Criminal Procedure: Comparative Aspects

Criminal Procedure: Comparative Aspects - Purposes And Problems, Two Models Of The Criminal Process, Investigation, Control Of Police, Prosecution



In the light of growing dissatisfaction with the realities of American criminal procedure, the criminal process of foreign countries has since the 1970s attracted growing interest among American scholars. They have sought possible models for domestic reform not only in other jurisdictions of the common law family but also in continental Europe, where the criminal process has followed a format quite different from the Anglo-American tradition.
THOMAS WEIGEND


Criminal Procedure: Comparative Aspects - Purposes And Problems
Criminal Procedure: Comparative Aspects - Two Models Of The Criminal Process
Criminal Procedure: Comparative Aspects - Investigation
Criminal Procedure: Comparative Aspects - Control Of Police
Criminal Procedure: Comparative Aspects - Prosecution
Criminal Procedure: Comparative Aspects - Adjudication
Criminal Procedure: Comparative Aspects - Agenda For Comparative Research
Criminal Procedure: Comparative Aspects - Bibliography

Criminal Procedure: Comparative Aspects - Purposes And Problems
The purpose of comparative research into foreign ways of conducting the criminal process is not limited to the satisfaction of scholarly curiosity, its results can also be put to practical use in various ways. Observation of foreign laws and practices can demonstrate that it is feasible to depart from one's own traditional solutions and thus back up reform proposals against conservative criticism. Looking abroad can also generate a pool of new ideas for law reform—ideas whose attractiveness increases in proportion to the perceived dysfunctionality of a system's own procedural system (cf. Frase, 1999; Frase and Weigend). Solutions that have thrived in a foreign system should, however, not be embraced without a healthy dose of skepticism. Even achieving a proper understanding of foreign legal systems is not as simple as it may appear. Domestic procedural institutions rarely have exact equivalents abroad, but their functions may be fulfilled by procedural arrangements that appear under a different name and sometimes in a totally different legal context, or practitioners may have developed functionally similar solutions without any explicit support in statutory law. To cite just one example: in continental procedure law, pleas of guilty or not guilty are unknown. Yet the main effect of a guilty plea, namely the radical abbreviation of the criminal trial, can be achieved by other means, for example, by a brief confession made at the beginning of the trial immediately followed by imposition of a sentence, or by the defendant's submission to being adjudicated on the record of pretrial proceedings. This example shows that it is crucial for comparativists to look not only beyond nominal parallels but even beyond a country's law on the books and to take procedural practice into account.
The second step, adaptation of a solution proven to "work" abroad creates even greater problems. Because of the interdependence of all elements of the criminal process, a procedural device that functions excellently in its original environment may be ineffectual or even counterproductive as a transplant severed from its roots. For example, the authors of the German Code of Criminal Procedure of 1877, fascinated by what they had seen flourish in England, introduced the possibility of examination and cross-examination of witnesses by the parties (Strafprozessordnung (StPO) vom 7. April 1987, Bundesgesetzblatt 1987 I, p. 1074, § 239). This option, which does not fit into the judge-dominated mode of the German trial, has almost never been used and is hardly known among German lawyers. Another possible pitfall for reformers intent on "borrowing" foreign solutions is the attitude of judges and lawyers: if they reject the transplant, perhaps because it seems to disturb the well-ingrained ways of doing justice, they can easily ignore or "integrate" any new institution into the old mold and thus prevent substantive change.


Criminal Procedure: Comparative Aspects - Two Models Of The Criminal Process
This entry does not advocate any particular legal reform but limits itself to providing outlines of the criminal process in some European countries, especially France, Germany, Italy, and Spain (for more detailed information on these and other systems see, Bradley, 1999 and Van den Wyngaert; for in-depth comparisons of two or three legal systems, see Fennell et al. (England and the Netherlands) and Hatchard et al. (England, France, and Germany)). Of these systems, France and Germany still represent, with great variations, the "inquisitorial" model of the criminal process, whereas Italy and Spain have procedural systems that represent intermediate solutions between the inquisitorial style of proceeding and the adversarial model practiced in the systems of the common law tradition.
One basic difference between the inquisitorial and the adversarial modes of conducting the criminal process lies in the definition of the goals of the process. The inquisitorial model is geared toward determining the truth of what has happened, and the judgment is based on findings of fact that approximate the historical truth as closely as possible; the adversary model regards the criminal process as a tool for the resolution of a dispute between the accuser (usually, a public prosecutor) and the accused, and it emphasizes the search for the truth only to the extent that truth-finding is necessary for the resolution of this dispute (cf. Damaska, 1998). Moreover, the adversary system, determined to provide both sides with a fair opportunity to win the contest, closely circumscribes the means by which facts can be established in court, and it excludes from the fact finder's consideration evidence that might unfairly prejudice one party. This basic contrast in outlook explains, for example, one of the conspicuous differences in evidence law between continental and common law systems: whereas hearsay evidence is generally admissible in inquisitorial systems (because even hearsay, regardless of its lesser reliability, can help the finder of fact in his or her attempt to find out what actually happened), common law systems exclude hearsay (with several exceptions) because its introduction would prevent the opposing party from effectively testing the truthfulness and reliability of the source of information (Damaska, 1997, pp. 79–81).
Inquisitorially oriented systems typically rely on neutral agents of the state (a judicial magistrate or a state's attorney cast in an objective role) to initially collect the evidence and to prepare the case for trial. At the trial stage, the court, in particular the presiding judge, is responsible for introducing the relevant evidence, and the attorneys for the state and for the defense play only supplementary roles. In the adversary system, by contrast, each party (i.e., the prosecutor and the defense) collects and presents the evidence favoring its position. The judge plays the role of an umpire at the trial stage, whereas a jury of laypersons is typically responsible for finding the verdict. The Italian approach is similar to the adversary model in that trial proceedings are adversarial, but trial is preceded by a thorough pretrial investigation conducted by the public prosecutor, who at that stage is expected by the law to act in an "objective" fashion and to also investigate facts favoring the suspect (Codice di procedura penale, allegato al decreto del Presidente della Repubblica 22 sept. 1988, n. 447 (Italian CP), art. 358). Before a case can go to trial, the results of the pretrial investigation must be submitted to a magistrate; he or she determines whether there is sufficient evidence against the suspect and whether the case can be resolved—if the defendant consents—by convicting and sentencing him on the spot, without trial (Italian CCP, arts. 416–433). Spanish procedure similarly provides for a combination between an inquisitorial investigation and a party-dominated trial (for an overview, see Vogler, pp. 394–396).
The existence of such eclectic systems—of which there are more—demonstrates that the inquisitorial and adversarial models of the process are merely ideal-types (Damaska, 1975), convenient for reference in scientific debate but with limited relevance for the understanding of a particular country's procedural system. It is unclear to what extent either of these models has historically existed in pure form; today, in any event, every system of criminal procedure includes inquisitorial as well as adversarial features.

Criminal Procedure: Comparative Aspects - Investigation
Investigation of a reported offense is the first step in the criminal process. The law typically entrusts either an investigating magistrate, as in France (Code de Procédure Pénale, Loi n. 57-1426 du 31 déc. 1957 (French CPP), arts. 80, 81) and Spain (Ley de Enjuiciamiento Criminal, promulgada por real decreto de 14 de sept. de 1882 (LEC), art. 306), or the state's attorney, as in Germany (StPO, § 160) and Italy (Italian CPP, art. 327), with conducting the investigation, but in fact it is almost invariably the police who interrogate suspects and witnesses, seize physical evidence, and do everything else necessary to collect proof for a later trial (see StPO, § 163; Italian CPP, Art. 348).
Whenever it is necessary, in the course of an investigation, to seriously interfere with citizens' privacy or liberty interests, for example, by searching a home or placing a person under arrest, the police need prior judicial permission or, if exigent cirumstances have precluded the police from requesting a judicial warrant, at least a magistrate's subsequent authorization of the relevant measure. Pretrial custody, as the most serious invasion of personal liberty, invariably requires a judicial warrant (French CPP, art. 146; StPO, § 114; Italian CPP, art. 292; LEC, art. 502). Provisional arrest and short-term detention (up to two or three days) can, however, be imposed by nonjudicial officers when there is strong suspicion against a person, especially when he or she has been apprehended while committing an offense or shortly thereafter (French CPP, art. 63; StPO, § 127; Italian CPP, arts. 380–386; Spanish Constitution, art. 17 sec. 2).
When suspects are interrogated by the police, most of these systems require informing the suspect of the right to consult an attorney (French CCP, art. 63–4 (1); StPO, §§ 136 (1), 163a (4); Italian CCP, art. 350(2); LEC, art. 118). Germany and France (in custodial interrogations) also require a warning about the right to remain silent (French CCP, art. 63–1(1); StPO §§ 136(1), 163a (4)).
Searches and seizures must on principle be ordered by a magistrate, but they can be conducted without such authorization when it is necessary to act immediately, for example when illegal drugs or weapons have been seen on someone's premises and there is the risk that they will be concealed or destroyed while the police attempt to obtain a judicial warrant (French CPP, art. 56; StPO, §§ 105, 111e; Italian CPP, art 352). Searches can legally be conducted only if the police suspect that evidence of a crime or items subject to confiscation will be found. Required standards of suspicion tend to be lower in continental systems than under U.S. law (Bradley, 1983). Because the law accords the individual less extensive protection against invasions of privacy in the course of a criminal investigation, cases involving the issue of rule-breaking by the police occur less frequently than in the United States. Conflicts between the interests of vigorous law enforcement and individual rights nevertheless arise, and the protection of citizens from overzealous police is an important policy issue in all systems.

