A Clarification on Trial / Hearing and Other Legal Issues

[Goddlefrood]

No: HPFGUIDX 166188

Goddlefrood, donning his wig and gown before stepping before the 
Court :)

It appears that certain members have been mixing up some legal 
terms. It's OK now; I'm here to give a short (ish) legal lesson, 
with, naturally, ties to canon.

I am taking the liberty of posting this as a stand alone due to 
the fact that it would only confuse you further not to do so ;), 
at least at the point those members discussing, hem hem, these 
issues have reached.

These comments are for clarification only and I will *not * be 
engaged on any legal issues I raise, only on matters related to 
canon, should these cause discussion. I do have many years 
practice  as a barrister under my belt (that's similar to an 
Attorney for our American members, and somewhat like an Advocate 
for our Continental European ones). Qualifications can be 
supplied on request, but I couldn't advise it (to quote Jeeves 
for zgirnius's benefit if she reads this ;)). There is no malice 
intended in what I say, just a cold, legal analysis. Should
 anyone feel offended know that it is not meant on my part.

All quotes from fellow members, that is including Kemper, are 
in the Percy thread, but other than Kemper they are in a spin 
off to the Percy thread entitled "Perjury, Dumbledore and Right 
v Easy Once Again" started by Lupinlore. This has all gone too 
far, people, and must be stopped. ;)

Let's start with Kemper, not on spin off to thread referred, 
lost reference to Yahoomort, could not locate, apologies :( :

Kemper Wrote:

A disciplinary hearing is different than a judicial hearing. 

Goddlefrood:

Court, and other proceedings, 101 (not my preference) starts 
here, a disciplinary hearing is different from a judicial 
hearing you say. Not really, it's only the constitution of the 
presiding body that differs.

A person subject to a disciplinary hearing would typically, 
although not always, attend before a Tribunal. This is a body 
that most usually would have a Chairman and two assistants to 
the Chairman (this varies). The person to be disciplined would 
be represented either by a member of a Trade Union (in a 
situation where he / she were a member), or anyone at all 
actually, could be a Barrister, or could be personally 
represented. The disciplinary charge would be put before the 
Tribunal by the equivalent of a prosecutor.

Not all the people mentioned above as being involved in the 
disciplinary hearing would necessarily be qualified legal 
practitioners, but mostly would be, and that is the only 
difference between a disciplinary hearing and a judicial one, 
which would only ever have people qualified as legal 
practitioners presiding, presenting and opposing (except in 
unusual circumstances, that I won't get into and the case of 
personal representation) and be further up the legal feeding 
chain, as it were.

Such a Tribunal would be comprised for situations such as 
breach of Police or Military statutes, breaches of regulations 
and guidelines in larger corporations and perhaps even for some 
schools. In other words breaches of discipline.

A judicial hearing is much the same, but typically, although 
not always, before a Court, rather than a Tribunal. Not so very 
different, I think you can agree.

On to Lupinlore, here's some choice morsels, with my 
interspersed comments:

From: http://groups.yahoo.com/group/HPforGrownups/message/166117

> > Carol earlier
> > However, it's still Amelia Bones's job to determine the facts, 
> > which she succeeds in doing despite Fudge's interference.

> Lupinlore responded, in part: 

> Is it, or is it the job of the Wizengamot as a whole? It 
depends on the theory of law under which the WW operates. I am 
not at all sure she is actually acting as the Judge here or 
simply a particularly forceful member of the tribunal <SNIP>

Goddlefrood, still enrobed, and just checking OotP:

The constitution of the panel (my word for the moment, it will 
interchange with others) is in fact, getting the quote, and 
with a nod to Carol (I'm coming to your bit, don't worry ;):

"Interrogators: Cornelius Oswald Fudge, Minister of Magic; 
Ameila Susan Bones, Head of the Department of Magical Law 
Enforcement; Dolores Jane Umbridge, Senior Undersecretary to 
the Minister. Court Scribe, Percy Ignatius Weasley -" (OotP, 
Bloomsbury Hardback Edition [all my further references from 
same, book and chapter that is, until noted otherwise], p. 127 
- The Hearing), which apparently appears at pps. 138-39 of the 
Scholastic Edition - not sure if hardback or paperback)

