KIM WOODS Assignment 2A: Research Paper Topic

Assignment 2A: Research Paper Topic

YOUR NAME:

The first step in developing your research paper is to identify your topic. The topic should be one in which you are interested in learning more about, and it must be a topic covered by the assigned readings of this course. Your topic should be specific, but you also need to ensure sufficient data and research exists to allow you to meet word count requirements. You can do this by conducting a quick search of the University’s library or the internet to get a sense of available academic resources. Remember, all references must be academic in nature. Wikipedia, blogs, and similar sources are not acceptable.

Provide the following information about your topic:

1. What is the topic of your research paper?

2. In which chapter of the text is the topic discussed?

3. What type of paper are you writing? (Use types from “Essay Development: Guidelines for Writing Academic Papers.”)

4. Why did you choose this topic?

5. What aspects of this topic do you intend to discuss?

6. Based on your preliminary research, are you confident you can find sufficient academic data and resources to complete your paper?

7. Do you understand that the instructor must approve your topic, and that you cannot change topics once approved?

P A R T I

Introduction to the Courts

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Step 1

A Society Designs Laws

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❖

The judge’s powerful shouts of “Order in the court!” combine with the pounding of
his gavel, but these sounds are easily overpowered by the clamor of the courtroom
spectators, many of whom are eyewitnesses in the murder trial. As usual, the court-
room is packed with people of all ages, shapes, and sizes. The prosecutor and defense
attorney, both well-prepared adversaries, have butted heads throughout the trial,
but now defense attorney Perry Mason has gained the upper hand by skillfully
maneuvering the prosecution’s star witness into confessing on the stand. The
courtroom murmur is slow to subside as the poor fool continues to provide all the
sordid details of the infamous crime, while the court stenographer records every
word he says and all the other eyewitnesses and the prosecution look on in utter
disbelief. Justice triumphs again as the former witness trades places with the inno-
cent accused as the focus of inquiry.

This courtroom scene is familiar to most Americans and may form the basis of
their information about the courts. Unfortunately, legal docudramas like Perry Mason
are best viewed as entertainment rather than education. This is not to downplay the
value of Perry Mason and his fellow television attorneys. Together, they generate and
maintain interest in the courts, and it may be shows like Law & Order, or The Prac-
tice, or Judge Judy that sparked your interest in knowing more about the courts. How-
ever, these programs should not be seen as examples of real courtroom activity.

This book will take you on a tour of America’s courts from the design of laws
to the trial and beyond. You will learn about those who make the courts work, from
the judges and attorneys to the citizens who might serve as witnesses, jurors, vic-
tims, or defendants. When you have completed this book, you will be familiar with
numerous court processes and will be able to point out the factual errors in your
favorite (or least favorite) legal docudrama. Let the tour begin!

This first step will introduce you to the courts and the role they play in soci-
ety. It will also present a brief discussion of our legal heritage and the nature of
criminal law. We will also discuss some case studies that help explain courts and
the law, then finish up with some justice themes for you to consider.

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THE CREATION OF LAWS

Any welcome to the courts would have to begin with how laws come to be and the
rules for lawmaking. In democracies like ours, laws are bodies of rules enacted by
public officials. The legislative branch of government (state or federal legislators)
enacts laws. Once enacted, laws are then enforced by the executive branch, which
controls law enforcement agencies. The judicial branch acts as more of a referee by
applying laws and making sure laws are valid when compared to the principles in
the United States Constitution and other important American legal documents,
including prior court decisions. Because we have a system of checks and balances,
no single branch is free to act without some oversight from the other two branches.

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The Capitol in Washington, D.C., is the premier site of federal lawmaking in this country. The building
houses the meeting chambers for Congress, which includes the Senate and House of Representatives.
Citizens (such as the group on the steps holding banners) sometimes try to drum up support for laws in
order to get them sponsored by a legislative representative. Though most of Congress’s work is done in
committees, the public is invited to observe them at work in the chambers. After discussions, some-
times brief, but often protracted, votes are cast by the lawmakers. If you want to see lawmaking in
progress, you could also visit your local town or city hall, or travel to your state’s capital and view the
state legislature, which is empowered to create laws that apply to a whole state rather than one jurisdic-
tion. Federal laws are the purview of Congress in Washington, D.C., and federal executive agencies
such as the Environmental Protection Agency. SOURCE: Courtesy of Jon’a Meyer. IS

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Neonaticide As a Case Study

Let us consider neonaticide as a case study to illustrate how laws come to be.
Neonaticide, the killing of a newborn within the first twenty-four hours of life, has
become a common topic of discussion in the past few years, in part because of the
intense media coverage of Amy Grossberg and Brian Peterson, whose newborn son
was discovered in a garbage bin in Delaware in November 1996. Because of this
coverage, the public became immediately convinced that the incidence of neonati-
cide is increasing and demanded penalties to deter the crime in the future.

Actually, neonaticide has been around since ancient times. The early Greeks
left unwanted newborns on hillsides to die of exposure. Tribal societies around the
world practiced neonaticide to regulate births when resources were scarce or the
number of children grew too large for the community to support. These early soci-
eties considered neonaticide to be an acceptable form of postpartum birth control.1

Neonaticide was tolerated in early and medieval England, but it began to
attract the public’s attention and condemnation during the sixteenth and seven-
teenth centuries in Europe. Citizens began to question the morals of young women
who engaged in extramarital sexual intercourse and, after skillfully concealing
their pregnancies, disposed of the evidence of the disgraceful liaisons. To compli-
cate matters, women who were formally charged with murdering their illegitimate
newborns often claimed that the children had been born dead and then disposed of
by the distraught mothers. The lack of available medical knowledge made it diffi-
cult to prove otherwise.

The topic continued to gather more and more interest and generated increas-
ing concern about the actions until finally Britain’s parliament passed the 1624 Act
to Prevent the Destroying and Murdering of Bastard Children, which doomed any
woman who concealed the death of her illegitimate child. The 1624 Act held that
mothers who could not produce at least one witness to corroborate their claims of
stillborn children would be put to death as in other murder cases. As a side note,
one way to escape the death penalty was to claim the “benefit of linen.” Women
who had taken concrete steps to prepare for the birth of their children, including
the manufacture of the child’s linen birth goods (blankets, clothing, etc.), were
considered to have planned for a live birth and were eligible for acquittal.

Curiously, the Act applied only to illegitimate children born to unmarried
women (Ledwon, 1996, p. 5). The first part of the 1680 version of the Act is pre-
sented in Box 1.1. (NOTE: Numbered boxes appear throughout the text to provide
you with additional material to help you understand how courts and law operate;
they contain in-depth quotes or excerpts from court cases, summaries of actual
cases, tables, graphs, and other important material.) As you read the Act, consider
the motivations behind the law (i.e., what the lawmakers envisioned was causing
neonaticides). What can we say about the society in which this law was written?

The disapproval of neonaticide was by no means limited to England, as Scot-
land passed similar legislation in 1690. Once the laws were in place, women could

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be, and were, hung for the deaths of their newborns, regardless of whether they had
actually killed the children. Deterrence was definitely in the air, as judges handed
down harsh penalties. One midwife who had allowed pregnant girls to live in her
house and had then helped them kill and dispose of their unwanted infants was
roasted alive in a cage with sixteen wildcats for her crimes (Unknown, 1673).

Reading the Act illuminates a great deal about lawmaking. First, the Act
describes the problem at hand. Policymakers perceived an increase in sexually
active unmarried women (i.e., “lewd women”) killing their newborns following
concealed pregnancies. The policymakers attribute this to the shame associated
with illegitimate children and also to a fear of punishment (it is important for us to
remember that nonmarital sexual relations and illegitimate births at that time in
history subjected women to whippings, incarceration, and other punishments [Hof-
fer and Hull, 1981, pp. 13–14]). Community leaders also saw this law as a way to
get around the difficulty of establishing proof in cases that might be otherwise
impossible to prove (absent marks of violence on the victim’s body, scholars in the
early 1600s had no forensic tests to ascertain whether a child had been born alive).
Indeed, it was hoped that this law would eliminate, through deterrence, the prob-
lem of discarded newborns, especially as denouncing the crime in church had not
achieved that goal.

One of the most interesting features of this law is that it departs from the
Anglo-Saxon legal maxim “innocent until proven guilty.” The Act was atypical in
this regard. The rationale for England’s Parliament to eliminate the burden of proof

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6 A Society Designs Laws

BOX 1.1

The Text of the 1680 Act to Prevent the
Destroying and Murdering of Bastard Children

Whereas many Lewd Women that have been delivered of Bastard Children, to avoid their shame
and to escape punishment do secretly bury or conceal the Death of their Children; and after, if
the Child be found dead, the said Women do alledge that the said Child was born dead, whereas
it falleth out some times (although hardly it is to be proved), that the said Child or Children were
Murthered by the said Women, their lewd Mothers, or by their assent or procurement.

For the preventing therefore of this great mischief, Be it Enacted by the Authority of this
present Parliament, that if any Women after one month next ensuing the end of this next Session
of Parliament, be delivered of any Issue of her body, Male or Female, which being born alive,
should by the Laws of this Realm be a bastard, and that the endeavour privately either by drown-
ing or secret burying thereof, or any other way, either by her self or the procuring of others, so to
conceal the death thereof, as that it may not come to light, whether it were born alive or not, but
be concealed; In every such case, the said Mother so offending shall suffer Death, as in case of
murther, except such Mother can make proof by one Witness at the least, that the Child (whose
death by her so intended to be concealed) was born dead (Vvagstaffe, 1680).

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for neonaticide lies in the pressure on legislators to reduce the incidence of new-
born murders, which were attributed to poor servants whose sexual liaisons had
been condemned by policymakers for some time. What was society to do when
prosecutors could not prove that newborn after newborn was being delivered alive
and then murdered? The Act against neonaticide shows how desperate the courts
and legal system must have been. Of interest, it was not until 1803 that the law was
changed to require the prosecution to prove the victim was born alive, making the
burden of proof similar to other murder cases (Rose, 1986, p. 70).

Note also that the law spells out clearly the evidence required for a woman to
avoid conviction and execution if her newborn was found dead after a concealed
pregnancy (i.e., having “one Witness at the least” who could testify that the child
was stillborn). Although most modern laws are the opposite because they provide
the requirements for conviction (e.g., a person who “threatens another with” bodily
harm during the course of a theft is guilty of robbery in New Jersey, Penal Code
2C:15–1), some do provide circumstances that point to a defendant’s innocence.
Married individuals who marry a second spouse can be convicted of bigamy in New
Jersey, for example, “unless at the time of the subsequent marriage” one of four spe-
cial circumstances is present, such as believing one’s first spouse is dead or “reason-
ably” believing one is “legally eligible to remarry” (NJ Penal Code 2C:24–1). Still,
the law against neonaticide is unique in that it automatically promoted to capital
murder the concealment of any dead newborn’s body, making it an early example of
a felony murder law (you will learn about felony murder laws in Step 2).

Another very important concept is illustrated by the Act against neonaticide.
Note that the law applied only to births that occurred after a future date (i.e., those
occurring “after one month next ensuing the end of this next Session of Parliament”).
This meant that women who had concealed the births of bastard newborns before
that time could not be prosecuted under this law. It appears that long before the
United States and our Constitution, the idea of ex post facto laws was already consid-
ered repugnant. You will learn more about ex post facto laws later in this chapter.

Unfortunately for the legal system, the Act did not eliminate neonaticide and
the law fell out of favor with the public, who felt it was too harsh. During periods
of economic difficulties, juries began to acquit maids and household servants
whose homicidal actions appeared to be based on desperation rather than deprav-
ity. During the height of the Victorian era and the Industrial Revolution, deaths of
children rose. During 1863–1887, infanticides comprised more than 60 percent of
all recorded homicides in England (Rose, 1986). Child deaths were also common
in nineteenth-century Ireland where, between 1866 and 1892, women killed their
infants nearly 100 times more often than they killed older children or husbands
(Conley, 1995). Despite the fact that the rate of infanticides remained high (Langer,
1974, p. 359), the rate of convictions by jury declined (Conley, 1995, p. 801; Jones,
1980, p. 62). Neonaticide, although still illegal and still occurring at high rates,
seemed to go unpunished.

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Some questions for you to consider are:

• What was going on that first attracted attention from the public and from
lawmakers?

• Why were the laws written the way they were?
• Why did juries begin acquitting women, even after clamoring for harsher

sentences?
• Why did the sentences return to being harsh?
• What lessons can we learn from this case study that could help contempo-

rary lawmakers, who have recently been asked to craft new legislation to
deal with the problem of women who kill their newborns?

Lessons Learned from the Neonaticide Case Study

The preceding case study illustrates several points about lawmaking. First, an action
must attract condemnation before laws are designed to eliminate it. In the case
of neonaticide, the killing of newborns progressed from being socially accepted to
socially condemned (although different segments of society reacted differently to
the problem). If you look at the history of other laws, you will often see a similar
pattern. Megan’s Law (which requires sexual offenders to register with authorities
so their neighbors will know there is a sex offender living in their communities), for
example, followed public outcry during the 1990s about pedophiles who continued
to victimize children even after treatment and/or punishment in the criminal justice
system. The law was named for Megan Kanka, a seven-year-old who in 1994 was
murdered in New Jersey by a twice-convicted child sex offender. All fifty states now
have some version of Megan’s Law, and federal law mandates that states create and
maintain Megan’s Law databases, or they lose part of their federal funding for law
enforcement (Koenig, 1998, pp. 725, 729).

The neonaticide case study also illustrates the flexibility of the law in terms
of reducing an individual’s ability to avoid prosecution through creative excuses or
defenses. In the case of neonaticide, public disapproval became so high that law-
makers made any woman who concealed her pregnancy liable for the death penalty
if her child was found dead, even if she claimed the child had been stillborn. In
many respects, contemporary mandatory sentences reflect the ability of the law to
ensure that criminals receive the punishments that the public (through their legisla-
tors) feel are appropriate for their crimes.

The third point illustrated by this case study is that jurors who feel the penalties
for a given crime are too harsh may ignore the law. When jurors began acquitting
women in large numbers for committing neonaticide, the laws were, in fact, rewrit-
ten. In 1866, England’s legislative body reacted to the softened public sentiment by
considering a bill that would regard infanticide as a less serious form of homicide
than other killings; the bill did not get enough support to make it law but demon-

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strates that the legislature was aware of the change in attitude toward neonaticide.
Then, in 1922, England’s lawmaking body passed a new law that made those who
committed infanticide eligible for treatment rather than punishment. Contemporary
jurors continue to acquit those they feel may be guilty but undeserving of poten-
tially harsh punishments called for by law, or guilty parties they feel were unfairly
treated by the justice system (e.g., criminals who were discriminatorily selected for
arrest or who were mistreated by police). In refusing to convict, the juries send a
message to the justice system that the public does not agree with the laws as written
or that they disapprove of actions taken by the justice system.

Finally, this case study shows how societal sentiments are reflected in the
laws generated by that society. Apathy was originally followed by ire, which was
followed by sympathy for the women who killed their newborns. Ironically, this
situation is now being repeated. Public sentiment is now calling for renewed atten-
tion to the problem of neonaticide. Right after Amy Grossberg and Brian Peterson
were charged, most people demanded increased penalties, but after a few years,
some people began to prefer social programs such as places where women can
leave unwanted newborns without fear of prosecution. As you can see, the issue of
neonaticide illustrates how law reflects societal norms and how laws can change
over time to reflect new social thought.

THE COMMON LAW HERITAGE OF THE
AMERICAN LEGAL SYSTEM

The American common law system derives from medieval England, when criminal
and civil laws were defined by judges on the basis of the individual cases over which
they presided. Laws were based on existing customs as interpreted by judges
because there were few if any written statutes except for the most serious crimes
(and those were typically copied from the Bible). Historical common laws are
sometimes called “judge made” laws for this reason. Two concepts are very impor-
tant in the development of our current legal system from its common law roots.

