A. Civil
1. Overview, 1013-1029
Civil Procedure Overview
What are the relative values reflected in the choices of the Civil Procedure Systems in Europe vs. our own?General Principles of Procedure.
In spite of the separate codes of procedure, criminal and penal [as well as the body of administrative procedure], there are certain general principles of procedure, mostly developed by the civil procedure specialist. [1014]TYPICAL PROCEDURE:
THREE STAGES [1014]
1) Preliminary: Brief preliminary procedure in which pleadings are submitted and the hearing judge (instructing judge) appointed;
2) Evidence-taking stage: hearing judge, appointed during the instruction stage takes evidence and prepares a summary of the record, often called Reporting Judge;
3) Decision-making stage: judges who will decide case consider the record transmitted by the hearing judge, receive counsel’s briefs, hear arguments and render a decision.TRIAL? [1014]
Not in OUR sense of the term.
WHY? No jury, hence no need for unitary procedure, i.e., a single, uninterrupted trial. Rather a continuing series of small hearings.Discovery
Note further that discovery, as we define this process of party-controlled fact-gathering, does not really exist either. P. 1015.
Little tactical advantage to discovery.
No need for surprise
EFFECT OF LACK OF CONCENTRATION: [1015].
(1) Lack of Concentration.(a) Pleading Stage: Pleadings are very general and they are refined as the case moves along. (?)
(b) Discovery and Pretrial Proceedings are not really necessary.(2) Summary Record: A written record, not a transcript, is prepared and used as the basis for decision. pp. 1015 & 1017.
(3) Written vs. oral procedure. p. 1016.INQUISITORIAL [1016].
—Misleading. The civil law system is very much adversarial, the parties determine the issues to be raised.
—The judge is officially active, but issues and questions are decided by the parties.
— Questions submitted by counsel in writing are asked by the judge, who rarely adds some of his own.Articles of Proof
—Written questions prepared by counsel for a particular witness, submitted in advance to the judge and opposing party. [1016-1017].
—Party can see it and prepare accordingly.
—Witness may see it, though some systems do not allow contact between counsel and witness.Offer of Proof.
The statement of the offering party of what the witness will say, together with the proposed questions. It is a specific version of the Articles of Proof. [1017]. The scope of the testimony will be limited by it.Three Important Definitions [1017]
—> Concentration
—> Immediacy
—> Orality (really the lack-thereof).Historical Basis of Modern Procedure [1018]
It replaced trial by ordeal or by combat (remember, procedure that was “modern” by medieval standards.
Designed to protect judges from undue influence
The mechanical-mathematical (and classist, sexist, racist and homophobic) system of proof
Presumptions today
Exclusionary Rule for Witnesses
Disqualified certain people from testifying … such as parties, relatives of the parties or interested third parties.
Still exists today
May be replaced by “confession”, testifying but not under oath. Is treated more like argument.
Decissory Oath [1019]
—A party puts the opponent under oath as to a specific fact.
—If the witness fails to deny it, the fact is deemed proved against him/her.
—If the witness swears, then the fact is convulsively proved in his/her favor.DECISSORY OATHS:
(This is a note on the history of the decissory oath that I prepared some time ago).It appears that decissory oaths are still alive in France, Spain and Italy. The oath is generally a subdivision of the testimony of a party to a civil proceeding, known as a “confession” (confesión in Spanish) a reference to the fact that a party admission relieves the other party of the duty to prove a fact. Specifically, as to each country:
1.France: Serment décisoire. The most recent edition of the French Civil Code still includes Article 1358 which deals with the decissory oath (Code Civil Français art. 1358 (Dalloz 1994)). Art. 1363 prohibits admission of proof contrary to the oath in the same proceeding. The notes to the code make clear that a false statement is subject to a separate perjury prosecution.
2.Spain: Article 1231 refers to the confesión —generally, the party’s testimony in a civil proceeding. (Código Civil Español art. 1231 (Civitas 1991)). Art. 1236 indicates that a party may testify under a decissory oath and that refusing to do so will constitute a confesión, here meaning a party admission. Art. 1238 establishes that the decissory oath will constitute proof in favor or against the parties to the case or their heirs or substitutes in their causes of action. Art. 1238 also establishes that no proof contrary to the decissory oath may be admitted once the oath has been given and accepted.
3.Italy: Article 2736 of the Italian Civil Code includes the decissory oath. (Italian Civil Code art. 2736(1) (Oceana Publications, Inc., English Trans., 1993)). The party’s confession is also included in this section at arts. 2730-2735. (I attach hereto a copy of the Italian code’s English translation).