This tells me that the presiding body (Lupinlore kindly note;)) 
consists of three people, Fudge, Ms. Bones and, hem hem Ms. 
Umbridge. From this:

"'The Chair recognises Dolores (note spelling please) Jane 
Umbridge, Senior Undersecretary to the Minister,' said Fudge." 
(p. 134) (No American references this time, or for any 
subsequent, but it's a short chapter so no more than eleven or 
advanced [not sure what font Scholastic uses, so this could be 
imprecise]) (My interjection in brackets during the quote)

I take it from this that Fudge was the first amongst equals on 
the presiding body and the Chairman, so somewhat more like a 
Tribunal than a Court (although as mentioned the distinction is 
a quite fine one), and does not lead to any concession on terms 
(my preference being presiding body).  This is confirmed to me 
by the fact that Fudge reads the charge at the beginning 
(p. 128), and, at the end of the hearing  announces the not 
guilty decision. "Cleared of all Charges" (p. 138).

Ms. Bones's function appears to be that of legal expert 
(reference - p. 131), not factual judge, she is, after all, 
the Head of the Department of Magical Law Enforcement. The 
entire Wizengamot, when the vote is taken is the arbiter (now 
there's a word for you) of fact. She certainly *is not * there 
as an arbiter of fact herself, except insofar as she is a member 
of the Wizengamot and has a single vote.

I form this view due to two snippets from "The Hearing", the 
first of which is:

"'I may be wrong,' said Dumbledore pleasantly, 'but I am sure 
that under the Wizengamot Charter of Rights, the accused has the 
right to present witnesses for his or her case? Isn't that the 
policy of the Department of Magical Law Enforcement, Madam 
Bones?' he continued, addressing the witch in the monocle.
'True,' said Madam Bones. 'Perfectly true.' (p.31)

And the second:

"'Then undoubtedly the Ministry will be making a full inquiry 
into why two Dementors were so very far from Azkaban and why 
they attacked without authorisation.'
'It is not for you to decide what the Ministry of Magic does 
or does not do. Dumbledore!' snapped Fudge, now a shade of 
magenta of which Uncle Vernon would be proud.
'Of course it isn't,' said Dumbledore mildly, ' I was merely 
expressing my confidence that this matter will not go 
uninvestigated.'
He glanced at Madam Bones, who readjusted her monocle and 
stared back at him frowning slightly.' (p. 135)

Note he looked at Madam Bones, implicitly because she is the 
legal expert present, and also because he is showing her that 
he is well aware that she is being overridden on certain 
matters by Fudge (outside the presiding body for the hearing).

Hopefully that sorts out that one, and I will now move on, 
from the same post referred last.

> Lupinlore: 

> Except she indignantly exclaims, in response to Fudge's 
query about whether squibs can see dementors "Yes, we can!" 
(paraphrase) which is a flat out lie. Her description of 
seeing the dementors is also a flat out lie, regardless of 
whether they were there or not. Therefore she has lied under 
"oath," and flagrantly at that, as her testimony of seeing the 
dementors is not open to arguments of interpretation but is 
simply and completely an untruth.

Goddlefrood:

It is not a paraphrase, but the exact words she says (p. 131). 
On the issue of perjury now, it's a rather tricky one legally 
speaking, but I'm prepared to give an explanation. It is a lie,
but one that ultimately benefits the person (Harry) under 
examination (getting to hearing / trial business later). It is 
in its essence not far removed from the truth, which IMHO, is 
that she (Mrs. Figg) is well aware of the effects of Dementors 
(coldness etc.) and can clearly apprehend when one or two are 
about, as she did when she came across the aftermath of the 
Dementor attack. In those circumstances, and given the 
hostility of two of the presiding panel, it is fair to conclude 
that had she said something along the line of "Well, I have 
knowledge as to the effects of Dementors", as opposed to what 
she did say, then Fudge may have been able to swing the verdict 
against Harry, with the consequence that he would have been 
expelled from Hogwarts and his wand taken away. My views on the 
danger of going to Azkaban have been expressed in this post:

http://groups.yahoo.com/group/HPforGrownups/message/166055

I do not propose to repeat them here. Eggplant, do note, that 
in the current post I come to praise you, not to bury you :), 
which will come later.

