Наталія Кошіль, Наталія Рибіна, Людмила Собчук, Ольга Гирила АНГЛІЙСЬКА МОВА ДЛЯ ПРАВНИКІВ - Тернопіль: ТНЕУ, 2011.- 120 с.
Наталія Кошіль, Наталія Рибіна, Людмила Собчук, Ольга Гирила АНГЛІЙСЬКА МОВА ДЛЯ ПРАВНИКІВ - Тернопіль: ТНЕУ, 2011.- 120 с.
Методичний посібник розроблений для проведення занять з англійської мови для студентів-правників.
Посібник побудований на автентичному матеріалі і охоплює основні галузі права України, Великобританії та США. Система різноманітних вправ, підібраних за циклічним принципом, наявність двомовних тематичних словників у кожному уроці створюють сприятливі умови для ефективного засвоєння змісту матеріалу на занятті і надійного самоконтролю під час виконання домашніх робіт.
Методичний посібник рекомендований для студентів вищих навчальних закладів, котрі спеціалізуються у галузі юриспруденції, а також тих, хто прагне вдосконалити власні навички та вміння перекладу юридичної літератури.
The Court System of Ukraine
Remember the following words and word combinations.
TEXT A.Ukraine. Judicial System
The legal system of Ukraine is based on the framework of civil law. The legal system of Ukraine belongs to the Romano-Germanic legal tradition. The main source of legal information is codified law. Customary law and case law are not as common, though case law is often used in support of the written law, as in many other legal systems. Historically, the Ukrainian legal system is primarily influenced by the French Code Civil, Roman Law, and traditional Ukrainian customary law. The new civil law books (enacted in 2004) were heavily influenced by the “German Bürgerliches Gesetzbuch” (German Civil Code).
The primary law making body is the Ukrainian Parliament (Verkhovna Rada), also referred to as the legislature. The power to make laws can be delegated to lower governments or specific organs of the State, but only for a prescribed purpose. In recent years, it has become common for the legistature to create "framework laws" and delegate the creation of detailed rules to ministers or lower governments (e.g. a municipality).
Justice in Ukraine is administered exclusively by the courts. The delegation of the courts functions, and also the appropriation of these functions by other bodies or officials, are not permitted.
Although judicial independence exists in principal, judicial powers and political powers are not separated and judges are subjects of pressure by political and business interests.
The jurisdiction of the courts extends to all legal relations that arise in the State. Judicial proceedings are performed by the Constitutional Court of Ukraine and courts of general jurisdiction.
In Ukraine, the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialization. The regional, districts, cities courts hear small value claims and less serious offences. The Supreme Court of Ukraine is the highest judicial body in the system of courts of general jurisdiction. The respective high courts are the highest judicial bodies of specialized courts. Courts of appeal and local courts operate in accordance with the law.
The Constitutional Court of Ukraine is a special body with authority to assess whether legislative acts of the Parliament, President, Cabinet or Crimean Parliament are in line with theConstitution of Ukraine. This Court also gives commentaries to certain norms of the Constitution or laws of Ukraine (superior acts of Parliament).
Prosecutors in Ukraine have greater powers then in most European countries. According to the European Commission for Democracy through Law ‘the role and functions of the Prosecutor’s Office is not in accordance with Council of Europe standards".
Judges are appointed by the presidential decree for a period of five years, after which Ukraine's Supreme Council confirms them for life in an attempt to insulate them from politics. Judges are protected from dismissal (save in instances of gross misconduct).
TASK 1. Answer the following questions.
1. What do you know about Romano-Germanic legal tradition.?
2. What does a term “customary law” mean?
3. What does a term “case law” mean?
4. Why codified law is the main source of legal information?
5. What are the main features of the French Code Civil, Roman Law, and traditional Ukrainian customary law?
6. How is the system of Ukraine’s courts formed?
7. What issues (problems) are examined in the Constitutional Court?
8. What do you know about the functions of prosecutors in Ukraine?
9. Why judges should be protected from dismissal?
10. Some politicians have described the system of justice in Ukraine as “rotten to the core”, is it true or false?
TASK 2. Translate the following words and word combinations into English.
Голова Конституційного Суду; правовий акт; єдиний орган; посада; повноваження судді; відповідність законів; обов’язковий для виконання; міжнародний договір; призначати; тлумачення закону; юридична сила; юридичний орган.
TASK 3. Translate the following text into English.
У статті 124 Конституції України зазначено, що правосуддя в Україні здійснюється виключно судами і що будь-яке привласнення функцій судів іншими органами чи посадовими особами не допускається. Згідно з Конституцією, судовому захисту підлягають усі права, свободи та обов’язки громадян.
Судочинство в Україні здійснюється Конституційним Судом України та судами загальної юрисдикції. Конституційний Суд входить до судової влади як її самостійний суб’єкт і є єдиним органом конституційної юрисдикції у нашій державі, що вирішує питання про відповідність законів та інших правових актів Конституції України, а також дає офіційне тлумачення Конституції та законів України.
На сьогоднішній день рішення загальних судів першої інстанції можна оскаржити в загальних судах вищої інстанції, оскільки система апеляційних судів ще не діє.
TASK 4. Agree or disagree with the following statements.
1) The system of courts of general jurisdiction is formed in accordance with the Constitution of Ukraine.
2) Justice in Ukraine is administered by the Parliament of Ukraine.
3) Constitutional Court of Ukraine hears all civil and criminal cases.
4) The Court’s rulings are final and cannot be appealed.
