[Private] Draft of New Court Rules

[Crushing Our Enemies]

Here is my draft of the new court rules. It's less than half as long as the current rules, and the evidence rules are much simpler. Let me know your thoughts:

Adopted Court Rules

Chapter 1: Criminal Trials

Section 1.1: Indictments

1. All criminal charges brought before the Court must be presented in the form of an indictment.
2. All indictments will be publicly accepted or rejected within 72 hours of being filed.
3. An indictment may be rejected for procedural or substantive reasons, and the reasons for rejecting an indictment will be publicly disclosed in full.
4. A rejected indictment may only be resubmitted if substantive changes have been made to address the reasons it was rejected.
5. A Moderating Justice will be immediately appointed by the Chief Justice when an indictment is accepted.
6. At the time of acceptance, the Defendant must be notified of the charges against them, and the upcoming trial.
7. In the case of Indictments seeking an ejection and/or banning, or expulsion from the RA due to oath violation, the procedures set by the Legal Code will be followed exactly as stated.

Section 1.2: Criminal Trial Procedure

1. The Moderating Justice will open a trial thread promptly after an indictment has been accepted.
2. When a trial thread is opened, the Defendant will be notified by the Moderating Justice via forum PM, or Telegram, whichever the Defendant is more likely to read first.
3. The Defendant will have 48 hours from the opening of the thread to enter a plea.
4. Following the acceptance of a plea by the Moderating Justice, a 72-hour period for pre-trial motions will start. This is the only time in which motions to dismiss charges, based on arguments of law, will be considered.
5. When all pre-trial motions have been settled, a discovery period will commence which will last no fewer than 5 days.
6. During the Discovery phase of a trial, all Parties will submit any and all evidence they wish to use to the Court. Either side may object to any piece of evidence. Any objection must clearly explain why, in accordance with the Court Rules and general legal principles, the evidence should not be admitted into Court Record. The Moderating Justice will make a determination after hearing from both sides.
7. Relevant evidence may be admitted at the discretion of the Moderating Justice.
8. Documentary evidence must be authenticated through witness testimony, unless an exception is granted by the Moderating Justice.
9. Following the conclusion of discovery (when all evidence has been submitted and accepted or rejected by the Court, and all evidentiary motions have been handled), there will be a period of at least 72 hours for arguments on the evidence and the law.
10. Following the conclusion of arguments, and the final resolution of any outstanding motions, the Court will have up to 72 hours to reach a verdict.
11. Following the publication of the verdict, the Court will have up to 48 hours to announce a punishment. During this time, either party may offer its opinion regarding sentencing.
12. When a sentence is announced, the Court will notify all relevant government and administrative officials of any actions mandated by the sentence.
13. As necessary, and in the interests of justice, the Moderating Justice may alter this timetable to ensure a fair trial.

Section 1.3: Witness Testimony

1. Witness testimony may be offered as evidence during the discovery phase.
2. Witness testimony must be gathered in the form of a deposition or a statement.
3. Depositions may be taken over instant messenger or in a forum thread separate from the trial thread. A deposition may only be conducted in a forum thread if a deposition over instant messenger is not feasible.
4. When conducting a deposition over instant messenger, the procedure shall be as follows:
   • Counsel for each party must be present, along with the witness being questioned.
   • The questioner shall ask a question, and indicate clearly when the question is complete.
   • The opposing counsel will have the opportunity to make a brief objection, the end of which will be indicated clearly. If the opposing counsel has no objection, they must indicate so.
   • If an objection is made, the questioning party may defend against the objection, and indicate the completion of their response clearly in the record.
   • When the opposing counsel has indicated that they have no objection, or the questioning counsel has completed their response to an objection, the witness will be instructed by the questioning party to answer.
   • At the completion of a deposition, each Party must submit a copy of the complete log to the Moderating Justice for review. The Justice will review all objections, and publish an official record version of the deposition with appropriate edits in accordance with any sustained objections.
5. When conducting a deposition in a forum thread, the procedure shall be as follows:
   • The questioner shall ask all their questions in a single post.
   • The opposing counsel will post in the trial thread objecting to any questions they wish, or indicating that they do not object to any of the questions.
   • If any objections are made, the questioning party will post to defend against any objections they wish. They may also withdraw questions that have been objected to.
   • The Moderating Justice will review any objections and post to sustain or overrule each objection. If an objection is sustained, the question will not be answered.
   • The witness being deposed will post to answer the remaining questions.
6. Statements may be sent directly to the Moderating Justice by the witness no later than 72 hours before the scheduled end of discovery. The Moderating Justice will post the statement in the trial thread.
7. If the opposing party wishes to cross-examine a witness providing a statement, a deposition must be scheduled.
8. All witnesses giving testimony must first swear an oath as follows:

I swear to tell the truth, the whole truth, and nothing but the truth.