Criminal Procedure: Comparative Aspects - Control Of Police
One possible way of controlling police is the imposition of individual civil and criminal liability for unlawful invasions of citizens' rights. Such remedies are available in most legal systems, but they are notoriously ineffectual in cases of misconduct below the level of outright brutality. The same must be said of formal disciplinary proceedings. Internal discipline generally functions comparatively well within hierarchical statewide or nationwide police forces, yet disciplinary measures are often regarded as being out of proportion with respect to routine violations and therefore are initiated only for the most egregious offenses.
In many systems, the police are formally regarded as auxiliaries of the state's attorney and subject to his or her orders and supervision (see, e.g., French CPP, arts. 12, 13; German Gerichtsverfassungsgesetz (GVG) vom 9. Mai 1975, Bundesgesetzblatt 1975 I, p. 1077, § 152). But prosecutorial supervision does not provide an effective check on police activities because prosecutors typically remain aloof from routine investigations and police agencies do not look favorably upon "outside" interference.
Another approach toward guaranteeing the legality of pretrial proceedings is to entrust an impartial magistrate with conducting the investigation. The institution of the investigating magistrate has long been a hallmark of continental criminal procedure. At the beginning of the twenty-first century, this institution still exists in France, Spain, and the Netherlands but has been abolished in Germany and Italy, among other countries. In those systems that still retain the investigating magistrate procedure, its practical relevance is limited to the most serious cases, and even there many of the steps in collecting evidence are delegated to judicial police. It would indeed be unrealistic to expect that a magistrate could single-handedly conduct or even effectively control the investigation as long as the police monopolize the requisite manpower, information, equipment, and experience. The "myth of judicial supervision" (see Goldstein and Marcus, pp. 246–259) as well as the formal authority of state's attorneys over pretrial proceedings may in fact provide a convenient legal smokescreen behind which the police are shielded from effective control.
Lacking the legal and institutional mechanisms described above, American law has adopted an indirect approach designed to give maximum protection to the individual. According to U.S. law, evidence obtained in violation of a suspect's rights cannot be used in court to support a conviction (Mapp v. Ohio, 367 U.S. 643 (1961); Dickerson v. U.S., 120 S.Ct. 2326 (2000)). Proponents of this rule expect its operation to deter police from illegal conduct, on the assumption that police have a professional interest in the conviction of offenders. To a surprisingly large extent, legal rules providing for the exclusion of illegally obtained evidence have spread from the United States to Europe. Such rules are, however, not always designed to control police conduct.
Even more sweeping exclusionary rules than in the United States apply in Italy and Spain. Italian law simply states that evidence obtained in violation of a legal prohibition cannot be used; this rule is to be applied at any stage of the proceedings, even on the court's own motion (Italian CPP, art. 191). In Spain, the relevant statute provides that evidence obtained in violation of fundamental rights shall not have any direct or indirect effect (Ley orgánica 6/1985 of July 1, 1985, del poder judicial, art. 11 sec. 2). Such fundamental rights include the right to defense and to counsel, the right to be informed about the accusation, the privilege against self-incrimination, and the presumption of innocence (cf. Spanish Constitution, art. 24 sec. 2). Spanish courts have interpreted this provision to require exclusion even of the "fruits of the poisonous tree" (see Picó i Junoy). There is little information available about how these far-reaching rules of exclusion actually operate in Italian and Spanish practice.
In Germany, statutory law mandates exclusion of statements obtained from suspects or witnesses by force, deception, hypnosis, or similar illicit methods of interrogation (StPO, § 69 sec. 3, § 136a). The courts have gone further and refused to use as evidence, for example, a suspect's diary ( Judgment of the Federal Court of Appeals of Feb. 21, 1964, 4 StR 519/63, 19 Entscheidungen des Bundesgerichtshofes in Strafsachen (BGHSt) 325), the results of an illegal wiretap ( Judgment of the Federal Court of Appeals of March 17, 1983, 4 StR 640/82, 31 BGHSt 304), a statement elicited from the suspect by a police informer illegally placed in the suspect's cell during pretrial custody ( Judgment of the Federal Court of Appeals of April 28, 1987, 5 StR 666/86, 34 BGHSt 362), and a suspect's statement made to the police without the requisite prior warning of his right to remain silent (Judgment of the Federal Court of Appeals of Feb. 27, 1992, 5 StR 190/91, 38 BGHSt 214). Exclusion in these cases was mainly based on the argument that admission of the evidence would violate the principle of due process (Rechtsstaatlichkeit). Since this is a rather vague and pliable concept, it is not surprising that German courts have admitted evidence in other, factually quite similar cases, arguing that the violation of the suspect's rights was outweighed by the state's interest in determining the truth (see, e.g., Judgment of the Federal Court of Appeals of July 9, 1987, 4 StR 223/87, 34 BGHSt 397, admitting into evidence the suspect's diary in a murder case). Because deterrence of police misconduct is not the rationale for exclusion of evidence, German courts tend to admit evidence obtained through illegal searches (Judgment of the Federal Court of Appeals of Feb. 15, 1989, 2 StR 402/88, 1989 Neue Zeitschrift für Strafrecht 375 at 376) as well as evidence found through investigations based on illegally obtained evidence ("fruits of the poisonous tree"; Judgment of the Federal Court of Appeals of August 24, 1983, 3 StR 136/83, 32 BGHSt 68).
According to French law, results of investigatory acts can be stricken from the record of the investigation when the court in charge of controlling pretrial procedure (chambre d'accusation) determines that they were performed illegally. In a few instances, for example with respect to the rules governing the conduct of a domicile search, the Code of Criminal Procedure explicitly provides for annulment of the act and its consequences when the relevant rules are violated (French CCP, art. 59 sec. 3). Beyond that, annulment occurs whenever a substantial rule of procedure was misapplied and prejudice to the complaining party resulted (French CCP, arts. 171, 802).


Criminal Procedure: Comparative Aspects - Prosecution
Prosecutorial discretion. American prosecutors enjoy practically unlimited discretion in their decision whether to file charges against a suspect, and what charges to bring. This can frustrate victims of crime, who have no legal recourse against a district attorney's refusal to prosecute and who are in most states precluded from directly involving the courts by filing criminal charges.
Foreign legal systems offer alternatives to unfettered prosecutorial discretion. Three methods of limiting or controlling discretion can be distinguished: (1) the law can impose a duty to prosecute whenever, given the evidence available, conviction appears likely; (2) the prosecutor's refusal to bring charges can be subject to judicial review; (3) the complainant (or any citizen) can be given the right to file criminal charges directly with the court. Most European systems employ at least one of these checks upon prosecutorial discretion.
In Italy and Spain, the prosecutor cannot legally decline to prosecute a case if there is enough evidence to convict (Constituzione della Repubblica italiana, approvata dall'Assemblea Costituente il 22 dic. 1947, art. 112; Italian CCP, art. 50; LEC, art. 105). In Germany, the same principle applies, but only with respect to serious felonies (StPO, § 152 sec. 2, § 160). Observers of practice report, however, that prosecutors in these countries only pay lip service to the law; they claim insufficiency of the evidence even in convictable, but less serious cases that do not merit prosecution (Guarneri, pp. 143–152; Tak, pp. 38–41; Volkmann-Schluck, pp. 44–45). Prosecutorial discretion, it seems, cannot be abolished by legislative fiat. Rules of mandatory prosecution were introduced in many European countries in the nineteenth century, when prosecutorial offices were still suspected of being tied too closely to the political interests of the government; their rationale was to achieve equality through strict application of the criminal code without exception and political favoritism. Yet the rule of mandatory prosecution tries to exorcise the evil of inequality by the even greater evil of systematic overenforcement. This has proved to be not only unwise but also impracticable. Since prosecutors in all systems view as their function the elimination of cases in which conviction would do more harm than good, they will do so even in the face of law to the contrary.
External judicial review of prosecutorial dismissals is available in Germany and Italy. When a German prosecutor closes a case because he or she deems the evidence insufficient for conviction, the prosecutor must notify the private victim-complainant and state the reasons for dismissal. The victim can then file a complaint with the state attorney general and, if the original dismissal is upheld, can file a further appeal with the regional appellate court. The court mandates the prosecutor to file charges if the victim's claim is justified. The victim can then join the proceedings as a "supplementary prosecutor" to make sure that the prosecution case is presented forcefully (StPO, §§ 171–175, 395 sec. 1). Successful mandamus motions by victims are extremely rare in Germany, but the fact that the option is available serves as a check on prosecutorial arbitrariness. Paradoxically, victims are precluded from challenging a discretionary dismissal in court when the prosecutor's decision not to file charges is not based on lack of evidence but on policy grounds, as is possible with lesser felonies and misdemeanors (StPO, §§ 153, 153a). In Italy, dismissal of a case for lack of sufficient evidence (archiviazione) requires a judicial decree. The prosecutor must inform the victim of his or her intention to apply for archiviazione, and the victim can then file a brief in opposition with the magistrate in charge (Italian CCP, arts. 408, 410). If the magistrate deems the victim's argument in favor of prosecution well-founded, he or she orders the prosecutor to conduct additional acts of investigation or to file a formal accusation (Italian CCP, Art. 409 secs. 4, 5).
A third way of confining prosecutorial discretion is to permit criminal prosecution by private citizens. Many countries grant victims this right. They do not share the concern of U.S. courts that private victims may be so strongly involved in the case that they are unable to conduct the prosecution in a professional and detached manner. The most far-reaching provision can be found in Spain, where the constitution guarantees not only the victim of the offense but every citizen the right to bring criminal charges (Spanish Constitution, art. 125). Upon receipt of a citizen's complaint, the investigating magistrate is obliged to conduct a regular preliminary investigation. The court cannot dismiss charges preferred by a private complainant unless it finds that the act in question does not constitute a crime (LEC, arts. 637, 645). In Germany, the right to bring a private accusation is limited to certain minor offenses such as slander, simple assault, trespass, and destruction of private property (StPO, § 374). In these instances, the victim can go forward with the criminal case even without the state attorney's consent, but the public prosecutor can take over if the public interest so requires (StPO, §§ 376, 377).
Neither in Spain nor in Germany does private prosecution play a significant role in practice. This is hardly surprising because the task of collecting and presenting evidence in court places a heavy burden on a private individual. German law confronts private complainants with an additional impediment by requiring them to attempt reconciliation with the opposing party with the help of a mediator appointed by the community (StPO, § 380); only when mediation has failed can the case be brought before the court. Chances of actually obtaining a conviction are low even if the victim has cleared all formal hurdles. In cases of minor guilt, the court can simply dismiss the case even though all elements of the offense have been established (StPO, § 383 sec. 2), and it may well be that the complainant is then left with nothing but the bill for his own and his adversary's expenses (StPO, § 471 secs. 2, 3).
Most legal systems under consideration here permit victims who have suffered harm by an offense to join the prosecution with their claim for civil damages (French CCP, art. 2; German StPO, §§ 403–406c; Italian CCP, arts. 74, 76); in Spain, the public prosecutor demands civil damages for the victim unless the latter objects (LEC, art. 108). With the exception of France, however, the victim's ability to sue for civil damages in criminal court is dependent on the existence of a public action, so that the public prosecutor's unwillingness to file or maintain charges eliminates the victim's ability to recover in criminal court. In the French system, the victim can file a private criminal action (action civile) directly with the investigating magistrate or the criminal court. Since the victim's action civile is deemed to initiate a "regular" prosecution (French CCP, arts. 1 sec. 2, 418) the public prosecutor must fulfill his or her regular functions in the process even though the prosecutor may not have wished to file charges. The right to bring an action civile can be exercised not only by individuals directly affected by an offense but also by organizations representing certain interests or classes of victims, for example victims of war or of discrimination (French CCP, Arts. 2-1–2-15).
The French system evidently provides an effective check on the prosecutor's decision not to file charges. It may even go too far in subordinating the prosecutor's decision-making to the judgment of an individual victim. The German and Italian systems seem to offer a more balanced solution: if a conflict arises between the prosecutor and the victim, a neutral judge decides whether prosecution is warranted. It would be desirable to extend this system to policy-based decisions to refrain from prosecution. Prosecutors should undoubtedly have some leeway in making policy decisions on how to allocate limited resources, but the possibility of external review might at least persuade them to formulate and adhere to rational standards of decision-making in this area.
Diversion. Whenever a prosecutor dismisses a "convictable" case he or she diverts a suspect from the criminal process. Diversion can be unconditional and thus amount to a prosecutorial grant of impunity, but it can also be tied to the imposition of obligations on the suspect. In France, the prosecutor can in some areas (e.g., criminal violations of environmental and fiscal laws) enter into a "transaction" with the suspect, promising to drop the case in exchange for a payment to be made to the fisc (French CCP, art. 6 sec. 3; Conte and Maistre du Chambon, pp. 106–108; see also French CCP, arts. 41-2 and 41-3, authorizing conditional dismissal of certain less serious charges). German law provides for a similar scheme. In cases of misdemeanors and less serious felonies, the prosecutor can offer to the suspect to dismiss the case if the suspect fulfills obligations imposed on him (StPO, § 153a). In practice, such obligations almost invariably involve payments to be made to the state, a charitable organization, or the victim. The suspect can refuse to enter into this quid pro quo, but if he does he risks prosecution and eventual conviction. On the other hand, if the suspect makes the required "penance payment," he or she avoids the publicity of a trial as well as having a criminal record.
Since the 1980s, diversion from the criminal process has also been promoted and practiced as a tool of reconciliation between offenders and victims. In various systems, the prosecutor can make nonprosecution dependent on the suspect's willingness to meet with the victim and to work out an agreement involving restitution (cf. French CCP, art. 41-1 sec. 7; StPO, § 155a). Such efforts, which have led to the creation of a host of local victim/offender mediation programs (for Germany, see Bundesministerium der Justiz), rest on the notion that there is no public interest in prosecution and conviction when the offender (of a less serious offense) has satisfied the victim.
Diversionary practices are popular because they save time and money, relieve the courts' workload, and allow marginal offenders to avoid the stigma of criminal conviction. Critics have, however, pointed out several real or potential drawbacks of diversion: sentencing authority is effectively shifted from the judiciary to prosecutors; standards are lacking for diversion eligibility and obligations; the availability of conditional diversion may enlarge rather than reduce the overall scope of state control over individuals' lives ("net widening effect"); and the presumption of innocence is neglected because mere suspects are coerced into accepting diversionary sanctions by threatening them with harsher treatment after trial and conviction (Kuhlen). Yet the practical advantages of diversionary practices for prosecutors, defense attorneys, courts, and most defendants have proved so overwhelming that theoretically valid criticism was unable to stop the rapid expansion of diversion. In Germany, conditional dismissal, originally designed for petty offenses, is frequently being used for resolving even very serious cases of white-collar crime, especially those which present problems of proof: the suspect makes a high payment (sometimes equivalent to more than U.S. $100,000) in exchange for nonprosecution (Meinberg, pp. 115–127). This resolution offers benefits to both sides: the defendant can still maintain his or her innocence whereas the prosecutor can claim that the state has obtained sufficient vindication without the trouble and risk of a trial.
In order to avoid abuses, it is important to develop proper safeguards for the fair and equitable application of diversionary measures. Prosecutors should develop guidelines for diversion eligibility, including limits on the amount of payments to be demanded of suspects; suspects and victims should be given the right to have decisions on granting or refusing diversion reviewed by a judge; and there should be guarantees against penalizing the defendant at trial and sentencing for refusing to accept diversion. Such limitations on prosecutorial discretion would be justified in light of the fact that the prosecutor in the diversionary process assumes a judge-like position.