5) The Constitutional Court consists of a Chairman and eight judges.
TASK 5. Read the text, put the verbs in brackets into the correct form. After checking the exercise retell the story-joke.
The lawyer for the defence (to be) cross-examining a witness in a robbery case.
“When did the robbery (to take) place?” demanded the counsel in a bullying tone.
“I (to think)” – began the witness, but the lawyer (to interrupt) him.
“We don’t (to care), what you think, sir. We (to want) to know what you know.”
“Then if you don’t want to know what I think”, (to say) the witness quietly, ”I may as well leave the box. I can’t talk without thinking – I (to be) not a lawyer”.
Remember the following words and word combinations.
TEXT B. COURTS OF UKRAINE
Article 125 of the Constitution of Ukraine stipulates the structure of the courts of general jurisdiction based on the principles of territoriality and specialization. While the principle of territoriality reflects the administrative territorial division of the country and is a traditional one, the principle of specialization is comparatively new in the court system of Ukraine. It foresees the creation in future of specialized courts in different spheres of justice (criminal, civil, administrative, financial and other) together with the corresponding superior courts.
The judicial system of Ukraine consists of four levels of courts of general jurisdiction, as follows:
Local courts of general jurisdiction (combining criminal and civil jurisdiction) consisting of:
− district, urban district and town courts;
− regional courts;
− city courts in Kiev and Sevastopol;
− administrative local courts.
Courts of Appeal, consisting of:
− appellate court of the Autonomous Republic of Crimea;
− regional appellate courts;
− appellate courts of the cities of Kiev and Sevastopol;
− appellate court of the Ukrainian Navy;
− regional military appellate courts;
− economic appellate courts (known also as arbitration courts);
− administrative appellate courts
The Appellate Court of Ukraine (currently not existed)
High courts with specialized jurisdiction:
The High Administrative Court of Ukraine, covering administrative cases;
The High Arbitration Court of Ukraine, covering economic and commercial cases
The Supreme Court, covering all cases.
The Constitutional Court of Ukraine is the sole body of constitutional jurisdiction in Ukraine. The Constitutional Court of Ukraine decides on issues of conformity of laws and other legal acts with the Constitution of Ukraine and provides the official interpretation of the Constitution of Ukraine and the laws of Ukraine.
The Court initiated its activity on October 18, 1996. The first Court ruling was made on May 13, 1997.
The authority of the Constitutional Court is derived from Ukraine’s Constitution – Chapter XII.
Ø on the appeal of the President, no less than 45 members of the parliament, the Supreme Court of Ukraine, the Ombudsman, or the Crimean parliament, assesses the constitutionality of:
− laws and other legal acts of the parliament;
− acts of the President;
− acts of the Cabinet;
− legal acts of the Verkhovna Rada of the Autonomous Republic of Crimea (Crimean parliament);
Ø officially interprets the Constitution and laws of Ukraine;
Ø on the appeal of the President or the Cabinet, provides opinions on the conformity with the Constitution of international treaties;
Ø on the appeal of the parliament, provides an opinion on the observance of the procedure of impeachment of the President;
Ø provides an opinion on the compliance of a bill on introducing amendments to the Constitution with the restrictions imposed by the Constitution.
The Court’s rulings are mandatory for execution in Ukraine, are final and cannot be appealed. Laws and other legal acts, or their separate provisions, that are unconstitutional, lose legal force.
The Court is composed of 18 judges, appointed in equal shares by the President, the parliament, and the Congress of Judges.
A judge must be a citizen of Ukraine and must have:
− the age of forty;
− a higher legal education and professional experience of no less than 10 years;
− resided in Ukraine for the last twenty years;
− command of the state language.
Judges are appointed for nine years without the right of reappointment. The President and parliament are required to fill a vacant position within one month and the Congress of judges has three months to do so.
The Chairman of the Court is elected by secret ballot for a single three-year term from and by the members of the Court.
Local courts of general jurisdiction hear criminal and civil cases as well as cases on administrative offences.
Local commercial courts hear cases connected with commercial relations as well as other cases attributed by the legislation currently in force to their jurisdiction.
Local administrative courts hear cases connected with the sphere of state administration and local self-government (cases of administrative jurisdiction) except for cases of administrative jurisdiction in the military sphere, which are taken to military courts.
TASK 4. Fill in the blanks.
The federal courts have three tiers: (a) ___________ courts, courts of (b)_________ and the (c) ____________. The (d) __________Court was created by the Constitution; all other (e) ____________ courts were created by Congress. Most litigation occurs in (f) __________ courts. The structure of (g) _________ courts varies from state to state; usually there are (h) __________ for less serious cases, (i) _________ for more serious cases, intermediate (j) _________ courts, and courts of last (k) _____. State courts were created by state constitutions.
State Judicial Systems
When America declared its independence in 1776, the 13 original colonies had largely informal judicial systems based loosely on the English system of common law. Common law is the body of law that developed in English courts on a case-by-case basis. Under the common law, judges placed great reliance on decisions in prior cases with similar facts. Although state courts today apply laws enacted by legislatures and administrative bodies, they continue the common law tradition of case-by-case interpretation of these laws and reliance on prior judicial decisions.