Chapter 2: Civil Trials

1. Civil trials will follow the same procedures as criminal trials, except as provided in this chapter.
2. Civil Trials will be adjudicated by a single Justice.
3. The Moderating Justice assigned to any Civil Trial will be the serve as the decider of fact as well as the procedural moderator.
4. In all Civil Trials, Complainants will represent themselves; the Attorney General is not responsible for handling civil matters.
5. The Defendant may appoint counsel as they see fit, as in other trials.
6. No Plea process exists for civil trials; if the Defendant wishes to concede the matter, he or she may do so at any time.
7. Following the resolution of all motions, the Justice will open Discovery, which shall last 5 days.
8. All witness testimony must be gathered in the form of statements. Depositions and cross-examination are not permitted.
9. Only three statements besides those necessary to authenticate documentary evidence will be allowed for each side.
10. The trial is over when the verdict is delivered.
11. The verdict may be appealed to the full court within 72 hours solely on the basis of its legal reasoning. The Court may refuse to hear such an appeal if it finds no clear legal error demonstrated by the request for appeal.

Chapter 3: Requests for Review

1. Anyone may submit a request to the Court for a review of government policy or law.
2. Any Justice may accept or deny a request for review, at their discretion.
3. If a request is denied, the person who submitted the request may petition the entire Court to overturn the individual Justice's decision and accept the review.
4. During the three days after a request for review has been accepted, anyone may offer information that is relevant to the case and/or advise the Court on how to rule in the form of a brief.
5. The period for submitting briefs may be altered at the discretion of the justice who accepted the request for review.
6. The Court will deliver an opinion answering the request for review within seven days after the end of the period for submitting briefs.

 

[Flemingovia]

I do not warm to this at all. It still seems over complicated, and a simple tinkering with the system to try to make the unworkable work.

It seems not to take into account some of the issued highlighted in earlier discussions.

I would prefer to see something based on what we were discussing in the other thread, as proposed by Romanoffia.

 

[Romanoffia]

The exact procedure can indeed be simplified as Flemingovia notes, especially where it is redundant with legal code.

Where the whole system buggers up is when cases are actually brought before sufficient evidence is accumulated by the AG.

Also, cases can bugger off into parts unknown as a result of the AG vanishing or the defense vanishing, or the court vanishing into oblivion. There are ways to remedy that but it would add a lot of wordiness to the rules and more steps in the process which is exactly what we need to avoid.

For the sake of timely disposal of court cases, I'd like to see something more akin to:

1.) Indictment presented - Justices can either accept or reject the indictment based upon substance or merit based upon the content of the Indictment. Simple explanations by the court for a rejection should be limited to 50 words or less, if possible.

2.) Prosecution presents its argument in detail.

3.) Defense presents its case including rebuttal.

4.) The Presiding Justice reviews the evidence and asks appropriate questions of the witnesses, AG and Defense Council if needed.

5.) Justices render a decision with an opposing opinion if there is one.

6.) Justices decide an appropriate punishment that is not excessive nor unusual (unless, of course, it is unusually silly but not unnecessarily harsh. Like making the convicted defendant display a silly badge in their sig).

It reduces the bickering, obfuscation and confungulation to a minimum. There's nothing worse in this world than bickering lawyers and women that mean well.

 

[Crushing Our Enemies]

Roman, how is that procedure different than the procedure in my draft (besides the fact that you don't mention a discovery step, but then say that judges review the evidence later)?

EDIT: The only other change I can see is that you've added a step for the justice to ask questions of the witnesses, AG, and defense counsel...which seems like it would lengthen the process a bit.