The first important concept is precedent, or stare decisis. Precedent means
that a judge must decide a case by applying the rules of law found in earlier cases,
provided that the facts in the current case are similar. If they did not rely on prece-
dent, judges would have to decide each case as though it were totally new. By
employing stare decisis (literally, “let the decision stand”), however, a certain con-
sistency develops in law. The doctrine of stare decisis does not apply when com-
pelling reasons exist to modify or overturn prior decisions, such as when the notions
of justice and fairness necessitate change. In those rare cases, prior decisions may be
overturned in total or in part. For example, although the U.S. Supreme Court upheld
the idea of “separate but equal” facilities for blacks and whites in their 1896 Plessy
v. Ferguson decision, that case was overturned by Brown v. Board of Education in
1954. That prior cases are sometimes overturned should not be viewed as a weakness

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in our legal system; instead, this phenomenon shows how the laws can change to fit
new circumstances and social definitions of fairness.

The second important concept when discussing our common law roots is
codification. Common law is uncodified; that is, it is not written down in any one
central place like a legal register.2 Codified law, on the other hand, is based on
written codes (statutes) that are maintained by the government (e.g., the monarch
or legislature). Many early codes, like those written by the Anglo–Saxons around
600 A.D., appear to be a simple “recording of pre-existing custom” (Kempin, 1990,
pp. 109–110). Later codes were enacted in a process closer to that now used in this
country, where statutes came out of meetings of those individuals who were empow-
ered to create law (e.g., legislators).

However, the American legal system is based on laws originally developed as
part of common law. During the first half of the 1800s, legislatures started codifying
the offenses defined under common law (Kempin, 1990, p. 113). By the early 1900s,
most state legislatures had their own set of codified laws. When crafting those laws,
legislatures had to keep two important concepts in mind: a requirement of fair notice
and a ban on ex post facto laws. However, just because codified law is based in com-
mon law does not mean that it is static or unchanging, as we will see below.

Fair Notice and Ex Post Facto Laws

The first important concept that must be considered by lawmakers is that of fair
notice. Even today, those who read constitutional cases will observe that the notion
of fair notice is mentioned repeatedly. Basically, fair notice means citizens must
be forewarned that actions they are planning will be treated as illegal and that indi-
viduals cannot be tried for acts that do not involve such warnings. Fair notice can
be achieved through codification of laws against an activity or it can be derived
from prior rulings by a state’s supreme court that an activity is punishable. Either
way, citizens are alerted to the potential punishment that might follow actions they
are contemplating. In 1926, the U.S. Supreme Court ruled that the Fourteenth
Amendment’s guarantee to due process meant that individuals could not be prose-
cuted for statutes that were incomprehensible by the public due to being written in
vague terms, because such laws did not provide fair notice (Connally v. General
Construction Company, 1926), and several laws have been invalidated for violating
this important ban. Even common law jurisdictions have to provide fair notice to
their citizens that certain acts will be treated as crimes, but this may be achieved
either through legislation or through state supreme court rulings that particular acts
will be considered illegal if committed in the future.

The second important concept that legislators must consider is the ban on
ex post facto laws (i.e., laws that are retroactively applied to actions that took place
before the law was enacted). Ex post facto laws are forbidden by the U.S. Constitu-
tion (art. 1, secs. 9 and 10), and were defined comprehensively by the U.S. Supreme
Court in 1798 to include the enactment of new laws, modifications to existing laws,

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changes to the punishments associated with existing laws, and changes to existing
evidentiary concerns (Calder v. Bull, 1798, p. 390). Taken together, these bans pro-
hibit legislatures from holding defendants accountable for actions for which they had
no prior knowledge. Whereas it is permissible and proper to update legal codes, indi-
viduals cannot be held responsible for actions they did before the changes took
effect. Box 1.2 presents excerpts from the U.S. Supreme Court cases on fair notice
and ex post facto laws. As you read them, consider how the concepts are similar, how
they differ, and how they are related to American concepts of justice and fairness.

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The Common Law Heritage of the American Legal System 11

BOX 1.2

Excerpts from U.S. Supreme Court Cases
on Fair Notice and Ex Post Facto Laws

The excerpts below illustrate the U.S. Supreme Court’s thinking in two cases that helped define
the rules that must be followed by legislatures when writing statutes. As you read them, con-
sider how the concepts discussed are similar and how they differ. What is the overarching goal
of both concepts?

The U.S. Supreme Court defined and clarified ex post facto laws in the 1798 case, Calder v. Bull
(p. 390):

The prohibition, “that no state shall pass any ex post facto law,” necessarily requires
some explanation; for, naked and without explanation, it is unintelligible, and
means nothing. Literally, it is only, that a law shall not be passed concerning, and
after the fact, or thing done, or action committed. . . . I will state what laws I con-
sider ex post facto laws, within the words and the intent of the prohibition.

1st. Every law that makes an action, done before the passing of the law, and
which was innocent when done, criminal; and punishes such action.

2nd. Every law that aggravates a crime, or makes it greater than it was, when
committed.

3rd. Every law that changes the punishment, and inflicts a greater punish-
ment, than the law annexed to the crime, when committed.

4th. Every law that alters the legal rules of evidence, and receives less, or dif-
ferent, testimony, than the law required at the time of the commission of
the offence, in order to convict the offender.

In 1926, the U.S. Supreme Court ruled in Connally v. General Construction Company (p. 391)
that due process requires that laws must not be vague:

That the terms of a penal statute creating a new offense must be sufficiently explicit
to inform those who are subject to it what conduct on their part will render them
liable to its penalties is a well-recognized requirement, consonant alike with ordi-
nary notions of fair play and the settled rules of law; and a statute which either for-
bids or requires the doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application violates the
first essential of due process of law.

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THE CONSTANT METAMORPHOSIS OF AMERICAN LAW

The American legal system undergoes constant metamorphosis. Every year, new
laws are enacted to deal with current situations, old laws are modified in order to
keep them up-to-date, and a few laws are removed from the codes. Many of these
changes are rather minor, such as updating the amounts that qualify for grand theft,
as inflation makes existing values appear outdated. At times, however, a state
supreme court or the U.S. Supreme Court invalidates a law, and so it must be
removed from future editions of the penal code. Sometimes new laws that reflect
public sentiment against crime (e.g., “three strikes and you’re out” laws) are enacted
and take their place in the penal codes.

Sometimes new crimes are defined as people find new ways to harm others or
offend society’s principles. New laws often result from unsuccessful attempts to
utilize existing laws to prosecute new forms of questionable behavior. After its
surge in popularity as a tool to incapacitate rape and robbery victims, for example,
the sale and distribution of the powerful tranquilizer Rohypnol (aka “roofies”) was
outlawed in 1997 by the California legislature (Leiser, 1997). The same legislature
also made it illegal to recruit members into a gang. Both of these examples show
how new laws may be enacted when previously existing statutes are inadequate to
prosecute new forms of deviance.

Developing new laws is not always easy. As criminals have infiltrated the
technological world, for example, legislatures have had a difficult time defining
laws relating to computer crime. At first, prosecutors attempted to use existing
common theft statutes to prosecute computer crimes, but judges sometimes dis-
missed the charges, saying the alleged actions were not prohibited by statute
(Meyer and Short, 1998). In response to those dismissals, legislatures have
attempted to fashion usable computer laws that define computer crimes and make
it clear that they will be punished (Nugent, 1991).

Laws are not simply the inventions of a few legislators who hope laws will be
named after them. Someone, or some group, influences legislators to write and
sponsor laws. Child advocacy groups, for example, have been successful in modi-
fying the statute of limitations for prosecution of child abuse; in some jurisdic-
tions, this important clock begins ticking only after the victim knows about the
abuse, even if it is “discovered” through therapy many years after the abusive
actions (e.g., the state of Washington’s “special” statute of limitations allows vic-
tims to bring claims against alleged child molesters within three years of the abu-
sive act or within three years of discovering that it happened). A Michigan appellate
court recently allowed a civil suit by a woman whose flashbacks, which occurred
forty-nine years after the abuse she endured as a child, alerted her to the injuries
she had suffered at the hands of her family (Memory of Abuse, 1993). Similarly,
tort reform groups have successfully lobbied to limit punitive damages in many
states and anti-drunk-driving groups have fought for legislation favorable to their

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agendas. Even well-known laws such as Megan’s Law (which allows notification
of the public regarding the presence of sexual offenders in their neighborhoods)
and the hotly debated “three strikes and you’re out” laws were sponsored by citi-
zen’s groups who argued their cause, gathered support, and lobbied for the law’s
passage. Without the support of many citizens, most laws in our society would
never make it to the books. In this way, the citizens in democratic legal systems
have some influence on the laws by which they are governed.

Occasionally, laws are passed that have the support of a vocal minority, but
not necessarily the population as a whole. Laws such as Prohibition (which out-
lawed the manufacture, sale, or distribution of alcoholic beverages in the United
States from 1920 until it was repealed in 1933) and 55-miles-per-hour speed limit
laws are but two examples of laws that somehow obtained enough support from

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The Constant Metamorphosis of American Law 13

Though alcohol had been a concern for many years, the move toward Prohibition became national in
the late 1800s when the Anti-Saloon League was founded. This pamphlet was created by the State
Anti-Saloon League of Southern California and shows one way that groups wishing to outlaw the
manufacture, distribution, and sales of alcohol gained support among the voting public. In 1918, due
in part to the success of pamphlets like this one in attracting support, the Eighteenth Amendment was
passed, which effectively outlawed alcohol in the United States. Due to public dissatisfaction with the
law, the Eighteenth Amendment was finally repealed in 1933. Now, scholars use Prohibition as an
example to show that laws cannot be successful without public support. SOURCE: 1906 Prohibition
pamphlet, personal collection of Jon’a Meyer.

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lawmakers to get passed despite a lack of support from the majority of Americans.
The process of lawmaking, then, is not purely democratic in the sense that only
bills that are widely supported become laws. Sometimes, laws are imposed “from
the top down,” meaning that powerful elites pass laws that interest or benefit them,
but do not appear to serve the rest of society. Many conflict theorists, for example,
point to the weak enforcement and penalties attached to white-collar crimes, com-
pared to low-level criminal offenses, as proof that laws can sometimes be imposed
on the masses from those socially higher up. Consider the uproar over laws that
mandate more severe penalties for possession of “crack” cocaine than for powder
cocaine; many argue that these laws reflect the fact that inner-city blacks are more
likely to be caught with crack whereas powder cocaine is more often used by
upper-class whites (e.g., Mann, 1995). That the lawmaking process sometimes
fails to reflect what the majority wants does not mean our system is irreparable.
Instead, it points to an area where reform may be needed.

ODDBALL CODES OF ANTIQUITY

In 1973, Federal judge Marvin Frankel decried the illogical hodgepodge of laws
that existed in many states. He noted, for example, that a California statute pun-
ished breaking into a car to steal from its glove compartment with up to fifteen
years in prison, whereas stealing the entire car carried a maximum of only ten
years. Similarly, stealing a dog in Colorado could result in ten years in prison,
whereas killing the same dog could result in only six months in jail and a fine. One
compendium of humorous laws (Hyman, 1971) alerts readers that it is illegal to
hunt camels in Arizona or to lasso fish in Knoxville, Tennessee. Similarly, those
who tickle girls under the chin with a feather duster in Portland, Maine, face crimi-
nal prosecution. Obsolete codes sometimes remain on the books for years in a sort
of legal limbo: not actively prosecuted, nor actually deleted. Most of these appar-
ently bizarre codes would be stricken down by appellate courts as vague, discrimi-
natory, or unrelated to public welfare. Until they are challenged, however, nothing
prevents them from being reprinted each year as part of the codes.

These inconsistencies usually arise from knee-jerk reactions to a situation
that attracts more than its fair share of media attention. California’s specific atten-
tion to thefts from automobile glove compartments likely resulted from attempts to
deter criminals from breaking into cars to rifle through their contents. When the
legislature decided on a penalty, however, it forgot to scale it according to those of
related crimes. In this manner, less serious offenses may be punished more harshly
than more egregious acts.

Some of the ambiguities in law are discovered only after a statute has been
enacted and the justice system has tried to apply it to an offense. The courts may
discover that the ambiguities are so great that they prevent the statute from being

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used as law. This fate befell Jacksonville’s municipal “prowling by auto” ordi-
nance; it was held to be so vague that a reasonable person could not ascertain
whether his or her intended activities would be illegal, so it had to be rejected as
law by the court (Papachristou v. City of Jacksonville, 1972). Appellate courts may
also rule that a statute is unacceptable as worded or “void for vagueness” (i.e., it
did not provide “fair notice” about what actions were prohibited).

Sometimes there is an interesting interplay between legislators and judges as
the judges attempt to circumvent the legislature’s intent by employing “creative
interpretation” of certain statutes, especially those requiring mandatory penalties
(Meyer and Jesilow, 1997, pp. 54–57; Peyser and Foote, 1994, p. 53). In a few
cases, legislatures intentionally leave the courts some discretion in interpreting
statutes that are still undergoing what could be called a “fine-tuning process”; allow-
ing judges to dismiss charges “in the interests of justice” is one way to acknowledge
that statutes cannot be written to address every individual case.

At times the differences in statutes make plea bargains very attractive to
defendants. If a similar criminal act could result in a much lower penalty, defense
attorneys will try to establish bargains where their clients plea guilty to the related
offense. In California, for example, attorneys for drunk drivers were successful at
getting charges reduced to reckless driving and other lesser offenses for several
years before the legislature took notice of the practice and passed a new law that
forced prosecutors to justify such bargains in writing (CA Penal Code, sec. 23635).

If there is one thing history has clearly demonstrated, it is that merely draft-
ing and enacting laws does not mean they will be logical. Nor must they be fair.
Although the inconsistencies in laws can usually be traced to knee-jerk reactions,
oddball codes still make for fascinating study. The next time you encounter a law
you think is peculiar, stop and think about how it came to be. Think also about the
historical time and situations under which the law might have been drafted and
what the law meant to those who created it.

THE EFFECTS OF CRIMINAL LAW ON THE COURTS

Criminal law affects the courts in several ways. First, it delineates the offenses that
form the basis for criminal justice intervention. If no laws have been broken, there
cannot be a criminal trial. When there are multiple elements to a crime, the courts
must ensure that each element is proven; one cannot be convicted of grand theft,
for example, unless she or he has been shown to have (1) stolen something that was
(2) worth a certain amount. If one or more elements cannot be shown to be true in a
particular case, the defendant is not guilty of that particular charge.

The penal codes also define the penalties that accompany each code violation,
and courts then determine what penalty will apply in a particular case. Penal codes
specify the types of punishment that may be imposed on offenders. Speeding, for

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The Effects of Criminal Law on the Courts 15

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example, is usually punished by a fine or community service term. Theft can be
punished by fines, community service, or other sanctions, including jail time. Penal
codes also specify the severity of the penalties allowed under law. For example, those
convicted of first degree murder may be executed in jurisdictions that allow that
penalty, but petty thieves cannot. Some statutes specify mandatory penalties that
judges must impose on those found guilty of certain offenses. This is especially
true of drunk drivers; many states now have mandatory penalties for those con-
victed of driving under the influence of alcohol.

Finally, criminal law affects the courts by specifying the processes by which
trials are conducted. Appellate courts, including the U.S. Supreme Court, hand
down rulings about what is and what is not acceptable criminal court procedure.
Rulings based on the constitutionality of certain statutory provisions, for example,
can have profound effects on final trial outcomes.

TWO MODELS FOR HOW CASES PROGRESS
THROUGH THE COURTS

In 1968, noted scholar Herbert Packer argued that the effects of criminal law on the
courts are mediated somewhat by whether emphasis is placed on defendants’ due
process rights or whether the primary goal of a legal system is to curb crime.

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16 A Society Designs Laws

Laws are not actually “made” here, but the U.S. Supreme Court still has a strong influence on law-
making because it serves as the final authority on whether laws are constitutional. Even if a law was
enacted with huge public support, it could be ruled invalid by the U.S. Supreme Court. SOURCE: Cour-
tesy of Jon’a Meyer.

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Packer created two primary models to explain how the criminal justice system
operates: the Crime Control Model and the Due Process Model. He did not intend
for people to use his models as “rigid” categories (meaning that every element of
the model must be satisfied to earn a classification as Crime Control versus Due
Process); instead, he felt that the models represent extreme values between which
the criminal justice system and its workers may lie (1968, pp. 153–54). With this in
mind, let us discuss the differences between the two models. The following sum-
mary presents only some of the differences between Packer’s two models; the
interested student is referred to his book to learn more about his models and how
they work.

The first approach is the Crime Control Model, which views the purpose of
the court as punishing guilty parties promptly and efficiently in an attempt to
reduce crime. Under this model, trained law enforcement officials and prosecutors
are entrusted with protecting society. There are, of course, some trade-offs for a
safe society, one of which is the relinquishment by members of society of some of
their rights.