As the United States expanded southward and westward, it acquired Mexican, Spanish, and French territories, which had legal systems based on the European civil law tradition. Under that tradition, courts in Europe applied detailed civil codes that the legislatures had designed to resolve all potential disputes. Civil codes reflected the natural law concept that there are unchanging, God-made laws that govern human behavior. Unlike in common law systems, civil law courts were not supposed to interpret the law beyond what was provided in the civil codes − they simply resolved disputes by applying the appropriate portion of the code. While the English common law tradition dominated the formation of American state legal systems, remnants of the civil law tradition exist even today, most notably in Louisiana, which based its legal system on the civil law of France.
The federal judiciary was born in 1789 upon adoption of the U.S. Constitution, which vested the judicial power of the United States in "one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The Constitution created a judicial system that contains elements of both the common and civil law traditions. The latter is evident in one of the purposes expressed in the Constitution's preamble − to "secure the Blessings of Liberty." The Constitution, however, is subject to case-by-case interpretation by the U.S. Supreme Court, which usually limits itself by the principle of stare decisis.
The existence of separate federal and state judicial systems in the United States is a hallmark of federalism, which means these systems share authority to resolve legal disputes in their geographic boundaries. Federal and state courts sometimes have concurrent jurisdiction to resolve disputes arising from the same set of circumstances. For instance, federal and state authorities both took judicial action following the bombing of the Alfred P. Murrah Federal Building in Oklahoma City in 1995. Federal and state courts occasionally have exclusive jurisdiction over certain areas of the law. State courts, for instance, typically have exclusive jurisdiction to handle child custody disputes, while federal courts exclusively handle bankruptcy cases. The U.S. Constitution determines whether state and federal courts have concurrent or exclusive jurisdiction over a particular issue.
TASK 4. Fill in the blanks.
The Supreme Court of the USA consists of (a) ___________. They are appointed by (b) ____________, and must be approved by (c) _________. A decision of the Supreme Court (d) ___________ to any other court. The Supreme Court has direct jurisdiction in the following kinds of cases: (e) __________. All other cases are (f) _______. The only power of the Supreme Court which is not stated in the Constitution is the power of (g) _________ .
The Need for Law
TEXT A. LAW AND SOCIETY
Mr. Jones, having murdered his wife, was burying her in the garden one night, when his neighbour, hearing the noise, asked him what he was doing.
“Just burying the cat,” said Mr. Jones.
“Funny sort of time to bury a cat,” said the neighbour.
“Funny sort of cat,” said Mr. Jones.
Now it is obvious to everyone that, in a community such as the one in which we live, some kind of law is necessary to try to prevent people like Mr. Jones from killing their wives. When the world was at a very primitive stage, there was no such law, and, if a man chose to kill his wife or if a woman succeeded in killing her husband, that was their own business and no one interfered officially.
But, for a very long time now, members of every community have made laws for themselves in self-protection. Otherwise it would have meant that the stronger man could have done what he liked with the weaker, and bad men could have joined together and terrorized the whole neighbourhood.
If it were not for the law, you could not go out in broad daylight without the fear of being kidnapped, robbed or murdered. There are far, far more good people in the world than bad, but there are enough of the bad to make law necessary in the interests of everyone.
There is no difficulty in understanding this but it is just as important to understand that law is not necessary just because there are bad people in the world. If we were all as good as we ought to be, laws would still be necessary. If we never told lies, never took anything that didn’t belong to us, never omitted to do anything that we ought to do and never did anything that we ought not to do, we should still require a set of rules of behaviour, in other words laws, to enable us to live in any kind of satisfactory state.
How is one good man in a motor-car to pass another good man also in a motor-car coming in the opposite direction, unless there is some rule of the road? People sometimes hover in front of one another when they are walking on the pavement before they can pass, and they may even collide. Not much harm is done then, but, if two good men in motor-cars going in the opposite directions hover in front of one another, not knowing which side to pass, the result will probably be that there will be two good men less in the world.
So you can see that there must be laws, however good we may be. Unfortunately, however, we are none of us always good and some of us are bad, or at any rate have our bad moments, and so the law has to provide for all kinds of possibilities. Suppose you went to a greengrocer and bought some potatoes and found on your return home that they were mouldy or even that some of them were stones. What could you do if there were no laws on the subject? In the absence of law you could only rely upon the law of the jungle. You could go back to the shop, demand proper potatoes and hit the shopkeeper on the nose if he refused to give them to you. You might then look round the shop to try to find some decent potatoes. While you were doing this, the shopkeeper might hit you on the back of the neck with a pound weight. Altogether not a very satisfactory morning shopping.
Or you might pay your money to go to see a film at a cinema. You might go inside, sit down and wait. When the cinema was full, there might be flashed on the screen: “You’ve had it, Chums”. And that might be the whole of the entertainment. If there were no law, the manager could safely remain on the premises and, as you went out, smile at you and say: “Hope you’ve enjoyed the show, sir.” That is to say, he could do this safely if he were bigger than you or had a well-armed bodyguard.
Every country tries, therefore, to provide laws which will help its people to live safely and as comfortably as possible. This is not at all an easy thing to do, and no country has been successful in producing laws which are entirely satisfactory. But we are far better off with the imperfect laws which we have, than if we had none at all.
TEXT A. CRIMINAL LAW
Criminal law absorbs our attention in a way that no other body of law does. Horrific crimes, juicy tales of passion, and mundane muggings occupy the front pages and public attention. Criminal law is a hot political topic that has immediate personal dimensions. But, as elsewhere in the law, the issues are more complicated than they seem.
To define criminal law, we need to distinguish it from other bodies of law that do something like that, and to distinguish the substantive criminal law from the process that applies it.