 

[Romanoffia]

The idea is that once an indictment is presented, the Prosecution has to present it's evidence immediately as soon as the indictment is presented. That requires the AG to assemble all evidence and have it ready BEFORE he even files an indictment. That way, the AG has assured that he has enough evidence to have a viable case.

So, here's how it actually would go as per criminal cases:

Pre trial -

1.) Someone files a complaint with the AG. The AG must then investigate and gather evidence to determine if there is enough evidence for the AG to file an indictment.Once the AG feels that there is enough evidence for a case to be viable, the AG then presents the indictment and evidence to the Court. The AG's evidence shall include all Depositions, etc.,,,.

2.) The Court (a Justice who takes the case) will then review the Indictment and the supporting evidence to make a determination as to whether or not the court will accept the indictment. In the event a Justice rejects an indictment, the Justice will issue a brief explanation as to why the indictment is rejected. This decision will be made in 48 hours.

3.) If the Indictment is accepted by the court, it will be posted, along with all evidence including any Depositions, etc.,,,. At this point, the Prosecution has presented its case in toto. No new evidence from the AG will be permitted. The Defendant is notified of the Indictment and has 48 hours to respond and enter a plea.

4.) The Defense has five (5) days to examine the AG's evidence as presented in detail in the indictment which shall include all Depositions, etc.,,,. The Defense will have the opportunity to Depose the witnesses and gather it's own evidence and present a detailed rebuttal to the Charges. At the end of the five days, the Defense will post it's gathered evidence, rebuttal, depositions, legal arguments, etc.,,, in the same indictment thread.

The Actual Trial -

1.) The Indictment Thread shall now become a Trial thread. The Presiding Justice has 72 hours to review the evidence; question the witnesses, the AG and the Defense if needs be, as per the evidence, the legal arguments, etc., after which time

2.) The Presiding Justice has 72 hours to render a decision and 24 hours thereafter to determine a sentence if a guilty verdict is attained.

So, essentially, from the time the Indictment is accepted by the court, the timeline will be as such:


1.) The acceptance of the Indictment with full evidence, the Defendant is notified and has 48 hours to enter a plea. In the event of no response or plea, a not guilty plea is automatically entered.

2.) The Defense has five (5) days to accumulate evidence, etc.,,, and construct a defense.

3.) 72 hours for the Justice to question the Prosecution, Defense, witnesses, etc.

4.) 72 hours for the Justice to render a decision.

If a guilty verdict is rendered,

5.) 24 hours for sentencing.

So, at the longest, a trial will take, at the longest 14 days (plus on day for sentencing in the event of a guilty verdict).

 

[Crushing Our Enemies]

1.) Someone files a complaint with the AG. The AG must then investigate and gather evidence to determine if there is enough evidence for the AG to file an indictment.Once the AG feels that there is enough evidence for a case to be viable, the AG then presents the indictment and evidence to the Court. The AG's evidence shall include all Depositions, etc.,,,.

OK, problem here - how can you take a deposition when the trial hasn't started? You need the defense counsel there to cross-examine, and there is no defense counsel before the trial begins.

2.) The Court (a Justice who takes the case) will then review the Indictment and the supporting evidence to make a determination as to whether or not the court will accept the indictment. In the event a Justice rejects an indictment, the Justice will issue a brief explanation as to why the indictment is rejected. This decision will be made in 48 hours.

This is identical to the current procedure, except for the 48 hour time limit, which I would be on board with.

3.) If the Indictment is accepted by the court, it will be posted, along with all evidence including any Depositions, etc.,,,. At this point, the Prosecution has presented its case in toto. No new evidence from the AG will be permitted. The Defendant is notified of the Indictment and has 48 hours to respond and enter a plea.

I don't like the idea of making the prosecution present its case without seeing the evidence from the defense. Each side should be able to see all the evidence before they have to make their argument.

4.) The Defense has five (5) days to examine the AG's evidence as presented in detail in the indictment which shall include all Depositions, etc.,,,. The Defense will have the opportunity to Depose the witnesses and gather it's own evidence and present a detailed rebuttal to the Charges. At the end of the five days, the Defense will post it's gathered evidence, rebuttal, depositions, legal arguments, etc.,,, in the same indictment thread.

