Crime & Society Midterm

Public Prosecution (prosecutor is a legal professional)

Role of judge is really important!

• Investigate the case
• Summon witnesses and accused
• Conducts trial
• Gives verdict
• Gives sentence (assisted by other legal specialists or judges)

OBJECTIF = FIND THE TRUTH

Capital Punishment
- The judge must have conclusive proof of guilt
- Not sure? Gave the benefit of the doubt
- Two eye-witnesses or the accused's confession
- Judicial torture only on the accused in case of capital offence

Gradual legal unification of England after 1066

11th - 13th century: many reforms and innovations
- Grand Jury decides if there is a trial
- Jury of 12 wise men gives the verdict
- Organization of Court of Justice local, regional, royal (Westminster)
- King's judges travelled the country to unify the King's Law
- King's bench: most senior judges stayed in Westminster to hear complicated cases
- King's bench decisions formed the precedent, on which other judges based their decisions on similar cases
- Legal professionalization was not done in universities, but hands on apprenticeship in courts withs judges

Grand jury decided if a crime had been committed and if criminal charges were pressed

When trial
- 2 litigants presented witnesses, did cross-examinations, before a jury
- Judge could ask questions to the witnesses and the accused
- 12 jurors would determine the verdict (starting in 1367, it took a unanimous jury to give a guilty verdict)
- Judge gave the sentence

Judicial Torture
- For commoners
- English court: accused had to enter a plea (answer guilty or not guilty to the charges)
- If they refused to enter a plea: imprisonnement, starvation, and peine dure et forte
- The Peine Dure et Forte consists of being crushed under the weight of stones or other heavy objects until you agree to answer to the plea, or you die.

Judicial Torture
- For nobles
- Secret court with no juries
- Nobles who represented a threat to the king were tortured to get information

The Central Criminal Court of England and Wales.
The Crown Court sitting at the Central Criminal Court deals with major criminal cases from within Greater London and in exceptional cases, from other parts of England and Wales.

• Lawyers were first used for prosecution
• Presence of defence lawyers was generalized in the 19th century
• Lawyers didn't have a good reputation (rude, incompetent...)
• 3 types of verdict: guilty, not guilty, and partial verdict (guilty, but of lower charges)
• Spouses were not equal before the law, not the same type of crime and punishment for the same offences

Until the 18th century, it was believed that lawyers tended to obscure the truth during trials

1730: judges started accepting defense councils
Mid 18th century: lawyers have the responsability of gathering, selecting, and probing evidence, examining witnesses, and conduct cross-examinations

The introduction of lawyers forced the modification in the judge's role.

Starting in the 19th century, British judges became moderators et neutral referees on the point of Law.

The role of the lawyers is to convince the jury and not to find the truth.

According to Langbein, there are 2 main defects of the adversary system:
- Money effect: more money = can hire best lawyers and more lawyers
- Combat effect: suppressing evidence to win the case, no matter if guilty or not. This system impairs the truth, as lawyers don't want the truth, they want to win no matter what

Even those who couldn't afford it, paid by the State.

King Louis XIV dreamt of a perfect society:
- No journalists or newspapers = no criticism
- No lawyers, as they were seen as a source of evil

• Some lawyers avoided the ban and worked as "legal practitioners"
• Mostly in civil cases so trials would go faster
• Extremely well paid
• Lawyers were sent to the colonies to assume senior positions (e.i. Judges)

Few examples of crimes (17th-18th centuries)
50% of all crimes committed in New France:

• Assault and Battery (very frequent)
• Theft, Robbery, receiving stolen goods
• Insults
• Forging currency
• Blasphemy (against God or King)

Justice in New France
Same penal law as in Paris (Coutume de Paris)

• A victim/authority went to a judge to officially lay accusations against someone
• Actions were taken as if the monarch were symbolically the victim of the crime committed(breaking the King's Law)
• Public Prosecution: burden of the trial off the shoulders of the victim
• Judge gathered evidence and presented the case to the Attorney General. To counterbalance the judge's potential bias, the Attorney General decided which cases went to court (Judge couldn't send anybody on trial)

The organization of criminal justice in New France

• Seigneurial Court (Regions of Montréal, Trois-Rivière, and Québec City)
• Royal Tribunal (Montréal, Trois-Rivière) & Prévôté in Québec City (most important)
• Superior Council where appeals were done (very frequent)
• King back in France, 7-8 appeals between 1608-1760

