: English for Law Students. 2 year. Part 2 - ( ..)

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: 1747


Unit 7 appeals

A. GETTING STARTED. COMMUNICATION POINT A1. Complete the text with the words from the box.

respondent ; petitioner ; appellate; appeal; cross-appeal; appellant;

appellee

In law, an 1 decision. An 2

is a process for requesting a formal change to an official court is a court that hears cases on appeal from another

court. A party who files an appeal is called an 3_

or 4

, and a party

on the other side is called a 5_

brought by the respondent.

or an 6

. A 7

is an appeal

B. READING POINT

B1. Study the words below and try to memorize them.

KEY VOCABULARY

premise

admissibility of evidence

prejudicial - , , (,

)

err, ;

ruling , , ( )

Appellate Court ( )

reversal ( , )

release ( , - ..)

nullify,

deem

affirm,

B2. Read the text and be ready to do the tasks below.

Motions after Trial

Criminal trials and sentencing matters can be very complex and sometimes errors are made. A system of appeals exists to allow decisions to be reviewed and corrected if necessary. After a guilty verdict is issued, but generally before sentencing, the convicted defendant may make a motion for a new trial on the premise that a mistake prejudicial (harmful) to the defendant was made at the trial. Prejudicial errors include errors in the judge's rulings on the admissibility of evidence or instructions to the jury, or some misconduct by the jury, judge, or prosecutor. The defendant may also move for a new trial based on the argument that the evidence was not sufficient to support the jury's guilty verdict. A motion for a new trial on the basis of newly discovered evidence that, had it been available at the trial, might have resulted in an acquittal may be made after the defendant has been sentenced; however, there is generally a time limit on this. If the trial judge grants the motion for a new trial, the conviction is set aside and the defendant may be tried again by a new jury. If the motion is denied, the defendant will be sentenced.

Appeals

A convicted criminal may appeal his or her conviction and sentence to a

higher court, known as an appellate court. Sentencing appeals are more common than appeals against conviction. One of the reasons for this is that the discretionary nature of sentencing can easily lead to a result that the offender feels is unreasonably harsh.

The appellate court will review all or part of the written record of what transpired at the trial to determine whether any error prejudicial to the defendant was made. If any such error occurred, as where the trial court erred in its rulings on the admissibility of evidence or in its instructions to the jury on the law to be applied, the appellate court usually remands (returns) the case for a new trial. Sometimes, however, the error is of a type that leads to a reversal of conviction and the release of the defendant. For example, if the trial court incorrectly refused to declare unconstitutional the statute on which the prosecution was based, the appellate court would nullify the conviction, and the defendant would go free. In such a situation a new trial based on the unconstitutional statute is not permitted. If the appellate court finds no error or deems any errors harmlessthat is, not substantial and not prejudicial to the interests of the defendantit affirms the conviction.

B3. Answer the questions to the text.

1. Why is the system of appeal necessary?

2. Give several examples of reasons why a motion for a new trial is made?

3. What happens in case the judge grants the motion or it is denied?

4. Name two types of appeals. Which is more common?

5. What are the typical reasons for sending the case for a new trial?

B4. Find these phrases and expressions in the text.

a.

b.

c. d.

e.

f. g.

h.

i. j.

k.

l.

B5. Complete the sentences:

1) The request by a losing party (appellant) for an appellate court to review

the decision of a trial court or administrative agency and find instead in favor of the appellant is called

2) A higher court that reviews the decisions of trial courts if the losing party appeals such a decision is called

3) An official decision, especially one made by a court is a

4) A decision in a court of law that someone is guilty of a crime, or the process of proving that someone is guilty is a

C. VOCABULARY

C1. Fill the gaps with the missing words from the box.

appellate; affirms; prejudicial; reversal; nullify; premise; release; err;

substantial; ruling

1. The Court of first instance decided that there had not been unfairly conduct.

2. Case law has shown that court

scenarios have resulted in arbitrary decisions.

3. The decision marks a sharp

4. The judge denied Larsen early

on these kind of

in federal policy.

.

5. The judge

6. American justice works on the

the sale of the property.

that an accused person

is innocent until they are proved guilty.

7. Eighteen months later an

court reversed the

convictions and criticized the conduct of the trial judge and the prosecution.