Criminal law is the body of law that defines criminal offenses, regulates the apprehension, charging, and trial of suspected persons, and fixes punishment for convicted offenders. Criminal law defines acts as criminal. In other words, however immoral or unjust an act may be thought to be, it is not a crime unless the law says it is one. Criminal acts are so wrongful that when someone commits a criminal act as distinguished from some other type of wrong, she is not just made to pay damages or be snubbed at the country club, she is punished.
We need criminal law to punish criminals and prevent crime.
The first purpose criminal law serves is to define what behavior society regards as wrongful. It is wrong to murder your neighbor, set fire to her house, or steal her lawnmower. The acts defined as criminal often (but not always) have the most serious consequences for others; murder and arson are very harmful, but stealing your neighbor’s lawnmower probably is less of a social evil than manufacturing lawnmowers without adequate safety devices, which is only a civil wrong.
A crime is usually defined as a voluntary act or omission, together with a given state of mind. The state of mind involves purpose, awareness, recklessness, or negligence. Acts committed during fits of epilepsy or while sleepwalking are involuntary and thus do not qualify as crimes. Mental disorders are also recognized as limiting or absolving responsibility for acts otherwise regarded as criminal. The law of most countries recognizes that the use of force might be justifiable. The use of force might be justifiable in self-defense, defense of other persons, protection of property, and enforcement of the law. Criminal acts include arson, rape, treason, aggravated assault, theft, burglary, robbery, murder, and conspiracy. [Conspiracy is a secret plan made by two or more people to do something that is harmful or illegal.] Criminal law also deals with the preparation of charges and with trial procedures. The latter involves the formation of juries, the guarantee of a public trial, the right to counsel, the presentation of evidence, the establishment of guilt, and sentencing, if guilt has been established. Criminal law is concerned with postconviction procedures, such as calling for a new trial or challenging a conviction, either in the court where the conviction was declared or in appeal to a higher court.
TASK 6. ROLE PLAY. Enact a role play “Trying a criminal case”. You are the jury and must decide whether to acquit the accused or sentence them to a term of imprisonment (minimum 3 months / maximum life). Or could you think of a more appropriate punishment?
Case 1.A driver while speeding hit a cyclist off her bike. She was badly injured and confined to a wheelchair for the rest of her life. The driver didn’t stop so he’s charged with hit and run.
Case 2. The accused is a doctor who gave an overdose to an 87-year-old woman. She had a terminal illness, was in constant pain and had asked for the overdose. Her family is accusing the doctor of murder.
Case 3. A. and B. mug Mr. X., take his money and leave him for dead. B. later returns alone and pushes the body in the river. An autopsy reveals that the man was still just alive when pushed in the water and subsequently drowned.
TEXT A. CIVIL LAW
Civil Law is the body of private law used in those countries in which the legal system is based on ancient Roman law modified by medieval and modern influences. Civil law is used in most nations in Europe and Latin America, as well as in some countries in Asia and Africa. The law of Great Britain, the United States, Canada, and a number of other nations is besed on English commonlaw, which differs from civil law in origin and other important respects.
The term civil law is also employed to distinguish those legal codes that deal with civil relationships (such as citizenship, marriage, divorce, and certain contractual arrangements) from other codes such as those dealing with criminal law.
The civil law originated in ancient Rome. One of the principal characteristics of Roman civilization was the development of strong legal institutions. In the 6th century, a commission appointed by the Emperor Justinian collected and consolidated all the sources of law, including the opinions of the great legal scholars during previous centuries. Theresult was the Corpus Juris Civilis (Body of Civil Law), also called the Justinian Code, a comprehensive code with the accumulated wisdom and experience of many generations of Roman jurists.
The principle of civil law is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow. It is the most prevalent and oldest surviving legal system in the world. Colonial expansion spread the civil law system and European civil law has been adopted in much of Latin America as well as in parts of Asia and Africa.
The primary source of law is the legal code, which is a compendium of statutes, arranged by subject matter in some pre-specified order; a code may also be described as "a systematic collection of interrelated articles written in a terse, staccato style." Law codes are usually created by a legislature's enactment of a new statute that embodies all the old statutes relating to the subject and including changes necessitated by court decisions. In some cases, the change results in a new statutory concept. The two other major legal systems in the world are common law and Islamic law.
Civil law systems may be subdivided into further categories:
− Countries where Roman law in some form is still living law and there has been no attempt to create a civil code: Andorra and San Marino
− Countries with mixed systems in which Roman law is an academic source of authority but common law is also influential: Scotland and the Roman-Dutch law countries (South Africa, Zambia, Zimbabwe, Sri Lanka and Guyana)
− Countries with codes intended to be comprehensive, such as France: it is this last category that is normally regarded as typical of "civil law" systems.
The Scandinavian systems are of an intermediate character, as they have a background of Roman and customary law together with partial codification. The laws of Louisiana and Quebec may also be considered as hybrid systems, in that a French-type civil code coexists with pre-revolutionary French customary law and considerable common law influence.
A prominent example of civil law would be the Napoleonic Code (1804), named after French emperor Napoleon Bonaparte. The Code comprises three components: the law of persons, property law, and commercial law. Rather than a catalog of judicial decisions, the Code consists of abstractly written principles as rules of law.
Civil law is sometimes referred to as neo-Roman law, Romano-Germanic law or Continental law. The expression civil law is a translation of Latin jus civile, or "citizens' law", which was the Late Imperial term for its legal system, as opposed to the laws governing conquered peoples (jus gentium).
TASK 6. Just for Fun.