Those who support the Crime Control Model feel that the vast majority of
defendants are guilty of some crime or they would not have been arrested in the
first place. Because of this belief, the Crime Control Model sometimes tolerates
punishment of otherwise “innocent” defendants. In the end, truly innocent parties
need not fear punishment because diligent work by police and prosecutors will
eliminate their cases from the court docket prior to trial. Legal safeguards such as
strict search and seizure rules are used by guilty defendants to circumvent justice
and escape punishment, so they should be abolished or minimized. Plea bargains
are desirable because they provide punishment to guilty parties while simultane-
ously ensuring that the system is not bogged down in cases. Crime Control Model
advocates favor punishment that deters offenders and others from committing
crimes because deterrence reduces the incidence of crime.

The second approach discussed by Packer is the Due Process Model, which
views the purpose of courts as more of a forum in which judges and other justice
workers must protect defendants’ rights to due process from overzealous police
and/or prosecutors. With this model, the police and prosecutors cannot be trusted to
select only guilty parties for criminal justice processing, because, for example, sci-
ence is not yet advanced enough to guarantee accurate classification in every case.

The Due Process Model considers all defendants to be innocent until proven
guilty, so many safeguards (e.g., strict search and seizure rules and the absolute
right to legal counsel) are necessary to protect defendants at all stages of the justice
system. Plea bargains must be eschewed as cheap imitations of justice that encour-
age innocent parties to relinquish their rights to a full trial during which mistakes
by police and prosecutors could be uncovered. Due Process Model advocates favor
treatment programs that effectively help offenders avoid future criminality, thus
reducing the incidence of crime.

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Two Models for How Cases Progress Through the Courts 17

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As should be evident by now, the Crime Control Model “de-emphasizes [the]
adversary aspect of the process; the Due Process Model tends to make it central”
(Packer, 1968, p. 157). Stop and think for a moment about which model you most
support. You may identify strongly with one of the models or you may simply sup-
port one more than the other. Either position is fine, because very few people com-
pletely assign themselves to one of the two models. Write down your rationale for
why you identify with the model you selected, because you may wish to compare
your current beliefs to the ones you will have after reading this book or when you
graduate from college. Packer noted that people move back and forth on his contin-
uum over time, so you may find yourself moving away from your current beliefs,
or you may move closer to the extreme to which you now ascribe.

The importance of Packer’s two models for the courts is that they help
explain how individual workers and agencies in the criminal justice system inter-
act. It should come as no surprise, for example, that judges who lean toward the
Due Process Model are more likely to throw out evidence obtained by the police
under questionable circumstances (e.g., without a warrant), whereas judges who
lean toward the Crime Control Model may be more likely to view certain evidence
as important in showing whether a given defendant is guilty (Packer, 1968,
pp. 198–201). Of course, the labels we place on those judges (as leaning toward
one of the models), or even the labels they use to describe themselves, cannot pre-
dict their behavior on every decision they make because we must acknowledge that
the models are but general classification schemes and do not apply to individual
decisions. In fact, a person may lean toward the Due Process Model on some issues
(e.g., she or he might insist that all defendants have access to free, quality attorneys
at all stages of the system) and yet support the Crime Control Model for other
issues (e.g., the same person may feel that search and seizure rules are too restric-
tive to allow the police to effectively investigate crimes). As you read this book,
consider which models the players in the system seem to support and how their
beliefs may affect justice outcomes.

SOME IMPORTANT THEMES TO CONSIDER
WHEN READING THIS BOOK

No examination of American courts would be complete without some important
social considerations. First is the expectation that courts dispense justice fairly.
When the public expects fairness but instead sees corruption and discrimination,
people might lose their faith in the courts. Unfortunately, corruption and discrimi-
nation sometimes do occur in our court system, despite the presence of safeguards
against these negative outcomes. Although it may be argued that racial biases are
less prevalent than before the civil rights movement, for example, such biases con-
tinue to be alleged on a regular basis. One goal of the courts is to dispense justice
whenever it is needed, but some critics have noted that access to the courts is cur-

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tailed for the poor and/or uneducated. As you are reading this text, consider the sit-
uations under which corruption and discrimination have occurred in the past and
how those two issues are relevant in today’s courts. Also consider how the identity
of the groups that most feel the brunt of discrimination have changed over time.

The second important consideration is the difference between “law on the
books” and “law in action.” Just because a law is written (i.e., “on the books”) does
not mean it is enforced as it was intended. Instead, how the law is enforced may
depend on the characteristics of those who enforce it or those against whom it is
enforced. While we all agree that violent crimes should be illegal, we also acknowl-
edge that all violence is not treated as equal by the courts. Consider, for example,
the difference in priority assigned to violent acts committed by strangers versus
those that occur between intimates or acquaintances. Similarly, are there differences
in priority assigned to embezzlement perpetuated by white-collar criminals versus
thefts committed by burglars?

A third issue you should watch for are examples of how the law is both a cat-
alyst for and a reflection of social change. In some cases, a law creates social
change (e.g., affirmative actions laws attempt to create a workplace that is race-
and gender-neutral). At the same time, however, laws may reflect social changes
(e.g., extending pornography laws into the cyber-realm through laws against
cyberporn). In many cases, a law can serve both functions, reflecting the social val-
ues held by a majority who hope that the law will produce a value change in those
who do not yet share their views (e.g., laws against hate crimes attempt to educate
the public that hateful actions are undesirable and may be punished). The role of
law as a catalyst for and reflection of social change is an important one, and recog-
nizing this role will help you understand how American courts and law function.

Finally, there is the reality of the courts and how it differs from how the courts
“are supposed to” operate. Pay attention to the theoretical goals of the courts, how
the courts theoretically function, and how the laws are theoretically carried out.
How do the theoretical workings differ from what really happens in the courts? The-
oretically, the courts devote as much time to a case as is necessary to fully explore
the legal issues involved, but the reality is that courtroom workers are more likely to
be hurried through much of the work they do. Theoretically, only legal factors, such
as offense severity, play a role in sentencing, but the reality is that many extra-legal
factors, such as whether one pleads guilty, play a large role in sentencing. The
examples are endless, as you will see as you read and reflect on the text.

CONCLUSION

In this chapter, we did a lot of things. First, we looked at how laws are created, and
studied some historical laws against neonaticide as a case study to understand how
laws come to exist. Then, we looked at how American law is always changing and
will continue to change. We also explored how criminal law affects the courts and

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Conclusion 19

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learned about Packer’s models as to how the courts operate. Finally, we considered
some themes that are important in criminal justice and that you should be on the
lookout for as you read this text. This introductory chapter served to alert you to a
number of issues and to set the stage for the rest of this book.

In the next chapter, we will get into the study of courts themselves. We will
learn about the three elements of every crime and about some of the defenses
raised by defendants in court to excuse their actions. We will also learn what hap-
pens after a crime has been committed, but before a trial takes place. Do not worry,
we will learn about trial processes, too, but that topic is saved for a future chapter.

Future chapters in this section of the book discuss defendants’ rights in the
criminal justice system, how the adversarial system works (or is supposed to
work), the history of federal and state courts, and how the courts operate. The next
section of the book is devoted to the players in the justice drama, including the “big
three” (i.e., prosecutors, defense attorneys, and judges), and other important people
in the system such as victims, defendants, jurors, witnesses, and others who inter-
act with the courts. The third section of the book will expose you to courtroom
processes, including pre-trial screening by prosecutors and other justice decision-
makers, how the bail system works, pre-trial motions, plea bargaining, and the trial

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20 A Society Designs Laws

BOX 1.3

Accounts Written by Three Students About Their
First Encounter with American Courts

Shannon L. Williams was amazed at how “calm” everyone was:
The defendant, the plaintiff, the prosecution, the defense, the jury, and the audience
for both sides were in a calm and very cool manner throughout the entire case. I
guess I’m used to seeing a little tension between the people involved in the case like
one would normally see in television shows like Judge Judy or Matlock. That was
practically my first time ever being in a courtroom and I guess I was expecting to
see some clashing in the courtroom and the judge ordering the bailiff to remove
somebody from the courtroom. As stated before, it was a little different than what I
had expected.

Kathleen Garrity noticed that lower courts were very busy:
I found the whole court scene very disruptive and was waiting for the judge to call
out, “ORDER IN THE COURT,” however, he never did.

Shauna Y. Creek noted the same about another city court:
The courtroom waiting area was chaotic, crowded, and tension filled. Observing the
waiting area was very emotional. There were mothers who wept for their sons’ free-
dom, victims who were leaving the courtroom with complacent smiles, and counselor/
accused interactions all going on as court was in session.

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itself. The final section will expose you to post-conviction processes, such as how
punishment is decided and how appeals work, and will discuss the special court
processes used when the accused is a juvenile.

Do not worry if all you know about courts is from television and media
accounts, because you are not alone. This book will help you learn about courts
and their inner workings. Box 1.3 contains excerpts written by students like you
about their first experience with the courts, and you will notice that all three were
surprised at what they saw. You will hear from these and other students later in the
book wherever their observations are pertinent. Now, let us begin our journey
through the American courts system!

D I S C U S S I O N Q U E S T I O N S

1. Laws are everywhere I look and I haven’t gotten out of bed yet! Laws regulate the manufacture of
the mattress on which I sleep and the packaging of the milk I drink with my breakfast. Think of all
the laws that have affected you in the last twenty-four hours (e.g., manufacturing/packaging laws,
road laws, criminal laws, etc.). Why were these laws passed? How are they enforced? Do you feel
they are a good idea?

2. Think of a social problem that interests you (e.g., racial discrimination). How have laws dealt with
that problem in the past (this might require some library research)? What laws do you feel are nec-
essary to alleviate the social problem? Do you feel that new laws are the best solution, or would
another plan of action be better? Why do you feel this way?

3. Think of your favorite character in a courtroom docudrama. To which of Packer’s models does she
or he lean? What about the character you dislike most? How close are these two characters to your
own leanings? Are you closest to your favorite or least favorite character’s leanings?

4. What is a new form of deviance that is attracting attention and against which the public (or certain
interest groups) wants a law to be enacted? Why haven’t existing laws been adequate?

5. Think of five court-related questions that you want answers to this term. During the course of the
term, try to find the answers (e.g., in the class text or a library resource or by asking your instruc-
tor). At the end of this term, you will re-read your list to see if you have learned the answers.

N O T E S

1. And, anthropological data suggests that some societies still believe that neonaticide is an accept-
able practice (e.g., Jones, 1980).

2. Note that contemporary jurisdictions that use common law rely on both codification and rulings
by their state’s supreme court to arrive at an enforceable body of law. This stands in contrast to his-
torical common law, which was not typically written down and kept in a central location.

R E F E R E N C E S

Brown v. Board of Education, 347 U.S. 483 (1954).

Calder v. Bull, 3 U.S. 386 (1798).

California Penal Code. (2001). West’s California Codes: Penal Code. St. Paul, MN: West.

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References 21

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Connally v. General Construction Company, 269 U.S. 385 (1926).

Conley, C. (1995). No pedestals: Women and violence in late nineteenth-century Ireland. Journal of
Social History, 28: 801–819.

Frankel, M. (1973). Criminal Sentences: Law without Order. New York: Hill and Wang.

Hoffer, P.C., and Hull, N.E.H. (1981). Murdering Mothers: Infanticide in England and New England,
1558–1803. New York: New York University Press.

Hyman, D. (1971). It’s Against the Law. Pleasantville, NY: Reader’s Digest Association.

Jones, A. (1980). Women Who Kill. New York: Holt, Rinehart and Winston.

Kempin, F.G. (1990). Historical Introduction to Anglo-American Law (3rd ed.). St. Paul, MN: West.

Koenig, W. P. (1998). Does Congress abuse its spending clause power by attaching conditions on the
receipt of federal law enforcement funds to a state’s compliance with “Megan’s Law”? Journal of
Criminal Law and Criminology, 88, 721–765.

Langer, W.L. (1974). Infanticide: A historical survey. History of Childhood Quarterly, 1: 353–365.

Ledwon, L. (1996). Maternity as a legal fiction: Infanticide and Sir Walter Scott’s The Heart of Mid-
lothian. Women’s Rights Law Reporter, 18: 1–16.

Leiser, K. (1997, Jan. 1). New year, new California laws: Here’s a look at laws taking effect this year.
San Diego Union–Tribune, p. A3.

Mann, C.R. (1995). The contribution of institutionalized racism to minority crime. In D.F. Hawkins
(Ed.), Ethnicity, Race and Crime: Perspectives Across Time and Place. New York: State Univer-
sity of New York Press.

Memory of abuse: OK to sue 50 years later. (1993, December). ABA Journal, 78.

Meyer, J.F., and Jesilow, P. (1997). “Doing Justice” in the People’s Court: Sentencing by Municipal
Court Judges. New York: State University of New York Press.

Meyer, J., and Short, C. (1998). Investigating computer crime: Concerns voiced by local law enforce-
ment agencies. Police Chief, 65(5): 28–35.

New Jersey Statutes Annotated § 2C. (2001). St. Paul, MN: West Group.

Nugent, H. (1991). State Computer Crime Statutes. Washington, DC: National Institute of Justice.

Packer, H. (1968). The Limits of Criminal Sanction. Stanford, CA: Stanford University Press.

Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).

Peyser, M., and Foote, D. (1994, August 29). Strike three, you’re not out. Newsweek, p. 53.

Plessy v. Ferguson, 163 U.S. 537 (1896).

Rose, L. (1986). Massacre of the Innocents: Infanticide in Great Britain 1800–1939. London: Rout-
ledge and Kegan Paul.

Unknown. (1673). The Murderous Midwife, with her Roasted Punishment: Being a True and Full
Relation of a Midwife that was Put into an Iron Cage with Sixteen Wild-cats, and so Roasted to
Death, by Hanging over a Fire, for Having Found in her House-of-Office no Less than Sixty Two
Children, at Paris in France. London, England: Private printing.

Vvagstaffe, V. (1680). An Act to Prevent the Deftroying and Murthering of Baftard Children. London,
England: Samual Roycroft.

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Step

The Courts Get Involved:
The History of Courts and the

Arrangement of Modern Courts

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❖

In the previous chapter, we learned about the basis of our adversarial system. We
learned about our fundamental rights and how they developed over time from our
legal system’s British roots. Then, we looked at some important cases that have
shaped modern criminal courts. Ours is a government of laws, not men, and the law
is constantly being refined over time.

Here, we will step back a bit from the law and look at the history of the courts
themselves. American courts have a fascinating legacy; originally borrowed from
England, they now have only casual similarities to their early roots.1 Before we can
look at the modern American courts, however, we need to examine their heritage.

THE HISTORY OF COURT

Anglo-Saxon courts were based on the adversarial system discussed in the previ-
ous chapter, and it is true that we derived that critical part of our system from En-
gland. An accused person had to be proven guilty before she or he could be held
accountable for the crimes with which she or he had been charged. Of course, what
constituted proof of guilt was very different then; and, defendants had no right to
counsel and were not allowed to present witnesses on their behalf, although the
government was entitled to call as many witnesses as it felt were necessary to
prove its case (Moore, 1973, p. 57). Early Anglo-Saxon defendants had no Bill of
Rights to protect them, but the Magna Charta (Latin for “The Great Charter”)
offered a number of protections.

The Magna Charta, signed by King John in 1215, has an interesting past.
English barons, angered by the king’s unfettered discretion over them and his wide-
spread seizures of land and property, demanded under the threat of war that the king
acknowledge basic rights such as rights to property and due process (Spooner, 1852,

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p. 192). This was an historic event because no ruler before King John had accorded
such common law rights in writing.2 Like our Constitution, the Magna Charta was
intended to serve as an important limit on the government’s powers. See Box 4.1 for
a few sections from the Magna Charta that relate to criminal justice.

When the English came to colonize what would later become the United
States of America, they brought basic justice principles like the Magna Charta
with them. These fundamental principles are reiterated over and over in our histor-
ical and contemporary court system. To understand our courts, then, we must know
a little about the Anglo-Saxon courts on which they are based.