This perjury business, hmmm. Well Lupinlore, as far as I can 
ascertain from my Bloomsbury Hardback Edition there is nothing 
in the nature of an oath to tell the truth taken. I do not have 
the Scholastic Edition, or any translations, so if it is in one 
of those I await your enlightenment. It is too strong a word to 
use in the situation under examination (by me - not a reference 
to the proceedings before the Wizengamot). No oath, no perjury. 
Simple as that, and also refer my comments above. I can only 
suggest a closer reading of the text.

> Lupinlore:

> So, what would happen if, as some might have wished, Harry 
had been called on the carpet in front of DD about his behavior 
in potions.

Goddlefrood:

This is merely a little levity on my part :), but allow me to 
congratulate you for using an expression of which I was 
previously unaware, that being "called on the carpet". The 
meaning itself is not in issue, it is perfectly clear, but 
the phrase is puzzling. For anyone interested here is a link I 
found to enlightenment:

http://www.takeourword.com/TOW141/page2.html

As to the question raised, my views can be determined from the 
post of mine referred above (166055). I now proceed to the next 
quote, Eggplant this time:
 
In http://groups.yahoo.com/group/HPforGrownups/message/166126

> Eggplant:

> Exactly, the Wizengamot was full of intelligent and wise old 
wizards and witches, it would not be easy to tell a convincing 
lie to them, but Figg and Dumbledore pulled it off. I 
congratulate them! Telling a lie to the enemy is no vice, it's 
a virtue, if you can do it well.

Goddlefrood:

Very much in line with the view I have formed, both as a 
professional who accepts that people can and do lie, and as a 
Harry Potter reader. It was extremely well done on the part of 
Dumbledore and Mrs. Figg, and in no way perjury (I think I may 
have mentioned this).

However, from the chapter currently under consideration, we 
can only determine that there were "about 50" (p. 126) wizards 
present. We cannot, unfortunately, determine whether all of 
them were *voting* members or indeed how old they were 
(although I can concede that it is a fair assumption [another 
tricky word to me - hate assumptions, prefer facts, but I 
digress]. I suggest that the cote was quite close, due to this 
passage:

"Their were hands in the air, many of them ... more than half! 
Breathing very fast, he tried to count, but before he could 
finish, Madam Bones (not in any role as Chairman) had said, 
'And those in favour of conviction?'
Fudge raised his hand; so did half a dozen others, including 
the heavily-moustached wizard and the frizzy-haired witch in 
the second row." (p. 138)

It takes a moment, as implied by the three dots, for Harry to 
determine that more than half had voted in favour of his being 
cleared of all charges, and from that I conclude that it was 
relatively close. We know for a fact from the passage quoted 
immediately above 7 members voted for conviction. I propose, 
based on this, that not all the "about 50" (q. v.) wizards and 
witches present were actually *voting* members of the 
Wizengamot for the purposes of Harry's trial (I am getting to 
this matter shortly, that is the whole hearing / trial 
business).

My next quote comes from

In http://groups.yahoo.com/group/HPforGrownups/message/166132

> Carol:
> Fudge announces the "disciplinary hearing" (not trial, BTW) 
inquiring into offenses against two statutes by Harry James 
Potter of number four Privet Drive, Little Whinging, Surrey, 
and adds: "Interrogators: Cornelius Oswald Fudge, Minister of 
Magic; Ameila Susan Bones, Head of the Department of Magical 
Law Enforcement; Dolores Jane Umbridge, Senior Undersecretary 
to the Minister. Court Scribe, Percy Ignatius Weasley" (OoP 
Am. ed. 138-39). <SNIP>

> So I stand by my analogy that Fudge is acting as prosecuting 
attorney, with Umbridge as his assistant, and Madam Bones is 
acting as judge, with a bit of cross-examination mixed in.

Goddlefrood:

This seems to be a small bone of contention, I still have my 
robes on, and I will now tell you about hearings and trials.

They are one and the same. Surprised? It is a simple matter of 
terminology and semantics. The two words are used 
interchangeably, there is no real difference between them. 
Having said that, consider this:

"Harry attended his hearing"

"Harry attended his trial"

"Harry was on trial"

"Harry was on hearing" - makes no sense, so would not be used.

