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Today's post is something taken from my work-in-progression Forensic Psychology book so please free feel to leave a comment down below.
Types of Courts
I absolutely love courts.
I love what they represent and their function.
Yet most of all I love the psychology behind them and that’s why we’ll be investigating them in this chapter.
Note: Whilst, we will be focusing on the UK legal system I will still be making references with the European legal system and American legal system.
As an introduction to this topic, we’ll first be looking at the two types of legal systems.
This is the legal system that the United Kingdom and the United States tend to use and in this system it is a contest between the prosecution and defence were they call witnesses, cross-examine and present evidence to try to win over the other.
Furthermore, the questioning is governed by strict rules where the judge acts as the umpire with the presumption being innocent until proven guilty.
It’s the barrister’s job to present a compelling argument for the offender’s guilty.
Whilst, it’s the defence’s job to challenge the soundness of the case. However, interestingly; and I was surprised when I learned this fact, but the defence doesn’t have to prove their client’s innocence.
Additionally, when it comes to the burden of proof in the Adversarial system when it comes to criminal cases were a law or regulation has been broken. The burden of proof is beyond reasonable doubt. Whereas in civil cases where a moral wrong has been committed it’s all about the balance of probability.
An example for the criminal case would be- let’s say X killed someone in a road accident; so, a law has been broken. In order to meet the burden of proof and charge X will the crime. The judge or jury would have to be certain beyond reasonable doubt that X did kill this person.
Whereas, for a civil case were a member of the family was rear-ended in their car. In order to charge the person driving the car who rear-ended them. The judge would have to balance the probability of whose fault it was and it would have to be more probable than it was the other driver in order to charge them with the crime.
Lastly, when the UK legal system and the US system was compared and a number of difference were found:
The UK system improved memory of evidence presence and juror’s confidence in their verdict as well as the influence of judges non-verbal cues.
But failed to demonstrate how the two different systems affect the trial outcome.
The Inquisitorial system:
Before, we dive into what the inquisitorial system is. I have to say that I love this system but not for the reason that you think.
Personally, I am nearly obsessed with the Inquisition.
I love the word Inquisition.
Mainly because I love the sci-fi fantasy universe of Warhammer 40,000 and they have an Inquisition and there Inquisitors are amazing.
Therefore, whenever I come across something to do with the Inquisition or something related. I quickly become interested.
Anyway, now that the fanboy stuff is over.
Let’s learn about the Inquisitorial Legal System.
What is the Inquisitorial system?
This is the legal system that is dominant in mainland Europe and in this legal system judges play a greater role where they act as investigating magistrates. Where they decide which witnesses to call and they direct police efforts.
In other words, the line between police and court is blurred because as mentioned in the Adversarial explanation the police is one separate entity then the judge and prosecution serve is completely different.
However, for the Inquisitorial system, this isn’t the case.
As a result of judges having a more active role, lawyers take more of a secondary role. Resulting in less procedural rules.
The adversarial British could be a response to the historical shortcoming of the Inquisitorial system.
The inquisitorial ‘jury’ is a made up of a judge and laypeople.
Scotland’s version of the Inquisitorial System:
Oddly enough Scotland is the only place in the UK that has a very interesting hybridised model of this system called: Procurator Fiscals. (PF)
These Procurators are involved in all sudden and suspicious deaths as well as they undertake preliminary investigations, precognition from witnesses and they prosecute the crimes for the Criminal Justice System, allowing them to direct the police investigations.
Precognition in Scottish law is when you take statements from witnesses after the offender has been charged but before the trial begins.
Here are two extra-legal concepts for you to understand that is key in many legal matters.
Mens Rea- the state of mind that recognises the act was criminal.
Actus Reus- the actual committing of the criminal act.
In the UK, when it comes to a corner's inquest or case involving the care of children. These matters are closer to the inquisitorial system than adversarial.
Sevier (2014) compared the two systems and it turns out that in terms of ‘truth-justice trade-off) the adversary system gets closer to delivering to justice than truth and the Inquisitorial system is better at finding the truth.
Government and Courts:
Parliament and the courts try to strike a balance between the right of citizens and the police powers.
Although, this co-existence does depend on political mood at the time.
For example, if the public is restless and demanding the government to do more to tackle crime then this can cause the government to be very demanding of the Courts. Hence, making co-existence difficult.
As recently, politicians have been trying to extend police powers. By trying to restrict bail rights and reduce the right to silence.
The double effect (Foot, 1967) is when the perceived consequences and the intended consequences are different.
For example, Keegan (2011) argues that whilst information from torture is likely to be unreliable. It has the unintended effect of likely radicalising the victim’s associates.
When do courts require Forensic Psychologists?
Forensic psychologists can be used in the prosecution process because they can access whether or not a person is fit to plead.
Fitness to plead is fundamental in British Law (Rogers et al, 2008)
Rogers and his colleagues outline key criteria for assessing fitness to plead.
· Ability to pled
· Ability to understand the evidence
· Ability to understand court proceeding
· Ability to instruct a lawyer
I hope that you're enjoyed today's pos.
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