As you suspected this is a rule of ancient, probably medieval, origin. Professor John Henry Merryman traces its origin back to the concept of “legal proof” in the Middle Ages. (Merryman, The Civil Law Tradition 117 (2d. ed. 1985).) He indicates that specific rules regarding the value of particular forms of evidence were used to replace trial by ordeal and other such proceedings. This went to the extreme of assigning a specified value to the testimony of particular persons, with women at the bottom and noble landowners at the top of the hierarchy. The system was in large part used to bring some fairness, relatively speaking, to judicial proceedings, and to protect judges from the wealthy and powerful in society. (Id. at 118-119. I attach hereto a copy of these pages.)
The procedure requires (1) that a party tender the oath and (2) that the court approve the oath. It is as if the court decided that the case would be ready for summary judgment but for the existence of a particular factual finding. Rather than holding a full hearing, the court orders this one fact to be determined. The party may either refuse the oath, in which case they admit the cause of action against them, or may take the oath and win. The facts must be within the knowledge of the oath taker. “Thus, the plaintiff may tender an oath to the defendant on whether he has received money from the plaintiff, but not on whether somebody else (for whom defendant may be a surety) has received money.” Peter Herzog, Civil Procedure in France 359 (1967).
Request for Admission, FRCP 36.
Attorney’s Fees and Court Costs
—> Loser Pays All. [1020]
—> Fixed (statutory) Fees.
—> No Contingency Fees.Compare
—> FRCP 54(d)(1) and
—> 28 USC § 1920.FRCP 54(d)(1) Costs other than attorneys' Fees
Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs;28 USC 1920 (Costs)
1) Fees of the clerk and marshall;
2) Fees of the court reporter for transcripts;
3) Fees for printing and witnesses;
4) Fees for exemplification and copies of papers obtained for use in the case;
5) Docket fees;
6) Compensation of court appointed experts, compensation of interpreters, special interpretation services.42 USC § 1988
"[i]n any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs . . ."
Appeals [1020]
—> De Novo (at the mid-level appellate courts).
—> Cassation/Revision (at the higher courts).
—> NO dissenting opinions.Limited Remedies [1021-22]
—> No civil contempt.
—> In Rem Remedies, i.e, execution of property.
—> No Punitive Damages.“Atomistic” or “Holistic”? [1023]
According to an “atomistic” view, mental processes employed in “finding” facts can be decomposed [divided] into independent parts. Probative force is attributed to distinct items of evidence and discrete inferential sequences, and the final determination is made by aggregating these separate probative values through some sort of additive process. Because such mental operations are heavily propositional, the fact finder’s state of mind produced by this atomistic process is relatively free of volitional components. The proof sufficiency standard for finding a particular fact can be expressed in graded probability terms.“Holistic”
Under a second view, sometimes termed “holistic,” the probative force of any item of information arises from interaction among elements of the total informational input. In this vision, separate weights of individual items of evidence cannot be disentangled from global judgments. Fact-finding thus depends on schemes of thought not yet articulated and on volitional factors; and a proof sufficiency standard defies expression in probability terms.Hierarchical vs. Coordinate [1024, n. 8]
HIERARCHICAL:
The first structure essentially corresponds to conceptions of classical bureaucracy. It is characterized by a professional corps of officials, organized into a hierarchy which makes decisions according to technical standards.
Hierarchical vs. Coordinate [1024, n. 8]
COORDINATE:
The other structure has no readily recognizable analogue in established theory. It is defined by a body of nonprofessional decision makers, organized into a single level of authority which makes decisions by applying undifferentiated community standards.
The first structure I shall call the hierarchical ideal or vision of officialdom, and the second I shall term the coordinate ideal.
Attorneys’ Fees [1026-27]
No contingent Fees [1026]Limiting parties
Discouraging “stirring up” litigation
Statutory Fees [1027]
Court authorizes higher fee.
Discounts are unethical!
2. Germany, 1029-1041
Section 139 [1] [Judicial Duty to Clarify]
1) The presiding judge shall see to it that the parties make full statements about all material facts and make appropriate motions, especially to elaborate on insufficient statements regarding the facts alleged and to indicate the means of proof. For this purpose, so far as necessary, he shall discuss with the parties the case and issues, in their factual and legal aspects, and ask questions.Section 139 [2] [Judicial Duty to Clarify]
2) The presiding judge shall bring to the parties’ attention doubts that the court has because of its duty to take certain points into account on its own motion.
