Monday, December 7, 2009

In Law: Pleading (4)

Following are the more essential changes:

Matters of form are required to be taken advantage of by motion before trial, otherwise they are deemed to have been waived. Singleness of issue is not required, the defendant being allowed to use the general denial and to plead several matters by way of confession and avoidance. In many jurisdictions the number of successive pleadings is limited. Decisions upon demurrers are not necessarily final, the defendant being usually allowed to plead to the merits in case his demurrer is over-ruled.

Great freedom of amendment is allowed, a party being allowed to correct a defective pleading by amendment on application to the court, even at the trial of the action, if the rights of his opponent will not be prejudiced by the amendment. There are also many minor changes, the general object being to make the system more simple and just in its application, and to avoid the determination of rights upon purely formal grounds.

Pleading at Criminal Law

At common law pleading in criminal actions was in its essentials substantially like pleading in civil actions, although much less elaborate.

The first pleading was called the indictment. To this the accused might interpose a demurrer, as in civil actions, and with like effect, except that if the demurrer were over-ruled he was allowed to plead to the indictment. All matters tending to show that the accused was not guilty of the offense charged might be shown under the oral plea not guilty or the plea nolo contendere, which was equivalent to guilty, except that it was not an admission by the defendant which could be used against him in evidence in a civil suit for the same act. After the plea no further pleading was necessary. The Plea of abatement or previous conviction or acquittal of the same offense were required to be specifically pleaded as a plea by way of confession and avoidance; and to these the prosecution might demur with the same effect as a demurrer to a plea in abatement in a civil action.

Pleading at criminal law has been subjected to fewer statutory changes than pleading in civil actions. In some States less formality is required than at common law, and final judgment cannot be entered upon purely formal grounds. Formal defects may be cured by amendment, but there can be no amendment to matter of substance in an indictment, otherwise an amended indictment would not satisfy the requirement that the indictment must be found by the grand jury.

To be continued: In Law: Pleading(5)

Source of Information:
To contact:

No comments: