American legal system

You're probably asking too much for any of the law dogs around here to want to answer. You'd need to be more specific in your questions, so they could tackle them reasonably.

In general terms, there is no difference between criminal law and civil law. The distinction which civil law represents is as compared to English common law, which is, more or less, the basis for the legal systems in operation in the United States. Keep in mind that there are fifty states, and each has a distinct legal system, and all of those systems can differ, sometimes slightly, sometimes widely, so long as none of the legal systems offend the Constitution of the United States, or the opinions arising from case law in Federal courts and the Supreme Court. Most legal systems in Europe are based upon the Corpus Juris Civilis of the emperor Justinian (it means the body of civil law), which itself was a refinement of the Roman code which developed from ancient times in that city.

Some jurisdictions in the United States have legal codes derived at least partially from civil law, although none of them remain unaffected by common law, and none can ignore constitutional law. Louisiana, at least allegedly, bases its legal code on the Napoleonic Code, itself a modification of the civil law basis of most European legal systems, with significant modifications in the area of social relationships. The states which were once a part of Mexico--Texas, New Mexico, Arizona, Nevada and California--retain features of civil law to a greater or lesser extent. The territory of Puerto Rico has a legal system largely based on civil law.

I suggest that you are referring to the difference between criminal law, and a civil lawsuit. There are quite a few differences of detail, and i suggest that the most significant difference between criminal trials and civil lawsuits is in the rules of evidence, and the burden of proof. If the law dogs show up, they can give you a more detailed explanation of the difference between criminal trials and civil lawsuits.

Trial by jury dates back to the 13th century in England, and grew out of the power struggle between the monarchy and the aristocracy which began in the 12th century with Henry II, and broke into open rebellion early in the 13th century in the reign of King John. John was forced to sign Magna Carta, which is mostly concerned with rights in property and the indemnification of those who had rebelled against the king. However, it is remembered more for the provisions which sought to protect the baronage and the peerage from the power of the king. (The aristocracy was divided among the peerage and the baronage--barons were the lowest rank of hereditary nobles, and a distinction was long made socially and politically between barons and peers. The rank of baronet was created in the reign of King James VI and I, centuries later.) Contrary to popular belief, the provisions of Magna Carta which dealt with civil rights--prohibiting self-incrimination, search and seizure, habeas corpus and trial by a jury of one's peers--applied only to the baronage and the peerage, and did not apply to the commons or the serfs.

John's son Henry III was also the target of aristocratic rebellion, lead by the powerful and capable Simon de Montfort, who was married to Henry's sister. Among the means by which de Montfort secured the adherence of the baronage and the peerage was to guarantee the rights of Magna Carta, and to call the first elected parliament in England (some historians claim the first elected parliament in Europe, although one could reasonably quibble with that claim). Initially, the de Montforts prevailed, and at one point made Henry and his son Edward prisoners, while they had the aid of Llewellyn the Great of Wales. Henry had thought to make his son Edward the Prince of Wales. Understandably, many (but not all) of the Welsh were less than enchanted by the prospect, and Llewellyn himself claimed the title of Prince of Wales, and lent monetary and military support to the de Montforts. Eventually, after Llewellyn and the Welsh had gone home, Edward escaped from the de Montforts, raised an army in London, and marched out to meet his enemies, defeating them and freeing his father.

When Edward became King in his own right upon his father's death in 1272, he immediately began a military campaign to subdue Wales, which was successful, especially after Llewellyn ap Griffith, the grandson of Llewellyn the Great, was killed in a freak incident on a battlefield after the battle had been won. Edward for very obvious reasons distrusted the nobility, and he sought means to sidestep their power. Kings traditionally relied upon the feudal levy, troops raised and lead by the noblemen, to fight wars. Edward wanted to maintain a standing army which would be loyal to him as paymaster, and which would not depend upon the goodwill of the nobility. To that end, he re-created the parliament which Simon de Montfort had assembled in 1265. Edward's parliament consisted of the House of Commons, and a House of Lords. The first body were flattered by the King's attentions, and more than eager to vote the revenue measures which Edward's men proposed to them. The House of Lords was a stroke of genius, because it co-opted the power of the nobility, who were willing to approve revenue measures which didn't apply to their estates. Edward now has the money to pay for his standing army, which he turned against Scotland, and which the nobility soon realized (too late) was a sufficient bulwark against future aristocratic revolution.