8. The Edmonton editors now agree that they

9. The Supreme Court has

10. The refugees face a

home.

.

the lower court's ruling. threat of harm if they are sent

C2. Supply the table with the missing word forms.

noun

verb

adjective

affirm

reversal

admissibility

defend

result

substantial

prosecution

constitutional

convict

situation

C3. Supply the text below with missing words. Translate it into Russian. highest court; process; new trial; first instance; appeal; final decisions; new evidence; proceedings

A judgment of a court of (1) may be attacked either by (2) to a higher court or by a request for some form of review of the judgment by the court that rendered it. Thus, it is quite generally possible for a defendant who has defaulted to ask a court to reopen the case and hear it on its merits. As noted above, in Anglo-American courts, it is frequently possible to ask for a (3)... In some cases (if, for example, there is newly discovered evidence) procedures analogous to motions for a new trial exist in European countries. In certain countries and in some states of the United States, an appeal of a judgment that is not a final decision can be made in addition to appeals of (4)...

The appeal (5)is somewhat different in civil-law and common-law countries. In Europe the appeal from the court of first instance to the intermediate appellate court ordinarily involves a reexamination of the entire case, both the law and the facts, and (6)... frequently can be introduced. An appeal to the supreme or (7) is restricted to matters of law. In the Anglo-

American system, on the other hand, both the intermediate appellate court and the supreme court examine only the written record created in the court below and do not receive new evidence. Furthermore, review is generally restricted to matters of law, though the scope of review is broader in the intermediate appellate court than the supreme court. Rules of appeal in all systems tend to combine the desire that justice be done and error be corrected with the desire to find some point at which the (8) will end and judgment will be deemed final.

D. CASE STUDY

D1. Read the text and make up 3-5 questions for discussion. Discuss the case in pairs or in small groups.

R v JURISIC

Christopher Jurisic pleaded guilty in the Local Court to three charges of

dangerous driving occasioning actual bodily harm. He had injured three members of a family when he collided with another car. At the time he was driving he had a sufficient level of cocaine in his blood to significantly impair his driving. Each of the charges carried a maximum penalty of seven years imprisonment. He was committed for sentencing in the District Court. He had several previous driving convictions and his drivers licence had been cancelled three times. In the District Court, Jurisic was sentenced to imprisonment for 18 months, with a minimum term of 9 months. The District Court ordered that the term of 18 months was to be served by way of home detention. Jurisic was also disqualified from holding a drivers

licence for one year. The Director of Public Prosecutions appealed on the grounds that the sentences were inadequate. The Court of Criminal Appeal used the appeal to hand down guidelines as to how sentencing for offences of dangerous driving should be approached: R v Jurisic (1998) 45 NSWLR 309. This was the first guideline judgment handed down in NSW. In 2002, the guideline was altered slightly in the case R v Whyte [2002] NSWCCA 343. The guideline currently states: Where the offenders moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate. A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment. The assessment of the offenders moral culpability will depend on the presence or absence of the following factors:

extent and nature of the injuries inflicted

number of people put at risk

degree of speed

degree of intoxication or of substance abuse

erratic driving

competitive driving or showing off

length of the journey during which the others were exposed to risk

ignoring warnings

escaping police pursuit

degree of sleep deprivation

failing to stop.

The Court of Criminal Appeal sentenced Jurisic to imprisonment for two years, with a minimum term of one year. He was disqualified from driving for two years.

E. WRITING

E1. Read these statements and choose one of them to write a short essay providing arguments supporting the point of view.

1. No brilliance is needed in the law. Nothing but common sense, and

relatively clean finger nails

John Mortimer A Voyage Round My Father

2. We do not get laws to restrain bad people. We get good people to restrain bad laws

G.K.Chesterton All Things Considered

3. It is the better that ten guilty persons escape that one innocent suffer

William Blackstone Commentaries on the Laws of England

4. The one great principle of the English law is to make business for itself

Charles Dickens Bleak House

5. No poet ever interpreted nature as freely as a lawyer interprets the truth

Jean Giraudoux La Guerre de Troie naura pas lieu

6. I dont want a lawyer to tell me what I cannot do; I hire him to tell me how to do what I want to do

J.Pierpoint Morgan


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