Criminal Procedure: Comparative Aspects - Adjudication

The contrast between adversarial and inquisitorial styles of conducting the criminal process becomes most evident at the trial stage. In inquisitorial systems, the trial is typically dominated by the presiding judge, who selects and calls up the evidence to be presented at trial, makes procedural rulings as necessary, and interrogates defendants, witnesses, and experts. In adversarial systems, the judge's role is limited to presiding over the parties' presentation of the evidence. Advantages and disadvantages of either system have long been the subject of scholarly debate. To some extent, the difference between the modes of trial is technical rather than substantive: as long as the court as well as the parties have the right to question witnesses, the sequence of interrogation is of little relevance. Yet there is one basic difference between adversarial and inquisitorial systems that relates back to differing definitions of the purpose of the process: the inquisitorial judge has the responsibility of making certain that a complete account of the relevant facts is given in court so that the verdict can be based on "the truth"; in the adversary system, by contrast, the finder of fact decides on the factual basis as it is presented by the parties, and neither the court nor the jury have the right to probe into the factual background or (in most systems) to introduce evidence on their own initiative.
In inquisitorial systems, the court has complete freedom in evaluating the evidence. The French Code of Criminal Procedure leaves the judgment on guilt or innocence to the "internal conviction" (intime conviction) of the judges (French CCP, art. 427; cf. StPO, § 261; Italian CCP, art. 192). This means that there are, in principle, no rules of law determining the weight to be given to particular items of evidence. As a further consequence of the court's independent duty to determine the truth, the court cannot be bound by parties' factual admissions or stipulations.
Inquisitorial and adversarial systems also typically differ with respect to the relationship between pretrial and trial proceedings. Systems that place great emphasis on the adversarial presentation of evidence tend to shield the trial process from being influenced by the results of the pretrial investigation—only what is presented and discussed at the trial can form the basis of the judgment. Inquisitorial systems, on the other hand, are much less adamant in keeping the various stages of the process separate, because they regard the trial as the culmination of a continuous effort at determining the "truth." Thus, a French or Dutch lawyer would not regard it as a violation of procedural principle that a witness's prior police testimony can be introduced at the trial by reading from the police transcript in the absence of the witness; and this is indeed common practice in both countries' lower criminal courts (Frase, 1999, p. 174; Swart, p. 298).
Beyond these characteristics, it would be misleading to say that continental systems universally adhere to a strict inquisitorial style of proceeding. On the contrary, a closer look reveals a great variety of trial styles, some of which are surprisingly similar to the common law trial. One can, in fact, determine an advance of the adversary trial mode on the continent, for which several explanations can be given. On the one hand, "trial by combat" is attractive to skilled and competitive lawyers everywhere; on the other hand, the European Convention on Human Rights, which has been adopted by virtually all European countries, guarantees certain trial rights typical of the common law style, most importantly the defendant's right to present evidence in his defense and to confront witnesses against him (European Convention on the Protection of Human Rights and Basic Freedoms of Nov. 4, 1950, art. 6 sec. 3 lit. d). The jurisprudence of the European Court of Human Rights in Strasbourg, which tends to give broad interpretations to the clauses of the Convention, has indeed cast doubt upon the continued permissibility of some traditional practices of inquisitorial systems in the light of the European Convention's trial rights (see, e.g., Unterpertinger v. Austria, Reports of Judgments and Decisions, Series A, Nr. 110 (1987); Lüdi v. Switzerland, Reports of Judgments and Decisions, Series A, Nr. 238 (1992)). French criminal procedure is still closest to the prototype of the inquisitorial model. The Code of Criminal Procedure confers upon the presiding judge discretionary authority to take, "on his honor and conscience," all measures he or she deems useful to discover the truth (French CCP, art. 310). When the formal document of accusation has been filed by the prosecutor, the presiding judge reviews the evidence gathered before trial. In addition to witnesses suggested by both parties, he or she can have any other witnesses called, can appoint experts and have physical evidence produced. It is the presiding judge who interrogates the defendant and all witnesses. Members of the court may ask additional questions (French CPP, art. 311) whereas the parties are limited to suggesting additional questions but may not themselves examine witnesses (French CCP, art. 312).
In the most serious cases, tried before a mixed court of three professional and nine lay judges (the cour d'assises), the presiding judge formulates the specific questions for the court to answer (French CCP, art. 348). Since the professional and lay judges deliberate on the verdict together, the presiding judge also has ample opportunity to explain the law and advise the other judges on the evidence behind closed doors. The presiding judge's role is even greater in the lower courts, where he sits alone or together with two associate professional judges (French CCP, arts. 398, 398-1, and 523); these courts handle over 99 percent of criminal trials (Frase, 1999, p. 163).
In Germany, the great majority of cases are decided by a single professional judge, who can impose penalties of up to four years imprisonment (Gerichtsverfassungsgesetz in der Fassung der Bekanntmachung vom 9. Mai 1975 (Bundesgesetzblatt 1975 I, p. 1077), § 24 sec. 2). More serious cases are adjudicated by mixed courts of professional judges and lay persons sitting and deliberating together (cf. Dubber, pp. 556–567). As in France, the court is responsible for having all relevant evidence available at the trial (StPO, § 244 sec. 2). Parties can, however, bring their own witnesses and experts, and the court must hear them unless it can determine in advance that their testimony will be irrelevant or duplicative (StPO, §§ 244 sec. 3, 245). The presiding judge initially interrogates the defendant (if he or she wishes to testify), witnesses, and experts. In that interrogation, the dossier of the pretrial investigation, assembled by the public prosecutor and submitted to the court, often plays an important role: the presiding judge frequently confronts witnesses with prior statements contained in the dossier and asks them to explain contradictions between their trial testimony and what they had earlier told the police or the prosecutor. The other judges as well as counsel for the prosecution and the defense have the right to ask additional questions. The court can reject parties' questions only if they are inappropriate or irrelevant (StPO, § 241 sec. 2)—a standard that German courts have interpreted narrowly ( Judgment of the Federal Court of Appeals of April 22, 1952, 1 StR 96/52, 2 BGHSt 284). In routine cases, parties tend to make sparing use of their right to ask additional questions; yet in contested cases, the defense may employ the right to interrogate prosecution witnesses to much the same effect as an Anglo-American cross-examination. At the end of the trial, the prosecution and the defense sum up their views of the evidence, and the defendant has the opportunity to speak last. As in France, professional and lay judges deliberate together. A two-thirds majority is required for conviction (StPO, § 263). Given the composition of German mixed courts (one, two, or three professional judges sitting with two lay judges), this means that lay judges can in any event block a conviction if they vote together.
In Spain, it is the parties who primarily determine what evidence will be presented at the trial (LEC, art. 728), but the court can add evidence to the extent it regards such evidence as necessary for proving one of the offenses listed in the formal accusation (LEC, art. 729 No. 2). The allocation of roles is similar with respect to the actual presentation of evidence: examination and cross-examination by the parties is the primary method of taking oral testimony. The presiding judge can, however, not only reject misleading and irrelevant questions (LEC, art. 709 sec. 1), but can also change the sequence in which witnesses are interrogated and ask additional questions (LEC, arts. 701 sec. 6, 708). The presiding judge thereby fulfills his or her role as the guardian of the proceedings and of their orientation toward determining the truth (LEC, art. 683). Even apart from these remnants of the inquisitorial process, party domination of the trial is of lesser relevance in Spain than in common law jurisdictions because the results of judicial pretrial investigations can filter through to the trial stage and form the basis of the judgment, especially when a witness's trial testimony deviates from his or her earlier statements (LEC, art. 714).
A similar structure exists in Italy where, since 1989, the trial is supposed to be party-dominated and strictly separated from the pretrial process. It is the parties who present lists of evidence to be taken, and it is they who examine and cross-examine witnesses (Italian CCP, arts. 468, 498). But the presiding judge can strike manifestly superfluous witnesses from the list (Italian CCP, art. 468 sec. 2), reject irrelevant lines of questioning (Italian CCP, art. 499 sec. 6), ask additional questions of witnesses and experts (Italian CCP, art. 506 sec. 2), and can even, "if absolutely necessary," order additional evidence to be taken (Italian CCP, art. 507). The supposed strict separation between pretrial and trial proceedings has not survived the very first years after the reform of the Italian criminal process: the law and the jurisprudence of the courts have since permitted the introduction of pretrial statements under more and more liberal rules (see Italian CCP, arts. 510-513; Grande).
The examples of Spain and Italy demonstrate how resistant the inquisitorial heritage is to efforts to inoculate it with elements of a foreign system; they also show to what extent procedural practice is shaped by the traditions and attitudes of the lawyers involved rather than by the letter of the law. On the other hand, adherence to certain basic tenets of the inquisitorial process, in particular the quest for the truth as the overriding purpose of the process, is obviously compatible not only with a recognition of defendants' rights, such as the presumption of innocence and the privilege against self-incrimination, but also with procedural features commonly associated with the adversary trial, such as party examination of witnesses and the defendant's right to confront witnesses against him. It seems that the choice among procedural styles is of much lesser importance for the "quality" of the process than has long been assumed; what is important is an effort to respect parties' individual rights even in light of systemic and political pressures toward greater efficiency and speed.
Trial and sentencing. In common law countries, trial and sentencing are kept strictly separate. Sentencing hearings usually take place a few weeks after the defendant has been found guilty. In continental systems, by contrast, issues of both guilt and sentence are argued and decided upon in one single trial: the court's judgment at the end of the trial includes a finding on the issue of guilt and, if there is a conviction, the sentence. Consequently, no distinction is made between evidence relevant to guilt and evidence relevant to sentence; even sensitive information concerning the offender's personality and prior offenses is admissible at the trial because of its impact on sentencing. The unitary trial, though saving time, creates a number of problems. Material relevant to the sentence can be prejudicial to the defendant, and in contested trials the focus is often so much on the issue of guilt that the determination of the sentence may not be based on sufficient argument and information. The continental tradition of conducting a unitary trial has nevertheless survived academic criticism, and even those systems that have adopted American-style adversary trials have not seriously considered the introduction of separate sentencing hearings. This may be an area in which vested bureaucratic interests in efficiency are too strong to be overcome by considerations of fairness.