"Harry was heard at his trial"

Conversely I may say "I have a hearing to attend on Monday, 
criminal matter", whereas my imaginary client would probably 
say "My trial is on Monday", but could equally well reverse 
for me to say "I have to conduct a trial on Monday", with my 
imaginary client saying "My hearing is on Monday". Confused?

If you can explain the difference to me then I will give up 
legal practice immediately, now there is a happy thought :)

For the other small snippet of Carol's quoted material I 
refer to my comments on the constitution of the presiding 
body and say that it is not a fair analogy that you make ;). 
I hope the explanation is clear.

Back to Eggplant in 
http://groups.yahoo.com/group/HPforGrownups/message/166158

> Eggplant:

> Fudge calls it a disciplinary hearing, Dumbledore calls it a 
full criminal trial. Who are you going to believe, Fudge or 
Dumbledore?

Goddlefrood:

Both, actually as just outlined in my response to Carol, with 
the repeated injunction mentioned therein.

A later post by Carol in 
http://groups.yahoo.com/group/HPforGrownups/message/166169

> Carol: 
> There is no evidence whatever that Percy thinks that Harry 
will be sent to Azkaban. That thought occurs to *Harry* twice 
before the Order comes to rescue him.

Goddlefrood:

As I mentioned in 
http://groups.yahoo.com/group/HPforGrownups/message/166055 
this is correct. Thank you Carol. :) In that post I was 
partially commending Kemper for his views expressed in 
http://groups.yahoo.com/group/HPforGrownups/message/166052,
and which I commend to you here again

Finally we come to Steve/bboyminn, and for what its worth, I 
address some points as found in:

In http://groups.yahoo.com/group/HPforGrownups/message/166176

> Steve/bboyminn:

> Fudge calls it a 'disciplinary hearing' because that is what 
it is. Dumbledore calls is a 'criminal trial' to point out to 
Fudge the absurdity of wasting the entire courts time on such a 
trivial matter. <SNIP> 

>Fudge is clearly using the entire court as a means of 
intimidating Harry, and within limits, it works.

Goddlefrood:

On this, kindly refer to my comments regarding the verdict. 
I suspect the decision was close. Perhaps I could suggest here, 
as I did not earlier, that the *voting* members of those "about 
50* (op. cit) wizards and witches present was 20. Just a guess, 
I find it unrealistic that there would have been a pause in 
Harry's mind, as there was (refer previously quoted material 
from canon), if about 43 members voted for clearing all charges 
against him.

The other matters indicative from this quote of Steve / 
bboyminn have been adequately addressed already.

There is one small matter, however, it's this:

"Breathing hard and fast, Harry looked around him. Not one of 
the witches and wizards in the room (and there were at least 
two hundred of them) was looking at him" (GoF, Bloomsbury 
Hardback Edition, p. 508 - The Pensieve)

About two hundred note. Still not enough to go on to conclude 
precisely how many *voting* members the Wizengamot has. It is 
enough, though, to conclude that the room has some facility for 
*spectators*. On that point my case is now rested. There is a 
little more.

> Steve/bboyminn later:

> Certainly, Harry THINKS he MIGHT be sent to Azkaban, and in 
the worst situation, any reasonable person would think the 
worst.

> Fudge is clearly using the entire court as a means of 
intimidating Harry, and within limits, it works. <SNIP> 

> So, Azkaban is a reasonable fear on Harry's part, but it 
is not a reasonable or likely outcome of the actual events.

Goddlefrood:

Sorry, but it simply is not. I repeat my view on this issue is 
in http://groups.yahoo.com/group/HPforGrownups/message/166055, 
and I will not repeat those views here. I have concluded that 
Harry NEVER faced any real prospect of landing in Azkaban, and
once again thank Kemper (166052).

Well, that is all, I can now safely remove my wig and gown and 
resume normal life.

Goddlefrood, hoping that this makes a clear and coherent 
argument and that it may assist with legal terminology for 
those struggling with it, together of course, with giving a
clearer idea of "The Hearing". ;)

"I felt a right Percy when I one day walked into the ladies 
dressing room with soap in my eyes and no towel" - my new 
motif, to explain my view on Percy that he will NOT turn out 
evil.