This is identical to current procedure, except that only the defense is allowed to gather evidence, instead of both sides gathering evidence at once - so it doesn't really save any time.

1.) The Indictment Thread shall now become a Trial thread. The Presiding Justice has 72 hours to review the evidence; question the witnesses, the AG and the Defense if needs be, as per the evidence, the legal arguments, etc., after which time

I don't like the idea of adding an extra step for the judge to question witnesses and parties. It doesn't make sense, once the prosecution and defense have both questioned a witness, to then have the justice take a hand in the trial proceedings. It smacks of judicial activism, and creates a conflict of interest, in my opinion. Once witnesses have been examined and crossexamined, their testimony should be over. Also, why should the judge need extra time to review the evidence? That's what the deliberation stage is for. I think this whole step just adds three useless extra days to the trial.

2.) The Presiding Justice has 72 hours to render a decision and 24 hours thereafter to determine a sentence if a guilty verdict is attained.

This is identical to the procedures I've proposed (minus a day for sentencing, which I can get on board with), except I propose involving the whole court in the sentencing process, because that will have more fair results.

 

[Crushing Our Enemies]

Another problem with having the prosecution gather and submit all evidence including witness testimony with the indictment is that the AG is required to submit an indictment for *every complaint* he receives, no matter how specious the charges. To require him to assemble an entire case for a complaint that he knows is going to be rejected by the court is asking far too much of his office.

 

[Romanoffia]

Point 1:

The prosecution has the burden of proof. This means the prosecution needs to get all of its evidence, including statements from witnesses, etc., as a matter of investigation before charges can be made. It's a point of logic. The defendant has no obligation nor can be compelled to provide any evidence against himself (right to be free from self incrimination).


Point 3:

Again, burden of proof is with the prosecution. The defense is entirely entitled to remain silent if it so chooses. Point of logic.


Point being, the Prosecution, having the burden of proof, is required to present all of its evidence to the defense as a matter of burden of proof. The defense is not under a similar obligation, per se, as that evidence is available already if the AG has done due diligence as a course of the investigation conducted prior to formal charges being filed. Defense evidence is supplied to the prosecutions after charges have been filed so as to prevent a future mistrial due to a violation on one's right to be free from self incrimination.

RL example: if there are allegations of criminal actions by a person, a prosecutor doesn't file charges until he has sufficient evidence before hand that would be sufficient cause for an indictment. Or, at least a prosecutor should do it this way (I have, though, in RL seen prosecutors file charges without any invesigation having been conducted to gather evidence to support the charges. In this instance, the prosecutor is also an idiot ).

 

[Romanoffia]

Let me clarify my point a bit further, or, rather, provide a better example of what I am driving at:

The principle of law at hand here is 'burden of proof'. The prosecution or plaintiff always has the burden of proof except in rare instances like slander and/or libel which are not covered, per se, in TNP legal code.

The defendant has the right not to provide testimony that is incrimination and the defense is not required to supply self-incriminating evidence.

Ergo, the prosecution has the duty to gather evidence and witness statements sufficient to support a viable case against the defendant. Discovery is a right that is provided to the defense and only to the defense under points of common law; the prosecution has no need for 'discover' because the prosecution has sweeping authority as per its ability to gather evidence, question witnesses, etc.,,, as a matter of course. The presumption is that the Prosecution already knows what it needs to know in order to bring charges because the prosecution can question witnesses and gather information with and without warrants and that the actual investigation conducted by the prosecution prior to charges being filed constitutes the prosecutions right to 'discovery'.

Also, it is absurd for the prosecution to continue to gather new and additional evidence during a trial and then expect that 'new' evidence to be admissible. The logic behind this is so that the prosecutions, upon which the burden of proof is placed (the defendant being presumed innocent until proved otherwise), cannot surprise the defense with 'new' evidence in the form of evidence conveniently withheld from the defense in discovery so as to prevent the defense from impeaching the evidence. Sudden 'new' evidence submitted by the prosecution may or may not be admissible unless the prosecution can prove it could not have discovered such evidence before the charges were filed.

The one exception is if the prosecution discovers new evidence that proves the innocence of a defendant, the prosecution must not withhold that evidence before, during or after the trial. The defendant is in no way obligated in such a way except in instances where exonerating evidence would have prevented the trial in the first place.

