APPELLATE COURTS

1. The tribunals described are trial courts or "courts of first instance." They see the parties, hear the witnesses, receive the evidence, find the facts, apply the law, and determine the outcome.

2. Above them are appellate courts, that are usually collegiate bodies, consisting of several judges instead of the single one who usually presides over a trial court. The jurisdiction of the appellate courts is usually general; specialized appellate tribunals handling, for example, only criminal appeals or only civil ones are rare, although not unknown. Their functions are those of reviewing the work of trial courts and of correcting their errors.

3. Appellate review is not automatic. It must be sought by some party aggrieved by the judgment in the court below. For that reason, and because an appeal may be both expensive and useless, there are far fewer appeals than trials and, if successive appeals are available, far fewer second appeals than original ones. Judicial systems are organized on a hierarchical basis: at the bottom are numerous trial courts scattered throughout the nation; above them are a smaller number of first-level appellate courts, usually those organized on a regional basis; and at the apex is a single court of last resort.

4. There are three basic types of appellate review. The first one consists of a retrial of the case, with the appellate court hearing the evidence for the second time, making fresh findings of fact, and in general proceeding in much the same manner as the court that originally rendered the judgment. This "trial de novo" is used in common-law countries for the first stage of review but only when the trial in the first instance was conducted by an "inferior" court—one typically manned by a part-time judge or two or more such judges, empowered to try only minor cases and keeping no adequate record of its proceedings.

5. The second type of review is based in part on a "dossier,” which is a record compiled in the court below of the evidence received and the findings made there. The reviewing court has the power to rehear the same witnesses again or to supplement their testimony by taking one additional evidence, but it need not do so, being content to rely on the record already made in reaching its own findings of fact and conclusions of law. This type of proceeding prevails generally in civil-law countries for the first stage of appellate review, even when the original trial was conducted in a superior court, staffed by professional judges, and empowered to try important or serious cases.

6. The third type of review is based solely on a written record of proceedings in the court or courts below. The reviewing court does not itself receive evidence directly but concentrates its effort on discovering from the record whether any errors were committed of such a serious nature as to require reversal or modification of the judg­ment under attack or a new trial in the court below. The emphasis is on questions of law (both procedural and substantive) rather than on those of fact.

7. This type of review prevails both in civil-law nations and common-law nations at the highest appellate level. It is also used in common-law nations at lower levels when the judgment of a superior court is under attack. The purpose of this type of review is not merely to assure that correct results are reached in individual cases but also to clarify and expound the law in the manner described earlier. Lower courts have little to do with the development of the law, for they ordinarily do not write or publish opinions. The highest appellate courts do, and it is their opinions that become the guidelines for future cases.

VIII. Перепишите и переведите письменно на русский язык абзацы 5,6 и 7.

IX. Дайте ответ на вопрос:

In what countries and at what level is the third type of appellate review used?

Вариант 2

I. Переведите предложения на русский язык, обращая внимание на особенности перевода страдательного залога.

1. At times courts employ “special interrogatories” in which the jurors are asked to decide a series of specific factual issues.

2. In the course of helping to keep peace courts were being called upon to decide controversies.

3. Persons accused of murdering that man have been dealt with by the criminal court already.

4. Adhesion is the concept by which the injured party will be allowed to assert his civil claim in the criminal prosecution.

5. Because judges were men not machines, their judgments could sometimes be affected by human weaknesses.

II. Переведите предложения на английский язык, обращая внимание на время и залог сказуемого.

1. Дело этого обвиняемого только что было заслушано в суде.

2. Его будет защищать лучший адвокат.

3. Будущие следователи, судьи, адвокаты обучаются сейчас в нашем университете.

4. Преступник был признан виновным после того, как были собраны все доказательства.

5. Убийство свидетеля все еще расследовалось, когда было совершено новое преступление.

III. Определите функцию причастия I и переведите предложения на русский язык.

1. The legislative codes cannot anticipate all the situations arising and coming before the courts.

2. Solicitors handle most legal matters for their clients, including the drawing up of documents, such as wills, divorce papers and contracts.

3. Having heard arguments from the defence and the prosecution an examining magistrate has to decide “yes” or “no” to a particular proposition, that is, whether a particular person is guilty or not guilty of a certain crime.

4. Having been arisen the constitutional questions are referred to a special court at the highest level of government in Germany.

5. Apart from the occasional necessity of major sweeping changes, experience in the common-law countries indicates that the procedural rule making is better vested in courts than in legislative bodies.

IV. Определите функцию причастия II и переведите предложения на русский язык.

1. An opposing lawyer who believes that the testimony asked for or already given is improper may object to it and ask the judge to instruct the witness not to answer the question.

2. When asked whether they had been the victims of the crime the people interviewed replied in the affirmative.

3. If committed again by the same person within a stated time, the crime by repeater leads to making the punishment fit not only the second crime, but also the first one.

4. A very common form of punishment for minor offences is when the convicted person, that is, the person found guilty by the court, is sentenced to a certain number of hours of community service.

