Appeals and other methods of review

A judgment of a court of first instance may be attacked either by appeal to a higher court or by a request for some form of review of the judgment by the court that rendered it. Thus, it is quite generally possible for a defendant who has defaulted to ask a court to reopen the case and hear it on its merits. In Anglo-American courts, it is frequently possible to ask for a new trial. In some cases (if, for example, there is newly discovered evidence) procedures analogous to motions for a new trial exist in European countries. In certain countries and in some states of the United States, an appeal of a judgment that is not a final decision can be made in addition to appeals of final decisions.

The appeal process is somewhat different in civil-law and common-law countries. In Europe the appeal from the court of first instance to the intermediate appellate court ordinarily involves a reexamination of the entire case, both the law and the facts, and new evidence frequently can be introduced. An appeal to the supreme or highest court is restricted to matters of law. In the Anglo-American system, on the other hand, both the intermediate appellate court and the supreme court examine only the written record created in the court below and do not receive new evidence. Furthermore, review is generally restricted to matters of law, though the scope of review is broader in the intermediate appellate court than the supreme court. Rules of appeal in all systems tend to combine the desire that justice be done and error be corrected with the desire to find some point at which the proceedings will end and judgment will be deemed final.

Questions and tasks to Part 1

1. Define the notion «procedural law».

2. What are the main stages of civil procedure?

3. Explain the following: «The Anglo-American common-law procedure is adversarial, the continental European civil-law procedure is inquisitorial».

4. What are the functions of the jury and the judge in the Anglo-American jury trial?

Part 2 Criminal procedure

The law of criminal procedure regulates the modes of apprehending, charging, and trying suspected offenders; the imposition of penalties on convicted offenders; and the methods of challenging the legality of conviction after judgment is entered. Litigation in this area frequently deals with conflicts of fundamental importance for the allocation of power between the state and its citizens.

Procedure before trial The investigatory phase

When a criminal offense has been reported, the competent authority (the police, the public prosecutor, or the investigating magistrate) commences the criminal process by investigating the circumstances. In this phase, relevant evidence is collected and preserved for a possible trial. The suspect also has the right to collect evidence in his favour. In the civil-law countries of continental Europe, he can typically request the investigating authority to assist him in this endeavour; in common-law countries, the suspect is expected to take the initiative in preparing the case for his defense.