Trial Law

Since approval of the EU General Data Protection Regulation (GDPR) in 2016, it has been widely and repeatedly claimed that a 'right to explanation' of decisions made by automated or artificially intelligent algorithmic systems will be legally mandated by the GDPR. This right to explanation is viewed as an ideal mechanism to enhance the accountability and transparency of automated decision-making. However, there are several reasons to doubt both the legal existence and the feasibility of such a right. In contrast to the right to explanation of specific automated decisions claimed elsewhere, the GDPR only mandates that data subjects receive limited information (Articles 13-15) about the logic involved, as well as the significance and the envisaged consequences of automated decision-making systems, what we term a 'right to be informed'. Further, the ambiguity and limited scope of the 'right not to be subject to automated decision-making' contained in Article 22 (from which the alleged 'right to explanation' stems) raises questions over the protection actually afforded to data subjects. These problems show that the GDPR lacks precise language as well as explicit and well-defined rights and safeguards against automated decision-making, and therefore runs the risk of being toothless. We propose a number of legislative steps that, if taken, may improve the transparency and accountability of automated decision-making when the GDPR comes into force in 2018.

Trial practice, as an area study for paralegals and students, presents fertile terrain for the future growth of the paralegal profession and the use of creative teaching techniques. For paralegals and students, learning how to litigate cases in the administrative theater is an obvious entree to a broader view of both the paralegals' occupational tasks and their expanded role in the legal profession. Through the use of dramatic technique, a trial practice course can embrace the humanism inherent in the law, by emphasizing a concern for human relationships and a search for truth. When taught how to act, students learn and accept their own emotions, their limitations and hence the uncertainty and ambiguity fraught in trials; and in life. 2 As actors, students acquire the self-confidence, self-reliance and trust necessary to performance in trials. This

This paper discusses the ADR systems in tax matters as set forth in the Italian doctrine and legislature. This is part of a more comprehensive research carried on with Professor Nataša Žunić Kovačević, Rjieka University, Faculty of law, and presented at the Porec conference on March 15th 2017. It has been double blinded peer reviewed according to the Croatian regulations.

This article examines the important subject of court-media relations in an age of new technology and a shifting and evolving media. After reviewing the past literature on court-media relations, experiences with the media during the Michael Jackson trial are analyzed to add to our knowledge of how trial court professionals can communicate better with the media during high profile cases.

This article is an inquiry into the legal rhetoric and jurisprudential tensions presented in television series Battlestar Galactica (BSG) (2003–2009). Gaius Baltar’s trial for treason, which closes the series’ third season, serves as a compelling rumination on collective guilt, vengeance, and injustice, succinctly encapsulating BSG ethos. This study, drawing on rhetorical scholarship, explores the trial’s performative features and through rhetorical analysis illustrates how the legal actors in Baltar’s trial frame justice, set legal precedent, and re-establish community-based order in a tenuous Galactica universe – a universe particularly revealing of post-9/11 anxieties and American jurisprudence in crisis.

Courts and lawmakers trust psychiatric expertise when making judicial and public policy decisions concerning mental health, but is this trust well placed? This paper adopts a philosophy of science approach informed by medical research to evaluating the validity of psychiatric classification. This provides the basis for an interdisciplinary critical analysis of civil commitment law and use of psychiatric expert witnesses in light of legal evidence standards. This analysis demonstrates that involuntary civil commitment as it now stands is incompatible with broader due process and civil rights concerns and affords an unjustifiable evidentiary status to psychiatric diagnosis.