Very early Anglo-Saxon justice appears to have been the purview of the lords
who owned the lands occupied by servants and others who provided some service
in exchange for the right to use the lords’ land. This system essentially meant that a

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76 The Courts Get Involved: The History and Arrangement of Courts

BOX 4.1

A Few Provisions from the Magna Charta

Know ye, that We, in the presence of God, and for the salvation of our own soul, and of the souls
of all our ancestors, and of our heirs . . . have in the First place granted to God, and by this our
present Charter, have confirmed, for us and our heirs for ever:

(20) A free-man shall not be fined for a small offence, but only according to the degree of the
offence; and for a great delinquency, according to the magnitude of the delinquency, saving his
contenement: a Merchant shall be fined in the same manner, saving his merchandise, and a vil-
lain shall be fined after the same manner, saving to him his Wainage, if he shall fall into our
mercy; and none of the aforesaid fines shall be assessed, but by the oath of honest men of the
vicinage.

(21) Earls and Barons shall not be fined but by their Peers, and that only according to the degree
of their delinquency.

(39) No freeman shall be seized, or imprisoned, or dispossessed, or outlawed, or in any way
destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal
judgement of his peers, or by the laws of the land.

(56) If we have disseised or dispossessed any Welshmen of their lands, or liberties, or other
things, without a legal verdict of their peers, in England or in Wales, they shall be immediately
restored to them.

(63) Wherefore, our will is and we firmly command that the Church of England be free, and that
the men in our kingdom have and hold the aforesaid liberties, rights, and concessions, well and
in peace, freely and quietly, fully and entirely, to them and their heirs, of us and our heirs, in all
things and places, for ever as is aforesaid. (Magna Charta, 1215/1997, prepared by The Ameri-
can Revolution HTML project.)

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lord had the right to define and enforce the law in his manor in whatever manner he
saw fit. These courts were characterized by inconsistency and, at times, capricious-
ness. Legal procedures and laws differed from manor to manor, and some lords
were more liberal than others (Maitland, 1897).

After that time, the beginnings of what can be clearly labeled English law
began to develop. At first, the king himself sat as judge in cases, but later a network
of judges who traveled from area to area to hear both criminal and civil cases was
established (Holten and Lamar, 1991, pp. 42–43). These judges were representa-
tives of the king and represented his interests. Trials during this era, beginning in
roughly the twelfth century, typically fell under three varieties: trial by ordeal, trial
by battle, or trial by compurgation (or oath).

Trial by ordeal is an ancient form of justice in which the defendant in a civil
or criminal case was ordered to undergo some ordeal to prove his or her innocence.
The belief was that God would intervene on the defendant’s behalf if she or he
were blameless. It is important to recognize the enormous value assigned to God
and religion by traditional European legal proceedings. In fact, during the Middle
Ages, ecclesiastical law (i.e., laws governing the church) was indistinguishable
from other laws due to the blending of religious and other rules together into one
law (Maine, 1861). Given their lack of other methods to ascertain the truth (e.g.,
even rudimentary forensic techniques), an undying faith in the ability and willing-
ness of God to help mere mortals uncover the guilty among them makes even more
sense. England was like many other ancient societies in this regard.

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The History of Courts 77

The Magna Charta, signed by King John in 1215, acknowledged basic rights such as rights to prop-
erty and due process. Like the U.S. Constitution, the Magna Charta was intended to serve as an
important limit on the government’s powers. When the English came to America, they brought basic
justice principles like the Magna Charta with them. SOURCE: Courtesy of the Granger Collection.

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Individuals were typically subjected to one of three ordeals (Lea, 1870/1996,
pp. 4–5, 222). The first was the trial by fire, in which the suspected party walked
barefoot across red-hot ploughshares or carried red-hot iron for a specified dis-
tance. Following the ordeal, the party’s hands or feet were wrapped in bandages.
Three days later, the bandages were unwrapped. If the party suffered no injury by
the third day, she or he was declared innocent. In trial by hot water, an accused per-
son plunged his or her hand into a cauldron of water brought to the boiling point to
extract a pebble or ring from the bottom. If she or he evidenced no burns three days
after the task, she or he was proclaimed innocent. The final ordeal, that of cold
water, is best known because it was often used to ascertain the guilt of those sus-
pected of being witches. The accused was bound hand and foot, then thrown into a
lake or other body of water. Those who floated were declared guilty and executed;
those who drowned were presumed to have died innocent individuals.3 One defen-
dant in 1083 may have thought he was being crafty when he had himself bound and
lowered into a tub of water while awaiting trial to see if he would sink or float;
when he sank, he agreed to be tried, but later floated much to his dismay (Lea,
1870/1996, pp. 252–53). Trial by ordeal was discontinued after Pope Innocent III
banned its use by the church in 1215, the same year the Magna Charta was signed
(Devlin, 1966, p. 9). As discussed below, this ban hastened the move toward jury
trials (Cornish, 1968, p. 11; Stephen, 1883:i, p. 254).

Trial by battle is a curious form of fact-finding. Defendants in civil cases or
those who had been accused by one person of committing a crime could either fight
with their accusers themselves or choose champions to perform that service for
them. The battles were not common duels; like ordeals, they were expected to be
influenced by God, who would take a hand in determining the victor. In civil trials
by battle, the victor at battle was the victor in court. In criminal trials by battle, if the
defendant lost, he was executed and his estate defaulted to the Crown; if the accuser
lost, he was incarcerated and fined as a false accuser (Bracton, 1250/1968:ii,
p. 386). Regardless of the outcome, then, the Crown received funds and/or property
from one of the parties. Trials by battle, though declining in number by the end of
the thirteenth century, continued at least until 1638 and quite possibly into the middle
1700s (Moore, 1973, p. 84). In a 1422 case, for example, a plaintiff sued a tenant to
recover some land (Moore, 1973, p. 84). The defendant chose trial by battle over a
jury trial and chose a champion to represent his interests in the upcoming fight. The
plaintiff then chose his own champion, and both defenders went to separate churches
to pray for a fair outcome. Of interest, and pointing out one of the method’s weak-
nesses, the defendant defaulted because his defender did not show up on the day of
the scheduled battle. There is evidence that trial by battle was employed in America
in Massachusetts Bay, New Hampshire, and North Carolina (Lea, 1870/1996,
p. 199). Some writers have linked our present-day attorney system to the trial by
battle, except that contemporary defenders are armed only with legal knowledge
and no longer engage in physical fights (except in those rare cases in which verbal
altercations between the two sides escalate into fistfights!).

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Trial by compurgation (also called “trial by the swearing of oaths”) was
rather common in civil cases and required the parties to locate a required number
of compurgators (i.e., neighbors who would vouch for the truthfulness of the
party’s oath that she or he was a guiltless party). Typically, the defendant would
gather twelve compurgators who would state that the defendant’s case was more
worthy than the accuser’s. In cases of theft, for example, the compurgators some-
times included the person who had sold or witnessed the sale of a disputed item to
the defendant, thus demonstrating innocence (Holmes, 1881, p. 256). Compurga-
tion was allowed in cases of nondocumented debts until 1752; all the defendant
had to do was testify that he owed no debt and find eleven neighbors who would
vouch for his honesty (Moore, 1973, p. 84). Our current jury system has its roots in
trial by compurgation. The mysterious number twelve and the requirement for una-
nimity, for example, stem from the fact that before juries came into use, one needed
twelve compurgators to clear one’s name (Stephen, 1883:i, p. 304).4

Following the Norman invasion and conquest of England in 1066, English
courts began to use juries. There is some disagreement among scholars as to
whether the Normans brought the concept of juries to England (e.g., Moore, 1973,
p. 18; Pollock and Maitland, 1895/1952, p. 140) or whether juries were an English
invention (e.g., Cornish, 1968, p. 11). In any case, it appears that juries arose in
England at about the time of the Norman Conquest. Although they do not specifi-
cally mention juries, see Box 4.2 for a few sections from the Laws of William the
Conqueror that pertain to criminal justice issues.

The first juries were used to settle land disputes, which were quite common
(Stephen, 1883:i, p. 255). From there, the use of juries expanded into other civil
disputes and criminal trials. This incorporation process did not occur overnight; it
took centuries for jury trials to gain recognition as a viable alternative to trial by
ordeal, battle, or compurgation.

Juries were originally very different from those empaneled today (see Step 8
for information on modern juries). Like their contemporary counterparts, early
English juries were “a body of neighbors . . . summoned by some public officer to
give upon oath a true answer to some question” (Pollock and Maitland, 1895/1952,
p. 138), but the similarities ended there. Instead of serving as a tool to protect citi-
zens from the government, juries were themselves victimized by the power of the
crown and in some respects actually contributed to the problem because of their
lack of independence; jurors who failed to convict criminal defendants were often
punished because the government could not seize a defendant’s property if she or
he was acquitted by a jury and the Crown took it out on the jurors. For this reason,
serving on a jury could be a dangerous task that could easily cause a juror to lose
all his property and land him in prison as well, as we will see later in this chapter.

Another key difference between contemporary and historic juries was how
they functioned. Instead of rendering a verdict based on the evidence they heard
during trial, early jurors were selected because they both knew the parties involved
and could shed some light on whether the breach of contract or peace had happened

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(Devlin, 1979, p. 117). As amazing as it sounds, early jurors were more like wit-
nesses who after disclosing what they knew about a case, then rendered a verdict on
the basis of their individual and communal knowledge. In fact, the first juries heard
no witnesses and had to rely exclusively on their own knowledge of a case (Black-
stone, 1765/1897:iii, p. 374). Those who had no knowledge of a case could not

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80 The Courts Get Involved: The History and Arrangement of Courts

BOX 4.2

A Few Provisions from the Laws of William the Conqueror (1066)

The following excerpts are from the laws established by English King William after the Norman
Conquest of England. In them, one can see references to trial methods of the day, oaths, sureties
(a predecessor of the bail system), and the ever-so-popular fines that fed the royal treasury:

3. I will, moreover, that all the men whom I have brought with me, or who have come after me,
shall be in my peace and quiet. And if one of them shall be slain, the lord of his murderer shall
seize him within five days, if he can; but if not, he shall begin to pay to me forty six marks of sil-
ver as long as his possessions shall hold out. But when the possessions of the lord of that man
are at an end the whole hundred [i.e., a local level of government] in which the slaying took
place shall pay in common what remains.

6. It was also decreed there that if a Frenchman summon an Englishman for perjury or murder,
theft, homicide, or “ran”—as the English call evident rape which can not be denied—the En-
glishman shall defend himself as he prefers, either through the ordeal of iron, or through wager
of battle. But if the Englishman be infirm he shall find another who will do it for him. If one of
them shall be vanquished he shall pay a fine of forty shillings to the king. If an Englishman sum-
mon a Frenchman, and be unwilling to prove his charge by judgment or by wager of battle, I
will, nevertheless, that the Frenchman purge himself by an informal oath.

8. Every man who wishes to be considered a freeman shall have a surety, that his surety may
hold him and hand him over to justice if he offend in any way. And if any such one escape, his
sureties shall see to it that, without making difficulties, they pay what is charged against him,
and that they clear themselves of having known of any fraud in the matter of his escape. The
hundred and county shall be made to answer as our predecessors decreed. And those that ought
of right to come, and are unwilling to appear, shall be summoned once; and if a second time
they are unwilling to appear, one ox shall be taken from them and they shall be summoned a
third time. And if they do not come the third time, another ox shall be taken: but if they do not
come the fourth time there shall be forfeited from the goods of that man who was unwilling to
come, the extent of the charge against him—“ceapgeld” as it is called—and besides this a fine to
the king.

10. I forbid that any one be killed or hung for any fault but his eyes shall be torn out or his testi-
cles cut off. And this command shall not be violated under penalty of a fine in full to me (Hen-
derson, 1896).

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serve on the jury (Stephen, 1883:i, p. 256). This is indeed a very different concept of
“impartiality” than that which we associate with jurors today.

Police, as we know them, did not appear until 1829 (for example, Sir Robert
Peel’s “Peelers” in London [Greenberg, 1984, p. 22]), and early England had no
prosecutors (Friedman, 1993, p. 21), meaning that judges had to conduct their own
investigations into fact and used juries to achieve this function. Judges traveled
from jurisdiction to jurisdiction, holding court sessions as needed. Before a judge
arrived in town, a parish officer would assemble a jury for the judge’s use during
his visit (Cornish, 1968, p. 26).

Historically, it appears that there were two types of juries employed by the
courts: accusing juries and trial juries.5 Both were panels of citizens drawn from
the local communities and both were used as investigatory tools. Accusing juries
were panels of citizens used to ferret out crimes, and would be asked questions
such as “Name all the persons in your district whom you suspect of murder,
robbery or rape” (Pollock and Maitland, 1895/1952, p. 139). Those named by an
accusing jury were then seized and brought to trial (Stephen, 1883:i, p. 257) or
ordered to undergo trial by ordeal (Devlin, 1966, p. 9). The idea behind the accus-
ing jury has survived to this day, and is the basis for the modern grand jury (Devlin,
1966, p. 9). You will learn more about grand juries in Step 5, which will discuss the
role of grand juries in investigating and detecting crimes.

Trial juries, on the other hand, dealt with specific cases, although members of
accusing juries sometimes sat on trial juries (Moore, 1973, p. 56), raising addi-
tional questions about fairness. The questions posed to the trial jury would be of
the type: “Is Roger guilty of having murdered Ralph?” or “Whether of the two
has the greater right to Blackacre, William or Hugh?” (Pollock and Maitland,
1895/1952, p. 139). The trial jurors made oaths stating that what they had heard or
knew about a dispute or local custom was correct. Because of the lack of official
record-keeping regarding births, some juries were assembled and asked to use their
expertise (e.g., as parents of teenagers) to determine whether certain individuals
were minors, because minors could not be fined or incur debt (Moore, 1973,
p. 83).6 Another type of jury, the only kind on which women were allowed to serve,
was the “jury of matrons,” whose sole duty was to use their own experiences as
mothers to determine whether a given woman who claimed to be pregnant, usually
to avoid execution, was indeed with child (Oldham, 1983, p. 171–72). In all these
cases, the jurors were asked to use their own knowledge to arrive at their verdict
rather than base their decision on any evidence.

If the trial jurors could not agree in a civil suit (i.e., the jurors were dead-
locked), the case had to be settled through trial by battle (Stephen, 1883:i, p. 256),
or the jurors could be taken by cart with the judge to his next destination (Black-
stone, 1765/1897:iii, p. 376). If they could not agree in a criminal trial, or one in
which the Crown was a party, the jurors could be confined without food, drink, or
fire (used as a source of both heat and light in those days) until they rendered a

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unanimous verdict (Blackstone, 1765/1897:iii, p. 375; Stephen, 1883:i, p. 305).
Sometimes, other steps were taken; for example, a holdout juror in a 1367 case was
jailed when he would not agree with the other eleven jurors, whose verdicts were
ultimately accepted (Moore, 1973, p. 56).

Jurors’ decisions were closely monitored by the Crown. As a criminal
offense, perjury could only be committed by jurors (Stephen, 1883:i, p. 241, iii,
p. 255) and was considered a serious crime. Jurors whose verdicts were questioned
were often fined and imprisoned (Stephen, 1883:iii, p. 242). One thirteenth-
century legal scholar, Henry de Bracton (1250/1968:iii, p. 346), wrote that perjur-
ers were to be treated severely:

First of all, let them be arrested and cast into prison, and let all their lands and chattels be
seized into the king’s hand until they are redeemed at the king’s will, so that nothing remains
to them except their vacant tenements. They incur perpetual infamy and lose the lex terrae,
so that they will never afterwards be admitted to an oath, for they will not henceforth be
oathworthy, nor be received as witnesses, because it is presumed that he who is once
convicted of perjury will perjure himself again.

Bracton (1250/1968:iii, p. 346) also discussed how perjurious jurors could miti-
gate their punishments by recanting their verdicts and throwing themselves on the
mercy of the king, who would then only fine them heavily. It appears that the
judge, a representative of the Crown, was the one who made the determination
whether the jurors had perjured themselves.

Unfortunately, acquittals were often considered to be proof of lies by jurors;
verdicts handed down by trial juries had to conform to the Crown’s wishes or the
jurors could be penalized. The judge had the right to separate the jurors and cross-
examine them to determine if they somehow tried to “conceal the truth” (Stephen,
1883:i, p. 248). In fact, the now common oath taken by witnesses to tell “the whole
truth” at one time meant that jurors could not conceal any facts in a case, whether or
not they were directly asked questions about those facts (Blackstone, 1765/1887:iii,
p. 372). Acquittals made it difficult for the Crown to seize a defendant’s property,
so it appears that the Crown instead recouped some of its losses by fining the
jurors. Either way, the Crown received a payment.

