A Postscript: ...on Trial / Hearing...Conflict of Authority

[Steve]

No: HPFGUIDX 166221

---  "Goddlefrood" <gav_fiji at ...> wrote:
>
> ...
> 
> In respect of the issue raised by Carol on my statement
> of fact, my point in my previous was simply that we 
> have insufficient data to determine what the function 
> of the Head of the Department of Magical Law 
> Enforcement is in respect of that office's position 
> vis a vis the Wizengamot.
> 
> I suspect ... that like a majority of Courts or 
> Tribunals the Chairmanship ... changes. I also 
> apprehend that I point to the fact that at the time
> of the hearings seen in GoF it is a reasonable 
> extrapolition that the hearings had only recently been
> reinstituted ....
> 
> ...

bboyminn:

Just a side note of my own. I think what we have in this
case is a conflict of authority. I suspect that the 
Minister is a member of the Wizengamot, but that his 
positions is mostly symbolic. Rarely would a normal 
Minister every waste his time on hearings and trials
when he has people to do that for him.

Is a sense, what we have is the equivalent to the 
President inserting himself into a case being heard by 
the Supreme Court. Not a likely or possible occurance but
it illustrates my point nicely. Now with the President
there, we have to wonder who is in charge. In some respects
the President has general authority over the Chief Justice,
but in matters of Law, the Chief Justice is in his realm
of expertise and it is his court afteral.

So, we see Mdm Bones deferring to Fudge on procedural 
matters. Fudge makes a big show of calling things to
order and reciting the charges, etc..., but Mdm Bones
is not going to let Fudge run roughshod over her court.
When the hearing is underway, she makes sure all the
evidence comes out and all the witnesses are fairly 
heard. She asserts herself in matters of law and evidence,
and rightly calls for a judgement before everything gets
bogged down in politics.

As to the difference between a hearing and a trial; in the 
USA, a hearing is usually related procedural matters. For
example, a pre-trial evidencery hearing is nearly always
called, and in which the defending attorney challenges
whether the prosecuting attorney indeed has enough VALID
evidence to proceed to trial. The Trial is when the
evidence is hear, each side makes its case, and the guilt
or innocents is determined.

However, that does not necessarily carry over to a 
tribunal. A (military) tribunal does not follow the
same procedures nor is it bound to the same requirements
as a trial. For example, in a military tribunal, the 
defendant is not necessarily represented by legal 
council. True he has some limited right to an advocate,
but frequently rather than being someone from the Army's
legal office, it is a officer selected at random, and 
most likely someone with no experience or knowledge in 
military law or procedure. The 'hearing' is usually
presided over and judged by a panel of officers; again,
none of who are necessarily trained in military law.

Now the above analogies don't quite work out relative
to the wizards court. The President could never insert
himself into the Supreme Court, and military trials
are only similar to wizard trials.

But I think it nicely illustrates that Fudge and Bones
were having a conflict of authority. Bones had to defer to
Fudge because he was her boss, but she was only going
to let that deferment go just so far. She was not going
to let having her boss there get in the way of getting 
at the truth and evaluating the evidence with an open 
mind which afteral is her job.

Just a few thoughts, for what they are worth.

Steve/bboyminn