Juries and lay judges. Trial by a jury of one's peers was one of the great demands of liberal reformers of the European criminal process in the nineteenth century. Several countries at that time followed the example of England and introduced trial juries, but the jury system often did not survive. In France, the jury was introduced in 1791 but merged into a mixed court of professional and lay judges in 1941. Germany established juries for the most serious offenses in 1877, but likewise abolished the jury as an independent fact finder and replaced it by mixed panels in 1924. The jury had a particularly interesting history in Spain: it was introduced in 1888, abolished in 1924 and recreated, for the most serious offenses, in 1995 (Ley Orgánica 5/1995, de 22 de mayo 1995 del Tribunal del Jurado; see Thaman), on the basis of a constitutional provision guaranteeing every Spanish citizen the right to participate in the administration of criminal justice as a juror (Spanish Constitution, art. 125 sec. 1).
Americans tend to regard trial by jury as one of the hallmarks of a civilized system of criminal justice. And it is certainly true that the vagaries of decision-making by a group of lay persons introduces into the criminal process an element of chance that often benefits the accused. On a more rational basis, one can argue that a verdict of guilty is valid only if it can be based both on the law and on the moral persuasion of a group of citizens. Paradoxically, however, decisionmaking by juries has in the United States led to an enormously complex system of rules on the presentation of evidence at trial (Damaska, 1997, pp. 28–46): the attempt to shield jurors from overly prejudicial evidence and to make difficult issues of fact and law palatable to lay persons goes a long way in explaining why American trials are so costly, protracted, and often far removed from the actual facts of the case.
The mixed record of juries on the European continent may be related to this and other defects. Juries were useful historically as long as trials dealt with simple issues of fact and the verdict depended largely on whether the testimony of one or the other witnesses was to be believed. With the growing complexity of factual and legal issues—white-collar offenses are paradigmatic in this regard—jurors have lost much of their capacity to reliably adjudicate cases without professional advice and guidance. If one wishes to retain a lay element in criminal justice it may thus be preferable to turn to mixed panels as can be found in many European jurisdictions (see Langbein). This system, which combines the freshness of judgment and worldly experience of nonlawyers with the sophistication of professional judges, may produce more rational and predictable verdicts than the traditional jury system.
Adjudication of uncontested cases. Anglo-American law makes a sharp distinction between contested and uncontested criminal cases. The latter are adjudicated without trial on the basis of the defendant's plea of guilty, which is often brought about through plea bargaining, that is, offering the defendant a reduced sentence in exchange for a waiver of his or her trial rights. Civil law countries traditionally did not provide for distinctive modes of processing cooperative and uncooperative defendants. The inquisitorial ideal requires a full investigation of the facts even if the defendant confesses guilt; credible admissions can do no more than reduce the amount of extrinsic evidence necessary for a finding of guilt.
At the beginning of the twenty-first century, law and practice in many continental legal systems differ from that ideal, however. The idea of disposing of uncontested cases without a full trial, which had been regarded as a typical American aberration as late as in the 1970s, has quickly spread to a large number of European jurisdictions. The main reason for this development is the jurists' common interest in efficiency: where there is no issue, the argument goes, there is no need for going through the motions of a trial. The law has in various ways been adapted to fit this argument.
One instrument of avoiding trial in clear-cut cases is conviction and sentence by written decree. This instrument, called a penal order (ordonnance pénale, Strafbefehl, decreto penale), exists in France, Germany, and Italy (French CCP, arts. 524–528-2; StPO, §§ 407–412; Italian CCP, arts. 459–464). The basic idea is the same in all three systems: at the close of an investigation for a minor offense, the prosecutor drafts a judgment including a sentence. The draft is submitted to the magistrate, who issues it as a provisional judgment unless he detects obvious defects. Typically, only monetary penalties can be imposed by penal order; yet in Germany the defendant can also receive a suspended prison sentence of up to one year by written decree without a trial (StPO, § 407 sec. 2). The defendant can accept the penal order or file an appeal; in the latter case, the verdict and sentence imposed by the penal order lose effect, and the matter is set for trial. At the trial, the court is not bound in any way by the contents of the penal order; the defendant thus risks more serious punishment if he or she declines to accept the penal order (see Italian CCP, art. 464 sec. 4, explicitly stating that the judge can impose a more serious sentence after trial). Although the defendant's prior consent is not required for the issuance of a penal order, prosecutors are well-advised to ascertain in advance that the defendant will accept the sentence, because in the event of an appeal the prior attempt to avoid a trial only serves to draw out the process. In Italy, the statute explicitly invites bargaining by permitting a sentence reduction of one half of the "deserved" penalty in case of a decreto penale (Italian CCP, art. 459 sec. 2). German law does not provide for a similar discount, but it is well-known that the content of a penal order is a frequent subject of negotiations between the prosecutor and defense counsel, with defense counsel indicating what sentence his or her client would be willing to accept without demanding a trial (Dahs, pp. 644–646).
Another means to simplify the process is to hold an abbreviated trial instead of the ordinary full trial. In France, there exists a long-standing practice of correctionnalisation, that is, trying felony cases in the lower court designed to adjudicate misdemeanors (tribunal correctionnel). In lower court, oral testimony of witnesses can largely be replaced by the record of their interrogation by the police, parties' closing statements are often limited to perfunctory remarks, and sentences are generally lower than in the nine-judge felony court (cour d'assises). The practice of "reducing" what really appear to be serious felonies requires a silent understanding among all parties to omit from the facts presented to the court certain aggravating factors that would turn the offense into a felony (Stefani, Levasseur, and Bouloc, pp. 430–433). Parties' interests to do so tend to coincide in noncontested cases: the prosecutor saves the time and effort necessary to try the case in felony court, and the defendant has reason to hope for a more lenient sentence.
Italian law provides for several forms of abbreviated adjudication. The most interesting of these is giudizio abbreviato (Italian CCP, arts. 438–443), that is, adjudication of the case by a magistrate on the basis of the record of the pretrial investigation, possibly augmented by additional evidence offered by the defense (see Pizzi and Marafioti, pp. 27–35). As with the penal order, the Italian Code offers the defendant an incentive to agree to this form of conviction without trial by providing for a mandatory reduction of the "deserved" sentence by one-third (Italian CCP, art. 442 sec. 2). French and German statutes also provide for speedy, simplified trials in straightforward cases (French CCP, arts. 393–397-6; StPO, §§ 417–420). In France the defendant's advance consent for immediate adjudication is needed (French CCP, art. 397) whereas in Germany a short-cut trial with reduced opportunities of presenting defense evidence can be forced upon the defendant.
Even closer analogies to American plea bargaining have developed in Italy, Spain, and Germany. Spanish law has long provided for the possibility that the defendant submit to the penalty demanded by the prosecutor at the beginning of the trial (conformidad, LEC arts. 655, 694). In that case, the court takes no evidence but imposes the sentence demanded by the prosecutor. Originally, the prosecutor's sentence demands tended to be close to the statutory maximum, thus making it unattractive for the defendant to waive trial. Through a few small changes in the law, the Spanish legislature (Ley orgánica 7/1988 de 28 de dic. 1988) invited the parties to negotiate before trial with a view toward determining a sentence acceptable both to the prosecutor and the defendant. In its 1989 version, the Code of Criminal Procedure refers to the possibility of filing the formal accusation with a sentence demand signed both by the prosecutor and defense counsel (LEC, art. 791 sec. 3) and alludes to the possibility of reducing the original sentence demand (LEC, art. 793 sec. 3)—two subtle indications of the desirability of avoiding trial through prior bargaining on mutually acceptable conditions of conformidad (see, generally, Ortells Ramos).
Italian law is even more candid in facilitating and encouraging sentence negotiations between the prosecution and the defense. The Code provides that the parties can jointly propose, in the preliminary hearing or at the beginning of the trial, a sentence of up to two years imprisonment; this sentence is to include a discount of one-third from the penalty (hypothetically) applicable after trial (Italian CCP, art. 444). If the judge finds, based on the dossier and the representations of the parties, that the penal law has correctly been applied to the facts of the case, he or she imposes the penalty as requested by the parties (Bogner, pp. 135–208).
German law does not provide for an analogue to plea bargaining, but German lawyers have nevertheless developed informal practices that have the same effect as the Spanish and Italian laws. Especially in more complex criminal cases, it has become commonplace in Germany for defense counsel to approach the presiding judge (or for the presiding judge to approach defense counsel) with suggestions for an abbreviation of the process in exchange for a lenient sentence (Herrmann). A noncooperative defense can, under German evidence law, indefinitely protract the trial by compelling the court to take additional evidence; by making a full confession in open court, the defendant can, on the other hand, relieve the court of the necessity to hear many (or any) witnesses. In contrast to Spain and Italy, bargaining in Germany is done directly between the defense and the court; the public prosecutor has an informal veto power but usually is not one of the primary negotiators. The practice of "sentence bargaining," which has become known since the early 1980s, is of dubious legality because it not only lacks any foundation in written law but even runs counter to basic tenets of German law, especially the court's duty to independently establish the "truth" (Weigend, p. 57). The Federal Court of Appeals nevertheless gave in 1997 its general approval to bargaining, subject to certain conditions of "fair deal" to be respected by the negotiating parties ( Judgment of the Federal Court of Appeals of August 28, 1997, 4 StR 240/97, 43 BGHSt 195). This development is an impressive sign of the times: it shows that the desire to be "functional" tends to override and neutralize the normative principles on which the inquisitorial criminal process was built. The advent and universal acceptance of bargained justice may indeed indicate that the traditional criminal trial is no longer adequate to deal with factually and legally complex matters that increasingly are the subject of criminal cases.


