Tracing and Locating the Criminal
The second phase of the investigation is concerned with locating the offender. Obviously many of the steps previously suggested for identifying the suspect will also lead to his location. Usually the criminal is not hiding; he is simply unknown. In those cases, then, the problem is primarily one of identification. In many cases, however, it is necessary to trace a fugitive who is hiding.
Proving the Guilt.
It is assumed that the criminal has been identified and is now in custody. The investigation, however, is far from complete; it has entered the third and often the most difficult phase, namely, gathering the facts necessary in the trial to prove the guilt of the accused.
The final test of a criminal investigation is in the presentation of the evidence in court. The fact of the existence of the crime must be established; the defendant must be identified and associated with crime scene; competent and credible witnesses must be available; the physical evidence must be appropriately identified, its connection with the case shown; and the whole must be presented in an orderly and logical fashion.
(1615 t.un. )
Tracing
A great part of investigative work is devoted to «finding» missing or wanted persons. The solving of a case frequently depends upon locating the perpetrator. The proper presentation of a case in court involves the discovery and identification of witnesses. The search for a person is frequently a simple matter of a few telephone calls or a visit to a house. At other times, however, the hunt (поиски) can become a lengthy and complicated ordeal.
The search for persons commonly requires a search of records and an application of various sources of information. The term «tracing» is used here to describe all of these procedures. A patient study of records and the information from officials are often necessary to obtain additional evidence and to locate or to identify a person.
Unofficial sources of information such as confidential informants are often used by investigating officers.
(747 t.un.)
Preliminary Hearing
If the individual charged with a crime requests a preliminary hearing before a magistrate, the court will set a hearing within a reasonably short time. At the hearing, the state must present sufficient evidence to convince the magistrate that there is reason to believe the defendant has committed the crime with which he is charged. The defendant must be present at this hearing, and he may or may not present evidence his own behalf.
If the magistrate believes the evidence justifies it, he will order the defendant bound over for trial in the proper court - that is, placed under bond for appearance at trial, or held in jail if the charge involved is not a bailable offence or if the defendant is unable to post bond. The magistrate also may decide that even without bond the accused will most likely appear in court for his trial and therefore will release him on his own recognizance, that is, on his own promise to appear. If he concludes the state has failed to produce sufficient evidence in the preliminary hearing, the magistrate may dismiss the charge and order the defendant released.
(908 t.un.)
Preparation for Trial
As in civil cases, very careful preparation on the part of the state and the defense precedes the trial. However, the defense may first enter a motion challenging the jurisdiction of the court over the particular offense involved, or over the particular defendant. The defense attorney also may file a demurrer, or motion for dismissal, as in a civil suit.
In preparing for trial, attorneys for both sides will interview prospective witnesses and, if deemed necessary, secure expert evidence, and gather testimony сoncerning ballistics, chemical tests, casts and other similar data.
While in detail there are minor differences in trial procedure between civil and criminal cases, the basic pattern in the courtroom is the same.
Officers of the Court
The Judge is the officer who is either elected or appointed to preside over the соurt. If the case is to be tried before a jury, the judge rules upon points of law dealing with trial procedure, presentation of the evidence and the law of the case. If the case is tried before the judge alone, he will determine the facts in addition to performing the aforementioned duties.
The court clerk is an officer of the court, also either elected or appointed, who at the beginning of the trial, upon the judge's instruction, gives the entire panel of prospective jurors (veniremen) an oath. By this oath, the venireman promises that, if called, he will truly answer any question concerning his qualifications to sit as a juror in the case.
Any venireman who is disqualified by law, or has a valid reason to be excused under the law, ordinarily is excused by the judge at this time. A person may be disqualified from the jury duty because he is not a resident voter or householder, because of age, hearing defects, or because he has served recently on a jury.
Then the court clerk will draw names of the remaining veniremen from a box, and they will take seats in the jury box. After twelve veniremen have been approved as jurors by the judge and the attorneys, the court clerk will administer an oath to the persons so chosen "to well and truly try the case".
The bailiff is an officer of the court whose duties are to keep order in the courtroom, to call witnesses, and to take charge of the jury as instructed by the court at such times as the jury may not be in the courtroom, and particularly when, having received the case, the jury is deliberating upon its decision. It is the duty of the bailiff to see that no one talks with or attempts to influence the jurors in any manner.
