminal Code of the Russian Federation) and coercion to complete a transaction or to refuse to complete it (Article 179 of the Criminal Code of the Russian Federation), the objective parties of which have a certain similarity, which gives rise to problems of qualification to take possession of the right to someone else’s property or commit other property actions. The practice of applying the norms in question is analyzed, the author points out the qualification errors in this kind of criminal cases, both at the stage of preliminary investigation and judicial examination. It is proposed to give an appropriate explanation of the Plenum of the Supreme Court of the Russian Federation.

scholarly journals Access Denied? Inconsistent Jurisprudence on the Open Court Principle and Media Access to Exhibits in Canadian Criminal Cases

2011 ◽  
Vol 49 (1) ◽  
pp. 177 ◽  
Author(s):  
Dana Adams
Keyword(s):  
Supreme Court ◽  
Historical Development ◽  
Justice System ◽  
Supreme Court Of Canada ◽  
Media Access ◽  
Criminal Cases ◽  
Open Court ◽  
The Supreme Court ◽  
Central Tenet ◽  
Definition Of

The open court principle is a central tenet of the Canadian justice system. However, in cases involving media access to exhibits entered in court, the courts have been neither clear nor consistent in their interpretation and application of the open court principle. This article discusses the historical development of the open court principle and the definition of an “open court” today. The author proposes that the Supreme Court of Canada should clarify that the open court principle extends to access to exhibits and re-articulate the Dagenais/Mentuck test in order to resolve the inconsistencies regarding the open court principle.

The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

2017 ◽  
Vol 30 (1) ◽  
pp. 112-121
Author(s):  
Shamier Ebrahim
Keyword(s):  
Supreme Court ◽  
Waiting Lists ◽  
The State ◽  
Waiting List ◽  
Allocation Process ◽  
The Supreme Court ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

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