Criminal Procedure: Comparative Aspects - Agenda For Comparative Research

Comparative research has concentrated for too long on juxtaposing trial models, especially the inquisitorial and adversarial features of civil law and common law systems. The development of similar techniques for dealing with the large bulk of uncontested cases in various systems shows that the style of presenting evidence at trial is only one, comparatively insignificant aspect of the criminal process. There does remain a difference with respect to systems' overall orientation toward conflict resolution or "truthfinding." But even that theoretical contrast may be less important for the resolution of practical issues than appears at first blush. Research should thus refrain from spelling out again and again the supposed differences between adversarial and inquisitorial systems, but should focus on two other sets of issues.
One area of potentially fruitful research is the delineation of new paradigms by which to evaluate individual legal systems. The standard inquiry into the extent to which participants' human rights are respected in the criminal process could be augmented, for example, by research into the (comparative) relevance of bureaucratic interests and lawyers' professional interests in shaping the process, by studying the relationship and interactions between public security (police) law and criminal procedure law, and by looking into the influence of economic considerations on the criminal process. Another promising approach might be "micro" studies on particular aspects of the criminal process, where practical solutions developed in various systems could be compared and their potential for borrowing be explored. From an American perspective, areas of interest might include the law and practice of pretrial detention, protection of victims' interests, reduction of delay, and the organization of defense services. In studying foreign achievements in these and other problem areas, one should, however, keep aware of the pitfalls of transplanting foreign solutions—there is a rather large step from theoretical comparison to successful implementation in practice.

http://law.jrank.org/pages/904/Criminal-Procedure-Comparative-Aspects.html

US Code 美国法典

美国任何一部法律的产生首先由美国国会议员提出法案，当这个法案获得国会通过后，将被提交给美国总统给予批准，一旦该法案被总统批准（有可能被否决）就成为法律（Act）。当一部法律通过后，国会众议院就把法律的内容公布在美国法典上。
　　1926年美国人将建国二百多年以来国会制定的所有立法（除独立宣言、联邦条例和联邦宪法外）加以整理编纂，按50个项目系统地分类编排，命名为《美国法典》（United States Code，简称USC），首次以15卷的篇幅发表，这是第一版《美国法典》。1964年又出版了修订版，以后每年还出增刊。 　　 　　

（一）《美国法典》的体系与结构
　　该法典根据法律规范所涉及的领域和调整对象，划分为50个主题或“部”（Title）。它们依次是：总则、国会、总统、国旗，国玺，政府部门和联邦各州、政府组织与雇员、担保债务（现已废除）、农业、外国人与国籍、仲裁、武装力量、破产、银行与金融、人口普查、海岸警卫、商业与贸易、资源保护、版权、犯罪与刑事程序、关税、教育、食品与药品、对外关系、公路、医院与收容所、印第安人、财政收入、麻醉性酒精、司法和司法程序、劳工、矿藏和采矿、货币与财政、国民警卫、航运与可航水域、海军（现已废除）、专利、宗教习俗、规制行业薪金与津贴、退伍军人救济金、邮政事业、公共建筑、公共合同、公共卫生与福利、公共土地、国家印刷品与文献、铁路、航运、电报，电话和无线电报，领土与岛屿所有权、交通、战争与国防。（除前六个总领性主题外，其余主题均按照A、B、C、D……的字母顺序依次排列）
　　在50个主题之下，法典依次分为卷、章、部分、节、条等，法典最大的组成单位是卷，每一个主题对应一卷。每卷、章、部分、节、条都用简短的文字作题注。每条均用编号标注其来源，即哪一届国会通过的哪一部法律的哪一条，或者哪一届国会进行的修改。
50卷《美国法典》分卷标题中英对照一览表
第1篇 总则第2篇 国会第3篇 总统第4篇 国旗和国玺，政府所在地，以及各州第5篇 政府组织与雇员第6篇 国内安全第7篇 农业第8篇 外籍人和国籍第9篇 仲裁第10篇 武装力量第11篇 破产第12篇 银行和银行业第13篇 人口普查第14篇 海岸警卫队第15篇 商业和贸易第16篇 资源保护第17篇 版权第18篇 罪行和刑事诉讼第19篇 关税第20篇 教育第21篇 食品和药品第22篇 对外关系与交往第23篇 公路第24篇 医院和救济院第25篇 印第安人第26篇 国内税收法典第27篇 酒第28篇 司法制度和司法程序第29篇 劳工第30篇 矿藏土地和采矿第31篇 货币和财政第32篇 国民警卫队第33篇 航行和通航水域第34篇 海军（废止）第35篇 专利第36篇 爱国团体与章程第37篇 军职部门的薪金与津贴第38篇 退伍军人的福利第39篇 邮政第40篇 公共建筑、财产和工程第41篇 公共合同第42篇 公众健康与福利第43篇 公共土地第44篇 公共印刷业与文件第45篇 铁路第46篇 航运第47篇 电报、电话和无线电讯第48篇 领地和岛屿属地第49篇 运输第50篇 战争和国防
Title 1 General ProvisionsTitle 2 The CongressTitle 3 The PresidentTitle 4 Flag and Seal, Seat Of Government, and the States Title 5 Government Organization and EmployeesTitle 6 Domestic SecurityTitle 7 AgricultureTitle 8 Aliens and NationalityTitle 9 ArbitrationTitle 10 Armed ForcesTitle 11 BankruptcyTitle 12 Banks and BankingTitle 13 CensusTitle 14 Coast GuardTitle 15 Commerce and TradeTitle 16 ConservationTitle 17 CopyrightsTitle 18 Crimes and Criminal ProcedureTitle 19 Customs DutiesTitle 20 EducationTitle 21 Food and DrugsTitle 22 Foreign Relations and IntercourseTitle 23 HighwaysTitle 24 Hospitals and AsylumsTitle 25 IndiansTitle 26 Internal Revenue CodeTitle 27 Intoxicating LiquorsTitle 28 Judiciary and Judicial ProcedureTitle 29 LaborTitle 30 Mineral Lands and MiningTitle 31 Money and FinanceTitle 32 National GuardTitle 33 Navigation and Navigable WatersTitle 34 Navy (repealed)Title 35 PatentsTitle 36 Patriotic Societies and ObservancesTitle 37 Pay and Allowances Of the Uniformed ServicesTitle 38 Veterans' BenefitsTitle 39 Postal ServiceTitle 40 Public Buildings, Property, and WorksTitle 41 Public ContractsTitle 42 The Public Health and WelfareTitle 43 Public LandsTitle 44 Public Printing and DocumentsTitle 45 RailroadsTitle 46 ShippingTitle 47 Telegraphs, Telephones, and RadiotelegraphsTitle 48 Territories and Insular PossessionsTitle 49 TransportationTitle 50 War and National Defense

　　（二）《美国法典》的编纂程序
　　国会每颁布一部法律，在发行单行本的同时，由设在美国国会众议院内的法律修订委员会办公室的专业人员将这部法律分解为若干部分，再根据其规范的内容编排到50个相应主题的相关卷中。如美国法典第十二卷为“银行与金融”，其内容就是由每一届国会通过的法律中涉及银行和金融的全部条款经分解后重新组装而成。这样编纂的好处在于，人们只需要查看第十二卷就可以找到现行有效的所有美国银行和金融方面的法律规定，而无需查阅卷帙浩繁的法律全书。承担法典编纂工作的法律修订委员会办公室只能对法律作一些必要的技术处理，如涉及到法律含义等重大问题时，则必须报经国会审议通过。
　　美国法典每隔六年重新编纂颁布一次，目前最新版本是1994年法典，共35卷。在六年期间，每年将国会当年通过的法律按照法典编排的序号，编辑成一个补充卷。在新的法典尚未编纂之前，人们可以通过补充卷来查阅和引用最新的法律规定。


Wikipedia中，对《美国法典》的结构有着更清楚的介绍。
The Code is divided into 50 titles (listed below), which deal with broad, logically organized areas of legislation. Titles may optionally be divided into subtitles, parts, subparts, chapters, and subchapters. All titles have sections as their smallest basic coherent unit, though sections are often divided into subsections, paragraphs, and clauses. Not all titles use the same series of subdivisions above the section level, and they may arrange them in different order. For example, in Title 26 (the tax code), the order of subdivision runs Title - Subtitle - Chapter - Subchapter - Part - Subpart - Section - Subsection - Paragraph - Subparagraph - Clause - Subclause. In Title 38 (Veteran's Benefits) the order runs Title - Part - Chapter - Subchapter - Section. Put another way, the Title is always the largest division of the Code, and the section the smallest (except for subsections, paragraphs, clauses, etc.), but intermediate levels vary in both number and sequence from Title to Title.
The word "title" in this context is roughly akin to a printed "volume," although many of the larger titles span multiple volumes. Similarly, no particular size or length is associated with other subdivisions; a section might run several pages in print, or just a sentence or two. Some subdivisions within particular titles acquire meaning of their own; for example, it's common for lawyers to refer to a "Chapter 11" bankruptcy or a "Subchapter K" partnership.
A sample citation would be 5 U.S.C. § 552a, the Privacy Act of 1974. A lawyer would read that out loud as "Title five, United States Code, section five hundred fifty-two A."
When sections are repealed, their text is deleted and replaced by a note summarizing what used to be there. This is necessary so that lawyers reading old cases can understand what the cases are talking about. As a result, some portions of the Code consist entirely of empty chapters full of historical notes. For example, Title 8, Chapter 7 is labeled "Exclusion of Chinese." This contains historical notes relating to the Chinese Exclusion Act, which is no longer in effect.