The other measure which Edward instituted was trials in the courts of King's Bench in all matters relating to the commons. Edward's great-grandfather, Henry II, had sought to increase the king's power at the expense of the nobility and the Church by means of setting up a separate royal court system, to which commoners could plead, rather than relying upon the manor courts of the nobles or the Church. Edward accomplished that end with his "re-institution" of royal courts, and he incorporated the rights of Magna Carta for the commons, thus more firmly binding the loyalty of commoners to the interests of the king.

Originally, juries were bodies of commoners who were pledged to assure the appearance of an accused person, and to act as character witnesses, whether for or against the accused. Initially, in Edward's system, juries did not decide upon the guilt or innocence of the accused. Over time, this changed as the royal courts grew more extensive (and expensive), and monarchs like Edward saw the value of including the commons in the legal process in the role of judgment which we today associate with juries. The concepts of civil rights arising from Magna Carta became associated in the public mind with "natural rights," and the "ancient rights of Englishmen." By the time England established colonies in North America, more than three centuries later, all Englishmen, including those in the new colonies, considered the right of trial by jury to be an essential and "natural" right of all Englishmen.

Juries are empaneled by randomly selecting people who are registered to vote. People who are called for jury duty must appear, although they can make claims that they are unable to serve for various reasons, and may be excused from jury duty. Those who do not seek to avoid jury duty, or who fail to be excused, are place in a pool of jurors, who are called upon as needed when a trial is convened. The lawyers--the prosecution and the defense--question prospective jurors, and are allowed to challenge individuals whom they think are not likely to agree with their case. When a specific number of jurors are agreed upon by the prosecution and the defense (the exact number varies from one jurisdiction to another), the jury is then empaneled, and hears the arguments of the lawyers, and the evidence brought in the case. When both sides have presented their full cases, the jury withdraws to consider the arguments and the evidence, and come to a conclusion.

The entire process is far more complex than that brief description. It is also worth noting that i went into that much detail about the origin of juries and the difference between the common law of English-speaking countries and the civil law of other countries because this is an important distinction in law and governance. I do not claim to be an expert on legal matters. I do have a fair knowledge of history, especially in English-speaking countries, and am speaking from that perspective.

Should the law dogs show up in this thread and contradict my remarks about law--then you should listen to them. If they contradict me on the historical aspect, they are free to bite me.

Yep, you're asking for a LOT of information, a lot more than you really can get in a simple forums response. I suggest you read a bit about the legal system -- try something like Law 101: Everything You Need to Know about the American Legal System by Jay M. Feinman. I can't vouch for it but you need to read something to at least be able to ask a decent question about this. Amazon sells the book.

Thanks a lot, both of you.
I'm trying to find good books on American laws, thanks for the reference ^^
May I ask you a few "precise" questions?

1) Where can (should?) someone accused of embezzlement be judged? What about murder?
2) I'd like to know the difference between state court and federal court (if it's not too wide)
3) My "knowledge" of the American legal system being limited to TV shows and movies (sorry ), my "idea" of a trial involves a judge, 12 jurors, a prosecutor and an person accused of something with his lawyer. I suppose a trial doesn't always look like that, so when does it? When doesn't it?
4) During a trial with a jury, what are the "steps" followed?

I don't know why I'm suddenly so interested in this subject, but I'd really like to grasp some notions, and the books I've found so far aren't satisfying enough, so thank you in advance for you help.

1. Both embezzlement and murder are crimes, and are tried in criminal courts. However, one can also bring a civil suit for damages arising from crimes if the criminal process does not involve compensation for victims. Probably the most notorious example of this was in the case of the murder trial of O. J. Simpson. He was acquitted of the murder of his wife, but then her family sued him in a civil action for "wrongful death." They won--to a certain extent, the jury in the civil suit found him guilty.

2. The United States is just that, a union of states, and at the time of the promulgation of the constitution, the concept of state was exactly the same as it now is in Europe, where France is a state, Germany is a state, Portugal is a state. The constitution guarantees a republican form of government to all states, but apart from that, the states manage their civil affairs by themselves. Therefore, in each state, you will have municipal courts, which will try matters of the infraction of municipal ordinances. You will have county courts, which are usually considered competent to try all criminal matters, and to hear civil suits. There will be a State's Attorney (or the local equivalent) in each county who can bring criminal charges under the provisions of that states statutes (laws). Each state will also have an appeals court system and a supreme court.

Federal courts are competent to try violations of Federal law, and there is a federal appellate system which hears appeals from state courts, including state supreme courts, although usually the appellant has to allege that there is a basis in Federal law, or more especially in constitutional law.

