Основы политической системы США (стр. 7 )

If a criminal case goes to trial, the prosecution has the burden of proving the defendant guilty beyond a reasonable doubt. In a civil case the burden is on the plaintiff to prove his of her case by a preponderance of the evidence (greater weight of evidence). The standard of proof is more difficult in a criminal case. This is because of a belief that more evidence should be required to take away a person’s freedom.

The adversary process is not the only method for handling legal disputes. Some countries, especially in Europe, have what is called the inquisitional system, in which the judge is more active in questioning witness and controlling the court process, including the gathering and presentation of evidence. This differs from the adversary process, in which these matters are left to the judge or jury based on the arguments and evidence presented to them.

The adversary process is sometimes criticized as not providing the best setting for the discovery of truth with respect to the facts of a specific case. Critics compare the adversary process to a battle in which lawyers act as enemies, making every effort not to present all the evidence. In this view the goal of trial is “victory, not truth or justice”.

On the other hand, the adversary process has long served as the cornerstone of the American legal system. Most attorneys believe that approaching the same set of facts from totally different perspectives will uncover more truth than would other methods.

Problem 1

A.  Do you think the adversary system is the best method for solving disputes? Why or why not?

B.  Indicate whether you agree or disagree with the following statement: “It is better that ten guilty persons go free than one innocent person suffer conviction”. Explain your answer.

C.  In a criminal case, should a lawyer defend a client who he or she knows is guilty? Discuss.

Judges and Juries

Judges and juries are essential parts of our legal system. The judge presides over the trial and has the duty of protecting the rights of those involved. Judges also make sure that attorney follow the rules of evidence and trial procedure. In nonjury trials the judge has the function of determining the facts of the case and rendering a judgment. In jury trials, the judge is required to instruct the jury as to the law involved in the case. Finally, in criminal trials in most states, judges are required to sentence individuals convicted of committing a crime.

The right to trial by jury is guaranteed by the Sixth and Seventh Amendments to the Constitution. This right applies in both federal and state courts. However, a jury is not required in every case. Juries are not used as often as one might think. In civil cases, either the plaintiff or the defendant may request a jury trial. In criminal cases, the defendant decides whether there will be a jury. Many civil cases result in out-of-court settlements or trials by a judge. Most criminal cases are never brought to trial. Instead, they are disposed of by plea bargaining.

If a jury trial is requested, a jury is selected and charged with the task of determining the facts and applying the law in the particular case. To serve on a jury, you must be a citizen of the United States, at least 18 years of age, and a resident of the state. Persons commonly excused from jury duty include clergy, attorneys, physicians, police officers, fire fighters, convicted felons, and persons who are physically or mentally ill.

Once selected, jurors are assigned to specific cases after being screened through a process known as voir dire examination. In this process, opposing lawyers question each prospective juror to discover any prejudices or preconceived opinions concerning the case. After questioning each juror, the opposing attorneys may request the removal of any juror who does not appear capable of rendering a fair and impartial verdict. This is called removal for cause. In addition, each attorney is allowed a limited number of peremptory challenges. This means they can have prospective jurors removed without stating a cause.

Problem 2

A.  What reasons can you give for the exclusion from jury duty of attorneys, physicians, police officers, and convicted felons? Can you think of any other group that should be exempt from jury duty?

B.  If your were a defense attorney questioning jurors at the voir dire in murder trial, what questions would your ask to determine whether the jurors could render a fair and impartial verdict?

C.  Can you think of any reasons why an attorney might use a peremptory challenge?

Lawyers

There are nearly one million lawyers in the United States. Lawyers in private practice account for about 65 per cent of the attorneys in the United States. Around 15 per cent are government lawyers who work for federal, sate, or local agencies. Another 15 per cent work for corporations, unions, or trade associations. A small number of lawyers work for public interest or legal aid organizations. An even smaller number are law professors, judges, or elected officials.

Contrary to popular belief, most lawyers rarely go to court. The practice of law usually involves giving advice, drafting legal opinions, negotiating settlements, or otherwise providing out-of-court legal assistance.

Some lawyers do, however, go to ch lawyers are called trial attorneys or litigators. In civil cases, lawyers act as advocates for their clients’ positions. Likewise, in a criminal case the lawyer for the defendant has a duty to do everything possible (without violating a code of professional ethics) to secure the release and acquittal of his of her client.

When Do You Need a Lawyer?

An important thing you need to know is when to see a lawyer. Many people think of seeing an attorney only after they get into trouble, but perhaps the best time to consult an attorney is before the problem arises.

Preventive advice is an important service that a lawyer can provide. You should consider consulting an attorney about a number of common situations. These include:

·  buying or selling a home or other real estate;

·  organizing a business or making a major purchase;

·  changing your family status (e. g., by divorce or adoption);

·  making a will or planning an estate;

·  signing a large or important contract;

·  handling accidents involving personal injury or property damage;

·  defending a criminal charge or bringing a civil suit.

How does one decide when a lawyer is needed? If a question of law is involved, a legal document needs to be drawn up or analyzed, or you are involved in a court case, you are probably in need of legal help. However, if your problem is a minor one, you may be able to handle it on your own or with the help of someone other than a lawyer. For example, you may be able to sue someone in a small claims court without a lawyer. Likewise, an argument with a spouse may be better handled through a marriage counselor or mediator. Relatives, friends, teachers, clergy, doctors, or accountants may all be able to provide advice that you might have sought from a lawyer.

If you are not sure whether you need a lawyer, it may be advisable to see an attorney to help you decide. Many bar associations and some other groups have services to help you decide if you need a lawyer. These are often provided free or for a small fee.

Problem 3

The following examples involve situations in which an attorney may or may not be needed. For each situation, discuss the reasons why you may or may not need an attorney.

A.  You borrow a friend’s car without his knowledge, and he reports it to the police as stolen.

B.  Your friends are caught robbing a local store, and they name you as one who helped plan the robbery.

C.  You and your spouse find you can no longer get along. You want a divorce.

FOR YOUR INFORMATION…

Federal judges are nominated by the president, but they have to be confirmed in their appointments by the Senate.

Over the years, there have been many battles between presidents and the Senate over various appointments, particularly judges. Under a quaint-sounding but very powerful tradition, the “courtesy of the Senate”, the Senate will not vote to confirm a federal judge to his post if he is opposed by a senator from the state where the judge is to hold court.

Senior judgeships have remained vacant for years on end because one or two senators disliked a president’s nominees. And there have been dramatic confrontations over appointments to the Supreme Court.

Section 4. Reading assignment.

Read the extract from the book by S. Sheldon “Rage of Angels” on page____. Do the tasks which follow the text.

UNIT 4

THE ELECTIONS

Section 1. Read and Study.

TEXT 1

Read the text and answer the following questions.

1.  What is to be done by the two major political parties to publicise their candidates before nominating conventions and primaries are held?

2.  Why does the existing system of primary elections come in for so much criticism? What makes this system so complicated and what alternative do some critics suggest?

3.  Why are national conventions called ‘one of the great spectacles in American politics’? Why does this particular stage of the presidential campaign involve so much political bargaining?

4.  Is the presidential candidate given a free hand in choosing his running mate? What is considered ‘good politics’ in this connection?

5.  How does each party build support for their candidates after the national conventions?

6.  Do the voters actually vote for the President and the Vice President at the November election? If not who do they vote for then?

7.  What is the role of the Electoral College?

8.  When does the newly elected President take his office?

THE STEPS IN THE PRESIDENTIAL ELECTION CYCLE