common legal terms

AKA: "Also known as". Used to list aliases or another name, or another spelling of a name used by a person.
Accelerated Rehabilitation: Also called AR. A program that gives persons charged with a crime or motor vehicle violation for the first time a second chance. The person is placed on probation for up to two years. If probation is completed satisfactorily, the charges are dismissed.
Acknowledgement: The signature of a clerk or attorney certifying that the person filing the document has sworn that the contents are true, and/or that the document is signed by his or her free act and deed.
Action: Also called a case or lawsuit. A civil judicial proceeding where one party sues another for a wrong done, or to protect a right or to prevent a wrong.
Adjournment: Postponement of a court session until another time or place.Adjudication: A decision or sentence imposed by a judge.
Adjudicatory Hearing: Juvenile court proceeding to determine whether the allegations made in a petition are true and whether the child/youth should be subject to orders of the court.
Adult Court Transfer:The transfer of juveniles who are at least fourteen years old to regular criminal dockets in Geographical Area or Judicial District courts. Also involves the transfer from a Juvenile Detention Center to the State Department of Correction.
Adult Probation: A legal status, applied to people 16 years of age and older, who have been convicted of a crime and placed under the supervision of a probation officer for a period of time set by the court.
Affirmation: Declaring something to be true under the penalty of perjury by a person who will not take an oath for religious or other reasons.
Affidavit: A written statement made under oath.
Alcohol Education Program: A pre-trial program for first time offenders charged with driving a motor vehicle under the influence of alcohol.
Alford Doctrine: A plea in a criminal case in which the defendant does not admit guilt, but agrees that the state has enough evidence against him or her to get a conviction. Allows the defendant to enter into a plea bargain with the state. If the judge accepts the Alford Plea, a guilty finding is made on the record.
Alimony: Money a court requires one spouse to pay the other spouse for support before and/or after the divorce is granted. If you do not ask for alimony at the final hearing, you can never get it in the future.
Allegation: Saying that something is true. The assertion, declaration or statement of a party in a case, made in a pleading.
Alternate Juror: A juror selected as a substitute in case another juror must leave the jury panel.
Alternative Detention Program: Programs operated by service providers under the Office of Alternative Sanctions used to detain juveniles instead of in a Juvenile Detention Center.
Alternative Dispute Resolution: Also called ADR. Any method used to resolve disputes other than traditional trial proceedings. For example, mediation. ADR programs speed up the disposition of civil cases.
Alternative Incarceration Center: Also called AIC. A community based program that provides monitoring, supervision and services to people who would otherwise be incarcerated.
Alternative Sanctions: Criminal punishment that is less restrictive than incarceration.
Amicus Curiae brief: A Latin term meaning “friend of the court.” An Amicus Curiae brief is filed by someone who is not a party to a case but has an interest in its outcome. A person who wants to file an amicus curiae brief usually has to get the court’s permission to do so.
Annulment: A court order declaring that a marriage is invalid.
Answer: A court document, or pleading, in a civil case, by which the defendant responds to the plaintiff's complaint.
Appeal: Asking a higher court to review the decision or sentence of a trial court because the lower court made an error.
Appeal Bond: Money paid to the court while taking an appeal to cover costs and damages to the other party, if the appeal is not successful.
Appearance: The official court form filed with the court clerk which tells the court that you are representing yourself in a lawsuit or criminal case or that an attorney is representing you. All court notices and calendars will be mailed to the address listed on the form. When a defendant in a civil case files an appearance, the person is submitting to the court’s jurisdiction.
Appellant: The party appealing a decision or judgment to a higher court.
Appellee: The party against whom an appeal is taken.
Arbitration: Submitting a case or dispute to designated parties for a decision, instead of using a judge.
Arraignment: The first court appearance of a person accused of a crime. The person is advised of his or her rights by a judge and may respond to the criminal charges by entering a plea. Usually happens the morning after a person is arrested.
Arrest: When a person is taken into custody by a police officer and charged with a crime.
Arrearages: Money for alimony and/or child support, which is overdue and unpaid.
Assignment List: A printed list of cases to be presented to the court for hearing.
Assistant Attorney General: An attorney who represents a state agency in civil cases.
Attachment: A lien on property or assets to hold it to pay or satisfy any final judgment.
Attorney of Record: Attorney whose name appears in the permanent records or files of a case.
Automatic Orders: Court orders that take effect when a divorce or custody case is started.
Bail: Also called Bond. Money or property given to the court for the temporary release of a defendant, to ensure that the defendant will return to court.
Bail Bondsperson: A person who lends money to a defendant to pay for bail.
Bail Commissioner: A state-appointed person who may set the amount of bond for persons detained at a police station prior to arraignment in court, and who recommends to the court the amount of bond that should be set for the defendant on each criminal case.
Bar: Refers to attorneys as a group.
Best Interest of the Child: The standard a judge uses to decide custody and visitation issues.
Bench Warrant: Court papers issued by the judge, "from the bench," for the arrest of a person.
Bond: Also called bail. Money or property given to the court for the temporary release of a defendant, to ensure that the defendant will return to court. There are two kinds of bonds:
Non-financial bonds:a) Non-surety bond where the defendant's signature alone guarantees the amount of bond and the defendant is not required to post any property or retain the services of a professional bail bondsperson as collateral. b) Promise to appear.
Surety bond: The court requires cash, real estate or a professional bail bondpersons signature as collateral before releasing the defendant back into the community. (The court may allow the defendant to post ten percent of the bond in cash to secure his or her release.)
Bond Forfeiture (calling the Bond): If the defendant fails to appear in court as scheduled, the judge may order the bond forfeited (paid to the state) and the defendant rearrested.
Bond Review: A hearing for a judge to decide if the defendant’s bond amount needs to be changed.
Bondsman: A surety; one who has put up cash or property as collateral before a defendant may be released.
Brief: A written document prepared by a lawyer or party on each side of a dispute and filed with the court in support of their arguments.
Broken Down Irretrievably: The most common reason for granting a divorce. It means there is no hope of the husband and wife getting back together again. Also known as "no-fault" divorce.
Calendar: A list of court cases scheduled for a specific date and time; the civil and family court docket.
Calendar Call: The calling of cases scheduled for the day, usually done at the beginning of each court day.
Capias Mittimus: A civil arrest warrant used to get a person physically into court to respond to a specific case or claim.
Capital Felony: A criminal offense in which the death penalty may be imposed (C.G.S. '53a-54b).
Case: A lawsuit or action in a court.
Case Conference: A meeting scheduled by the court to review the case.
Case File: The court file containing papers submitted in a case.
Case Flow Coordinator: A person who keeps track of your case and supervises the scheduling of hearings and trials.
Central Transportation Unit: Persons in the Division of Juvenile Detention Services who provide safe and secure transportation services for juveniles detained at Juvenile Detention Centers, Alternative Detention Program and Girls’ Detention Program.
Certify: To testify in writing; to make known or establish as a fact.
CGS: Abbreviation for Connecticut General Statutes
Challenge: Rejecting a potential juror.
Charge: Formal accusation of a crime.
Charge to Jury: In trial practice, an address delivered by the court to the jury at the close of the case instructing the jury as to what principles of law they are to apply in reaching a decision.
Chattels: All property except real property; personal property. For example: jewelry, clothing, furniture, and appliances.
Child: Any person under the age of sixteen (16) years of age.
Child Support: Money paid by a parent to help meet the financial needs of a child.
"Chip Smith Charge": The "Chip Smith charge" is an instruction to deadlocked jurors, urging those jurors whose disagree with the majority vote to reexamine the majority views in an effort to reach a unanimous verdict.
CIP: Children in Placement- a voluntary program in Juvenile Court, which monitors neglect, cases.
Civil Action: A lawsuit other than a criminal case usually filed in a Judicial District courthouse. Includes family actions (divorces, child support, etc) and small claims cases, although these are both separately designated.
Claim: In civil cases, the statement of relief desired.
Classification and Program Officer: Also called CPO. A person who provides classification, program, counseling and recreational services to detained juveniles. May attend certain court hearings in Juvenile Matters and provide reports.
Common Law: Laws that develop through case decisions by judges. Not enacted by legislative bodies.
Community Service: Work that convicted defendants are required to perform in order to repay the community for the harm caused to the community by the crime.
Community Services Coordinator: The person who refers a defendant to community service work and supervises the defendant’s completion of that work.
Community Service Labor Program: Also called CSLP. A community service program for persons charged with drug offenses. Upon successful completion of the community service sentence, the criminal case is dismissed.
Complaint: A legal document that tells the court what you want, and is served with a summons on the defendant to begin the case.
Complex Litigation: A specialized docket designed for complex civil cases, where one judge hears the case from beginning to end. Criteria includes: multiple parties, large amounts of money, lengthy trial or complex legal issues.
Conditional Discharge: A disposition, in criminal cases, where the defendant must satisfy certain court-ordered conditions instead of a prison term.
Contempt of Court: A finding that someone disobeyed a court order. Can also mean disrupting court, for example, by being loud or disrespectful in court.
Continuance: The adjournment or postponement of a court case to another day.
Continuance Date: Date on which the case will next be heard in court.
Contract: A legally enforceable agreement between two or more persons or parties.
Conviction: To be found guilty of committing a crime.
Costs: Expenses in prosecuting or defending a case in court. Usually does not include attorney’s fees.
Count: The different parts of a complaint, which could each be a basis or grounds for the lawsuit.
Counter Claim: A claim by the defendant in a civil action that the defendant is entitled to damages or other relief from the plaintiff.
Court-Appointed Attorney: An attorney who is asked by the court (judge) to either represent a party to the case, or to serve in some other capacity that the case requires.
Court Clerk: The person who maintains the official court record of your case. The court clerks’ office receives all court papers and assigns hearing dates.
Court Interpreter: The person who translates court hearings from English to another language. Provided at state expense in all criminal cases and in cases enforcing child support orders, if requested. No interpreter is available for divorce or any other civil case.
Court Monitor: The person who prepares a written record of the court hearing for a fee, if requested, from audiotapes made during the hearing.
Court Reporter: The person who records everything said during the court hearing on a stenograph machine and prepares a written record for a fee, if requested.
Court Services Officer: A person who assists the judge and oversees cases as they go through the court.
Court Trial: Trial by a judge, rather than by a jury.
Crime Victim Compensation Program: Awards money to crime victims and their families for medical, mental health, dental, funeral expenses, lost wages and loss of support.
Cross-Examination: Questioning by a party or the attorney of an adverse party or a witness.
Custody: A court order deciding where a child will live and how decisions about the child will be made. Parents may ask for any custody arrangement that they believe is in the best interest of their child.
Custody Affidavit: A sworn statement containing facts about a child involved in a case, including full name of the child, date of birth, current and past residences and other information as may be required by law.
Damages: Money a party receives as compensation for a legal wrong.
Day Incarceration Center: Also called DIC. A community based program that provides monitoring, supervision and services to people who would otherwise be incarcerated. Day Incarceration Center clients are supervised during the daytime hours, seven days per week.
Declaration: An unsworn statement of facts made by a party to the transaction, or by one who has an interest in the facts recounted.
Default: To fail to respond or answer to the plaintiff’s claims by filing the required court document; usually an Appearance or an Answer.
Defendant: In civil cases, the person who is given court papers, also called a respondent. In criminal cases, the person who is arrested and charged with a crime.
Delinquent: In civil or family cases, failing to pay an amount of money when due: In juvenile cases, a child who violated a law, local ordinance, or an order of the Superior Court.
Deposition: Testimony of a witness taken, under oath, in response to another partys questions. Testimony given outside the courtroom, usually in a lawyers office. A word for word account (transcript) is made of the testimony.
Detention Hearing or Detention Release Hearing: A hearing on the first business day after a juvenile is admitted to juvenile detention concerning the legality and appropriateness of continued detention of the juvenile. The detention decision must be reviewed at least every fifteen days.
