Differences between DR and US law

Well to start, DR law is based on the French Napoleonic Code, and the Federal and state laws in the US (except for the State of Louisiana) are based on English Law.

It is my understanding that under English law you are innocent unless proven guilty, whereas under French law you must prove your innocence.

If I'm wrong on this, I'm sure Fabio Guzman will soon set the record straight.

Wished I had the time to answer your question adequately. But it?s really too much. I?ll return to the topic at a later time.

Ken's comment is totally incorrect despite the fact that every American or Canadian client I encounter thinks it's true. The presumption of innocence is universally accepted by all Western-derived systems of law.

Thanks for setting me straight, Fabio. Don't remember where I first heard this, but it has been in my mind for a long time. I was thinking you told me this, but obviously that was an error.

Innocent before proven guilty - oh really!

How can you say that this (innocence before proving guilt) is true in a country where a person can be held in custody for up to 48 hours without charges, even if the person is only a witness or a victim to something, and then release them (if they feel like it.) ANOTHER reason never to stop at an accident scene.

Detention or imprisonment does not imply that the presumption of innocence is not operative. In the U.S., just to give an example, thousands are imprisoned every day before trial and establishment of guilt.

The presumption of innocence has to do with the burden of proof. If a person is presumed guilty, then he has to prove he is not guilty by providing the appropriate evidence (witnesses, documents, etc.). If, on the other hand, a person is presumed innocent, then it's the duty of state (through the Fiscal, District Attorney, etc.) to provide sufficient evidence in a court of law to convince the court (in the D.R.) or a jury (in the U.S.) that the accused is guilty. A corollary of the presumption of innocence is the right of the accused to remain silent even under questioning in court (Art 8 - i of the Dominican Constitution; 5th Amendment in the U.S.)

Onions and Carrots, I haven't forgotten you, it's just that the question is so . . . BIG. To answer it adequately would entail almost writing a book. I'll start with some brush strokes.

There are two main legal systems in the world today: 1) the common law system derived from English law and currently practiced essentially in the former British colonies, and 2) the civil law system practiced in the rest of the world.

In the Common Law system, judges are paramount. A decision from the highest court constitutes law that must be obeyed by the lower courts. The body of laws is formed slowly through the centuries by the accumulation of court precedents.

In the Civil Law system, the legislature is preeminent. Laws are made only by the legislature and a higher court decision is not binding on the lower courts which can always refer to the law (statute) and interpret differently in another case. Laws are codified in a rational manner by subject matter: civil code, criminal code, civil procedure code, etc. France after the Revolution is the birthplace of the Civil Law system. The codes promulgated by Napoleon beginning in 1804 were widely admired for their coherence and simplicity and copied or emulated worldwide. The Dominican Republic adopted the French Codes from its beginnings in 1844.

The two systems have converged with time. In Common Law countries, the legislature has become more and more important as the source of laws. In fact, conservatives in the U.S. want to restrict the power of the courts to make law, based on the same argument used in Revolutionary France that only the elected representatives should have the right to do so.

In civil law countries, despite the legal prohibition of having judge-made law, courts do interpret statutes in such a way that it constitutes new law and lower court judges go by higher court precedents 99% of the time.

So much for today.

I am sorry to humbly disagree, Sr Guzman, but it really IS different between the US and the DR in terms of going to jail, and you didn't make the distinction.

THE BIG DIFFERENCE is that in the U.S. you must be formally charged with a crime in order to be detained. If they don't charge you, tell them to go talk to your lawyer, (wherever he may be) and walk out. They can't stop you without charging you formally. (I am not saying this doesn't happen differently sometimes in places like Fort Apache in the Bronx, or in the backwaters of southern Georgia)

Here in the DR, forget it, you can be locked up and held without charges, without anything. Forget the "up to 48 hours" bit here, too.

thanks for the info Mr. Guzman, that was a great post!

Since these two systems are somewhat different, is it impossible (without starting law school all over again) for a lawyer in a civil law country to practice in a common law country?

GringoCarlos, I grant you that in practice the differences are abysmal. The Dominican police are notorious for detaining persons without any justification.

However, legally, the situation is not that different. In the D.R., just as in the U.S., nobody should be detained without an order from a competent court or judge. Art. 8 - 2-b) of the Dominican Constitution establishes that no person may be jailed without a motivated order from a competent judicial authority ("Nadie podr? ser reducido a prisi?n ni cohibido en su libertad sin orden motivada y escrita de funcionario judicial competente, salvo el caso de flagrante delito").

The problem, therefore, is not so much a question of changing the laws but of enforcing the ones that already exist.

The judical systems, deserb BetterPolice officers

I have lived off and on and have seen the caliver and education of many policemens, and national guard.they are ignorant of those laws they are supose to inforce. Once I was waiting in a Casa de cabios, in Santo Domingo. A national guard been posted, I asked a question since I did not know the reason, for the closure, this ignorant man threaten to arrest me, until I pointed out that asking a question does not create a crime.
This is one of the reason change is so hard there.

I believe in both countries, the USA and the DR, the police can detain anybody for investigation without charging them with anything for up to "x" number of hours. It may be 24, 48, I don't know. Maybe Fabio Guzman can say. I believe that's what Habeas Corpus in the USA is all about - can't hold somebody beyond some time limit without charging them, and in the DR, they just kind of exceed the time limit or maybe their time limit is longer than in the USA. Is that correct?

In the D.R. it's 48 hours (Art. 8-2-d of the Constitution) but technically the police can only detain a person if caught in the act of violating the law ("flagrante delito"). Otherwise, an order from the district attorney or a judge is required (Art. 8-2-b of the Constitution). A person detained illegally has the right to petition immediately for his release through a "Habeas Corpus" (Art. 8-2-c and 8-2-g).

Again, the legal structure to safeguard individual rights is there. The problem is the people managing the system, from the President down to the lowest private in the National Police. The executive branch of government does not always enforce the decisions of the judiciary. A pathetic example: a court in Santo Domingo ordered last year the appearance in court of General Candelier, the Chief of Police, in connection with the collective and indiscriminate arrest of passersby in a barrio. The next day the President publicly ordered the Chief of Police to disobey the order.