In the judicial duel, procedure and ceremony collapsed into one another in a way that had powerful resonances for the later Capetians kings of France. What bothered King Louis IX and his grandson Philip IV about duel was its violent and vengeful aspects. What allowed Philip IV and his son Philip V to reconsider was duel’s discrete and formal practice. It was this that allowed their governments to decouple judicial duel from seigneurial (private) war. Although war was similar to duel in being an avenue for the violent pursuit of one’s rights, it differed in its wider scope and therefore essentially uncontrollable nature. Duel’s dual nature as ritual and procedure thus ensured its survival in the courts of later medieval France. Duel’s formalism also meant that it could serve to express chivalric values like honour, bravery, and luxury. These aspects may help to explain duel’s renewed efflorescence in the early modern period, in which duelling became an avenue for the vindication of aristocratic honour. The development of an elaborate, aristocratic ceremonial practice, however, happened much later than has been previously understood. Indeed, chivalric spectacle is only one aspect of the later medieval history of duel, a subject that requires fuller study.

Indonesia, like other countries in the world, struggles as pandemic strikes. Such condition force every subject involved in the criminal justice system to administer technology to suppress the spread of the virus by social distancing. However, the sudden turn to employ modern technology has made the justice system moved into a new place called the virtual court. This pandemic situation also forces the shift of the conventional criminal court to the virtual criminal court paradigm. This article discusses the history of virtual criminal court in Indonesian Criminal Justice. This research employs a descriptive-normative method. The information collected by applying a historical approach and theoretical approach. Relevant data then studied and evaluated. The result then explained and described clearly. Indonesia is ready to implement virtual criminal justice. The shift from formal criminal court proceeding into virtual criminal court proceeding is applicable in Indonesia since 2002.

In the civil justice system, judges engage in case management and settlement promotion more than they do in trials and judgment. Despite the importance of a judge's role in settlement, its empirical depiction and jurisprudential theorization are lacking. This gap is likely the result of a key characteristic of this judicial practice: it takes place 'off the record.' Using original data from a series of courtroom observations in pretrial settlement hearings in Israeli courts, we present new evidence and analyses of this important feature of civil litigation-which is also prevalent in many common law jurisdictions. Based on a thematic analysis of the observations, we discuss eleven structural features, techniques , and attitudes that characterize judges' courtroom settlement practices. We provide real-life examples of each theme, and discuss our findings in the context of the vanishing trial phenomenon.

In the fall of 2019, peremptory challenges were abolished in Canadian jury trials, much to the chagrin of many criminal law practitioners. Ostensibly, Bill C-75 was passed partially in response to the fallout stemming from the controversial R v Stanley verdict, a case in which peremptory challenges were allegedly used to remove any and all jurors who appeared to be Indigenous. Bill C-75 has not been without its own controversy, however. Commentary by both legal professionals and scholars indicates that Bill C-75 – though well intentioned – may ultimately do more harm than good for the very communities it purports to serve. Numerous criminal law practitioners were quick to criticize Bill C-75 as being knee-jerk, reactionary, and, ultimately, a highly political move that would do little to address the systemic issues plaguing the criminal justice system in Canada, particularly for racialized and marginalized communities. The paper below endeavours to give voice to these perspectives. Following an extensive review of the history of peremptory challenges and a general history of jury work, we share the results of our survey in which Canadian Crown and defence counsel were asked to share their opinions on the removal of peremptory challenges. The responses indicate that, overall, surveyed Crown and defence counsel are concerned that the elimination of peremptory challenges will have a negative impact on jury trials in Canada. We explore the reasons for these fears in reviewing their responses to the survey.

Judicial practice and available official statistics indicate that discovering, proving and sanctioning the crime of animal cruelty, i.e. criminal offence of killing and torture of animals prescribed by Paragraph 269 of Criminal Code of the Republic of Serbia seems to be connected with numerous obstacles and complications. This could be considered as one of the circumstances that contribute to the fact that the number of persons accused of or convicted for this criminal offence in Serbia appears to be rather small in comparison to the actual number of committed and reported cases of animal cruelty. Additional concern is caused by the fact that similar misbalance, showing the presence of so-called “dark figure of crime” follows other criminal offences against environment. In attempt to contribute to more efficient suppression of this type of criminality, the author of this paper discusses fundamental features of criminal offence of killing and torture of animals, draws attention to its most frequent forms (including killing of animals by using firearms or other weapons, animal poisoning, animal neglect, animal hoarding, sexual abuse of animals and causing unnecessary fear and distress to animals) and points out the most acceptable ways to provide valid, relevant and complete evidence against their perpetrators. Moreover, the author highlights the most common practical difficulties that might occur while attempting to provide evidence for each of the aforementioned types of animal cruelty and offers possible solutions that would improve the speed, quality and efficiency of evidentiary proceedings in such cases.
Keywords: animal cruelty, criminal offence, criminal proceedings, evidence, proving.