Discovery: A formal request by one party in a lawsuit to disclose information or facts known by other parties or witnesses.
Dismissal: A judge's decision to end the case.
Dismissal Without Prejudice: A judges decision to end the case which permits the complainant or prosecutor to renew the case later. In contrast, dismissal "with prejudice" prevents the complainant or prosecutor to bring or maintain the same claim or action again.
Dispose: Ending a legal case or a judicial proceeding.
Disposition: The manner in which a case is settled or resolved.
Dissolution: The legal end of a marriage, also called a divorce.
Diversionary Programs: Community based programs that are used to keep eligible, convicted criminal offenders out of prison.
Docket: A list of cases scheduled to be heard in court on a specific day or week.
Docket Number: A unique number the court clerk assigns to a case. It must be used on all future papers filed in the court case. Each docket number starts with two letters that tell the type of case. CI = criminal infraction; CR = criminal case; CV = civil case; FA = family case; MI = motor vehicle infraction; MV= motor vehicle case; SC = small claims.
Domicile: The permanent home of a person. A person may have several residences, but only one domicile.
Drug Court: A Special Session of the Superior Court that is responsible for hearing cases involving charges of drug offenses.
Education Program: A program for family violence offenders that, if granted and successfully completed, results in dismissal of criminal charges (C.G.S. §46b-38c).
Ejectment: A legal case filed against someone who is a holdover tenant (someone who remains after the expiration of a lease).
Electronic Monitoring: An electronic system that provides the Probation Officer or Bail Commissioner a report about whether the offender has left home during the time when the offender was required to remain at his or her home.
Emancipated Minor: A person under the legal majority age of 18 who is granted most rights and legal privileges of an adult (C.G.S.§46b-150, et seq.).
Emancipation: The release of a youth from the legal authority and control of her/her parents and the corresponding release of the youth’s parents from their obligations to the youth.
Eminent Domain: The legal process by which private property is taken for public use without the consent of the owner.
Eviction: Legally forcing a tenant out of rented property.
Evidence: Testimony, documents or objects presented at a trial to prove a fact.
Ex Parte: Done for, or at the request of, one side in a case only, without prior notice to the other side.
Execution Suspended: A prison sentence that is suspended in whole or in part provided certain conditions of probation or conditional discharge are met by the defendant.
Failure to Appear: In a civil case, failing to file an Appearance form. In a criminal case, failing to come to court for a scheduled hearing.
Family Relations Counselor: A person who mediates disagreements and negotiates agreements in custody, visitation and divorce cases. At the request of the judge, a family relations counselor may evaluate a family situation by interviewing each parent and the children in the family. The family relations counselor then writes a report for the judge, making recommendations about custody and visitation. Works in the Family Services Office.
Family Support Magistrate: A person who decides cases involving child support and paternity. Can also enforce court orders involving paternity, child support and alimony.
Family Violence Education Program: A program for family violence offenders that if successfully completed, results in the dismissal of criminal charges.
Family Violence Victim Advocate: A person who works with domestic violence victims to determine their needs and inform them of their rights and resources available to them.
Family With Service Needs: Also called FWSN. A family that includes a child, who (a) runs away without just cause, (b) is beyond the control of his/her parents/guardian, (c) has engaged in indecent or immoral conduct, and/or (d) is a truant or continuously defiant of school rules and regulations.
Felony: Any criminal offense for which a person may be sentenced to a term of imprisonment of more than of one year.
Felony Murder: A murder committed while the person is also committing a felony.
Filing: Giving the court clerk legal papers which become part of the case file.
Financial Affidavit: A sworn statement of income, expenses, property (called assets) and debts (called liabilities).
Finding: The court’s or jury’s decision on issues of fact.
Foreclosure: A court order ending the legal ownership of property.
Foreman: An elected member of a jury who delivers the verdict to the court.
Garnishment: A court order to collect money or property. For example, a garnishment may be issued to an employer to pay part of an employee’s wages to someone else to pay a debt or judgment.
GA - Geographical Area: Geographical Area. The court location where motor vehicle and most criminal cases are heard. There are 22 GA courts in Connecticut.
Grievance: A complaint filed against an attorney or judge, claiming an injury or injustice.
Guardian: A person who has the power and duty to take care of another person and/or to manage the property and rights of another person, who is considered incapable of taking care of his or her personal affairs.
Guardian Ad Litem: A person, usually a parent, appointed by the court to represent a child or unborn person in a court case. If a family member is not available, a judge may appoint an attorney.
Habeas Corpus: A court order used to bring a person physically before a court in order to test the legality of the person's detention. Usually, it is directed to the official or person detaining another, commanding him to bring the person to court for the judge to determine if that person has been denied liberty without due process of law.
Hearsay: Testimony given by a witness who tells second or third hand information.
Honor Court: A program of outpatient group therapy for alcohol abusers.
Housing Specialist: A person who provides pretrial mediation of landlord/tenant cases to reach settlement. Also provides information about community resources to litigants.
Hung Jury: A jury whose members cannot reconcile their differences of opinion and thus cannot reach a verdict.
Incarceration: Confinement to a state correctional institute or prison.
Income Withholding Order: A court order to deduct child support or alimony payments from someone's wages. All child support court orders must include an income withholding order unless both parents ask the judge not to.
Indigent: Someone without enough money to either support himself or herself or his or her family. Someone who cannot afford to pay certain fees required by the court.
Information (the): In a criminal case, the formal court document in the clerk's file, which contains the charges, dates of offenses, bond status, continuance dates and disposition.
Infraction: A case where the fine may be paid by mail and usually the person does not have to appear or come to court. For example, a speeding ticket.
Injunction: A court order to stop doing or to start doing a specific act.
Interpreter: The person who translates court hearings from English to another language. Provided at state expense in all criminal cases and in cases enforcing child support orders, if requested. No interpreter is available for divorce or any other civil case.
Interrogatory: Formal, written questions used to get information from another party in a lawsuit.
Investigatory Grand Jury: A judge, constitutional state referee or any three judges of the Superior Court, appointed by the Chief Court Administrator to conduct an investigation into the commission of a crime or crimes.
Judge: A person who hears and decides cases for the courts. Appointed by the governor for a term of eight years and confirmed by the General Assembly.
Judgment: A court decision. Also called a decree or an order.
Judgment File: A permanent court record of the court’s final disposition of the case.
JD - Judicial District: The court where most civil and family matters are heard in a certain area of the state. There are thirteen judicial districts in Connecticut.
Juris Number: An identification number assigned to each attorney in Connecticut.
Jurisdiction: Power and authority of a court to hear and make a judgment in a case.
Juror: Member of a jury.
Jury Charge: The judge's formal instructions on the law to the jury before it begins deliberations.
Jury Instructions: Directions given by the judge to the jury concerning the law of the case.
Juvenile Court: Also called Superior Court for Juvenile Matters. A special division of the Superior Court designated to hear all cases concerning uncared for, dependent children and youth and delinquents. All juvenile court proceedings and case records are confidential and are not public information.
Juvenile Delinquent: A person under the age of 16 who commits a criminal act.
Juvenile Detention: State facility to provide for the temporary care of a child who alleged to be delinquent and who requires a physically restricted, secure environment.
Juvenile Detention Center: A secure facility for juveniles operated by the Division of Juvenile Detention Services of the Connecticut Judicial Branch, open 24 hours a day, 7 days a week.
Juvenile Detention Officer: Also called JDO. A person who works within a Juvenile Detention Center.
Juvenile Matters: All cases concerning uncared for, neglected or dependent children and youth, termination of parental rights of children committed to a state agency, matters concerning families with service needs, contested matters involving termination of parental rights or removal of guardian transferred from the Probate Court and the emancipation of minors. It does not include guardianship or adoption cases, or matters affecting property rights of any child or youth over which the Probate Court has jurisdiction. The Probate Court hears appeals concerning adoption, termination of parental rights and removal of a parent as guardian are included. Juvenile matters in the criminal session include all cases concerning delinquent children in the state.
Juvenile Probation: Placement of an adjudicated delinquent under the supervision of a juvenile probation officer.
Juvenile Transportation Officer: Also called JTO. A person who provides safe transportation services for juveniles in custody.
Law Librarian: Court staff who maintain legal reference and research materials for public use.
Legal Aid or Legal Services: Free legal representatives in civil cases for income eligible persons. Call 1-800-453-3320 to apply.
Legal Custody: Relationship with a child created by court order which gives a person legal responsibility for the physical possession of a minor and the duty to protect, care for and discipline the child.
Legal Separation: A court order describing the conditions under which two married people will live separately.
Lien: A charge, hold, or claim upon property of another as security for a debt.
Lis Pendens: A pending lawsuit. Jurisdiction or control that courts have over property in a case waiting for final disposition. A notice of lis pendens is filed on the land records.
Litigant: A party to a case.
Lockout: Illegally forcing a tenant out of rented property, usually by changing the locks on the doors.
Magistrate: A person who is not a judge but who is authorized to hear and decide certain types of cases. For example, family support magistrates hear cases involving child support.
Mandamus: An order directed to a private corporation, or any of its officers, or to an executive, administrative or judicial officer, or to a lower court, commanding the performance of a particular act.
Marshal: The persons responsible for courthouse security including the metal detectors at the entrance of each courthouse and maintaining order in each courtroom. A marshal can also serve (give copies of) legal papers to the other people named in a lawsuit.
Mediation: A dispute resolution process in which an impartial third party assists the parties to voluntarily ready a mutually acceptable settlement.
Minor: A person under age 18, the age of legal majority.
Misdemeanor: A crime that carries a maximum penalty of one year and/or a $2,000 fine.
Mitigating Circumstances: Circumstances that may be considered to reduce the guilt of a defendant. Usually based on fairness or mercy.
Mittimus Judgment: Also called a Mitt. The formal document prepared by the court clerk to present a convicted defendant in a criminal case to the Department of Correction for incarceration.
Modification: Request to change a prior order. Usually requires showing a change in circumstances since the date of the prior order.
Motion: Usually written request to the court in a case. Filed with the clerk’s office.
Movant: The person who filed the motion, or request, to the court.
Moving Party: The person making the request to the court in a case.
Ne Exeat: A legal paper requesting that a person be required to remain within the jurisdiction of the court (either through incarceration or posting of a bond.)
Neglected Minor: A child or youth who has (a) been abandoned, (b) is being denied proper attention, (c) is being permitted to live under conditions injurious to his/her well being, or (d) has been abused.
No Contact Order: A court order that prohibits contact by a defendant with a victim; can be ordered by a judge, a bail commissioner, a probation officer or a parole officer.
No Fault Divorce: The most common kind of divorce, where no one needs to prove that the husband or the wife is at fault, or caused the marriage to end. Described as "broken down irretrievably".
Nolle: Short for nollo prosequi, which means "no prosecution". A disposition of a criminal or motor vehicle case where the prosecutor agrees to drop the case against the defendant but keeps the right to reopen the case and prosecute at any time during the next thirteen months. The nolle is entered on the court record and the defendant is released from custody. If the defendant stays out of trouble during the thirteen months, the case is removed from the official court records.
Nolo Contendere: It means "no contest". A plea in a criminal case that allows the defendant to be convicted without admitting guilt for the crime charged. Although a finding of guilty is entered on the criminal court record; the defendant can deny the charges in a civil action based on the same acts.
No Contest: A plea in a criminal case that allows the defendant to be convicted without admitting guilt for the crime charged. Also called nolo contendre. Although a finding of guilty is entered on the criminal court record, the defendant can deny the charges in a civil action based on the same acts.
Non-Suit: Vacating a case by the court, usually for failure to prosecute.
Notarize: To formally complete a document by acknowledgement or oath.
Oath: To swear/affirm to the truth of a statement/document.
