PRE-TRIAL PROCEDURES AND THE CONSTRUCTION OF CONVICTION (FROM THE SOCIOLOGY OF LAW, 1976, BY PAT CARLEN)

• NCJ Number: 58169
• Author(s): D J MACBARNET
• Date Published: 1976
• Length: 28 pages
• Corporate Author: University of Keele
• Publication Format: Article
• Language: English
• Country: United Kingdom
• Note: SOCIOLOGICAL REVIEW MONOGRAPH 23

Annotation

THE ROLE OF LEGAL PROCEDURE AND THE INFLUENCE OF LEGAL PROCEDURE ON THE COURSE OF TRIALS ARE DISCUSSED IN THIS 1976 BRITISH ARTICLE WHICH STATES THAT THE LEGAL PROCEDURE FAVORS THE STATE.

Abstract

THE IMPORTANCE OF LEGAL PROCEDURE, DESCRIBED AS BOTH PART OF THE SUBSTANCE OF THE LAW AND A GUIDE TO HOW THE LAW IS ACTUALLY ENFORCED, IS DISCUSSED IN TERMS OF THE PRETRIAL PROCEDURE. THE FIRST ARGUMENT PRESENTED IS THE LIEKLIHOOD OF CONVICTION IN ALL CASES AND PARTICULARLY THOSE BROUGHT TO TRIAL. THE VERDICT IS CUT AND DRIED, GUILTY OR NOT GUILTY, THOUGH REAL LIFE SITUATIONS ARE NEVER THAT ABSOLUTE. THE ARTICLE FOLLOWS PRETRIAL PROCEDURE TO ILLUSTRATE HOW IT WORKS TO INFLUENCE THE SYSTEM TOWARDS A DESIRED END RESULT. THE TRIAL PROCEDURE, BY VIRTUE OF ISOLATING A PERSON IN THE COURTROOM AS THE 'DEFENDANT', INFLUENCES THOSE PERSONS INVOLVED IN THE TRIAL, PARTICULARLY JURY MEMBERS, TO PRESUME THE DEFENDANT IS GUILTY OR HE WOULD NOT BE NAMED DEFENDANT. THIS IS PARTLY A RESULT OF THE PRETRIAL FILTERING PROCESS THAT ELIMINATES MANY OF THE INNOCENT BEFORE TRIAL. STILL THE POWER IN THE PRETRIAL AND TRIAL PROCESS IS WEIGHTED IN FAVOR OF THE STATE. THE STATE HAS THE ABILITY TO FORCE TESTIMONY, THE DEFENSE DOES NOT. THE ACCUSED IS PREVENTED FROM ENJOYING THE OPPORTUNITIES ESTABLISHED OFFICIALLY BY COMMON LAW AND STATUTE, WHILE THE PROSECUTION FORMALLY, PRECISELY, AND SUBSTANTIALLY HAS THE ADVANTAGES REGARDING RIGHTS AND OPPORTUNITIES. FOOTNOTES AND REFERENCES ARE PROVIDED. (KCP)