3) He shall permit each member of the court to ask such questions as that member requests.“Concentrated” Procedure
Section 137 [1] [1031]
(a) call of the case and identification of participants present;
(b) introduction and statement of the case by the judge or presiding judge;
(c) response of the parties, if any, to that statement;
(d) discussion of the case among court and parties and/or attorneys;
(e) proof-taking;“Concentrated” Procedure
Section 137 [2] [1031]
(f) further discussion and argument with reference to the results of the proof-taking;
(g) deliberation by the court; and
(h) announcement of the judgment, or fixing of a subsequent date for the announcement, possibly with an interim deadline for written statements by the parties.Judges’ Obligations, p. 1032
To ensure informed spousal consent
Unclear as to prescription defense
Compensating “for differences in resources among social combatants”?Points of Contrast With American Procedure [1033]
1. Episodic Proof-Taking Disapproved
2. The Dominant Role of the Judge
3. Evidence and its Production
4. Quick Access to the Judge2. The Dominant Role of the Judge
(a) determination of the trial agenda, including an order of proof directing appearance of the parties and witnesses, and the presentation of documents;
(b)examination of parties and witnesses, With lawyers performing only an interstitial role;
(c) production of the record of witnesses' testimony, excluding questions and frequently rephrasing or reorganizing answers; and
(d) direct communication with the parties, not only for factual assertions, but also to explore settlement possibilities.Evidence and its production: The typical factual search is
Un-motivated
Un-imaginativeThe German “Advantage”? [1035]
Judges, not the parties’ attorneys, have chief responsibility to
(1) determine the order of proof,
(2) examine the witnesses,
(3) create a compact record of the witnesses’ testimony by dictating summaries of their testimony, and
(4) secure the testimony of experts, if needed.Witnesses
1) It enhances the quality of testimony by reducing the opportunity for lawyers, intentionally or unintentionally to influence that testimony.
2) The Judge can eliminate unnecessary testimony.
What about Motions to Dismiss or Summary Judgment?
3) More Efficient because of no discovery.
4) Experts: Not “Vending Machines”.Advantages:
1) Reduces litigation costs
Judge Eliminates unnecessary testimony
Avoids typical three rounds of testimony (interviews, depositions, trial).
2) enhances the quality of testimony by reducing the opportunity for lawyers, intentionally or unintentionally, to influence testimony.Surprise [1036-37]
German procedure protects the litigants from surprise by requiring each party to identify the evidence upon which it relies, including the witnesses and what they are expected to say, in advance of any evidentiary hearing. But our institution of discovery goes far beyond the prevention of surprise by allowing a party to search for evidence in opponents' and nonparties' hands to support its own claims and defenses or to challenge opponents' claims and defenses. Germany simply does not provide any general rights to discovery evidence.Discovery [1037]
1) Germany simply does not provide any general rights to discovery evidence.
2) Rule 26(b)(1) “reasonably calculated to lead to the discovery of admissible evidence.”
I would add a third: the liberal standard of relevance at the admissibility stage under FRE 401.
German Evidence
In Germany, by contrast, parties cannot be forced to testify, and the court will refuse to take the testimony of any witnesses who are nominated solely to find out what they might know about the facts in dispute. Moreover, the taking of evidence in German trials is governed by a strict standard of relevancy. ...German Evidence: Substantiation
—>This standard includes a requirement of “substantiation,” pursuant to which the court may “order testimony only where a party can generally describe the facts that the evidence is intended to prove.”
—>The traditional principle was that “no party is required to provide for his opponent’s victory in court material which the opponent did not already have at his disposal.”Document Production, Note 40, § 810
The most expansive right is provided by § 810 of the German Civil Code. It provides a right to see a document in the hands of others if it was made for the benefit of the party seeking to see it or if it documents a legal relationship between the party and another-or describes negotiations relating to such a relationship. The "substantiation" requirement would, however, appear to prevent examination of persons to determine if they had any such documents in their possession unless the party seeking disclosure has some justifiable basis for believing that they do and can describe the documents with some specificity.Privileges [1038]: Truth vs. Privacy
Expansive testimonial privileges.
3. France, 1041-1044
France, 1041-1042
The distrust of oral evidence.
Unwillingness of the judge to compel production of evidence in the hands of a party.
Accusatorial System: Parties have the obligation to prove their case
Parties may call for investigative measures but they have no power to require the judge to carry them outThe distrust of oral evidence
“French civil procedure is marked by a strong preference for written proof and by the tendency of French judges to avoid factual determinations that must be based on evidence which is complex or otherwise difficult to evaluate.” p. 1041.