The court reporter has the duty of recording all proceedings in the courtroom, including testimony of the witnesses, objections made to evidence by the attorneys and the ruling of the court thereon, and listing and marking for identification any exhibits offered or introduced into evidence. In some states, the clerk of the court has charge of exhibits.
The attorneys are officers of the court whose duties are to represent their respective clients and present the evidence on their behalf, so that the jury or the judge may reach a just verdict or decision.
The role of the attorney is sometimes misunderstood, particularly in criminal proceedings. Our system of criminal jurisprudence presumes every defendant to be innocent until proved guilty beyond a reasonable doubt. Every defendant is entitled to be represented by legal counsel, regardless of the unpopularity of his cause. This is a constitutional safeguard.
It is entirely ethical for an attorney to represent a defendant whom the community may assume to be guilty. The accused is entitled to counsel in order that he be protected from conviction on insufficient evidence, and he is entitled to every protection which the law affords him.
(3090 t.un.)
NOTES:
В юридическом переводе слово "officer" может переводиться на русский как "служащий" суда, полиции, а не офицер.
Слово "officer" часто используется при обращении к полицейскому (констеблю): Excuse me officer, how can I get to...? В тексте Officers of the court - должностные лица суда, чиновники. Chief Executive Officer - президент США, но career/regular officer - кадровый офицер.
Семестр
The Legal Profession
Although many kinds of people working in or studying legalaffairs are referred to as lawyers, the word really describes a person who has become officially qualified to act in certain legal mattersbecause of examinations he has taken and professional experience he has gained.
Most countries have different groups of lawyers who each take a particular kind of examination in order to qualify to do particular jobs. In Japan, a lawyer must decide whether he wants to take the examination to become an attorney, a public prosecutor or a judge. In England, the decision is between becoming a barrister or a solicitor. Barristers specialize in arguing cases in front of a judge and have the right to be heard, the right of audience, even in the highest courts. They are not paid directly by clients, but are employed by solicitors. Solicitors have also a right of audience in lower courts, but in higher courts, such as the Court of Appeal, they must have a barrister to argue their client's case. In general, it can be said that a barrister spends most of his time either in a courtroom or preparing his' arguments for the court and a solicitor spends most of his time in an office giving advice toclients, making investigationsand preparing documents.
If a person has a legal problem, he will go and see a solicitor. In fact there are at least 50,000 solicitors in Britain, and the number is increasing.
Many problems are dealt with exclusively by a solicitor. For instance, the solicitor deals with pettycrimes and some matrimonialmatters in Magistrates' Courts. He prepares the case and the evidence. He actually speaks In Court for you.
In a civil action he can speak in the County Court, when the case is one of divorceor recovering some debts. In the County Court the solicitor wears a black gown over his ordinary clothes.
A solicitor also deals with matters outside Court. He does the legal work involved in buying a house, for instance. He writes legal letters for you and carries on legal arguments outside Court. If you want to make a willthe best man to advise you is a solicitor.
Barristers are different from solicitors. Barristers are experts in the interpretation of the Law. They are called in to advise on really difficult points. The barrister is also an expert on advocacy(the art of presenting cases in Court). Indeed, if you desire representationin any Court except the Magistrates' Court, you must have a barrister.
Barristers are rather remote figures. If you need one, for instance, you never see him without your solicitor being with him. Barristers do not have public offices in any street. They work in what are known as chambers* often in London. They belong to the institutions called Inns of Court,* which are ancient organizations rather like exclusive clubs.
In the USA the Justice Department is responsible for the faithful executionof the laws under the President's authority. The main administrators of federal law enforcement are the ninety-four U.S. attorneys, who are appointed by the President with the advice and consent of the Senate.
There is a U.S. attorney in each federal judicial district. Their stuffs of assistant attorneys vary in size with the amount of litigationin the district. U.S. attorneys have considerable discretion, which makes them powerful political figures. Their decision to prosecuteor not affects the wealth, freedom, rights, and reputation of the individuals and organizations in the district.
(2887 t.un.)
NOTES:
chambers– адвокатская контора
(the) Inns of Court — юридические корпорации, готовящие адвокатов (четыре крупнейшие корпорации: the Inner Temple, the Middle Temple, Lincoln's Inn, Gray's Inn)
How does someone become a lawyer?