Office of Adult Probation: A division within the Judicial Branch. The primary responsibilities of the Office of Adult Probation are to supervise persons placed on probation, to conduct investigations for the court to provide background information on convicted offenders and to conduct eligibility investigations for special programs.
Order: A written direction of a court or judge to do or refrain from doing certain acts.
Order to Detain: An order signed by a judge of the Superior Court authorizing admission of a juvenile to a Juvenile Detention Center, pending a hearing on the next business day.
Order of Detention (Detention Order): An order issued by a judge of the Superior Court finding that there is probable cause that a juvenile committed an offense or a violation of a court order and ordering that the juvenile be held in a Juvenile Detention Center or some alternative facility until further order of the court.
Orders of Temporary Custody: Also called an OTC. Court order placing a child or youth in the short-term legal custody of an individual or agency authorized to care for juveniles.
Parcel: A tract or a plot of land.
Parenting Education Program: A mandatory program for persons involved in a divorce with children or a custody or visitation case. Must be attended within 60 days of the return date on the summons.
Parole: Release from incarceration after serving part of a sentence.
Parties: The people or legal entities that are named as plaintiff(s) and defendant(s) on legal papers.
Party: A person or legal entity that is named as a plaintiff or defendant on legal papers.
Paternity: Legal fatherhood.
Pendente lite order: A court order made before final orders are granted.
Peremptory Challenge: The rejection of a prospective juror by the attorneys in a case, without having to give a reason. State law defines the number of peremptory challenges available.
Perjury: Making false statements under oath.
Petition: A formal written request to a court, which starts a special proceeding. In juvenile court, the legal document which specifies the complaint against the juvenile and/or family; it includes the name, age and address of the minor and his/her guardian, as well as the statutory grounds and facts upon which the request for the court intervention is based.
Petitioner: Another word for plaintiff, the person starting the lawsuit.
Plaintiff: The person who sues or starts a civil case, also called the petitioner or the complainant.
Plea: An accused persons answer to a criminal charge. For example: not guilty; guilty; no contest.
Plea Bargain: The agreement a defendant makes with the prosecutor to avoid a trial. Usually involves pleading guilty to lesser charges in exchange for a lighter sentence.
Pleadings: The court documents filed with the court by the parties in a civil or criminal case. For example: motion to dismiss; motion for modification.
Posting Bond: To pay the court ordered bond amount with cash or property.
Post Judgment: Any request to a court or action by a judge after a judgment in a case.
Practice Book: Contains the rules of court and forms which must be followed in all Connecticut court cases. Available in all courthouse law libraries.
Pre-Sentence Investigation: Also called PSI. A background investigation conducted by a probation officer on a person who has been convicted of a criminal offense.
Pretrial: In a civil case, a conference with a judge or trial referee to discuss discovery and settlement. In a criminal case, a conference with the prosecutor, defense attorney and judge to discuss the case status and what will happen next.
Pretrial Hearing: Conference with attorneys to determine scope of possible trial with view toward resolving issues through agreement.
Probable Cause Hearing: A hearing held before a judge in criminal cases to determine if enough evidence exists to prosecute. The probable cause hearing must be conducted within 60 days of the filing of the complaint or information in Superior Court, unless the accused person waives the time or the court grants an extension based on good cause.
Probate/Probate Court: A court with limited authority to hear certain kinds of cases, such as adoption, guardianship, mental health commitments. Not a part of the Superior Court system.
Probation: When a convicted offender receives a suspended term of incarceration and is then supervised by a probation officer for a period of time set by a judge.
Probation Absconder: A person under probation supervision whose location is unknown, in violation of the conditions of their probation.
Promise to Appear: A type of non-financial bond where the defendant agrees to return to court without giving cash or property.
Pro Se: A Latin phrase meaning for "yourself"--representing yourself in any kind of case.
Pro se Divorce: Do it yourself divorce.
Prosecute: To carry on a case or judicial proceeding. To proceed against a person criminally.
Prosecutor: Also called the state's attorney. Represents the state in a criminal case against a defendant.
Protective Order: A criminal court order issued by a judge to protect a family or household member.
Public Defender: An attorney appointed and paid by the state who defends a person in a criminal case after the court finds that the person is indigent--financially unable to hire a private attorney.
Ready: Means ready to start the trial or begin oral argument. Usually said by an attorney or party in response to a judge calling the list of scheduled cases.
Record: The pleadings, the exhibits and the transcript made by the court reporter of all proceedings in a trial.
Referee: Judges who reach the mandatory retirement age of 70 may be designated as Judge Trial Referees by the Chief Justice and can hear and decide certain types of cases.
Regional Child Protection Docket: A specialized court designed to hear complicated child protection cases. One judge hears the case from start to finish. Located in Middletown.
Regional Family Trial Docket: A specialized court designed to hear complicated family cases. One judge hears the case from start to finish. Located in Middletown.
Residential Treatment Programs: Programs that provide extensive drug or alcohol treatment on an inpatient basis.
Respondent: Another word for defendant; the person responding to a lawsuit. In Juvenile court, the word refers to the person or persons named in a petition. When used in Practice Book Sec. 2-29 through 2-62 the word "respondent" shall mean the attorney against whom a grievance complaint or presentment has been filed or a person who is alleged to have been engaged in the unauthorized practice of law pursuant to General Statutes § 51-88."
Rest: To be done presenting the evidence in a case, as in "the plaintiff rests".
Restitution: Money ordered to be paid by the defendant to the victim to reimburse the victim for the costs of the crime. Generally making good, or giving the equivalent for any loss, damage or injury caused by a persons actions. Often a condition of probation.
Restraining Order: A civil court order to protect a family or household member from physical abuse.
Return Date: The date on which the 90-day waiting period for a divorce begins. Also, the date by which the defendant should file an appearance. Nothing happens in court on the return date and no one needs to go to court on the return date. The return date is always a Tuesday in civil and family cases. In a summary process, eviction case the date is approximately 12 days from the date it was signed excluding legal holidays and Sundays.
Revocation Hearing: A hearing held before a judge to determine whether or not a person has violated the conditions of probation. If there is a finding that a violation has occurred, the judge may impose all or part of the original sentence.
Rule to Show Cause: Summons compelling a person to appear in court on a specific date to answer to a request that certain orders be modified or vacated.
Seal: A court order closing a case file from public review, usually in cases of youthful offenders and acquittal. Prevents the public from obtaining information on the cases.
Senior Judge: A judge who reaches the age of 65, or who meets certain other requirements and chooses senior status. Senior judges hear cases on a part time basis until they reach the mandatory retirement age of 70.
Sentences: The penalty imposed by a judge after the defendant is convicted of a crime. Sentences can be: Concurrent - Multiple sentences will be served at the same time (i.e., sentences of 10 years, 8 years and 2 years - to be served concurrently - equal a total effective sentence of 10 years.) Consecutive - The sentences are served back-to-back. The same example above would equal a total effective sentence of 20 years.
Sentencing: When a criminal defendant is brought before a judge after conviction for ordering the terms of the punishment.
Sentence Modification: A defendant’s written application to the sentencing judge or court to reduce the sentence at any time during the sentence. The judge conducts a hearing. If the original sentence was more than three years, the prosecutor must agree.
Sentence Review: A defendant’s written application to a three judge panel to review the sentence. Must be filed within 30 days after being sentenced with the court clerk. A review decision can increase or decrease the sentence.
Serious Juvenile Offender: A child who has been adjudicated by the juvenile court for a serious juvenile offense.
Serious Juvenile Offense: Certain criminal offenses listed in the Connecticut General Statutes, which are crimes against persons, serious property crimes and certain drug offenses. A juvenile charged with a Serious Juvenile Offense by police may be admitted to a Juvenile Detention Center with a prior court order and may be released only by order of a judge of the Superior Court.
Service: The legal method for giving a copy of the court papers being filed to other parties in a case.
Short Calendar: A list of cases in which hearing by the judge or magistrate is requested or required.
Slip Opinions: Opinions, or written decisions, of the Supreme Court or the Appellate Court that are publicly released prior to their official publication in the Connecticut Law Journal.
Small Claims: Civil actions to recover damages, or money, up to $5000.The rules of evidence are relaxed and people often represent themselves instead of hiring an attorney.
Special Sessions of the Superior Court: A program of the Judicial Branch where cases of a single type are heard by the same judge through the entire case. For example: Drug Session; Tax Session; Community Court.
State Referee: A retired judge who presides over cases referred by the court with agreement of counsel for both parties. Has full powers of an active trial judge.
States Attorney: An attorney who represents the state in criminal cases. The prosecutor.
Statute: A law enacted by a legislative body.
Statute of Limitations: A certain time allowed by law for starting a case. For example, six years in a contract case.
Stay: Temporarily stopping a judicial proceeding.
Stipulation: Also called a "stip." A written agreement by the parties or their attorneys.
Subpoena: A command to appear in court to testify as a witness.
Subpoena Duces Tecum: A legal paper requiring someone to produce documents or records for a trial.
Substance Abuse Education: A community based program for drug offenders that provides education about the harmful effects of drug abuse and also supervises community service.
Substitute Charge: In a criminal case, a charge that replaces the original charge by the prosecutor.
Summary Process: An eviction case.
Summons: A legal paper that is used to start a civil case and get jurisdiction over a party.
Summons (Juvenile): A written notice issued by the court commanding a person to appear in a court at a given date and time. A summons is issued to an individual charged or other party on a petition or complaint.
Support Enforcement Officer: A person who supervises child support payments and brings parents to court to enforce child support orders. May also file legal papers to modify or change child support orders.
Testimony: Statements made by a witness or party under oath.
Time Served: A sentence of incarceration equal to the amount of time a defendant has already spent in state custody waiting for disposition of the case.
Title: Legal recognition of the ownership of property, usually proven by a document.
Tort: A civil injury or wrong to someone else, or their property.
Transcript: The official written record of everything that was said at a court proceeding, a hearing, or a deposition.
Transfer: Assignment of a case to another court location by court order.
Transfer Hearing: Juvenile Court hearing to determine whether a child, 14 or older, charged with a serious juvenile offense should have his/her case transferred to a criminal court and be subject to the same processes and penalties as an adult charged with the same crime.
Trial De Novo: A new trial or retrial in which the whole case with evidence and witnesses is presented as if no previous trial had been held.
Trial Referee: An attorney appointed by the Chief Justice to hear any civil non-jury case where the parties agree to use a trial referee and all the legal papers have been filed.
Uncared For: Legal description of a child or youth who is homeless or whose home cannot provide the specialized care which his/her physical, emotional or mental condition requires.
Unconditional Discharge: A sentence in a criminal case in which the defendant is released with without imprisonment, probation supervision or conditions.
Vacate: To cancel or rescind a court order.
Venue: The court location.
Victim Services Advocate: A person who assesses a victim’s needs and helps the victim understand the court case, how to exercise their rights and how to access other resources.
Visitation: A court order deciding the amount of time a non-custodial parent may spend with his or her child, also called parenting time or access.
Violation: An offense for which the only sentence authorized is a fine.
Violation of Probation: Action or inaction that disobeys a condition of probation.
Voir Dire: "To speak the truth." The process of questioning prospective jurors or witnesses about their qualifications.
Wage Execution: The process of deducting money from wages to pay a judgment. Also called a garnishment or attachment.
Wage Withholding: A court order to deduct child support or alimony payments from someone’s’ wages. All child support court orders must include an income withholding order unless both parents ask the judge not to.
Witness: A person who testifies to what they saw, heard, observed or did.
Writ: Legal paper filed to start various types of civil lawsuits.
Youth: Any person sixteen (16) to eighteen (18) years of age.
Youthful Offender: A legal status available to persons who have been arrested for a crime committed when they were between the ages of 16 and 18 and who meet other eligibility requirements. If the court grants Youthful Offender status, the information and proceedings are confidential and do not become a part of the person’s criminal record.

http://www.jud.ct.gov/legalterms.htm#Alford%20Doctrine