Bursting into the lawyer’s office, a butcher cried, “If a dog steals a piece of meat from my shop, is the owner responsible?”
“Of course”, said the lawyer.
“Well, your dog took a piece of meat worth half a dollar about five minutes ago.”
“All right”, said the lawyer without blinking, “give me the other half dollar and that will make my fee.”
legal advice – юридична консультація;
burst into – вриватися, влітати;
butcher – м’ясник;
steal – красти;
owner – власник;
responsible – відповідальний за щось;
worth – вартістю;
without blinking – не моргнувши оком;
fee – тут плата за юридичну консультацію
MUST BE BROUGHT
The first procedural questions in any case are: where must the case be filed, and when must the case be filed. Venue concerns the location of the particular court where a case must be tried. Statutes of limitations provide time limits for bringing civil lawsuits and criminal prosecutions.
Jurisdiction. Generally, jurisdiction means the power of a court. Different courts have different powers, and a case can be brought only in a court with authority to deal with it. There are several kinds of jurisdiction. “Subject matter jurisdiction” is the power of a court to deal with particular kinds of cases. “Monetary jurisdiction” is the minimum or maximum dollar limit on civil cases that a particular court can handle. “Territorial jurisdiction” is the geographic extent of a court’s power.
A court has territorial jurisdiction over civil cases when the incident or transaction on which the case is based occurred in the court’s territory or, in some cases, when the defendant or the plaintiff lives in the court’s territory. In criminal cases, a court generally has jurisdiction when the crime, or any essential part or “element” of the crime, occurred in the court’s territory.
Venue. Whereas jurisdiction refers to the power of a court to try a case, venue refers to the place where it is to be tried. Usually, venue follows territorial jurisdiction in both civil and criminal cases. Venue can be changed in criminal cases when the change is necessary to secure a fair trial. A change of venue might be granted, for example, in the trial of a particularly heinous crime where publicity has inflamed local public opinion against the.
Who is who in law?
TEXT B. CHOOSING THE JURY
Jury is a group of layman who participate in deciding cases brought to trial. These laymen are recruited at random from the widest population for the trial of a particular case. They are allowed to deliberate in secrecy, to reach a decision, and to make it public without giving reasons. Throughout its history, it has been both overpraised as a charter of liberty and overcriticized as a reliance on incompetent amateurs in the administration of justice.
The process of choosing jurors is called “voir dire”. Potential jurors are interviewed in open court by each of the attorneys. There are two ways of rejecting potential jurors: “challenge for cause” and “peremptory challenge”.
Prospective jurors may be challenged for cause for any of a number of specific reasons. Some of the more obvious reasons include that a juror: is a witness in the case; is related to a party; has some close personal or business relationship to a party; has already served on a jury in a case involving one or more of the parties; has already formed an opinion or is otherwise biased; is an alcoholic, drug addict, mental incompetent, or convicted felon; does not speak or understand English well enough to follow the proceeding and participate injury deliberations. There is no limit to the number of prospective jurors who may be challenged for cause. Each time a prospective juror is excused, another will be interviewed.
When each side has run out of challenges for cause, each side may exercise its peremptory challenges. No reason need be given for peremptorily excusing a juror, but each party has only a limited number of peremptory challenges. In criminal cases the number of peremptory challenges allowed each party is six in capital cases, four in all other felony cases, and three in misdemeanor cases. Each party is allowed three peremptory challenges in civil cases. Beginning with the complaining party, each side takes turns exercising its peremptory challenges one at a time. A peremptory challenge is lost when the turn comes to use it and it is not used. When all challenges are used or passed, the jury is complete. The jury then takes an oath to do its duty.
TASK 6. Just for Fun.
* * *
A jury consists of twelve persons chosen to decide who has the better lawyer.
* * *
“You seem to be in some distress”, said the judge to the witness. “Is anything wrong?”
“Well, your Honour”, said the witness, “I swore to tell the truth and nothing but the truth, but every time I try, some lawyer objects!”
* * *
A man accused of stealing a watch was acquitted on insufficient evidence. Outside the courtroom he approached his lawyer and said, “What does that mean – acquitted?”
“It means”, said the lawyer, “that the court has found you innocent. You are free to go.”
“Does it mean I can keep the watch?” asked the client.
TEXT A. TRIAL
The main steps in a trial include: selection of a jury; opening statements by the attorneys; presentation of witnesses and evidence (the complaining party always goes first, and the defense next); closing statements by the attorneys; instructions by the judge to the jury; and deliberation and decision by the jury.
The Trial as an Adversary Proceeding. A trial is an adversary proceeding, that is, a contest between opponents. Each party presents evidence and argument. The judge’s function is to control the contest as a neutral referee and to rule on questions of law. The jury’s function is to decide questions of fact.
Burden and Degree of Proof. The fact that a trial is a contest dictates the order in which its events proceed. The initial burden falls on the complaining party – the plaintiff in a civil case, or the state in a criminal case. The complaining party must first establish that party’s case. If the complaining party fails to establish a case, there is nothing for the defendant to refute.
Different kinds of cases require different degrees of proof. In most civil cases, the winner is the party whose position is supported by the preponderance of the evidence.
In a criminal case, the state must prove the defendant’s guilt beyond a reasonable doubt. This means that even if a preponderance of the evidence favors the state, and even if the state’s evidence is convincing, the decision must be awarded to the defendant if a reasonable doubt of the defendant’s guilt remains.
As a juror, you may sit on a criminal case, a civil case, or both.