The (correct) perception that juries were tools of the Crown made them an
unpopular choice among defendants of the time. Defendants preferred even trial by
battle to jury trials, leading the Crown to institute progressively more peculiar meth-
ods of persuasion to discourage people from resorting to other methods of trial.

1275 statute provided for the incarceration of anyone who refused to be tried by jury
until they agreed to do so; a 1291 law added that such individuals were to be kept
“in the worst place in the prison” and fed only bread one day, then water the next,
until they consented to be tried by jury; and by 1302 such individuals were to be
pressed in addition to receiving only “three morsels of barley bread” on one day and
stagnant water on the next until consent was given (Andrews, 1890/1991, p. 205;

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Moore, 1973, p. 54–55). Pressing, an often fatal intervention, involved piling stones
or irons on the accused as she or he lay prone on the floor until she or he agreed to
enter a plea and be tried. One defendant, in 1741, endured 400 pounds of weights
for several hours before he finally consented to plead not guilty to robbery
(Andrews, 1890/1991, p. 207). Those who could endure the weight still faced star-
vation on the meager diet provided to those who would not plead.

The reasoning behind pressing was that the Crown could not seize assets of
anyone who had not been found guilty at trial, so many defendants refused to even
enter a plea (Andrews, 1890/1991, p. 205). Those who were killed during pressing
(and everyone either perished or finally agreed to be tried) died knowing that their
estates went to their spouses and children rather than to the Crown.7 There were
cases where the family and friends of defendants mercifully hastened their death
by adding their own weight to the burdens (by standing on top of or jumping on the
weights) to end the cruel torture of slowly being crushed (e.g., Andrews, 1890/1991,
p. 210). The existence of this practice helped ensure that our Constitution specifi-
cally mentioned a person’s right to remain silent when accused of committing a
crime. Ironically, pressing was used in this country during the Salem witch trials to
induce Giles Corey to enter a plea; wanting his estate to go to his children rather
than the government, he chose being pressed to death rather than entering a plea
(Hill, 1995, pp. 184–185).

Toward the end of the Middle Ages (i.e., around the fourteenth and fifteenth
centuries), population growth and other societal changes made it difficult to find
twelve individuals who knew about a given case, so judges began to allow those
who knew about a case to testify as witnesses while the remaining jurors heard the
evidence (Cornish, 1968, p. 11). Toward the end of the fifteenth century, the com-
position of juries further reflected this difficulty, as fewer and fewer individuals
who were familiar with a case were included on juries (Waechter, 1997). By the
sixteenth and seventeenth centuries, juries relied on outside witnesses to augment
their own personal knowledge (Devlin, 1979, p. 117).

It was not until the eighteenth century that English juries no longer included
individuals with prior knowledge of the case (Cornish, 1968, p. 12). By this time,
juries had been completely transformed from groups of individuals who were
assembled because of their knowledge of a case and whose oaths were based on
that knowledge to a system in which jurors decide which of two scenarios (the first
offered by the plaintiff/prosecution and the second by the defense) appeared to be
the truth (Moore, 1973, p. 14).

Because of its importance in shaping American justice, the 1670 trial of
William Penn and William Mead deserves special mention. Penn and Mead were on
trial in England for unlawful assembly (for preaching to a group of Quakers)
because the Crown had no law against being a “religious nonconformist” (O’Connor,
1995). The twelve-man jury was simultaneously sympathetic and savvy, however,
and refused to convict either man, leading the judges (there were ten of them

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presiding over the trial) to first isolate the jurors without “food, drink, fire, and
tobacco” until they had “a verdict that the court would accept . . . or you shall starve
for it” (Moore, 1973, p. 87; Penn and Mead’s Case, 1670). Despite being deprived
of food and water for at least two days and being brought back into court several
times to allow them to change their verdict, the jurors continued their refusal to
grant the Crown the conviction it sought. The irate judges then fined each of the
jurors forty marks (roughly two years’ salary) for contempt of court and committed
them to Newgate prison until the fines were paid. The leader of the jurors, Edward
Bushell, and three others refused to pay the fines and filed a writ of habeas corpus
(i.e., an official document ordering the government to show that the incarceration of
a certain person is legal). After the four former jurors had spent nine difficult weeks
in prison (often without food, water, or toilet facilities), a new judge granted the writ
of habeas corpus and ruled that future juries could not be disciplined for their ver-
dicts (Bushell’s Case, 1670). After that time, judges could set aside verdicts (which
they sometimes do to this day),8 but jurors could no longer be penalized for refusing
to cooperate with the government (Devlin, 1979, p. 118).

William Penn, of course, later moved to the New World, founded the Com-
monwealth of Pennsylvania, and played a role in the development of the American
criminal justice system. His experiences during the trial helped shape the Founding
Fathers’ desire for an independent jury (Lehman, 1988), making trial by jury
another key English development that was transported to the New World. Juries are
now an important limitation on the government’s power to prosecute or punish cit-
izens because a panel of citizens must be convinced beyond a reasonable doubt by
the state’s attorney that an individual broke the law. Juries have been praised by
several legal scholars and reformers. The famous legal scholar Sir William Black-
stone (1765/1897:iii), for example, referred to trial juries as the “glory of the En-
glish law” and praised their immense value in systems in which oppression has
been the norm:

[I]t is the most transcendent privilege which any subject can enjoy, or wish for, that he
cannot be affected in his property, his liberty, or his person, but by the unanimous consent
of twelve of his neighbors and equals. (p. 379)

COLONIAL AND EARLY AMERICAN COURTS

It is important to remember that the first American courts were actually English
institutions, because this country existed as a colony of England until the Revolu-
tionary War. For this reason, many legal elements were directly imported from
England. A few courts remained under complete control of the Crown, such as the
Vice Admiralty Courts, which “co-existed” with other colonial court structures but
“not always on the best of terms” (Owen and Tolley, 1995, p. 19). Established in
America because the Crown felt the colonists were evading the payment of duties

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on shipments to and from the New World (Owen and Tolley, 1995, p. 5), the Vice
Admiralty Courts were authorized to dispatch officers to board ships and search for
contraband for which duties had not been paid. Many New World ships and goods
were seized, but the colonists’ greatest concern was the courts’ disturbing ban on
jury trials (Owen and Tolley, 1995, p. 16). Without juries, the colonists felt they
were not protected from overzealous prosecution by the Crown.

Even where the colonies operated their own courts, they were technically
overseen by the Crown. Rulings by colonial courts were expected to conform to
English law, but this requirement created problems because the social and eco-
nomic situation in the colonies differed somewhat from that left behind in England
(Labaree, 1972, p. 70). Individuals who did not perform their fair share of planting
and other work, for example, could mean disaster for the remaining settlers in their
villages, meaning that laziness and idleness were grounds for severe punishment.
The colonies adapted by incorporating those legal procedures and laws from En-
gland that seemed most appropriate for their particular needs (Langdon, 1966,
p. 93) and then supplementing that body of law with their own laws to address such
concerns as slavery and dealing with Native Americans (Friedman, 1993, p. 22). In
the end, colonial law’s English roots were clearly visible, but so too were the inno-
vations added by America’s settlers.

Judicial functions were typically fulfilled by the governor and his assistants
sitting as a panel (Langdon, 1966, p. 92; Wall, 1972, p. 5), and these individuals
were often appointed by England’s monarch. Further demonstrating the influence
of the Crown on the colonial legal system, some accused criminals were to be
returned to England for trial; in 1660, for example, the king ordered that all Quak-
ers be tried in England for holding their nonconforming religious beliefs (Lang-
don, 1966, p. 76). In addition, some cases could be appealed from colonial courts
to the Crown’s courts in England (Friedman, 1993, p. 24). Most of the Crown’s
oversight was less direct, however, as illustrated by a 1703 letter addressed to the
“Governors of all her Majesty’s Plantations in America.” After acknowledging that
some citizens have complained about delays in justice, the letter reminds the gov-
ernors “to take care that Justice be impartially administered,” then asks them to
enable legislation to create special courts “for determining of Small Causes” (White-
head, 1881, p. 539). Of course, England was much more than an Internet connec-
tion away, so the day-to-day concerns of the colonial courts were left up to the
colonists.

In general, colonial courts were far less complex than their English counter-
parts. First, the early courts served very small groupings of rather homogeneous
citizens. For the first five years of New Plymouth’s existence, for example, the only
formal government was a governor, who served as governor, treasurer, secretary of
state, and judge, and one assistant (Usher, 1984, p. 212). Similarly, the population
of early Massachusetts was too small to necessitate the use of an accusing jury, so
none was established (Friedman, 1993, p. 24). The demand for legal interventions

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was so infrequent in the New World that court sessions were held only three or four
times a year in many colonies (e.g., Langdon, 1966, p. 94).

Second, the small number of legally trained individuals in the colonies meant
that only the most familiar aspects of the courts could be replicated (e.g., Usher,
1984, p. 214; Walker, 1980, p. 22). Instead of lawyers, the New World was filled
with religious leaders and devotees who had fled from England, and this is
reflected in the early legal systems. Religion had a more “powerful influence in
New England” than in the Mother Country (Friedman, 1993, p. 23), as was readily
apparent from some of their early legal codes and procedures. The Puritans sought
to establish “a godly society” in the New World (Friedman, 1993, p. 24) and
seemed to believe that such a utopia could be legislated into existence. Failure to
attend religious services in the early Jamestown settlement, for example, resulted
in the loss of a week’s rations; a second offense added a whipping to the loss of
rations and the third offense merited the death penalty (Johnson, 1988, p. 99).9

Similarly, New Plymouth’s 1685 legal codes included a number of capital crimes
inspired by the Bible: idolatry, blasphemy, and rebellion by a child who was aged
sixteen or older (Langdon, 1966, p. 209).

In the absence of legal training, the Bible became the predominant source of
law. When a teenaged servant was executed for sodomizing some of his master’s
livestock, for example, the court was very interested in identifying each of the ani-
mals he had abused so that it could be destroyed as mandated by the Bible in
Leviticus 20:15 (Bradford, 1646/1952, p. 320). The 1648 laws for Massachusetts
may have been the most biblically informed legal codes, as a quick perusal of
Box 4.3 will demonstrate.

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86 The Courts Get Involved: The History and Arrangement of Courts

BOX 4.3

Biblically Based Capital Crimes for Massachusetts in 1648

1. IF any man after legal conviction shall HAVE OR WORSHIP any other God, but the LORD
GOD: he shall be put to death. Exod. 22:20. Deut. 13:6, 10. Deut. 17:2, 6.

2. If any man or woman be a WITCH, that is, hath or consulteth with a familiar spirit, they
shall be put to death. Exod. 22:18. Lev. 20:27. Deut. 18:10, 11.

3. If any person within this Jurisdiction whether Christian or Pagan shall wittingly and will-
ingly presume to BLASPHEME the holy Name of God, Father, Son or Holy-Ghost, with
direct, expresse, presumptuous, or high-handed blasphemy, either by wilfull or obstinate
denying the true God, or his Creation, or Government of the world: or shall curse God in
like manner, or reproach the holy Religion of God as if it were but a politick device to keep
ignorant men in awe; or shal utter any other kinde of Blasphemy of the like nature and
degree they shall be put to death. Lev. 24:15, 16.

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4. If any person shall commit any wilfull MURTHER, which is Man slaughter, committed
upon premeditate malice, hatred, or crueltie not in a man’s necessary and just defence, nor
by meer casualty against his will, he shall be put to death. Exod. 21:12, 13. Num. 35:31.

5. If any person slayeth another suddenly in his anger, or cruelty of passion, he shall be put to
death. Lev. 24:17. Num. 35:20, 21.

6. If any person shall slay another through guile, either by POYSONING, or other such devel-
ish practice, he shall be put to death. Exod. 21:14.

7. If any man or woman shall LYE WITH ANY BEAST, or bruit creature, by carnall copula-
tion; they shall surely be put to death: and the beast shall be slain, and buried, and not eaten.
Lev. 20:15, 16.

8. If any man LYETH WITH MAN-KINDE as he lieth with a woman, both of them have
committed abomination, they both shal surely be put to death: unless the one partie were
forced (or be under fourteen years of age in which case he shall be seveerly punished) Lev.
20:13.

9. If any person commit ADULTERIE with a married, or espoused wife; the Adulterer and
Adulteresse shal surely be put to death. Lev. 20:19. and 18:20. Deut. 22:23, 27.

10. If any man STEALETH A MAN, or Man-kinde, he shall surely be put to death. Exod.
21:16.

11. If any man rise up by FALSE-WITNES wittingly, and of purpose to take away any mans
life: he shal be put to death. Deut. 19:16, 18, 16.

12. If any man shall CONSPIRE, and attempt any Invasion, Insurrection, or publick Rebellion
against our Common-Wealth: or shall indeavour to surprize any Town, or Townes, Fort, or
Forts therin; or shall treacherously, and persidiously attempt the Alteration and Subversion
of our frame of Politie, or Government fundamentally he shall be put to death. Num. 16. 2
Sam. 3. 2 Sam. 18. 2 Sam. 20.

13. If any child, or children, above sixteen years old, and of sufficient understanding, shall
CURSE, or SMITE their natural FATHER, or MOTHER; he or they shall be put to death:
unles it can be sufficiently testified that the Parents have been very unchristianly negligent
in the eduction of such children; or so provoked them by extream, and cruel correction; that
they have been forced therunto to preserve themselves from death or maiming. Exod.
21:17. Lev. 20:9. Exod. 21:15.

14. If a man have a stubborn or REBELLIOUS SON, of sufficient years and uderstanding (viz)
sixteen years of age, which will not obey the voice of his Father, or the voice of his Mother,
and that when they have chastened him will not harken unto them: then shal his Father &
Mother being his natural parets, lay hold on him, and bring him to the Magistrates assembled
in Court & testifie unto them that their Son is stubborn & rebellious & will not obey their
voice and chastisement, but lives in sundry notorious crimes, such a son shal be put to
death. Deut. 21:20, 21.

15. If any man shal RAVISH any maid or single woman, comitting carnal copulation with her
by force, against her own will; that is above the age of ten years he shal be punished either
with death, or with some other greivous punishmet according to circumstances as the
Judges, or General court shal determin (Farrand, 1648/1929).

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The third reason for the simplicity of the colonial legal system was that
America’s first courts served multiple functions, including executive and legisla-
tive duties. This meant that the executive, legislative, and judicial functions were
sometimes blended together or somewhat distorted. The governor of New Ply-
mouth, for example, could and did “personally arrest and imprison at discretion
any citizen or stranger, and . . . examine all persons whom he felt to be suspicious”
(Usher, 1984, p. 213). The Plymouth “General Court” was quite general indeed; in
addition to its judicial duties, it served as the legislative body, land bureau, tax
board, and department of war (Langdon, 1966, p. 93). Having members of the
executive branch fulfill judicial functions sometimes created difficulties for the
settlers when the governor/judge used his position as judge to penalize and drive
away those whose beliefs he found undesirable or dangerous. Quakers, for example,
were unwelcome in most New England colonies (Langdon, 1966, pp. 74–75), and
were typically viewed as “opposers of the good and wholesome laws” of the colonies
(Usher, 1984, p. 262).

Despite their lack of complexity, early American courts served important
functions for the colonists, and they expanded to fill the needs created by an
increasingly complex and diverse society. The earliest American courts were
presided over by colonial governors rather than independent judges, and the laws
they enforced were not always known to the public. As time progressed, however,
more and more jurisdictions began documenting their laws and the rights that
criminal defendants and civil litigants could expect to have at trial. The right to trial
by jury, for example, was extended only to defendants in capital cases in the earli-
est years of the Puritan colonies but soon even they incorporated juries for all cases
(Friedman, 1993, pp. 24–26).