Una giovane donna, Giovanna d'Arco, sfida ogni convenzione sociale del suo tempo e, sostenuta solo dall'amore per Dio che le parla attraverso le "Voci", lascia la casa paterna e si mette in cammino. La strada la porterà, sullo sfondo della guerra dei Cent'anni, a compiere grandi gesta, ma anche a imbattersi in nemici potenti, che la trascineranno in un processo per eresia il cui esito sarà la morte sul rogo. Tuttavia pochi anni dopo la Pulzella d'Orléans verrà riabilitata attraverso un nuovo processo e in seguito addirittura santificata. Folle o santa? Un personaggio complesso, del quale solo una lettura critica della storia dei processi che subì può tracciare un adeguato quadro. "A chi, in definitiva, gli uomini e le donne sono chiamati a obbedire quando è in gioco la salvezza della propria anima?"

Money motivates and regulates criminal process. Conscious of adjudication costs, prosecutors incentivize guilty pleas with the prospect of a “trial penalty”—harsher post-trial sentences. Budgetary considerations motivate revenue-generating enforcement policies and asset forfeitures by law enforcement. States also charge defendants directly for nearly every criminal justice expense through mandatory fees, which can burden decisions to exercise rights. Additionally, defendants can pay for optional advantages. Right-to-counsel doctrine protects the right to pay for more and better legal assistance than the state is obligated to provide. Paying bail yields pretrial liberty. Diversion programs, for a fee, can supplant ordinary prosecution. Some defendants can choose their sentence—a fine or jail. But these opportunities are not available to all; their costs need not match one’s ability to pay. To examine roles and rules of money in criminal process, this paper considers the case for an optional criminal trial fee. Defendants who pay it would directly cover public litigation costs, which would leave the state indifferent, as a budgetary matter, between trials and guilty pleas. In return, defendants would get a penalty-free trial limited to the terms of a proffered plea bargain. The fee proves a useful device because its rationale and effects accord with entrenched precedents and policies, not least in how it extends the justice system’s differential treatment based on wealth. Yet the trial fee also promises positive effects. It would reduce prosecutors’ most-criticized bargaining tactics—excessively harsh trial penalties—without undermining bargaining’s important secondary functions, enlisting informants to cooperate and rewarding defendants who accept responsibility for their crimes. And even a modest increase in fee-financed trials would yield other benefits, such as citizen participation in applying criminal law and supervising government officials, and more data about “the shadow of trial” in which bargaining takes place.

In the early twentieth century, both civil and criminal cases were resolved by trial roughly twenty percent of the time. In the early twenty-first, the trial rates for both dockets hover around two or three percent. The predominant explanation for " disappearing trial " in civil litigation is the advent of broad pretrial discovery initiated by the Federal Rules of Civil Procedure. Trials were once necessary not only to settle factual disputes but also to generate evidence of the facts. Discovery rules empowered parties to gather virtually all evidence before trial, which turned out to lead to the parties to settle in nearly all cases and pushed the trial toward obsolescence. The federal criminal justice system never adopted discovery rules remotely as broad as the civil model. For decades, neither did state systems; most still have not. What, then, explains criminal adjudication's ability to match the civil system in replacing trials with settlements? Law enforcement has considerable evidence-gathering authority wholly separate from pretrial discovery rules, and technology provides new forms of evidence where formerly none existed. Those make up for civil discovery tools to find or create evidence. But criminal process is lacks civil procedure's other component—interparty disclosure obligations, which are crucial to facilitating settlements. And unlike civil discovery, evidence-gathering tools are provided equally to both parties. These deficiencies should undermine the criminal justice system's capacity to achieve phenomenally high rates of negotiated dispositions, yet they do not. This article makes the case that the answer lies in the distinctively coercive practices of plea-bargaining that arose in the 1980s, which soon triggered a sharp rise in guilty pleas and decline in trials. It describes how hard-bargaining tactics effectively substitute for broad discovery as a means to achieve settlements, but at a cost. While civil litigation replicates the adversarial examination of evidence in the pretrial stage that formerly occurred at trial, criminal litigation often does not, resulting in settlements that are induced by the excessive risks attached to declining them and that rest on evidence that escapes evaluation by both courts and the defense.