3. That's basically what a trial looks like, although in some jurisdictions there are fewer than 12 jurors. I don't believe that petty juries have more than 12 jurors, but grand juries (these are bodies which hear evidence and vote on indictments for which a defendant may be bound over for trial) are usually more than that, 15 jurors or more. What television does not convey is that trials are long, often grueling procedures, with none of the false drama that you see on the idiot box. Frequently, lawyers for the prosecution and for the defense get together and work out deals which avoid trials altogether (a good thing for the county, as trials are expensive). There are also many other petty courts other than those in which criminal trials are usually held. There are family courts in which judges seek to resolve family difficulties which may otherwise give rise to criminal actions, or for which petty crimes have already been committed. Many jurisdictions how have environmental courts, whose purpose should be obvious. There are also probate courts which concern themselves the distribution of the assets of the estate of someone who has died.

As i pointed out, and Jespah also emphasized, this is an extremely complex subject.

In a jury trial, typically, the prosecutor makes and opening statement to outline the case he (she) will present, and then the defense attorney makes an opening statement in which he (she) outlines the defense he (she) will offer of the defendant. The prosecution then presents its case, with witnesses and evidence. The prosecutor will ask questions, and this is known as "direct" examination. The defense then asks questions, and this is known as "cross-examination." The prosecutor may (or may not) then ask more questions, especially if appears that the cross-examination has undermined the testimony or confused it, and this is known as "redirect" examination. The defense may (or may not) then "recross" examine the witness. Evidence is presented in physical form, and the defense may challenge that evidence. After the prosecution has presented his or her case, the defense presents his or her case, and the process is the same. Both attorneys may call back witnesses who have already testified to clarify certain points, or to attempt to rebut or discredit the witnesses or evidence of their opponents. Finally, the prosecution and defense make closing statements in which they attempt to summarize why they have proven their case. At this point, the case "goes to the jury," which is then charged with a finding of fact, whether or not the defendant is guilty or innocent. Having a jury is not mandatory, the defendant may choose to have a judge hear and decide the case in the absence of a jury. Keep in mind that there are fifty states, and thousands of jurisdictions--your mileage may vary.

There was an excellent book on the general development of law in the United States through history, the title of which escapes me. It was for the lay reader, or the student of history, rather than the legal specialist. If i can think of it, and find it, i'll come back to post.

You can have 6 jurors in a civil case. This often is allowed because it can be tough to get jurors, plus the burden of proof is less in civil matters.

Most of the stuff you see on TV is related to criminal matters as those tend to be more dramatic. But the truth is that a huge chunk of legal stuff is civil in nature, and most of that is torts. Torts are (not to make it too simplistic) essentially the garden variety civil matter. As in, they're not specific enough to be divorces or wills or contract disputes or property sales claims.

Examples of torts include negligence (such as you might see in a trip and fall or a car accident), slander, libel and trespass.

Sorry I don't have the time to really devote to answering you. The law is fascinating but it took me three years of Law School to get the knowledge, and a lot longer to really understand it.

At the risk of appearing to quibble, the jury in the civil suit found him "liable," not guilty. This is an important distinction to someone wondering about the differences between civil and criminal trials.

6 jurors in a misdemeanor jury trial, also.

Thank you.
I have a few other questions:

1) What is a "grand jury"? By this I mean, does this jury have something specific? Are its members professionals of law, or "normal" citizens as in a trial jury? How are they chosen? What is its power?

2) I've read that the evidences are examined by the grand jury (I think). Does it mean that both the defense and the prosecution have access to all the evidences before the trial? Can they both investigate on them? Can they add evidences during the trial itself? Can they hide evidence?

3) Same thing for witnesses. Is there a pre-established list of witnesses?

4) You said that the attorneys could call back witnesses who have already testified, but can they call back all the witnesses, or only "their" witnesses?

Thank you so much for helping me. I'm aware that the subject is complicated, and I don't mean to become a professional by just asking a few questions. I'd just like to understand a few things, are you're all helping a lot.

Grand juries are convened (it can be on a monthly basis) to decide whether indictments need to be handed down. This is a check on prosecutorial power but the reality is that most grand juries rubber stamp whatever most prosecutors want, unless it's really out there. A lot of states have done away with grand juries entirely, and instead go with a prosecutor's information, which is essentially, in writing, the prosecutor saying that the indictments s/he wants to hand down are legit and not the result of prejudice or anything like that.

For a civil or criminal court case, though, you have a petit jury or just plain jury. Those are the folks who decide guilt or innocence in particular court cases. They are selected from a very large pool of people who are summoned to come in and report for jury duty. Failure to answer said summons can get you in trouble with the law but there are people who ignore such things, to their own detriment. Every adult citizen can be summoned, and a lot of people find it boring (or they don't want to miss work) but there are also a lot who find it fascinating and consider it to be their civic duty. Even lawyers, judges and celebrities can be summoned, technically even a sitting President of the United States. I have been called several times but not selected for a jury. My husband and my folks have been selected, though, and they all enjoyed the experience.

