In common law countries, only trial courts determine the questions of fact of a case.

French Judiciary

In common law countries, only trial courts determine the questions of fact of a case.  The factfinders are either a trial judge (bench trial) or a jury.  When a case is appealed, the facts of the case are not re-tried and the appellate court decides questions of law only.  This means common law appellate justices only re-apply the law to the facts as set forth in the trial court’s record.  No new evidence is considered in making a decision.

In contrast, appellate judges in civil law countries may partially or completely review and re-determine the facts of the case in most instances.  Unlike common law appellate courts, precedent is is not important, witnesses may be called again and additional evidence examined.  Double jeopardy does not attach as in the United States, meaning sometimes the case is entirely re-tried, even in criminal trials where a defendant was found not guilty in the previous trial.

Which appellate scheme do you favor?  Why?  Can you envision a system that includes the advantages of both systems?

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