An expert may be appointed to conduct a trial-like inquiry into complex facts. P.1041.No “Discovery” or even subpoena [1041]
Unwillingness of the judge to compel production of evidence in the hands of a party.
Despite formal authority to do so.
The French judge might “refus[e] to hear, or at least [refuse] to require the production of, evidence that might be thought vital to the court´s perception of historical truth…”“Accusatorial” System
Clearly what we would labe “adversarial”
Parties have the obligation to prove their case
Judges often refuse party requests for discovery and compelled production of evidence unless
Satisfied of strict “relevance” and
Not carrying the party’s burden of production and proof [1042]Supervising/Investigating
Magistrate [1042]
Can, but rarely investigates
Supervises
exchange of documents among parties
Submission of pleadings
Fixing Deadlines
Preparation of case by parties for public hearing
Reports to the deciding panelParties’ “Version” vs. “Proof”
[1042]
“The investigating magistrate may call the parties themselves, who may be invited in the presence of their lawyers to give their versions of the facts.”
“they do not do so under oath.”
Third parties give “facts” under oath either in writing or in a hearingExchange of Documents [1043]
Parties are forbidden from using at hearing any documents not included in their pleading files and thus available to the other party.
Failure to produce inculpatory documents is not a major fear (no real consequences).
Opponent can require other party to produce documents, but reluctant if he is unsure of contentsFear of Failure to Produce
“Unfavorable evidence may remain undisclosed and there will be little reason to fear that the opposing party will learn of its content or even its existence.” [1043]
May be changing (yeah, but slowly).
Non-contentious procedure
Public documentsThe Goal?
Encouraging resolution of the case, disturbing third parties as little as possible, pleading more important to “approximate the truth”. [1044]
B. Criminal
1. Overview, 1060-1074
[For the Summer Program, we will read 1060-1074 and 1075-1082, so that we might focus on France. Place particular emphasis on the modern procedure, I will lecture on the history]A NOTE ON THE STAR CHAMBER
Star Chamber. [1063]. The courts applying equitable principles acted when the common law courts either would not ct or reached results that were so strict and technical as to be unjust. They provided suitable remedies when the common law did not.
The expansion of equity jurisdiction in England in the 15th century by expansion of the jurisdiction of the Chancery court, was directly tied to the King’s power. The lord Chancellor was an officer of the King, and the King used this court to argue he was Supreme over the common law courts and over Parliament. In fact, when Charles I was beheaded and Parliament took over in 1649, Chancery was abolished. The “protectorate” of Oliver Cromwell, his dictatorship of 1654-1658, and the anarchy that followed produced the saddest chapter in the history of this court. Chancery was re-established after the restoration of the monarchy with the crowning of Charles’ son as King Charles II.
Star Chamber: Recognized by English kings in the late 15th and early 16th century. It has a sad history because of the abuses of the 17th century, and indeed was abolished by parliament in 1641, but in its inception it was a true court of equity designed to try cases involving powerful lords who might defy ordinary courts, and threats to security of the realm.
Little Difference in Substantive Law
Substantive criminal law in Western, Capitalist civil law countries does not differ greatly from that of common law countries. [1060].
Note, however, that there are very different approaches to penalties and rehabilitation between the U.S. and European nations.The Principle of Legality
Nullum crimen sine lege and nulla pena sine lege.
No crime or penalty without law. B
By law we mean a statute, i.e., no common law crimes. [1061].Two Basic Principles
(1) proportionality between crime and punishment;
(2) punishment should apply impartially to criminals, regardless of their social station, position or wealth. [1061].The revolution, state positivism, rationalism and concern for the rights of man as enunciated by the secular natural law.
Broad vision of limits on a criminal penalty
common law crimes violate the principle of no crime without statute.
But also damages other than compensatory, i.e., punitive, multiple or general damages, and
summary contempt. [1061].Inquisitorial vs. Accusatorial
Accusatorial [1062]
historically, an accuser, usually the victim of the crime, initiated the proceedings.
An oral, adversarial process between accuser and accused, with an impartial trier of fact
Remember lex Aquila, tort and criminal law tied together as an alternative to vengeanceInquisitorial vs. Accusatorial
Inquisitorial [1062-1063]
Replaces the private accuser with an inquisitorial (investigating) judge.
Contest between the the accused and the state
Secret and written procedure rather than public trialOld Criminal Case
(1) state vs. person;
(2) No right to counsel;
(3) compelled testimony from the accused, even by torture;
(4) judge active investigator and set the rules;
(5) prince set penalties and gave pardons unfettered by any rules. [1063].Revolution and Reform: Basic Goals [1063-1064].