Civil Cases. Civil cases are usually disputes between or among private citizens, corporations, governments, government agencies, and other organizations. Most often, the party bringing the suit is asking for money damages for some wrong that has been done. For example, a tenant may sue a landlord for failure to fix a leaky roof, or a landlord may sue a tenant for failure to pay rent. People who have been injured may sue a person or a company they feel is responsible for the injury.
The party bringing the suit is called the plaintiff; the party being sued is called the defendant. There may be many plaintiffs or many defendants in the same case.
The plaintiff starts the lawsuit by filing a paper called a complaint, in which the case against the defendant is stated. The next paper filed is usually the answer, in which the defendant disputes what the plaintiff has said in the complaint. The defendant may also feel that there has been a wrong committed by the plaintiff, in which case a counterclaim will be filed along with the answer. It is up to the plaintiff to prove the case against the defendant. In each civil case the judge tells the jury the extent to which the plaintiff must prove the case. This is called the plaintiff’s burden of proof, a burden that the plaintiff must meet in order to win. In most civil cases the plaintiff’s burden is to prove the case by a preponderance of evidence, that is, that the plaintiff’s version of what happened in the case is more probably true than not true.
Jury verdicts do not need to be unanimous in civil cases. Only ten jurors need to agree upon a verdict if there are 12 jurors: five must agree if there are six jurors.
Criminal Cases. A criminal case is brought by the state or by a city or county against a person or persons accused of having committed a crime. The state, city, or county is called the plaintiff; the accused person is called the defendant. The charge against the defendant is called an information or a complaint. The defendant has pleaded not guilty and you should presume the defendant’s innocence throughout the entire trial unless the plaintiff proves the defendant guilty. The plaintiff’s burden of proof is greater in a criminal case than in a civil case. In each criminal case you hear the judge will tell you all the elements of the crime that the plaintiff must prove; the plaintiff must prove each of these elements beyond reasonable doubt before the defendant can be found guilty.
In criminal cases the verdict must be unanimous, that is, all jurors must agree that the defendant is guilty in order to overcome the presumption of innocence.
TEXT B. COURTROOM PERSONNEL
In addition to the lawyers and the judge, three other people will play an important role in the trial. The COURT REPORTER, who sits close to the witnesses and the judge, puts down every word that is spoken during the trial and also may record the proceedings on tape. The CLERK, who sits right below the judge, keeps track of all documents and exhibits and notes down important events in the trial. The BAILIFF helps to keep the trial running smoothly. The jury is in the custody of the bailiff, who sees to the jurors comfort and convenience and helps them if they are having any problems related to jury service.
In 1981 Marianne Bachmeir, from Lubeck, West Germany, was in court watching the trial of Klaus Grabowski, who had murdered her 7 year-old daughter. Grabowski had a history of attacking children. During the trial, Frau Bachmeir pulled a Beretta 22 pistol from her handbag and fired eight bullets, six of which hit Grabowski, killing him. The defence said she had bought the pistol with the intention of committing suicide, but when she saw Grabowski in court she drew the pistol and pulled the trigger. She was found not guilty of murder, but was given six years imprisonment for manslaughter. West German newspapers reflected the opinion of millions of Germans that she should have been freed, calling her “the avenging mother”.
In 1952 two youths in Mitcham, London, decided to rob a dairy. They were Christopher Craig, aged 16, and Derek William Bentley, 19. During the robbery they were disturbed by Sydney Miles, a policeman. Craig produced a gun a killed the policeman. At that time Britain still had the death penalty for certain types of murder, including murder during a robbery. Because Craig was under 18, he was sentenced to life imprisonment. Bently who had never touched the gun, was over 18. He was hanged in 1953. The case was quoted by opponents of capital punishment, which was abolished in 1965.
In 1976 a drunk walked into a supermarket. When the manager asked him to leave, the drunk assaulted him, knocking out a tooth. A policeman who arrived and tried to stop the fight had his jaw broken. The drunk was fined £ 10.
Match the following headings with the sections of the text below:
• Psychological and psychiatric theories
• Biological theories
• Multiple causation theory
• Social environment theories
• Theological and ethical theories
• Climatic theory
(1) No one knows why crime occurs. The oldest theory, based on theology and ethics, is that criminals are perverse persons who deliberately commit crimes or who do so at the instigation of the devil or other evil spirits. Although this idea has been discarded by modern criminologists, it persists among uninformed people and provides the rationale for the harsh punishments still meted out to criminals in many parts of the world.
(2) Since the 18th century, various scientific theories have been advanced to explain crime. One of the first efforts to explain crime on scientific, rather than theological, grounds was made at the end of the 18th century by the German physician and anatomist Franz Joseph Gall, who tried to establish relationships between skull structure and criminal proclivities. This theory, popular during the 19th century, is now discredited and has been abandoned. A more sophisticated theory – a biological one – was developed late in the 19th century by the Italian criminologist Cesare Lombroso, who asserted that crimes were committed by persons who are born with certain recognizable hereditary physical traits. Lombroso’s theory was disproved early in the 20th century by the British criminologist Charles Goring. Goring’s comparative study of jailed criminals and law-abiding persons established that so-called criminal types, with innate dispositions to crime, do not exist. Recent scientific studies have tended to confirm Goring’s findings. Some investigators still hold, however, that specific abnormalities of the brain and of the endocrine system contribute to a person’s inclination toward criminal activity.
