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International Legal Systems - Page 3

Judge: Common law judges act as “referees” in a case, with both sides coming to the judge only to resolve disagreements and for trial. In common law systems, judges have the power to interpret legislative laws, and are responsible for instructing the jury about the law that applies.

Defense Counsel: Defense counsel plays an active role in trial proceedings and is considered an equal party to the prosecution. Defense counsel can be present during the questioning of a suspect from the moment of arrest and can advise his/her client during questioning. Defense attorneys can gather evidence independently, hire expert witnesses, and select witnesses to call at trial. The right to cross-examine prosecution witnesses constitutes an essential element of the rights of the accused.

Juries: The jury’s role is to decide the facts to determine whether the accused person is proven guilty. The right to have a jury decide the facts may be contained in a country’s Constitution or in a legislative law, and not all common law countries rely upon juries. The country’s laws and type of court also dictate the number of jurors and how many must agree on a verdict.

Victims: In common law systems, victims have a less active role in proceedings than in some other systems. The victim’s primary role is as a witness at trial, and victims may have the opportunity to have their views heard by the court through a victim impact statement at the sentencing hearing. Under victims’ rights laws, victims may be entitled to rights within the criminal justice system during legal proceedings. In the United States federal system, for example, victims generally have rights to safety (to be reasonably protected from the accused and to respect for privacy), information (reasonable, timely and accurate notice of public court proceedings involving the crime or release of the accused), and participation (right to confer with the prosecutor, be present in court and be heard by the court at various points in the prosecution).

Civil Law Legal Systems1

General principles:

  • Most of the law is statutory law created by legislatures and not by judges following precedent;
  • Usually an inquisitorial system, where an investigating judge is actively involved in investigating the facts of a case;
  • Juries are rarely used; a judge or panel of judges will decide the facts and the law to be applied;
  • Prosecutors and defense attorneys may play a more limited role;
  • Victims may be parties and have rights regarding their involvement, which may include having their own attorneys and filing the initial charges;
  • In many civil law systems, victims may bring civil claims, e.g., for monetary damages, in the context of a criminal prosecution.

1 “Civil law systems” should not be confused with the concept of “civil law” in the U.S. U.S. civil law describes lawsuits with a non-criminal claim like divorce, breach of contract, torts, bankruptcy, etc. A foreign civil law system contains both criminal and non-criminal claims.

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Updated May 25, 2023