And I've gotta run to work -- can't pick up your other qs until later.

PS Thanks for the clarification, Tico.

In addition to what I wrote earlier --

1) A grand jury is composed of regular citizens, like you or me. Those people don't need to have any sort of specialized training, and often it's preferred if they don't. I'm not 100% familiar with how they are chosen, and I suspect that differs by state. As I wrote earlier, they act as a balance on whenever the prosecutor wants to hand down an indictment. An indictment is one of the earliest pieces of a criminal matter -- it's essentially that state (or federal jurisdiction) telling the accused that it thinks it's got a good case and is going to court. It's not the absolute first thing that happens in a criminal matter, though, because for one thing the accused has to be arrested. The order of some of the proceedings can vary, but other things are more fixed.

As for regular juries, in most states they are selected by the attorneys in the case. This is done by a process called "voir dire". A big jury pool is called in on any particular day and usually there are some general questions asked in order to weed out some people from the top, such as people who are the only ones at their place of business or are severely disabled. Then the pool (usually) goes into a courtroom and there can be questions from a judge or the attorneys or both. In some states only the judge gets to ask the questions. The idea behind it is to make sure that no one glaringly bad is selected for the jury, such as if Bill Cosby were the accused, there shouldn't be any people who are prejudiced against African-Americans. Sometimes those people slip into juries, though, so the system isn't perfect. The lawyers, of course, are looking for the best mix of people to support their side, either people who are sympathetic to the defense or who might have problems with government and its laws or whatever. There are about as many theories about jury selection as there are trial attorneys.

In civil matters, the jury decides whether the defense is liable and, if they are, what the penalty will be. This can be monetary damages, specific performance (such as requiring someone to adhere to a contract, etc.). In criminal matters, juries decide guilt or innocence but the penalty phase is governed by other things. E. g. if someone is convicted of jaywalking, they won't get the death penalty no matter what a jury says or does. That's just not an allowed penalty for jaywalking no matter where you are.

2) Evidence and proof are different things although colloquially we often use the words interchangeably. Proof is essentially what shows that something has been done (or not done), but evidence is proof (and its supports) that has been admitted. The reason for the distinction is that courts have several ways of attempting to ascertain whether presented proof is reliable. A lot of these rules have been around for hundreds of years because these kinds of things get hashed out all the time. For example, if it's an item that's being presented for admission as evidence, one question is often what the chain of custody was. If you present an item where it's not always known where that item was or what may have happened to it, that raises questions of tampering.

Grand juries look at all sorts of things but nothing's been admitted yet because it's before the trial phase (Tico, is this statement true?). Regular old juries look at evidence and yes, both sides get to see it. In fact, if evidence is withheld from one side or another it can cause what's called a mistrial, where the results are thrown out. In modern practice, what this usually means is that papers are copied or are made available on disk or through a server, other items (such as xrays) might also be copied (if that's possible), still other items (such as a damaged automobile) are made available for both sides to take photographs and engage in scientific testing and testimony is generated only when all parties are present so that everyone gets a chance to speak with the witness and ask questions.

Hiding evidence or tampering with it, if egregious, can not only throw out a court case. Those acts, in and of themselves, can be considered criminal in nature. Then the tamperer can end up on trial, too (although in a separate proceeding). Lawyers who hide evidence or tamper with it can eventually end up being disbarred (losing their hard-earned license to practice law).

3) Both sides have to share the names of witnesses they intend to call, and in civil matters (I can't recall if this happens in criminal matters, but I bet something similar does) witnesses are usually made available for what's called a deposition. This is where both sides' lawyers, a stenographer and the witness all sit together and the lawyers ask the witness questions. The stenographer (and sometimes also a videographer these days) is there to record the information. I've taken literally a few hundred of these and I've asked questions on everything from a person's driving record to the medical care they've received to how construction was proceeding. I used to handle auto accidents, trips and falls, product liability and lots and lots of construction claims. Depositions are helpful as it clarifies whether the case is strong. The questions about injuries and medical care can help both parties make decisions on settlement and avoid a trial. And, sometimes witnesses die before trial. The deposition, because it is a sworn proceeding where the penalties of perjury would attach if the witness lies, is admissable in place of the witness. But that's only if the witness is dead or otherwise unavailable. Almost always, it's preferred to have the witness come to the trial and testify. And then the deposition can be used to check the witness's story, and memory.