But the general idea is to make sure that the AG has enough evidence to warrant charges and a trial in the first place. Here in TNP, I've seen over the years any number of cases based upon no evidence at all other than one person being offended by another's actions and then filing whatever charge fits the gripe.

And this is why the AG needs to gather all of its evidence before hand, before filing charges, so that we don't have to sit around twiddling our thumbs waiting for the prosecution to find supporting evidence after the trial begins.

 

[Crushing Our Enemies]

The defense also has the right to cross-examine witnesses. If the prosecution deposes its witnesses before the trial begins, defense counsel can't be present to cross, because there is no defense council.

Also, I don't object to the prosecution gathering documentary evidence before the trial begins, but I don't think the prosecution should have to present its argument until after all evidence has been submitted from both sides.

EDIT: Also, I'd like to reiterate that the AG has to file charges for every complaint it receives. We can't ask the AG to gather 100% of the evidence and make a complete argument for a case that is guaranteed to be dismissed.

 

[Romanoffia]

We would have to have cross examination, etc.,,, for practical purposes during the trial when you get right down to it.

In practical terms, the AG should investigate wrong doing prior to filing charges (easy enough if the prosecution has various assistants to do this) for all the obvious reasons. At this particular point in the process, the AG first has to determine if the complaint which is filed initially is worthy of being investigated (that is, the complaint must have sufficient substance to make an AG investigation worth the while - I mean, if the AG has to follow through with any and all complaints, then there is no real purpose to having an AG in the first place since any complaint automatically results in charges).

But you bring up an important flaw in the whole structure of the system that needs to be cleared up - and that is the fact that the AG is essentially forced to prosecute (or file an indictment) for every complaint no matter how frivolous that complaint is. This also exposes an even bigger flaw in the Constitution of TNP.

Primarily, we have a big problem constitutionally and legally (from a principle point of view) that under TNP Constitution, the AG is a member of the Judicial Branch. This is a conflict of interest by the very definition of conflict of interest. Hence, a prosecutor who is a member of the judicial branch is in direct conflict of interest with the judicial branch. Hence, under the current constitutional arrangement, the AG functions as a law enforcement officer (executive branch) and as a judicial branch member by definition under TNP Constitution. See what I am driving at?

Having the AG (which is an executive function) as a member of the Judicial Branch is a direct violation of Separation of Powers which makes it a violation of TNP Constitution which preserves Separation of Powers. And then, we require the AG to prosecute anything and everything filed with him no matter how frivolous which means that the Judicial Branch is acting in an Executive function as though it was also a law enforcement agency (which is an executive function).

This makes me think that the whole root of all the clusterfuckery that is blamed on the Judicial Branch is actually the result of a Separation of Powers issue. Where we can benefit is from actually restructuring so that the AG is in the Executive Branch and functions as an agent of law enforcement - which then requires the AG to have sufficient evidence BEFORE he files charges with the Court, and then the Court actually hands down the Indictment if the evidence is sufficient. This requires the AG to have sufficient evidence BEFORE he files charges with the Court rather than as we now do which is to prosecute anything and everything submitted to the AG. See where this is going?

Under our present system, if I simply say, "Joe Blow committed fraud by such and such", regardless of the evidence I submit which can be a total fabrication, the AG is required to indict and it goes to the court where it plays out and wastes time.

Now, prosecution is in and of itself an Executive function which requires that the Executive, in the form of the AG, must have prosecutorial discretion, which in turn requires the AG to be in the Executive Branch. This dovetails with the Judicial check on the Executive branch of dismissing or refusing a case on various legal grounds. See what I mean?

Instead, we now shove it all on the Court who takes the blame for sloppy or automatic functions of an AG who is wrongly placed in the Judicial branch instead of the Executive where an AG belongs.

Plus, in every existing RL legal system in the World, the AG is a member of the Executive branch of government and is given the authority of Prosecutorial Discretion which is in turn checked by the Judical Branch if needs be. Hence, Separation of Powers.

The primary problem we have here is that we have robbed the AG (and hence the Executive Branch) of Prosecutorial Discretion which is the sole authority of the Executive branch. The Attorney General is advocate for the Executive Branch, not for the court. As it stands now, the AG is essentially a rubber stamp for the Judicial which is currently forced to be a policeman at the AG's behest because the AG has no choice but to file charges every time silly crap comes up.