As the colonies’ governments became more stable and cities began to develop,
the justice system had to adapt to new needs. The earliest courts remained, but jus-
tices of the peace (JPs) were established to handle minor crimes and disputes in
their neighborhoods, requiring only more serious cases to be sent to the county
seats for trial (Friedman, 1993, p. 24; Walker, 1980, pp. 21–22). JPs, an idea brought
over from England, were individuals without legal training who nonetheless ful-
filled local justice needs by presiding over nonserious cases. In addition to localiz-
ing justice, the JPs could act individually, that is, they did not have to sit in panels
like the judges in the earliest courts (Langdon, 1966, p. 204).10

By the end of the seventeenth century, many jurisdictions had set up county
courts to handle criminal and civil cases, requiring only the most serious cases
(e.g., capital trials) to be heard in the centrally located court (Johnson, 1988,
p. 100; Langdon, 1966, pp. 204–206). Specialized courts were beginning to
develop, including specific courts to deal with crimes committed by slaves. These
courts offered fewer procedural protections to defendants and issued harsher sen-
tences (Johnson, 1988, p. 107). As the courts expanded and changed, the right to
appeals also became a regular feature of the courts (e.g., Langdon, 1966, p. 206;

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Whitehead, 1881, p. 407). It was rather difficult to appeal decisions when there was
only one court and it was presided over by the colony’s governor!

The rights accorded to defendants also changed with time. In 1636, the New
Plymouth laws afforded only one protection to defendants, that of trial by jury. By
1685, however, a host of rights was guaranteed, including the right to post bail
(except for capital and contempt of court cases), the right to counsel in civil cases,
the right to twenty peremptory challenges to jurors in capital cases, the right to
unlimited challenges for cause in all cases, and a requirement that convictions be
based on the testimony of two witnesses “or other sufficient evidence” (Langdon,
1966, p. 209). The law even provided for a one-year statute of limitations for petty
crimes. In many ways, the American system of justice was beginning to look more
and more like the system we have today.

Some of these departures from tradition were attributable more to changing
views of the law than simple population increases. By 1695, the Crown was well
aware of the penchant by colonial juries to acquit criminal defendants (Owen and
Tolley, 1995, p. 32). The great respect accorded by the English to the law was also
lacking in this country. In contrast to their English ancestors, who thought of law as a
social phenomenon that was constant and unquestionable, nineteenth-century Amer-
icans viewed the law as a way to get things done and achieve change (Walker, 1980,
p. 115). In the wake of the Revolutionary War, most Crown judges feared traveling to
remote areas of the colonies because of the public’s dissatisfaction with their legal
system (Johnson, 1988, p. 135). Clearly, the American obsession with avoiding
oppression began long ago and likely will remain with us far into the future.

Some similarities to earlier courts remained well into the nineteenth century.
American courts still did much more than administer justice. Local county courts
in Kentucky, for example, collected taxes and operated river ferries (Walker, 1980,
p. 114). Traveling judges still “rode the circuit” and conducted many trials in cir-
cuit courts at both the federal and state level, dispensing justice in a town by day,
staying in the local inn or taverns at night, then pushing on to the next jurisdiction
(e.g., Caton, 1893). Lawyers traveled those same circuits, sometimes commuting
with the judges. See Box 4.4 for an advertisement and a few details about one of
America’s most famous nineteenth-century circuit attorneys, Abraham Lincoln.
The phenomenon of traveling judges is rare now, occurring only in remote areas.
Some small towns in New Mexico, for example, are still served by judges who
travel in from larger districts once a week to hear the towns’ cases.

Remnants of our legal heritage continue even to this day. The structure of our
courts, for example, is quite similar to that developed to serve American justice
needs after the Revolutionary War (Walker, 1980, p. 114). Local courts exist for
minor offenses and small claims lawsuits, supplemented by county courts for
felonies and lawsuits involving more substantial amounts of money. Appellate
courts still hear appeals from the lower courts. All that has really changed is the
level of specialization and the number of courts because as new tribunals were

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90 The Courts Get Involved: The History and Arrangement of Courts

BOX 4.4

Abraham Lincoln, a Famous Attorney Who Rode the Circuit

Most people know that Abraham Lincoln (1809–1865) was a lawyer before he was elected as
our sixteenth president, but know little beyond that. Lincoln practiced law for twenty-four years
in both state and federal courts in Illinois and surrounding states and spent a great deal of time
practicing in the Illinois state Eight Judicial Circuit [Note: this was a state circuit and is not to be
confused with the federal Eighth Circuit Court] (Lueckenhoff, 1996, pp. 397–98). Like most
attorneys of his day, he rode the circuit twice a year, between mid-March to mid-June, then
again from early September to late December, spending at least half of every year on the road
practicing in courts outside his hometown of Springfield, Illinois. His cases were varied, rang-
ing from civil business to personal injury to divorces to criminal law (Luthin, 1960, p. 61).
Sometimes, he was hired ahead of time, but circuit attorneys in many cases were hired when
they arrived in town, which gave them only one day to prepare their cases (Lueckenhoff, 1996,
p. 398). This lack of time to prepare one’s cases was not as problematic for Lincoln as one
would assume because lawyers in the 1850s tried “even the pettiest of cases” before a jury, and
Lincoln’s performance in the courtroom was noteworthy (Thomas, 1968, p. 92). In fact, Lincoln
was one of the most sought-after attorneys of his day (Carrington, 1997, p. 624).

Life on the circuit was not easy. As was customary for early- to mid-nineteenth-century
attorneys, Lincoln followed the circuit judges on horseback, which made for slow traveling, and
shared tight living quarters with other attorneys, sometimes sleeping four to a bed (Carrington,
1997, p. 624). Of interest, Lincoln was the only one of his contemporaries who practiced in
courts in every county seat (Beveridge, 1928, p. 215). Although no one really knows how many
cases Lincoln handled, more than 5,000 cases have been found bearing his signature or his
handwriting (Babwin, 1998, pp. 132–33).11

Lincoln had three law partners during his lawyering days, and took out advertisements in
local newspapers to generate clients. One of those advertisements, which appeared in the San-
gamo (IL) Journal, appears below. The advertisement mentions that he and his first legal part-
ner, John Todd Stuart, would take cases anywhere in the First Judicial Circuit (it was not until
1839 that Lincoln began to ride the Eighth Judicial Circuit). Because the print is hard to read,
the text is reprinted here:

J.T. Stuart and A. Lincoln,
Attorneys and Counsellors at Law, will practice,
conjointly, in the Courts of this Judicial Circuit, —
Office No. 4, Hoffman’s Row, upstairs,
Springfield, April 12, 1837.

Advertisement courtesy of The Lincoln Legal Papers, Springfield, Illinois.

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Colonial and Early American Courts 91

needed, they were usually just added on to the existing structure. It is why the state
courts are such a puzzle, as we will soon learn. The states developed at different
rates, and so their court systems sometimes bear little resemblance to one another.
Another factor that cannot be overlooked is the influence of “foreign” legal sys-
tems on individual states’ laws. Louisiana’s rich heritage, for example, includes
strong French legal influences, making Louisiana the only state governed by
Napoleonic Law. Similarly, the influences of Spanish and Mexican law can be seen
in legal codes throughout the Southwest.

Before looking at the modern courts, we must take a moment to acknowledge
the legal systems already in place when the European settlers first arrived on this
continent. The many Native American tribes had criminal justice systems that
served their needs (Meyer, 1998). In place of any schemes to enrich the Crown’s
treasury, Native American systems typically had as their focus reparations made to
the victims of crime (Deloria and Lytle, 1983, pp. 111–113). Among the Iroquois,
for example, a killer’s family first convinced him or her to admit the crime, then

The famous Judge Roy Bean trying an accused horse-thief in Langtry, Texas, around 1900. To the left
of the courthouse, under guard, are two men who were accused of being the defendant’s accomplices
awaiting their own trials. As in other frontier courts, the justice dispensed by Roy Bean was quick and
sometimes without precedent. After searching a drowning victim’s pockets and finding a pistol and
$40, he quickly pocketed the cash, proclaiming, “I hereby fine this corpse $40 for carrying a con-
cealed weapon.” When friends of a white defendant accused of murder threatened to destroy Bean’s
saloon if the defendant wasn’t released, Bean allowed the victim’s race to play a powerful role in the
case. He flipped through his law books for a while before announcing, “Gentlemen, I find the law
very explicit on murdering your fellow man, but there’s nothing here about killing a Chinaman. Case
dismissed” (Watson, 1998). SOURCE: Historic American Buildings Survey or Historic American
Engineering Record, Reproduction Number HABS, TEX, 233-LANG, 1-1.

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expressed their willingness to make reparations to the victim’s family (Dickson-
Gilmore, 1992, p. 484). Among the Karok of California, crimes had specific pay-
ments that were expected by crime victims (Kroeber and Gifford, 1980, pp. 99–100).
The Navajo system of peacemaking neatly addressed both criminal and civil
wrongs; respected elders met with parties in conflict to help them restore harmony
between themselves through apologies and restitution for wrongs suffered by vic-
tims (Yazzie, 1994). Although these courts had little influence on the mainstream
American courts—and, in fact, tribal justice mechanisms were outlawed and
replaced by European-style courts (Meyer, 1998)—it is still important to recognize
their existence. See Box 4.5 for some definitions that show how Navajos viewed
the adversarial justice system that was forced on them and a brief description of the
traditional Navajo justice process, peacemaking.

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92 The Courts Get Involved: The History and Arrangement of Courts

BOX 4.5

Adversarial As Foreign: American Courts Through Navajo Eyes

After four years of captivity as prisoners of war, the Navajo Indians signed a treaty with the U.S.
government and were allowed to return to their homeland in 1868. Their lives were forever
changed, however, especially their methods of governance. One of the most significant changes
was the imposition by the federal government of a foreign system of justice. Traditional Navajo
methods of justice were more like mediation than a formal system of courts and trials and pun-
ishment. With the American-style courts came a whole new vocabulary, so words had to be
created to describe the processes and actors in this form of justice. The following literal transla-
tions of legal words show a great deal about Navajo views of the adversarial system. They also
show how truly foreign and unwanted this type of system was, as the literal translations seem to
focus on only the negative parts of the justice ideas.

• police officer — “soldier” (Vicenti et al., 1972, p. 157): This may be based in their four years
spent as prisoners of war, during which the military served as police officers.

• judge — “one who issues punishment” (Vicenti et al., 1972, p. 157): Note that there is no
mention of the judge as arbitrator or purveyor of justice. Navajos repeatedly saw punishments
handed down in the imposed courts and labeled judges based on their experiences.

• prosecutor — “one who places people in jail” (Vicenti et al., 1972, p. 161): Note that there is
no mention of the prosecutor’s role in seeking justice.

• defense attorney — “someone who pushes out with words” (Yazzie and Zion, 1996, p. 161):
To this day, lawyers are viewed as pushy.

• defendant — “one who has a paper placed against him” (Vicenti et al., 1972, p. 158): This def-
inition focuses on but one aspect of being a defendant, that of being a powerless individual.

• jury — “six people sitting in authority” (Vicenti et al., 1972, p. 162): Navajos felt that Ameri-
can juries were similar to their early British counterparts and existed only to help the judge.
No one really believed juries could be independent.

• trial — “where a person is talked about” (Vicenti et al., 1972, p. 160): This translation may
focus on the fear of rumors. IS

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Colonial and Early American Courts 93

• beyond a reasonable doubt—“that which is explained without giving the appearance of two
things” (Vicenti et al., 1972, p. 161): This is one of my favorite definitions and could be used
in law books around the world because cases that meet this standard of proof should not have
other plausible explanations.

• it carries a jail sentence — “it is equivalent to jail” (Young and Morgan, 1951, pp. 41– 42): In
the Navajo experience, maximum sentences were often handed down so possible penalties
became actual penalties.

• he was charged with assault with a deadly weapon — “a paper was set down with the fact that
he harmed a person with things that kill and frightful things” (Young and Morgan, 1951/1984,
p. 47): Charges were always upheld, so merely being charged with a crime meant you must
have committed it, hence the use of the phrase, “the fact that he harmed,” rather than “the
accusation that he harmed.”

Blessed Are the Peacemakers

As you read the following description of the traditional Navajo justice process, think how it
relates to their inability to understand and support the Anglo-Saxon system, which was forced
upon them by European Americans.

The Navajo Nation, like many other Native American peoples, had a functional justice
system long before the arrival of Europeans and their Anglo-Saxon ideals; many tribal justice
systems were rooted in the concept of restorative justice (e.g., Meyer, 1998). The traditional
form of justice employed by Navajos combined three core elements: restoration (of victims,
offenders, and community), healing, and protection of the public. The traditional Navajo method
of justice and conflict resolution is called “peacemaking,” and while it was developed from the
rich Navajo cosmology, some of its core concepts may be transferrable to other cultures. The
premise behind peacemaking is simple: Once you heal the parties involved in offenses, every-
one can go on living without fear of future victimization. Of course, the process is far more
complex than that.

First, the parties in dispute (or concerned family and friends) seek out a peacemaker (an
elder or leader who is respected for his/her skills in helping parties end disputes) who will sit
with them and help them fashion a response to the crime. Then, the disputing parties and their
circles of support (e.g., family and friends) come together to talk about the offense and the harm
to the victim. During the talking stage, individuals are allowed to speak until they have nothing
more to say. After all parties in the dispute have spoken, attention is turned to undoing the
offense through nalyeeh, which includes both tangible and intangible restitution. If I have
harmed you, for example, I might make a public apology and pay you a certain amount of
money or perform service for you or an individual or group you designate—whatever is neces-
sary to ensure that there “are no hard feelings” between us and so that you feel that I will not
repeat the offense in the future. Due to its often financial nature, nalyeeh has both punitive and
restorative components.

Peacemaking has been used in thousands of cases, and individuals who choose to go
through peacemaking are more satisfied with the courts and less likely to report future victim-
ization by the offender than those who went through the contemporary courts (Gross, 1999,
pp. 32–36). Other jurisdictions might learn a lot from a visit to observe the peacemaking courts
in action.

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THE PUZZLE OF MODERN COURTS

Casual observers of the courts may find them puzzling because of the different
types of cases they hear and the terminology used to describe them. Students, for
example, sometimes wonder why trials in the television docudrama Law & Order
take place in the New York Supreme Court when they know that state supreme
courts do not typically hear trials. The reason is that some of the felony trial courts
in New York are called supreme courts. The state’s highest court (i.e., what most
people would label as a supreme court), on the other hand, is called the Court of
Appeals. So, in reality, trials in New York are not heard in the state’s highest court,
rather they are heard in the trial courts where we expect them to be heard.

To understand the modern courts puzzle, we need to examine them piece by
piece. The first important concept is that of a dual system of federal and state
courts, which work side by side. Usually, they work independently of one another,
but frequently state cases are appealed to the federal courts. This is how landmark
cases such as Miranda v. Arizona (1966) made it to the Supreme Court docket.

The second important concept is the difference between trial courts and
appellate courts. Trial courts conduct trials whereas appellate courts only hear
appeals from cases that have already been tried, but either the defense or prosecu-
tion said the trial was not conducted properly. These two levels of courts form
hierarchical jurisdiction because a case can proceed from trial to appellate
courts. Below is a simple diagram to get us started on our journey toward under-
standing the courts puzzle.

Because trials originate in them, trial courts are called courts of original
jurisdiction. Courts of original jurisdiction can hear trials, witnesses and evidence
can be presented there, and determinations of guilt and sentences are made there.
There are two subdivisions of original jurisdiction: limited jurisdiction and general
jurisdiction.

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94 The Courts Get Involved: The History and Arrangement of Courts

State Courts Federal Courts

Basic court structure

Source of laws

State appellate courts

State trial courts

State constitutions, state penal
codes and local ordinances,
laws enacted by state and local
governments

Federal appellate courts

Federal trial courts

U.S. Constitution, Code of
Federal Regulations, United
States Code, laws enacted by
Congress or executive
agencies

↓ ↓

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Courts of limited jurisdiction are able to hear misdemeanor cases (which
are less serious crimes, such as shoplifting, that can typically result in jail terms of
up to one year) and small claims cases (i.e., civil lawsuits for a small amount of
money, usually less than $3,000). Traffic tickets also fall under the courts of limited
jurisdiction and are often heard in special traffic courts set aside to process traffic
cases. Courts of limited jurisdiction are typically not courts of record, that is, no
official transcripts are made during the proceedings.

Courts of general jurisdiction can try both misdemeanors and felonies (i.e.,
serious crimes for which more than a year in jail can be imposed). They also serve
as the forum for larger civil lawsuits. General jurisdiction courts are usually courts
of record (there is more concern for due process because of the possibility of
appeals), although an official transcript may not be made for misdemeanor cases.
Finally, courts of general jurisdiction sometimes serve as appellate courts because
they are able to hear appeals from the courts of limited jurisdiction; in some states,
these appeals are called trials de novo because if there is no record, the trial must
be conducted again as though it had never taken place.