In some countries in order to practice as a lawyer it is necessary to get a University degreein law. However, in others, a degree may be insufficient; professional examinations must be passed. In Britain, it is not in fact necessary to have a degree, although nowadays most people entering the profession do. The main requirementis to pass the Bar Final examination* (for barristers) or the Law Society Final examination* (for solicitor). Someone with University degree in a subject other than law needs first to takea preparatory course. Someone without a degree at all may also prepare for the final examination, but this will take several years. In most countries, lawyers will tell you that the time they spent studying for their law finalswas one of the worst periods of their life! This is because an enormous number of procedural rules covering a wide area of law must be memorized. In Japan, where there are relatively few lawyers, the examinations are supposed to be particularly hard: less than 5 percent of candidates pass. Even after passing the examination, though, a lawyer is not necessarily qualified. A solicitor in England, for example, must then spend two years as an articled clerk, during this time his work is closely supervisedby an experienced lawyer, and he must take further courses. A barrister must spend a similar year as a pupil.
The rate at which the legal profession grows is terrific. In the 21st century the number of lawyers will probably outpacethe rate of population growth.
Why is the career in law so popular? In the USA the average salaryof experienced lawyers in private practice is more than $100,000.
Lawyers' salaries are substantially greater than those of many other professionals. The glamour of legal practice strengthensthe attraction of its financial rewards.
(1514 t.un.)
NOTES:
the Bar Final examination — экзамен, который сдается при поступлении в Коллегию Адвокатов
the Law Society Final examination — экзамен, дающий право быть членом Общества юристов (профессионального союза солиситоров)
Two Types of Lawyers
The magistrates' court is the most common type of law court in the United Kingdom. The court system is dependent upon the legal profession to make it work. England is almost unique in having two different kinds of lawyers, with separate jobs in the legal system. The two kinds of lawyers are solicitors and barristers. This division of the legal profession is due mainly to historical causes. Each branch has its own characteristic functions and a separate governing body.
The division has a number of significant impacts upon the judicial system. It is the main reason for the separation between civil and criminal courts. It also has a significant impact upon judicial appointments. The traditional picture of the English lawyer is that the solicitor is the general practitioner, confined mainly to the office. The solicitor is the legal adviser of the public.
Members of the public are able to call at a solicitor's office and seek his advice in a personal interview. The barrister is the specialist adviser much of whose time is taken up with court-room appearance. A barrister can only be consulted indirectly through a solicitor. Today however the lines of demarcation are blurred. There is approximately one solicitor to every 1300 of the population, with considerable regional and local variations. There is a heavy concentration in commercial centres.
The ratio for barristers is about one per every 10,000. Taking the legal profession as a whole (38,500), there is one practicing lawyer per 1200 people. But a lot of work in English solicitors' offices is undertaken by managing clerks, now called "legal executives" who are a third type of lawyers.
Thus, solicitors make up the largest branch of the legal profession in England. They are found in every town, where they deal with all the day-to-day work of preparing legal documents for buying and selling houses, making wills, etc. Solicitors also work on court cases for their clients, prepare cases for barristers to present in the higher court, and may represent their client in a Magistrates' court. Barristers defend or prosecute in the higher courts.
Although solicitors and barristers work together on cases, barristers specialize in representing clients in court and the training and career structures for the two types of lawyer are quite separate. In court, barristers wear wigs and gowns in keeping with the extreme formality of the proceedings. There are a few hundred judges, trained as barristers, who preside in more serious cases. There is no separate training for judges.
A jury consists of twelve people ("jurors"), who are ordinary people chosen at random from the list of people who can vote in elections. The jury listen to the evidence given in court in certain criminal cases and decide whether the defendant is guilty or innocent. If the person is found guilty, the punishment is passed by the presiding judge. Juries are rarely used in civil cases.
Magistrates judge cases in the lower courts. They are usually unpaid and have no formal legal qualifications, but they are respectable people who are given some training. (2599 t.un.)
CОДЕРЖАНИЕ
| Программа и структура курса…………………… 1 Методические указания…………………………..4 Первый год обучения Контрольное задание 1……………………..……11 Контрольное задание 2……………………..…….21 Второй год обучения Контрольное задание 3…………………….……..34 Контрольное задание 4…………………………...47 Тексты для дополнительного чтения Первый год обучения……………………………..59 Второй год обучения…...……..…………………63 Содержание……………………………...………..68 |
* Подсчёт количества печатных знаков: число печатных знаков (считая знаки препинания) в полной строке умножается на количество строк. Обычно на странице бывает 1800 – 2000 знаков.