Role and Powers of a Judge

• Received a plainte
• Gathered evidence (Media reports, witnesses, monitoir: ask the people at the Sunday mass if they know something about the case, as God knows if you say the truth or not.)
• Wrote writs/summoned the witnesses and suspects (can't work anymore, sent to prison)
• Drafted the questions with the prosecutor
• Send a summary of the case to the Attorney General who decided to stop or continue towards the trial. Objectif = FIND THE TRUTH

TRIALS

• Case heard in camera (in private), so witnesses could testify without fear of retaliation
• Guilty until they prove their innocence (no presumption of innocence)
• No lawyers
• Didn't know the nature of the accusations when you were sent to jail, and didn't know when the trial would be (element of suprise, so you wouldn't have the time to create an alibi, therefore you would say the truth)

Major crimes

• Recolement: witnesses confronted the accused in court, accused was alone
• When the judge was in doubt, he could ask for the extraordinary question: the boot torture to get a confession. If the accused confessed, they had to repeat their confession freely in court to confrim it
• Judges possessed significant discretionnary power in the determination of the punishment, depending on the context of the crime (opened the door to favoritism)
• Your social status and reputation usually influenced to judge's sentence (privilege for the nobility)

Punishment for Major Crimes

• Amende Honorable: ask the community and God for their forgiveness (usually accompanied with a much harsher punishment)
• Flogging until they bled or a certain number determined by the judge
• Branded with the fleur de lys (because they disobayed the King's Law), on the shoulder, the chest, or the cheek (brand V for voleur, or VV for a second major offence), so everybody would know
• Sent to the Mediterrenean Galleys to row for 3-9 years. Also branded the letters GAL. Lingering death, never made it out alive. Never women, as they couldn't wear a shirt on the boat and it would have been to disruptive.
• Banishment from the community. Worst punishment, but not physically painful. Banished from the city or the colony, for years or for life.

Punishment for Minor crimes

• Paid a fine
• Exposure: Iron collar or the Carcan (on the main public place, Sunday after mass, with a writing around the neck explaining why they are here, 30min-4hrs, 1-4 days) Public humiliation as a deterrent, honor and reputation was really important
• Trial was private, but sentence was public, to create an example

Physical Pain as a Deterrent Against Crime!

Capital Punishment From Capital Offences

• Carnavalesque atmosphere on the day of the execution (only 4-5/year)
• People enjoyed the executions, as it was their main source of entertainment, special day, they learned about the crimes committed (no newpapers)
• On elevated surfaces, in a large public place, people rented the windows of the houses around the place for the best view

Types of Capital Punishment

• Hanging: vast majority of executions Death by suspension (3-15 minutes)
• Beheading: none in New France Reserved for nobles, they usually fled before the sentence with the collaboration of people inside the judicial system
• Being Burned Alive: only 2 cases in New France Against people who were accused of arson
• The Breaking Wheel: 6-10 cases in New France, only men Condemn was bound to a cross, and the executioner would use an iron bar to break his limbs. Death followed in the next hours or days. Retentum: The judge gave a note to the executionner to secretly strangle the condemned first, the show must go on, but it was more humane.

Foucault:

• Executions were public to show the power of the King, and to avenge the King because somebody broke his Law.
• The people wanted to see the executions to ensure that everybody received the same treatment and nobody espaced justice.
• Gallows were strongly protected by the military to show the power of the King and to ensure that nothing would go wrong during the execution (crowd could support the judgemnt or the accused)
• Unskilled executioners who failed at their task were seriously beaten by the population, as they were not happy of the show they were given

IN ABSENTIA

• In the absence or death of the accused, judges still imposed a public punishment
• Using an effigy (drawing or dummy) to represent the condemn, and execute the sentence on the effigy or corpse No one could escape the King's justice!

Punishment for the crime of suicide

• Understood as a double-crime: murder of body and soul
• Body would be dragged face down through the streets so he would have to look at Hell
• Hung by the feet for hours, days, or years!
• Buried in unhallowed grounds, dumped in the St. Lawrence river, or body given to the surgeon and his students for disection (denial of christian burial = additional punishment and shame for the family)
• Self-murderers didn't aks for forgiveness before death = excommunication