El presente trabajo expone los resultados de una investigación que indagó los efectos subjetivos que produce el acto de testimoniar en las causas judiciales por violaciones a los Derechos Humanos durante la última dictadura cívico militar argentina. Se partió del supuesto de que el modo en que se les dirige la palabra a los testigos tiene efectos que producen un tipo de testigo y ello acarrea consecuencias en el testimonio. Se realizó un análisis de las voces que les hablan a los testigos. Se analizaron entrevistas a jueces, fiscales, abogados querellantes y defensores, y a psicólogos que acompañan a los testigos. Del análisis de las entrevistas se desprende que el testigo es la figura central en las causas por violaciones a DD.HH. y por lo tanto será tanto agredido como defendido según los intereses en juego.

The trial was instructed by the provincial court of Vicenza in the years  1831-1833, after the murder of Giovanni Rama, a young peasant of Durlo, a small village of Lessini mountains. The main defendants were Lucia Graizzaro, Giovanni Rama's wife, and her presumed lover. Bernardo Marchesini, a south tyrolese judge, managed the trial, together his colleagues until the severe sentence against the presumed murderer, but Lucia Graizzaro was released for the inadequacy of the proofs alleged against her. Lucia's character is very interesting and provided of some modern traits.

Does a conviction for a serious crime require less evidence than one for a minor offence? Subsequently, if judges render a guilty verdict while having doubts, will they compensate for it with a more lenient sentence? A case of simple or aggravated assault was presented with a low or high probative value of evidence to four groups of judges. Their sentencing sheds light on the pitfalls of judicial reasoning.

"Aux XIIe et XIIIe siècles, le pouvoir de la grande aristocratie castillane reposait encore en partie sur ses compétences judiciaires. Les documents de la pratique et les recueils juridiques des Fueros de Castilla conservent la trace de vingt-sept sentences dictées par les membres de l’un des principaux lignages de l’époque, les Haro. Leur analyse permet de préciser le processus qui conduisait à cette instrumentalisation. Les ricoshombres jugeaient en vertu d’une délégation du pouvoir royal tout en mettant en valeur l’indépendance de leurs décisions. Dans les affaires courantes, qui concernaient les conflits ordinaires des zones rurales, ils cherchaient à faire preuve d’inventivité, manifestant ainsi l’intervention de leur arbitraire ou albedrío. Les affaires criminelles leur donnaient en revanche l’occasion de se poser en défenseurs de grands principes juridiques tout en œuvrant à préserver les intérêts de la noblesse et de leur groupe familial.

In the 12th- and 13th-century Castile, the judicial function still played a part in the might of the high aristocracy. Twenty-seven sentences passed by one of the main dynasties, the Haros, can be found in charters and juridical compilations of the Fueros de Castilla. The analysis of this corpus provides a better understanding of the process leading to this instrumentation. Although the ricoshombres were only magistrates through delegation of royal authority, they managed to emphasize the autonomy of their decisions. Even when dealing with usual cases, mainly about ordinary conflicts of the countryside, they made special efforts to reach original conclusions, proving that they could judge according to their own conscience, the albedrío. Criminal cases gave them the opportunity to pose as defenders of high juridical principles, whereas they were actually acting in order to preserve the interests of the nobility and of their own family."