Joinder

Abstract: Introduction Part I. Fair and Expeditious International Criminal Trials: 1. Introduction 2. Fair trial rights 3. Expeditious trials 4. Application and interpretation of human rights by the ICTY Part II. The Prosecution Case in Milosevic - Getting Off on the Wrong Foot: 5. Content and scope of the Milosevic indictments 6. Pleading practice and problems with the Milosevic indictments 7. Joinder of the Milo evic indictments 8. Rule 98bis (judgement of acquittal) decision 9. Conclusion Part III. Case Management Challenges in the Milo evic Trial: 10. Managing the Milo evic case 11. Case management principles in national and international criminal law 12. Conclusion Part IV. Representation and Resource Issues in the Milosevic Case: 13. Self-representation in international criminal law - limitations and qualifications on that right 14. Resources and facilities available to Milosevic 15. Conclusion Part V. Conclusions: 16. The prosecution case must be focused, comprehensible and manageable 17. The future of case management in complex international criminal law cases 18. Managing resource and representation issues in complex international criminal law cases 19. The need for a new appellate jurisdiction for international criminal law 20. After Milosevic: the future of complex international criminal trials.

Abstract: ACCORDING TO the Registrar of the London Court of International Arbitration more than 50 per cent of the cases under the aegis of the LCIA involve more than two parties. In the period between 1984 and 1988 21 per cent of the pending ICC cases involved three or more parties. Contract practice as reflected by these figures shows that frequently there are more than two parties involved in international transactions. However, too often the ‘Dispute Resolution’ clauses in otherwise very detailed contracts do not provide for more than a standard arbitration clause and thus do not address the practical problems of ‘multi-party arbitration’. The question that frequently arises is whether an arbitrator may join cases, and in which circumstances they should do so. Joinder and consolidation of parallel or connected proceedings are commonly found in litigation.1 The reasons why national judges employ them are obvious: they prevent inconsistent judgments2 and they save time and money and thereby serve procedural efficiency.3 Hence, joinder and consolidation foster the good administration of justice.4 It is argued that arbitration ought to provide the same advantages,5 especially since arbitration has become a prevalent feature of international commercial transactions.6 There are, however, some problems with compulsory joinder and consolidation in arbitral proceedings. The main argument against them is that arbitration rests on consensus.7 This means that in the absence of specific provisions – or case law – in the lex arbitri the parties must have agreed on joinder or consolidation.8 In addition, problems regarding the composition of the arbitral tribunal may arise. If neglected, these factors open the door for challenging the award at the place of arbitration, and recognition and enforcement of the award might also be denied. As stated above, national judges can join (third) parties …

Abstract: Research findings bearing on the performance of civil juries yield little support for the extreme claims charging juries with poor and irresponsible performance. Trial judges agree with jury decisions most of the time and strongly support the jury system. On the issue of negligence, there is no evidence to support the claim that juries decide cases less competently than judges and some reason to suspect that the combined judgments of jurors, enhanced through the deliberation process, may be as good or better than those that would be rendered by a randomly selected judge. Juries in medical malpractice trials, frequent targets of critics, tend to render decisions that are consistent with independent assessments of health care providers. Nor does research support claims that juries are consistently moved by sympathy for plaintiffs or against deep pocket defendants. Indeed, there is evidence that juries frequently have concerns about the motives of plaintiffs in bringing lawsuits. Even in allegedly "complex" cases, jury verdicts are often defensible when examined against the evidence that was produced at trial. There are findings suggesting that juries may hold corporations to higher standards of conduct than individuals, but these attitudes appear to not be based on anti-business sentiments. Systematic studies of jury damage awards indicate that, on average, awards are rather modest. Comparisons of compensatory awards against assessments of seriousness of injuries and economic losses indicate that awards tend to be consistent with actual losses. Some findings indicate that variability in awards may be as likely due to variability in trial evidence as to jury unreliability. Comparisons of jurors and judges with respect to assessments of "pain and suffering" show that their respective decision-making processes are similar. Punitive damages are awarded with much less frequency and the awards are, on average, much more modest than is commonly portrayed in the mass media. Some juries do produce outlier awards that cannot easily be justified by legal criteria, but studies of post-verdict adjustment processes, such as judicial reductions and settlements between the parties, tend to very substantially alter the awards downward, particularly the larger awards. In fact, one of the most important lessons from this review is that a main focus of researchers and policy makers should be on what is ultimately paid to plaintiffs rather than jury awards. The jury system is embedded in a larger system that has corrective mechanisms for wayward jury verdicts. Although research vindicates the jury system of the most serious claims made against it, many more issues need to be studied. Nothing in this review suggests that attempts to improve jury performance should be discouraged. Jurors themselves have complaints about testimony and judicial instructions and about lack of guidance when they are asked to decide "pain and suffering" and other forms of general damages. Various courts, particularly in the State of Arizona, have introduced many trial reforms to assist the jury in its task. Similar experimentation should be encouraged in other jurisdictions around the country. However, research on some of the trial procedures used in complex litigation provides a strong lesson that innovations should be carefully designed, and then evaluated through empirical research after they are implemented. The studies indicate that procedures such as bifurcating trials, joinder of parties or issues, and reductions in jury size may in fact produce results that are the opposite of what was intended. In short, experiment, but evaluate and be prepared to conclude that the reform just did not produce the expected outcome.

Abstract: Under federal and state laws, a defendant who has been charged with more than one offense can be tried for all the offenses in a single “joined” trial. It was predicted that the probabillty a defendant would be convicted would increase as a function of the number of joined offenses. Legal theories, research on memory, and social psychological models of information integration and attribution led to three hypotheses as to why this bias might occur: (1) confusion of evidence, (2) accumulation of evidence, and (3) inference of a criminal disposition. Subjects read and judged written trial summaries presented as joined or single trials. In Study 1, joinder resulted in higher rates of conviction and in confusion of evidence. In Study 2, the conviction results were replicated, and subjects judging joined trials also rated the evidence as more incriminating and made negative attributions about the defendant. These ratings were strongly related to judgments of guilt. A sequential judgment process was also found to affect jurors' judgments.