(1) Institution of the jury;
(2) substitution of the oral public procedure for the secret written procedure;
(3) establishment of the accused’s right to counsel;
(4) restriction of the judge’s inquisitorial powers;
(5) abolition of the requirement that the accused testify under oath;
(6) abolition of arbitrary intervention by the sovereign in the criminal process. [1063-64].Modern System: (1) [1064-1065].
Investigation conducted by prosecutors.
Procurators are given protection for their impartiality and objectivity. e.g., Italian prosecutors are members of the judicial branch and have civil service tenure and freedom from political influence;Modern System: (2) [1064-1065]
Instruction: accused has a right to counsel.
Similar to accused here during custodial interrogation and grand jury proceedings.
Major difference is that the record compiled by the instruction magistrate is open to the accuse.
Defendant has a right to refuse questioning and cannot be questioned under oath, i.e., not subject to perjury. Refusal to answer however may create inference against him.Modern System: (3) [1064-1065]
Trial: public presentation of the evidence already collected to the judge and jury.
Argument by counsel.
Judgment.PLEA BARGAINING:
Almost non-existent in the civil law.
Frustrates legislative intent.
Prosecutorial discretion, like judicial discretion is a danger to the rule of law. [1065].GUILTY PLEA:
In our system stops or forgoes a trial.
In the civil law it is just a confession. The trial must be completed. [1065]Process: Investigation
Prosecutor. Except in Italy, normal civil servant. Acually, pretty independent and have a collegial notion of public duty.
Determination of whether a crime has been committed and the defendant is the probably guilty party. Made by the prosecutor, or sometimes by the Magistrate of the Instruction prior to opening the instruction.
Standard? Reasonable cause to proceed to the instruction. More than probable cause.Instruction
Judge of the instruction. Normal judge appointed to investigate or a designated instruction judge.
Hears witnesses and prepares a file. Defendant has a right to examine file and to remain silent, but, unlike here, inferences may be drawn from his silence.
Instruction
Conclusion: determination of whether a crime has been committed and the defendant is the probably guilty party.
Standard? Reasonable Cause. [1067].
In some places this determination is made by the Instructing magistrate, in others by a panel of judges in a higher court.Trial
Panel of judge(s) and lay assessors decide together all issues of law and fact.
Guilt and punishment decided simultaneously. [1068].
EVIDENCE: Not the instruction dossier, but that presented at the hearing. This is the only basis of decision (only the Presiding judge has read the dossier). [1068].Appeal as a matter of right
Intermediate appeal as a matter of right on issues of law and fact.
New evidence may be submitted. [1068]. In a civil trial, where the decision is mostly based on a written record, appeal is de novo.
Sentence as well as guilt or innocence may be reviewed.
Cassation Appeal from this court is by cassation only, but generally also as of right. [1069].
Both prosecution and defense get to appeal.Pre-Trial Arrest/Detention
in Germany
(1) Strong reason to believe that defendant has committed a crime;
(2) Specific, rational ground for detention must be shown, e.g., flight;
(3) proportionality, i.e., can only be ordered if detention is proportional to severity of the offense. [1069].
The dossier
Prepared by the prosecutor during the investigative phase and by the magistrate in the instruction stage
Can be examined by the defense at any time. (In Germany the lawyer can take it home!!). [1069-70].
Surprise is diminished, as to defendant. De Novo appeal also avoids effect of a surprise.Right to Remain Silent
In our system it is absolute and no inference may drawn from it (at least in theory).
If they are smart, most defendants keep quiet.
In UK
no impeachment just because he chooses to testify;
negative inference may be drawn from not testifying.Right to Remain Silent in Civil Law
Defendant must make a statement in open court, even if just to claim his right to remain silent.
Generally, negative inference may be drawn from total or partial refusal to answer.
Except in Germany, where a negative inference may not be drawn upon a TOTAL refusal to answer as to the facts of the case. [1071].Prior Convictions
Admissibility of prior convictions in the US
For impeachment if defendant testifies
To prove relevant other acts regardless
Always admissible in the Civil law, apparently for whatever relevance they may have, a point that Schlesinger seems to know little about
Defendant does not testify under oath and is not subject to a perjury prosecution [1072].Joinder of the Civil Plaintiff
“Moral Damages” often only available if act was a crime
Government undertakes the expense of pursuing most of the claim
Discovery of evidence much more available in criminal procedure
2. France, 1075-1082
[will not be covered in the Spring of 2005,
but it will be covered in the Summer]3. Germany, Juries and Lay Judges, 1091-1098
[will not be covered in 2005]