5. Abolished in Britain for all other offences in 1969, death penalty is still imposed for such crime as treason.

V. Определите функцию герундия и переведите предложения на русский язык.

1. When the police arrest somebody on suspicion of having committed a murder, they have to follow certain procedures.

2. Unless the police obtain special permission they are not allowed to detain a person for more than twenty-four hours without formally charging that person with having committed a crime.

3. By serving on a jury, citizens take advantage of a unique opportunity of participating directly in the trial.

4. Prohibiting the use of a defendant’s out-of-court confession to a crime as evidence may discourage the police from using force trying to get suspects to confess.

5. When chosen for the jury service, citizens don’t mind being asked questions concerning their ability to decide the case fairly.

VI. Определите функцию слов с окончаниями –ed и –ing и переведите предложения на русский язык.

1. Being sure of the facts the judge dismissed the witness without questioning him.

2. Questioning the witnesses was important for ascertaining all the facts concerning the crime and all the evidence relevant to the case.

3. Questioning the witnesses it was important to prove the facts that the accused could not have been at the scene of the crime.

4. The barrister questioning the defence witness warned him against giving a hearsay testimony.

5. At the moment the counsel for the defence is questioning the witness for the prosecution trying to dig up convincing evidence in favour of the defendant.

6. When questioned the witness denied having seen the accused person at the scene of the crime.

7. The witness questioned refused to give evidence against the person accused.

8. The judge questioned the witness if he had been involved in an attempt made by the accused person on the life of the victim.

9. The judge formed a negative opinion concerning the guilt of the accused after he had questioned all the witnesses.

10. All the witnesses will have been questioned by the time the jurors pronounce their verdict.

VII. Прочитайте текст, выпишите 10 предложений со словами “that, those, one, ones”, определите их функцию и переведите предложения на русский язык.

Judges

1. A court is a complex institution, the one whose functioning depends upon many people: not only upon one judge but also upon the parties, their lawyers, witnesses, clerks, bailiffs, probation officers, administrators, and many others, including, in certain types of cases, jurors. Nevertheless, the central figure in any court is the judge.

2. One should mention that judges vary enormously, not only from nation to nation but often within a single nation. For example, a rural justice of the peace in the United States—untrained in the law, serving part-time, sitting alone in work clothes in a makeshift courtroom, collecting small fees or receiving a pittance for salary, trying a succession of routine traffic cases and little else—obviously bears little resemblance to a justice of the Supreme Court of the United States—a full-time, well-paid, black-robed professional, assisted by law clerks and secretaries, sitting in a marble palace with eight colleagues and deciding at the highest appellate level only questions of profound national importance. Yet both persons are judges.

3. In some civil-law countries, judges at all levels are those who are professionally trained in the law, but in many other nations they are not. In England, part-time lay judges outnumber full-time professional ones by about 60 to I. Called magistrates or Justices of the Peace, they dispose of about 97 percent of all criminal cases in that nation and do so with general public satisfaction and the approbation of most lawyers. Professional judges deal only with the most serious crimes, which are relatively few in number; most of their time is devoted to civil cases. England places unusually heavy reliance on lay judges, but they are far from unknown in the courts of many other nations, particularly at the lowest trial level. This was also true in the former U.S.S.R. and remains so in the United States. There is a considerable diversity in the way laymen are chosen and used in judicial work. In the United States, for example, lay judges are popularly elected for limited terms, whereas in England they are appointed by the Lord Chancellor to serve until retirement or removal. In England the lay judges serve intermittently in panels on a rotating basis for short periods, whereas in the United States they sit alone and continuously. In the former USSR lay judges (called assessors) always sat with professional judges; in England, they sometimes do; and in the United States, they never do. In some underdeveloped nations, few judges at any level are legally trained ones. They are more often priests, for the law that they administer is mainly derived from religious teaching, and religion and secular governments are often not sharply differentiated. The vast majority of nations that use lay judges at the lowest trial level, however, insist upon professionally trained judges at higher levels: in trial courts of general jurisdiction and in appellate courts.

4. Along with lay judges, there are professional judges in the civil-law tradition. Professional judges in civil-law countries are markedly different in background and outlook from those in common-law countries. Both are law-trained and both perform substantially the same functions, but there the similarities cease. In a typical civil-law country, a person graduating from law school makes a choice between a judicial career and career as a private lawyer. If he chooses the former and is able to pass an examination, he is appointed to the judiciary by the minister of justice (a political officer) and enters service in his early 20s. His first assignment is to a low-level court; thereafter, he works his way up the judicial ladder as far as he can until his retirement on a pension. His promotions and assignments depend upon the way his performance is regarded by a council of senior judges, or sometimes upon the judgment of the minister of justice, who may or may not exercise his powers disinterestedly and on the basis of merit. The civil-law judge, in short, is a civil servant.

VIII. Перепишите и переведите письменно на русский язык абзац 3.

IX. Дайте ответ на вопрос:

What is the difference between lay judges and professional ones?