As for last-minute, surprise witnesses, they are generally merely the stuff of movies. Again, both sides have to share information in advance. It's not impossible but it should be rare. Any attorney who constantly springs surprise witnesses on his/her opponents is not going to be beloved by judges for very long.

4) Attorneys can call back any witness who has testified, including those not under their purview ("hostile" witnesses). But reexamination is strictly limited. Essentially, you get your chance and should ask the questions then. The idea is to not have attorneys calling back witnesses over and over again, hoping for more favorable answers to their inquiries. Trials have to come to an end some time, and criminal trials are an exercise in spending tax dollars. Any lawyer who keeps calling back witnesses will not be able to do so for long.

I hope this helps!

It helps a lot! Thank you so much!

So, about the calling back of ""hostile" witnesses", when can it happen? I think I understood that there was an order for examinations: first the prosecutor call his/her witnesses, who are direct and cross examined, then the court hears the witnesses of the defense (am I right?). So are the previous witnesses called back after all this, or can they be called in the middle of it, like if the defense attorney wants to hear again a witness for the prosecution, can he/she add it to his/her list? Is there a rule or this?
I know it's a weird question... sorry...

And concerning the "surprise witnesses", you said that an attorney that does this isn't going to be liked by judges... so it means that it is actually possible? Isn't it a bit unfair? Shouldn't they at list warn the court a day before, or so?

I'd also like to know, are some records of actual trials available? Is there a place on the magical interweb where one can find exactly what was said during a real trial? (I know there is a word for the written record of it, but I don't know it )

Again, thank you.

The word for the written record of a trial is a transcript. They are available on paper under certain circumstances (there are a few cases in which the records of the trial are sealed, but it doesn't happen very often). Whether or not you can find them online, i couldn't say, having never looked for them. However, i do know that the transcripts of civil suits heard before Federal courts are available online, because i have read some in matters which interested me, so maybe you can find criminal trial transcripts online.

edward :

are you familiar with WIKIPEDIA ?
wikipedia can give you much information about the american legal system and any other subject you are interested in .
as an example , by typing in : "united states court system" , you will be led to the official site - and many auxiliary sites - that can help you gain a better understanding of the legal system .

the website/search engine LAW GURU will also help you answer many questions about the legal systems in the united states.


happy hunting !
hbg

edward ;

another site you may find of interest is this one :

NEW YORK STATE COURT SYSTEM

it provides a glossary of many legal terms .
hbg

Thanks a lot.
I have another question:
I've seen the phrases "the people vs X" and "The united states of america vs X"
What's the difference between the two?

Nothing, really, if it's a Federal case. Actually the whole people versus whoever construction isn't used much. You're more likely to see The Commonwealth of Massachusetts vs. X or The State of Mississippi vs. X or Pennsylvania vs. X.

And usually when it's the US vs. X the "of America" part isn't in there.

There are two notorious Supreme Court cases concerning the use of firearms, and they are known as The United States versus Cruikshank (because the Federal prosecutor brought charges against a number of people, and Mr. Cruikshank's name was at the top of the list) and Presser versus the State of Illinois (because Mr. Presser brought suit against the State of Illinois alleging a law of the State of Illinois was unconstitutional--he lost).

Two of the cases which are important in the struggle by fundamentalist christians over the topic of teaching evolution in the public schools are Epperson versus the State of Arkansas, in which a teacher named Epperson brought suit against the State of Arkansas for a law which prohibited teaching evolution in the public schools; and Edwards versus Aguillard. This was a more complex case, because Mr. Aguillard was convicted under the terms of Louisiana's law which required that religious creationism be taught in any school which taught a theory of evolution. So he appealed his conviction of a Federal Appeals court, which found in his favor. That decision was appealed to the United States Supreme Court, and Edwards--the Governor of the State of Louisiana-- was the first name in a list of state officials who brought the appeal against the decision of the Federal Appeals Court.

How the names of the cases are constructed is not all that important, usually, though, because the name of the case will become well known to people who are interested in the subject matters which were decided in the cases.

The reason you hear "The People versus Joe Blow" on television is because, often, their dramas take place in unnamed states, so they can't say "The State of California versus Joe Blow," if the author is unwilling to name the state in which the play takes place.

Radical Edward-- I do not know how much time you wish to use in your quest to understand the American Legal System but the book which has been most helpful to me is "Overcoming Law" by the distinguished jurist--Richard A. Posner, who is pragmatist in philosophy, economic in methodology and liberal(JSMILL) in politics. It is not an easy read. I found that I had to read it slowly and, most chapters, more than once. It is, however, a marvelous way to explore the intracacies of the law in the USA.