Appellate courts are very different from courts of general jurisdiction. They
hear appeals from the trial courts rather than conducting trials of their own. There
are no witnesses or evidence presented at an appellate court hearing. Instead, appel-
late court outcomes are based on briefs submitted by both sides that contain their
arguments and legal reasoning. The appeal may be argued orally by the attorneys,
but the attorneys argue points of law rather than presenting any evidence in the case.

Appeals are not automatic, although nearly all jurisdictions mandate reviews
of all imposed death penalty sentences. Instead, the attorneys for both sides must
raise objections during the trial to preserve their right to appeal. Convicted defen-
dants are also able to appeal, on the basis of ineffectual assistance of counsel if their
attorneys were incapable of properly presenting a case, and on rare occasions,
appeals are filed when substantial new evidence is found that exonerates a defen-
dant who has already been convicted. You will learn more about appeals in Step 15,
but it is important to mention that if appellate courts believe the appeal is legally
valid, they typically reverse and remand the case back to the trial court, providing
directions for the trial court to follow (e.g., forbidding the judge to allow an illegally
obtained confession that was introduced during the first trial). The trial then begins
anew, with the same defendant, same case, roughly the same evidence, but with a
new jury. Now that we know the difference between courts of original jurisdiction
and appellate courts, let us take a quick look at the federal, then state, court systems.

The Federal Courts

The federal trial courts conduct trials for federal crimes, such as treason and mail
fraud. The crimes for which one can be tried in federal courts are listed in several
sources of federal penal codes, including the Code of Federal Regulations (CFR)

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and the United States Code (USC). The laws in the USC were enacted by Con-
gress, whereas the laws in the CFR were enacted by executive agencies, such as the
Federal Trade Commission or the Environmental Protection Agency. A few federal
crimes, such as counterfeiting and treason, are specifically mentioned in the U.S.
Constitution. The federal trial courts also hear felonies committed on Native Amer-
ican reservations because an 1885 federal law deprived tribes of their right to try
their own felonies (Major Crimes Act, 18 USC sec. 1153). The federal courts hear
cases in which the United States is a party (e.g., when someone sues the federal
government). When the state courts may not be impartial (e.g., when citizens from
different states sue each other or when states are suing each other), the federal
courts provide a neutral forum for justice. Finally, the federal trial courts have
jurisdiction over laws relating to navigable waterways.

The federal courts did not exist until after the colonies had achieved inde-
pendence from England, at which time they were developed to complement the
already existing state-level courts. A major conflict in political philosophy that was
debated by the founding fathers was whether the United States should have a
strong central government or whether the bulk of legislative power should reside
with the states. The Federalists favored a strong federal government and advocated
signing the Constitution. The Anti-Federalists opposed the Constitution entirely at
first, and continued to advocate for states’ rights after it was signed.

The Federalists wanted both a federal supreme court and federal district
courts to complement the state courts, believing this approach would prevent states
from acting prejudicially toward out-of-state litigants, including the merchants and
business owners who supported the party (e.g., Freedman, 1996, p. 467). The Anti-
Federalists, on the other hand, wanted only one federal court, the U.S. Supreme
Court, with all other courts falling under the absolute control of the states. This
approach was believed to prevent the federal government from usurping the states’
sovereignty and citizens’ individual rights (e.g., Freedman, 1996, pp. 467–68).

In the end, the two parties agreed to compromise. Both a U.S. Supreme Court
and federal district courts were established, but the federal courts were organized
along state lines, with judges coming from the respective states (thus bolstering
state control), and the district courts were to enjoy a great deal of independence
(Wheeler and Harrison, 1994, pp. 6–7). To this day, decisions that are binding on
one federal circuit (i.e., one of the multistate jurisdictions into which the federal
courts have been divided) need not be followed by the other circuits (see Box 4.6
for a map showing the current circuits). In the Second Circuit (New York, Con-
necticut, and Vermont), for example, evidence that is ruled inadmissible at a defen-
dant’s trial, due to it being seized illegally, may still be used to increase his or her
sentence after conviction (United States v. Tejada, 2nd Cir, 1992). Because the
U.S. Supreme Court refused to hear the appeal, this situation only applies to the
federal courts in the Second Circuit and other circuits that have similar rulings. A
later case (United States v. Tauil-Hernandez and Mordan, 1996, p. 581) acknowl-

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edged the lack of consistency before ruling that such evidence would be admissible
in the Eighth Circuit as well:

Most of our sister circuits have concluded that the Fourth Amendment’s exclusionary rule
does not apply in federal sentencing proceedings,12 though two separate opinions have urged
the contrary rule.13

The reason the Tejada case does not apply to other circuits is because the U.S.
Supreme Court did not agree to hear the case, forcing the thirteen circuits to rely on
their own internal appellate rulings. In a sense, the circuits may be compared to
states. Decisions made by the Minnesota Supreme Court, for example, do not apply
to any other state, although the courts in other states may cite the Minnesota deci-
sions to support their own rulings. Decisions by the U.S. Supreme Court, on the other
hand, must be followed by all of the circuits’ courts and all of the state courts, too.

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BOX 4.6

A Map Showing the Thirteen Federal Court Circuits

This map shows the thirteen federal court circuits. In which circuit do you live? Which other
states are in your circuit, if any? If you have family members who live in other states, do they
live in a circuit other than yours?

Source: Wheeler and Harrison, 1994, p. 26.

Porto Rico

D.C. Circuit
Federal Circuit

Virgin Islands

Guam
Northern
Mariana
Islands

2002

Population 281.4 million
States 50
Districts 94
District Judgeships 646
Circuits 13
Circuit Judgeships 167
Supreme Court Justices 9

1
2
3
6
4
7
5
8
11
10
9

S
E
E
E
W
W
W
W
W
N
N

N
N

N N

S
S
S
S
S

M M

M
E
E
E
E
E
E

E
E

E
E
E
W
W
W
W
W
W

W
W

N
N
N
N
S
S
S
S
S
M
M
M
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The federal trial courts have undergone a number of changes before reaching
their current status. The federal court scheme created by the Judiciary Act of 1789
had a Supreme Court with six Supreme Court justices and thirteen district courts,
each presided over by one district judge (Judiciary Act, 1789, sec. 1–3). The cur-
rent portrait of federal courts differs substantially from its early-American form.
For example, an intermediate level of appellate courts was created in 1891 to take
some of the caseload pressure off the Supreme Court; this step served to “complete
the modern federal courts system” (Walker, 1980, p. 114).

The current federal court setup includes three basic levels of courts. The
district courts are the federal courts of original jurisdiction. The judges are
appointed for life by the President of the United States with advice and consent of
the U.S. Senate.14 In 1995, charges were filed against 63,547 defendants in U.S.
district courts (Chaiken, 1998, p. 39). The largest categories of offenses were drug
charges, accounting for one-third of the cases, and fraud charges, which were
17 percent of the caseload (Chaiken, 1998, p. 41). Similar to the process in the state
level courts, cases heard in the district courts are presided over by one judge.

The U.S. Court of Appeals (also called the Circuit Court of Appeals) is the
intermediary appellate court level. Cases are typically heard by three judges cho-

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98 The Courts Get Involved: The History and Arrangement of Courts

The Mitchell H. Cohen Federal Building and U.S. Courthouse. This federal courthouse is one of the
ninety-four federal courts of original jurisdiction, meaning that trials are conducted here. Like many
of its federal district court counterparts, many of the cases heard in this building are drug related.
Similar to other federal judges, the judges who preside over cases in this building are appointed for
life by the president with advice and consent of the Senate. Because this is a high-volume district
court, some of the cases are presided over by federal magistrate judges, who are appointed for eight-
year terms to process preliminary hearings, pre-trial motions, misdemeanor trials, and some civil
cases. SOURCE: Courtesy of Images by Grice.

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sen at random, but some significant questions are heard en banc (i.e., all of the
judges in the court hear the case together). In 1995, 10,162 criminal appeals were
filed, nearly half of which (n = 4,499) resulted from drug cases (Chaiken, 1998,
p. 63). Nearly all (96 percent) of the criminal appeals in 1995 were filed by defen-
dants,15 and only 9 percent of the cases were remanded or reversed (i.e., sent back
to the trial courts for retrial, Chaiken, 1998, p. 61). Created by the 1891 Circuit
Court of Appeals Act, these courts cannot turn away appeals without first consider-
ing them (Wheeler and Harrison, 1994, p. 18).

The highest federal court is the United States Supreme Court. There is no
higher appeal available in this country. The role of the U.S. Supreme Court is to
ensure that the lower federal courts (and the state level courts) have correctly inter-
preted and applied the law. The Supreme Court can rule state or federal laws
unconstitutional. It can also order acquittals or new trials on the basis of violations
of the U.S. Constitution or federal statutes.

In addition to its appellate functions, the U.S. Supreme Court sometimes
serves as a court of original jurisdiction. According to the U.S. Constitution, the
Supreme Court has original jurisdiction over cases involving “ambassadors, other
public ministers and consuls, and those in which a state shall be a party.” It also has
original jurisdiction in admiralty (navigation) cases.16 Although it considers about
one hundred petitions17 each week (New York v. Uplinger, 1984, p. 250), the
Supreme Court limits itself to hearing 100–200 cases per year. The justices do not
initially consider the petitions in group meetings. Instead, the justices review the
petitions on their own (or with substantial assistance from their law clerks who sum-
marize the cases for them) and include on a discussion list only those they feel are
worthwhile for the justices to discuss as a group.

The majority of cases that reach the Supreme Court do so under its appellate
jurisdiction, as you will learn in the chapter on appeals. For now, you should know
that the Supreme Court hears only cases that present a substantial federal question.
Appeals based on concerns over the constitutionality of a law or procedure have a
better chance of being heard by the Supreme Court. Some appeals seek clarifica-
tion of laws; for example, the Supreme Court may be asked to clarify a law when
lower court rulings have conflicted with one another (e.g., when jurisdictions differ in
their interpretation of sentencing guidelines). In addition, a case cannot be appealed
to the Supreme Court until it has exhausted all other possible remedies, including
lower courts and any applicable state courts.

Although it can declare laws unconstitutional, the U.S. Supreme Court can-
not enforce its own decisions. Instead, it must depend on others (e.g., Congress or
the president) to enforce the rulings it hands down. Following the Supreme Court’s
order to desegregate public schools in Brown v. Board of Education of Topeka,
Kansas (1954), for example, the governor of Arkansas ordered his state’s militia to
prevent black students from attending Central High School in Little Rock. Because
the Supreme Court was powerless to act, President Eisenhower sent federal troops

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to ensure that the students were able to attend the school, ending segregation in Lit-
tle Rock.

Currently, there are nine members of the Supreme Court, one chief justice
and eight associate justices.18 Like other federal judges, Supreme Court justices sit
for life and are appointed by the president with the advice and consent of the Sen-
ate. The justices sit en banc during hearings, and at least six must be present when
a case is argued. During arguments, each side is allocated thirty minutes in which
to present all their points and field questions from the justices.19 Afterward, the
judges retire to consider the case and the final vote on a case is by simple majority.
Individual justices may agree with the majority, concur (i.e., reach the same final
decision as the majority but based on different legal reasoning),20 or dissent (i.e.,
disagree with the majority). For each case heard, the justices write an opinion that
is made public and becomes part of the Supreme Court’s records.

Now that we have learned about the federal courts, let us turn our attention to
the state courts. The state system shares a number of similarities with the federal
system. It has trial and appellate courts, and the court processes are similar, as we
will soon see.

The State Courts

There is only one federal system, but there are fifty separate and independent state
systems and an additional court system for the District of Columbia. Because each
state developed its own court system, there are many differences among the states’
courts. At times confusing, the seemingly hodgepodge state court system actually
has an underlying structure, which will help you understand it and how it works.
Understanding the state courts is important because the majority of criminal and
civil cases in this country are heard there. Whereas 49,624 criminal defendants
were convicted of felonies in federal courts in 1994, a whopping 872,218 were
convicted in the state level courts, meaning that 96 percent of felony convictions
took place in the state courts (Langan and Brown, 1994, p. 1). And, then there are
the ubiquitous misdemeanor cases that fill the state-level dockets. In California
alone, nearly nine million cases (not counting parking offenses) were disposed of
by municipal court judges in 1990, for an average of more than 11,000 cases per
judge (Judicial Council of California, 1992, p. 78). The state courts, then, handle
an immense number of cases when compared to the federal courts. Those who have
contact with the courts are much more likely to do so in the state courts.

State trial courts hear crimes that are state offenses rather than federal ones. A
few crimes are mentioned in state constitutions (e.g., a few state constitutions men-
tion that gambling on bingo is outlawed, or that such games may be conducted by
only certain organizations such as charities). State level offenses also include vio-
lations of both state and local laws (e.g., county or city ordinances), including
crimes against persons, property, and public order. The state courts also hear civil

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cases between citizens in the same state. Some state trial courts fulfill special roles
like family courts (which deal with divorces and other family issues) and juvenile
courts (which process crimes committed by minors). In states that do not have spe-
cial courts for family and juvenile matters, those cases are heard in the standard
trial courts.

We will begin our discussion of state courts by comparing three very dissim-
ilar court systems: Alaska, New York, and South Dakota. These three states were
selected because of their varying levels of complexity. See Box 4.7 for visual
depictions of each of the three systems.

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The Puzzle of Modern Courts 101

BOX 4.7

Three Sample State Court Systems
(Alaska, New York, and South Dakota)

Court of
last resort

Intermediate
appellate
court

Court of
general
jurisdiction

Court of
limited
jurisdiction

SUPREME COURT

5 justices sit en bane

CSP case types:

• Mandatory jurisdiction in civil, administrative agency, juvenile,
disciplinary cases.

• Discretionary jurisdiction in criminal, juvenile, original proceeding,
interlocutory decisions, certified questions from federal courts.

COURT OF APPEALS

3 judges sit en bane

CSP case types:

• Mandatory jurisdiction in criminal, juvenile, original proceeding,
interlocutory

• Discretionary jurisdiction in criminal, juvenile, original proceeding,
interlocutory decision cases.

SUPERIOR COURT (15 courts in 4 districts)

32 judges, 8 masters

CSP case types:

• Tort, contract, exclusive domestic relations (except domestic violence).
Exclusive real property rights, estate, mental health, administrative
agency, civil appeals, miscellaneous civil jurisdiction.

• Exclusive felony, criminal appeals jurisdiction.
• Juvenile.

Jury trials in most cases.

DISTRICT COURT (59 locations in 4 districts)

17 judges, 67 magistrates

CSP case types:

• Tort, contract ($0/$50,000), domestic violence, small claims jurisdiction
($7,500).

• Misdemeanor, DWI/DUI jurisdiction.
• Exclusive traffic/other violation jurisdiction, except for uncontested

parking violations (which are handled administratively).
• Emergency juvenile.
• Preliminary hearings.

Jury trials in most cases.
A

Alaska Court Structure, 1998

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102 The Courts Get Involved: The History and Arrangement of Courts

Court of
last resort
Intermediate
appellate
court
Court of
general
jurisdiction
Court of
limited
jurisdiction

New York Court Structure, 1998*

COURT OF APPEALS
7 judges

CSP case types:

• Mandatory jurisdiction in civil, capital criminal, criminal, administrative agency, juvenile, original proceeding case
• Discretionary jurisdiction in civil, criminal, administrative agency, juvenile, disciplinary, original proceeding case.

•

3rd & 4th
departments

1st & 2nd
departments

3rd & 4th
departments
1st & 2nd
departments

APPELLATE TERMS OF SUPREME COURT

(3 terms/1st and 2nd departments)

15 justices sit in panels in three terms

CSP case types:

• Mandatory jurisdiction in civil, criminal, juvenile,
interlocutory decision cases.

• Discretionary jurisdiction in criminal, juvenile,
interlocutory decision cases.

•
•
SUPREME COURT

(12 districts)

369 supreme court judges (plus 50 “acting” supreme court
judges and 12 quasi-judicial staff)

CSP case types:

• Tort, contract, real property rights, miscellaneous civil.
Exclusive marriage dissolution jurisdiction.

• Felony, DWI/DUI, miscellaneous criminal.

Jury trials.

•
•

APPELLATE DIVISIONS OF SUPREME COURT
(4 courts/divisions)

56 justices sit in panels in four departments

CSP case types:

• Mandatory jurisdiction in civil, criminal, administrative

agency juvenile, lawyer disciplinary, original
proceeding, interlocutory decision cases.