If we move the AG to the Executive Branch and make the AG's office also perform the function of law enforcement and restore Prosecutorial Discretion to the AG/Executive where it belongs, it cleans up the whole process by putting things in their logical place and relieves the court of those Executive functions that are not the logical and reasonable purvey of the Judicial Branch under the principle of Separation of Powers.

This, of course, would result in certain people getting their knickers in a twist because it would require the Constitution to be amended to establish a proper separation of powers in order to get the Court to function properly and efficiently.

 

[Crushing Our Enemies]

Um...first off, the AG is an executive official now. We fixed that already.

3. The executive category consists of the Delegate, Vice Delegate, Attorney General, and government officials appointed by government officials in the executive category.

And yet, he still is required to file charges every time he receives a complaint. If you recall, we had some major problems a while back when Grosse was AG in that he was refusing to file charges for quite reasonable complaints. That resulted in a court ruling that the AG had to file an indictment for every complaint he received. The court suggested an indictment procedure that I think is very sensible:[/url]

The Court suggests the following procedures be adopted for all trial proceedings:

1. The accuser files a complaint with the Attorney General.
2. The Attorney General Notifies the Defendant that a complaint has been filed against them.
3. Within 72 hours from the time the complaint is filed with the office of the Attorney General the Court shall be notified of the investigation into the matter by the Attorney General.
4. The investigation shall last no more than 5 days in which the Attorney General must ask for an indictment and present all evidence to the Court.
5. Within 72 hours for the request for an indictment the Court will determine if a Trial is merited based on the evidence alone.
6. Normal trial proceedings will begin at this point in time.

Now, I agree with you that the AG should investigate complaints and provide evidence with his indictments. However, I think we should acknowledge that when witnesses are deposed, their testimony might reveal further evidence that the prosecution would want to add to their case, and we should allow the prosecution to add further evidence during the discovery phase. That being said, I'm totally on board with making the prosecution present enough evidence with their indictment that we can make an informed decision about whether or not to let it go to trial.

So essentially, my timeline would look like this:
Pre-Trial
A complaint is filed with the AG.
The AG investigates the complaint, compiles evidence, and files an indictment with the court. (Up to five days)
The Court decides whether or not to accept the indictment, based on how much evidence there is of wrong-doing. (Up to 3 days)

Trial
Defendant files plea. (Up to 2 days)
Discovery - Witness testimony is taken by both sides, defense submits all evidence, prosecution may choose to add further evidence to its case (5 days, may be extended in extraordinary circumstances)
Arguments - Prosecution makes case, Defense makes case (2 days each - prosecution must go first)
Deliberation - Court decides verdict (up to 3 days)
Sentencing - If applicable (1 day)

Note that this does away with the pre-trial motions phase. Can anyone think of a reason it needs to stay? I don't see any reason why such motions couldn't be made during the discovery phase to save time.

 

[Romanoffia]

Actually, looks like a good time-line to me.

I agree with the pre-trial motions phase being eliminated for the same reasons. All things considered, it prevents perfunctory motions (like automatic motions to dismiss) from cluttering up the process. Such motions would logically come at the end of discovery under such a time line anyway.

[addendum]

And if we really want to move trials fast because apparently the length of a trial is becoming the most important issue, lets abolish rule #9 in the trial procedure:

9. As necessary, and in the interests of justice, the Moderating Justice may alter this timetable to ensure a fair and balanced proceeding.

and replace it with:

"In the interest of timely trials, the Moderating Justice may not alter this timetable under any circumstance."

That really speeds things up.

 

[Crushing Our Enemies]

I think this draft is a bust. I'm not interested in pursuing a document that only two of us are board with, and one only lukewarmly so.

I have asked Flem to coordinate the court rules reform process from here on out. As demonstrated by the compromise he brokered this week, he has some good mediation skills that I think will be useful to the reform process. I've asked him to come up with some thoughts about how to proceed that I expect him to post tomorrow. The goal is a document that all three of us approve of, finished with enough time to get some outside opinions on it before we finalize it before the end of the term.

This is going to be our legacy. It's time to get serious about working together on it.