(3) Another approach to an explanation of crime was initiated by the French political philosopher Montesquieu, who attempted to relate criminal behavior to natural, or physical environment. His successors have gathered evidence tending to show that crimes against person, such as homicide, are relatively more numerous in warm climates, whereas crimes against property, such as theft, are more frequent in colder regions. Other studies seem to indicate that the incidence of crime declines in direct ratio to drops in barometric pressure, to increased humidity, and to higher temperature.
(4) Many prominent criminologists of the 19th century, particularly those associated with the Socialist movement, attributed crime mainly to the influence of poverty. They pointed out that persons who are unable to provide adequately for themselves and their families through normal legal channels are frequently driven to theft, burglary, prostitution, and other offences. The incidence of crime especially tends to rise in times of widespread unemployment. Present-day criminologists take a broader and deeper view; they place the blame for most crimes on the whole range of environmental conditions associated with poverty. The living conditions of the poor, particularly of those in slums, are characterized by overcrowding, lack of privacy, inadequate play space and recreational facilities, and poor sanitation. Such conditions engender feelings of deprivation and hopelessness and are conducive to crime as a means of escape. The feeling is encouraged by the example set by those who have escaped to what appears to be the better way of life made possible by crime.
Some theorists relate the incidence of crime to the general state of a culture, especially the impact of economic crises, wars, and revolutions and the general sense of insecurity and uprootedness to which these forces give rise. As a society becomes more unsettled and its people more restless and fearful of the future, the crime rate tends to rise. This is particularly true of juvenile crime, as the experience of the United States since World War II has made evident.
(5) The final major group of theories is psychological and psychiatric. Studies by such 20th century investigators as the American criminologist Bernard Glueck and the British psychiatrist William Healy have indicated that about one-fourth of a typical convict population is psychotic, neurotic, or emotionally unstable and another one-fourth is mentally deficient. These emotional and mental conditions do not automatically make people criminals, but do, it is believed, make them more prone to criminality. Recent studies of criminals have thrown further light on the kinds of emotional disturbances that may lead to criminal behavior.
(6) Since the mid-20th century, the notion that crime can be explained by any single theory has fallen into disfavour among investigators. Instead; experts incline to so-called multiple factor, or multiple causation theories. They reason that crime springs from a multiplicity of conflicting and converging influences – biological, psychological, cultural, economic and political. The multiple causation explanations seem more credible than the earlier, simpler theories. An understanding of the causes of crime is still elusive, however, because the interrelationship of causes is difficult to determine.
TASK 5. DEBATE.
All criminals are perverse people!
Prepare your arguments for or against the statement above.
Use the active vocabulary from the Unit.
Divide into two groups – pro and con, and conduct a debate.
Appoint the ‘Chair’ of the debate who will give the floor to the speakers of both teams.
TEXT B. ORGANIZED CRIME
In addition to that segment of the population made up of individual criminals acting independently or in small groups, there exists a so-called underworld of criminal organizations engaged in offenses such as organized vice (drugs, prostitution, pornography, loan-sharking, gambling), cargo theft, fraud, robbery, kidnapping for ransom, and the demanding of ”protection” payments. [Loan-sharking is lending money at extremely high rates of interest.] In the United States and Canada, the principal source of income for organized crime is the supply of goods and services that are illegal but for which there is continued public demand. Organized crime in the United States is a set of shifting coalitions between groups of gangsters, business people, politicians, and union leaders. Many of these people have legitimate jobs and sources of income. In Britain groups of organized criminals have not developed in this way, principally because the supply and consumption of alcohol and opiates (a type of drug that contains opium and makes you want to sleep), gambling, and prostitution remain legal but partly regulated. This reduces the profitability of supplying such demands criminally. British crime organizations tend to be relatively short-term groups drawn together for specific projects, such as fraud and armed robbery, from a pool of professional criminals. Crime syndicates in Australia deal with narcotics, cargo theft and racketeering. [Syndicate is a group of people or companies who join together in order to achieve a particular aim. Racketeering is a dishonest way of obtaining money, such as by threatening people.] In Japan, there are gangs who specialize in vice and extortion. In many Third World countries, apart from the drug trade, the principal form of organized crime is black-marketeering, including smuggling and corruption in the granting of licenses to import goods and to export foreign exchange. Armed robbery, cattle theft, and maritime piracy and fraud are organized crime activities in which politicians have less complicity. Robbery is particularly popular and easy because of the availability of arms supplied to nationalist movements by those who seek political destabilization of their own or other states, and who may therefore exploit the dissatisfaction of ethnic and tribal groups.
Ukrainian criminalists have to draw national strategy which will be effective in their battle against organized crime.
TASK 6. Just for Fun
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Murder is always a mistake… One should never do anything that one cannot talk about after dinner.
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A man sentenced to death was being taken to the execution place in very nasty weather.
“What lousy weather”, he remarked.
“You are not the one to grumble”, commented one of the escort.
“We’ve got yet to go back”.
TEXT A. PUNISHMENT
Punishment describes the imposition by some authority of a deprivation – usually painful – on a person who has violated a law, a rule, or other norm. When the violation is of the criminal law of society there is a formal process of accusation and proof followed by imposition of a sentence by a designated official, usually a judge. Informally, any organized group – most typically the family, may punish perceived wrongdoers.
Because punishment is both painful and guilt producing, its application calls for a justification. In Western culture, four basic justifications have been given: retribution, deterrence, rehabilitation, and incapacitation.
Most penal historians note a gradual trend over the last centuries toward more lenient sentences in Western countries. Capital and corporal punishment, widespread in the early 19th century, are seldom invoked by contemporary society. Indeed, in the United States corporal punishment as such appears to be contrary to the 8th Amendment’s restrictions on cruel and unusual punishment. Yet the rate of imprisonment in the United States appears to be growing. Furthermore, since the mid-1970s, popular and professional sentiment has taken a distinctly punitive turn and now tends to see retribution and incapacitation – rather than rehabilitation – as the goals of criminal punishment.
Criminal sentences ordinarily embrace four basic modes of punishment. In descending order of severity these are: incarceration, community supervision, fine, and restitution. The death penalty is now possible only for certain types of atrocious murders and treason.
Punishment is an ancient practice whose presence in modern cultures may appear to be out of place because it purposefully inflicts pain. In the minds of most people, however, it continues to find justification.
TEXT B. PRISONS
The idea of imprisonment as a form of punishment is relatively modern. Until the late 18th century, prisons were used primarily for the confinement of debtors who could not pay, of accused persons waiting to be tried, and of those convicted persons waiting for their sentences – death or transportation. Since the late 18th century, with the decline of capital punishment (death penalty), the prison has come to be used also as a place of punishment. With the abolition of transportation, the prison has become the principal sanction for most serious crimes. Concern over prison conditions has not diminished over the years. Problems of security and the protection of prisoners from violence on the part of other prisoners have been compounded by the difficulties arising from overcrowding, as prison populations in most countries continue to grow. The people who make up the populations of most prison systems have many characteristics in common. The populations of most prison systems are predominantly male – in England males outnumber females by 28 to 1 (although the number of women in prison is rising at a higher rate than the number of men) – and relatively young – nearly 70 percent of those in custody are under the age of 30. [To be in custody means to be kept in prison by the police until you go to court, because the police think you are guilty]. Most offenders in prison have a number of previous convictions; the offenses they have committed are most commonly burglary, theft, violence, or robbery. A similar picture is revealed by U.S. statistics; the most common offenses for which prisoners are in custody are burglary and robbery. [Burglary is the crime of getting into a building to steal things. Violence is behaviour that is intended to hurt other people physically. Robbery is the crime of stealing things from a bank, shop etc, especially using violence].
Bernard Lewis, a thirty-six-old man, while preparing dinner became involved in an argument with his drunken wife. In a fit of a rage Lewis, using the kitchen knife with which he had been preparing the meal, stabbed and killed his wife. He immediately called for assistance, and readily confessed when the first patrolman appeared on the scene with the ambulance attendant. He pleaded guilty to manslaughter. The probation department’s investigation indicated that Lewis was a rigid individual who never drank, worked regularly, and had no previous criminal record. His thirty-year-old deceased wife, and mother of three children, was a “fine girl” when sober but was frequently drunk and on a number of occasions when intoxicated had left their small children unattended. After due consideration of the background of the offence and especially of the plight of the three motherless youngsters, the judge placed Lewis on probation so that he could work , support, and take care of the children. On probation Lewis adjusted well, worked regularly, appeared to be devoted to the children, and a few years later was discharged as “improved” from probation.
In June 1980 Lady Isabel Barnett, a well-known TV personality was convicted of stealing a tin of tuna fish and a carton of cream, total value 87p, from a small shop. The case was given enormous publicity. She was fined £ 75 and had to pay £ 200 towards the cost of the case. A few days later she killed herself.
This is an example of a civil case rather than a criminal one. A man had taken out an insurance policy of £ 100 000 on his life. The policy was due to expire at 3 o’clock on a certain day. The man was in serious financial difficulties, and at 2.30 on the expire day he consulted his solicitor. He then went out and called a taxi. He asked the driver to make a note of the time, 2.50. He then shot himself. Suicide used not to cancel an insurance policy automatically. (It does nowadays.) The company refused to pay the man’s wife, and the courts supported them.
TASK 6. Just for Fun
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A man had been convicted of theft on circumstantial evidence. When the case was sent for appeal, he revealed to his lawyer that he had been in prison at the time of the crime committed. “Good Heavens, man!” said the lawyer. “Why on earth didn’t you reveal that fact at the trial?”
“Well,” said the man, “I thought it might prejudice the jury against me.”
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First juror: “We shouldn’t be here very long. One look at those two fellows convinces me that they are guilty.”
Second juror: “Not so loud, you fool! That’s counsel for the prosecution and counsel for the defence!”
TEXT A. PROBATE LAW
Probate law is the law which concerns the proper administration of the estates of persons who have died. This includes the payment of taxes and just debts, and the transfer of all property to the appropriate people or entities.
Probate law also addresses many other issues: commitment of the mentally ill and mentally retarded for care and treatment; adoption; appointment of guardians and conservators to care for children and other persons who cannot care for themselves or their property; and the issuance of marriage licenses. In addition, in most counties the probate court has jurisdiction over juvenile matters.
Each common pleas court in Ohio has a “Probate Division” which is commonly called the “Probate Court”. Its main duties are: the supervision of the administration of decedents’ estates and the protection of the interest of certain persons who are particularly vulnerable to loss or harm, for example, next-of-kin and other heirs entitled to an inheritance; children; beneficiaries of trusts; persons suffering from mental illness or disability; persons suffering from developmental disabilities; and persons suffering from other physical disabilities.
Protecting Persons in Need of Care. In Ohio, the probate court appoints guardians for both minors and adults; handles adoptions and applications to hospitalize persons who may have mental problems.
Safeguarding Personal and Property