• Discretionary jurisdiction in civil, criminal, juvenile
original proceeding, interlocutory decision cases.

COUNTY COURT

(57 counties outside NYC)

127 county court judges

CSP case types:

• Tort, contract, real properly rights ($0/$25,000)
miscellaneous civil. – Trial court appeals jurisdiction.

• Felony, DWI/DUI, miscellaneous criminal, criminal
appeals.

Jury trials

•
•

COURT OF CLAIMS

(1 court)

72 judges (of which 50 act as supreme court judges)

CSP case types:

• Tort, contract, real property rights involving the state.

Jury trials
•

SURROGATES’ COURT

(62 counties)

80 surrogates

CSP case types:

• Adoption, estate.

Jury trials in estate.

•

FAMILY COURT
(62 counties—includes NYC Family
Court)

124 judges (plus 81 quasi-judicial staff)

CSP case types

• Domestic relations (except marriage
dissolution), guardianship.

• Exclusive domestic violence
jurisdiction.

• Exclusive juvenile jurisdiction.

No jury trials.

•
•
•

DISTRICT COURT
(Nassau and Suffolk Counties)

50 judges

CSP case types:

• Tort, contract, real property rights
($0/$15,000), small claims ($3,000),
administrative agency appeals.

• Felony, misdemeanor, DWI/DUI.
• Moving traffic, miscellaneous traffic,

ordinance violation.
• Preliminary hearings.

Jury trials except in traffic.

•

•
•

•

CITY COURT (79 courts in 61cities)

158 judges

CSP case types:

• Tort, contract, real property rights
small claims ($3,000),

• Felony, misdemeanor, DWI/DUI.
• Moving traffic, miscellaneous traffic,

ordinance violation.
• Preliminary hearings.

Jury trials for highest level
misdemeanor.

•
•
•
•

CIVIL COURT OF THE CITY OF
NEW YORK

(1 court)

120 judges

CSP case types:

• Tort, contract, real property rights
($0/$25,00) small claims($3,000),
miscellaneous civil, administrative
agency appeals.

Jury trials
•

TOWN AND VILLAGE JUSTICE COURT
(1,487courts)

2,300 justices

CSP case types:

• Tort, contract real property rights ($0/$3,000)
small claims ($3,000).

• Misdemeanor, DWl/DUI, miscellaneous criminal.
• Traffic/other violations
• Preliminary hearings.

Jury trials in most cases.
•

•
•
•

* Unless otherwise noted, numbers reflect statutory authorization. Many judges sit in more then one court so the number of judgeships indicated in this chart does not
reflect the actual number of judges in the system.

CRIMINAL COURT OF THE CITY OF
NEW YORK

(1 court)

107 judges

CSP case types:

• Misdemeanor, DWl/DUI.
• Moving traffic, ordinance violation,

miscellaneous traffic.
• Preliminary hearings.

Jury trials for highest level misdemeanor.

•
•
•

BOX 4.7 (continued)

Alaska’s court system most closely resembles the four-tier state court proto-
type. At the bottom tier are the courts of limited jurisdiction, called district courts
in Alaska. The district courts hear misdemeanor, traffic, and small claims cases,
and also conduct preliminary hearings. The second tier is formed by the courts of
general jurisdiction, called superior courts in Alaska. The superior courts hear
felony, juvenile, and non-small-claims civil cases. The third tier is the intermediate
appellate courts, called courts of appeals in Alaska. The court of appeals hears
the majority of the state’s appeals. The fourth tier is the state’s highest court, the
Supreme Court of Alaska. Because there is an intermediate appellate court, the
supreme court has discretion to turn some cases away without review.

South Dakota’s court system is the simplest in the nation (the only other two-
tier system is the District of Columbia). Because there is no court of limited juris-
diction, South Dakota’s circuit courts must process all criminal, civil, and traffic
cases. Both felonies and misdemeanors must be heard by the circuit courts as well
as all preliminary hearings. Because there is no intermediate appellate court, the
South Dakota Supreme Court must hear all appeals. Had there been an intermediate
court of appeals, the supreme court would have discretion to turn away some cases.

At first glance, the New York system appears to be a literal maze of jurisdic-
tions and courts. On closer examination, however, one can see the familiar four-tier
system. Eight of the courts (Court of Claims, Family Court, Civil Court of the City of
New York, Criminal Court of the City of New York, District Court, Surrogate’s
Court, Town and Village Justice Court, and City Court) form the lowest tier of courts
of limited jurisdiction. There are multiple types of courts due to county differences
(e.g., the two City of New York courts serve only New York City) and jurisdictional

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The Puzzle of Modern Courts 103

Court of
last resort
Court of
general
jurisdiction
SUPREME COURT
5 justices sit en bane
CSP case types:

CIRCUIT COURT (8 curcuits)

CSP case types:

• Mandatory jurisdiction in civil, capital criminal, criminal, administrative
agency, juvenile, disciplinary, original proceeding cases.

• Discretionary jurisdiction in advisory opinions for the state executive,
interlocutory decision, original proceedIng cases.

• Exclusive civil jurisdiction (including civil appeals). Small claims
jurisdiction ($4,000).

• Exclusive criminal jurisdiction (including criminal appeals).
• Exclusive traffic/other violation jurisdiction (except for uncontested

parking, which is handled administratively).
• Exclusive juvenile jurisdiction.
• Preliminary hearings.

Jury trials except in small claims

37 judgesl 8 full-time and 7 part-time magistrate judges, 2 part-time lay
magistrates, 92 fulltime clerk/deputy clerk magistrates, and 58 part-
time clerk/deputy clerk magistrates

South Dakota Court Structure, 1998

Source: Rottman, Flango, Cantrell, Hansen, and LaFountain, 2000, pp. 319, 350, 360.

differences (e.g., the Surrogate’s Court handles only adoptions and estate cases). The
second tier of courts, called the supreme courts and county courts in New York, han-
dle felonies and non-small-claims civil cases. The third tier is made up of two appel-
late courts, the Appellate Divisions of Supreme Court and the Appellate Terms of
Supreme Court, both of which hear appeals from different courts of original jurisdic-
tion. New York’s highest court is the court of appeals, and it functions like other state
supreme courts.

A few of the differences between state courts become evident during an exam-
ination of the three sample court systems. First, and probably most aggravating for
most people, is the wide variation in names for the courts. Even state supreme
courts have differing names (e.g., New York’s Court of Appeals), making it diffi-
cult to sort out which court does what. Another key difference is in the types of
cases heard and the procedures used by each tier; jury trials, for example, are con-
ducted in some states’ courts of limited jurisdiction, but not in other states’ lower
courts. A third difference is the amounts used to define small-claims cases. In
1993, Montana capped small claims cases at $500, whereas Tennessee’s small
claims case cap was $15,000 (a typical small-claims cap is $2,000–$5,000). There
are other differences, including the types of records kept by the court for hearings
and the source of the court’s funding (i.e., whether the court is supported by local
or state funds), but these differences should not interfere with your ability to under-
stand the operations of a given court.

From the puzzle of modern courts, one can deduce an underlying structure.
Before moving on to Step 5, Box 4.8 presents a brief examination of the local,
state, and federal courts in one state. As illustrated by the variety of courts in New
Mexico, one can see how individual court systems may share geographical prox-
imity, but fulfill very different functions.

In the next section of chapters, we will look at the participants in the court-
room drama, including chapters on the prosecutor, defense attorney, and judge. We
will examine the role each plays in the courts and how they interact with one
another. Then, we will turn our attention to others who play less visible roles in the
courtroom drama, but without whom the courts would come to a standstill. There
could be no trials without defendants, victims, and witnesses. Without bail bonds
agents, the jails would be full of people awaiting trial. Then, there are court
employees who make the system function properly: bailiffs, clerks, translators, and
victim-witness assistants. Everyday citizens also play roles as jurors, spectators
(often friends and family of defendants or victims), and court-watchers who
observe the courts in action.

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104 The Courts Get Involved: The History and Arrangement of Courts

D I S C U S S I O N Q U E S T I O N S

1. Why was the Magna Charta important to the Anglo-Saxons in 1215? Why is it important to our
criminal justice system?

2. Why was trial by ordeal once accepted as valid by the criminal justice system? Can you think of
some modern forms of justice in the United States or other countries that appear related to the
concept of trial by ordeal?

3. How did the concept of trial by battle fit into the Anglo-Saxon ideals of justice? If cases were still
settled this way, which types of cases do you feel would be most and least appropriate to be
handled through this trial method? Would you prefer this method of trial or our contemporary
methods? What is your reasoning?

4. Look over the provisions from the laws of William the Conqueror contained in Box 4.2. The
eighth element discusses a bail situation that could be considered a “presumed guilty” model,
which differs from today’s “presumed innocent” model. What differences do you see between
the model posed by William the Conqueror and today’s model?

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Discussion Questions 105

BOX 4.8

Frontier Justice: Courts in New Mexico As a Case Study

In one typical New Mexico county, there are four courts: three state courthouses and one federal
court. The courts of original jurisdiction are the District Court (general jurisdiction), Magistrate
Court (limited jurisdiction), and Municipal Court (limited jurisdiction).

The District Court hears both misdemeanor and felony cases and may impose prison and
death sentences. District Court juries are made up of twelve individuals, and there are no lay
(i.e., nonlegally trained) judges. As the court of general jurisdiction, the District Court is a court
of record. The judges are elected.

The Magistrate Court hears only misdemeanor cases, and the maximum penalty is 364
days in jail. Magistrate Court juries are made up of six individuals, and lay judges are allowed.
As a court of limited jurisdiction, the Magistrate Court is typically not a court of record but tran-
scripts are made in some cases. The judges are elected.

The Municipal Court hears only misdemeanor cases, and the maximum penalty is three
months in jail. There are no jury trials in the Municipal Court, and there are no lay judges. As
a court of limited jurisdiction, the Municipal Court is typically not a court of record but tran-
scripts are made in some cases. The judges are elected.

As with most counties, a federal court is accessible to the citizenry. The federal District
Court hears trials for federal offenses (e.g., violations of laws enacted by Congress) and other
federal cases.

Within a day’s drive is a federal appellate court, the U.S. Court of Appeals. Accessible via
airplane is the U.S. Supreme Court in Washington, D.C.

Also within a day’s drive is the New Mexico Court of Appeals (which hears appeals from
the state’s district courts) and the New Mexico State Supreme Court (from which the only
remaining appeal is to the U.S. Supreme Court). Like other judges in New Mexico, judges for
both the appellate and supreme courts are elected via partisan election.

5. What are the benefits and drawbacks of seeking a trial by jury in modern America? How would
your list of pros and cons differ during the Middle Ages? How have juries evolved over time into
our modern concept of juries?

6. People today often try to avoid being put on a jury. How do modern complaints about jury service
compare to the risks of being on a jury during the Middle Ages?

7. How did the structure of courts change with the developing United States (e.g., are there any
societal reasons behind the changes American courts have seen over the years)?

8. Look over the laws in Box 4.3. How many of those laws still exist, even without the direct cita-
tions to the Bible? What can we say about the influence of religion on laws in general?

9. Go through your local newspaper and find at least two current or potential court actions (e.g.,
reports of crimes or lawsuits) that would be heard in the following courts:

State courts: • limited jurisdiction courts of original jurisdiction

• general jurisdiction courts of original jurisdiction

• appellate courts or state supreme court

Federal courts: • district courts

• U.S. Court of Appeals or U.S. Supreme Court

10. Look over the diagrams in Box 4.7. If you are not from one of these three states, use your school
or community library to find out the structure of your state’s courts. How do your courts compare
with the four-tier state court prototype? Do you have any ideas for why your state’s courts have
developed or are organized the way they are?

N O T E S

1. England’s courts have transformed immensely over the years, so that contemporary English
courts have a number of similarities to American ones. In Britain, citizens do not have the exact
same rights (e.g., Miranda rights and other rights that were developed through U.S. Supreme
Court rulings), jury verdicts need not be unanimous (Devlin, 1979, p. 117), jurors had to own
property until just recently (Cornish, 1968, p. 27; Oldham, 1983, p. 141), and other dissimilari-
ties exist. Overall, however, the two court systems are very comparable.

2. See Step 1 for more about common law.

3. Some versions of trial by cold water involved lowering defendants into water bound by a rope,
and using the rope to raise them up if they sank; however, “skillful manipulation” of the rope by
the attendant could easily create an image of floating (Lea, 1870/1996, p. 246).

4. The required number of compurgators may result from an early British avoidance of the decimal
system, such that there were twelve (rather than ten) pennies to a shilling (Devlin, 1966, p. 8).

5. The sparse writings about early English justice were sometimes confusing, leaving even
nineteenth-century legal scholars puzzled about the exact nature of juries and their uses (e.g.,
Stephen, 1883:i, p. 258).

6. This use of juries was still in vogue in 1752 (Moore, 1973, p. 83).

7. In fact, convicted criminals’ children could not even inherit from their grandparents due to a phe-
nomenon known as “corruption of blood.” Since the legal heirs could not inherit, the property
defaulted to the Crown (Greek, 1991).

8. Although it is a rare occurrence, judges in states that allow them to do so sometimes set aside ver-
dicts that they feel are unsupported by the evidence in the case. There is a great deal of contro-
versy surrounding this form of judicial discretion.

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106 The Courts Get Involved: The History and Arrangement of Courts

9. This 1611 statute appears to be an example of an early “three strikes and you’re out” law.

10. Before 1685, no judge in Plymouth could preside over a civil case alone; this was also true for
England (Langdon, 1966, p. 204).

11. Lincoln sometimes helped other attorneys and signed their names to his work.

12. These included the D.C. Circuit (1991), Second Circuit (1992), Third Circuit (1991), Fifth Cir-
cuit (1993), Sixth Circuit (1993), Ninth Circuit (1994), and Eleventh Circuit (1991).

13. These were the Seventh Circuit (1991) and a dissenting opinion in the Ninth Circuit (1994).

14. District court judges in U.S. territories are appointed for ten-year terms rather than seated for life.

15. The remaining 4 percent of the appeals were filed by the government.

16. As we saw during the Senate trial following the impeachment of President Clinton, the chief jus-
tice of the Supreme Court also presides over those proceedings, but this process does not involve
other members of the court.

17. In actuality, law clerks perform most of the initial screening of petitions.

18. This has not always been the number of judges. Initially, the Supreme Court had only six justices,
and there have been other numbers of justices during the history of the Court.

19. Because the Supreme Court often schedules more cases than it can consider in a given term,
some must be settled through summary dispositions that do not provide an opportunity for the
parties to present oral arguments (Murphy and Pritchett, 1986, p. 566). Instead, the decisions are
based on the legal briefs submitted with the petition. This is usually done when the issue is rela-
tively minor or covered by prior Supreme Court cases.

20. An example of a concurring opinion would be when a justice agrees that a piece of evidence should
have been excluded from trial, but not necessarily for the same reasons as the other justices.

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110 The Courts Get Involved: The History and Arrangement of Courts

Assignment 2A: Research Paper Topic

YOUR NAME:

Provide the following information about your topic:

1. What is the topic of your research paper?

2. In which chapter of the text is the topic discussed?

3. What type of paper are you writing? (Use types from “Essay Development: Guidelines for Writing Academic Papers.”)

4. Why did you choose this topic?

5. What aspects of this topic do you intend to discuss?

6. Based on your preliminary research, are you confident you can find sufficient academic data and resources to complete your paper?

7. Do you understand that the instructor must approve your topic, and that you cannot change topics once approved?

Assignment 2A: Research Paper Topic

YOUR NAME: Charles Todd

The first step in developing your research paper is to identify your topic. The topic should be

one in which you are interested in learning more about, and it must be a topic covered by the

assigned readings of this course. Your topic should be specific, but you also need to ensure

sufficient data and research exists to allow you to meet word count requirements. You can do

this by conducting a quick search of the University’s library or the internet to get a sense of

available academic resources. Remember, all references must be academic in nature.

Wikipedia, blogs, and similar sources are not acceptable.

Provide the following information about your topic:

1. What is the topic of your research paper?

Example: the exclusionary rule

2. In which chapter of the text is the topic discussed?

Example: Chapter 3

3. What type of paper are you writing? (Use types from “Essay Development: Guidelines for
Writing Academic Papers.”)

Example: analysis paper

4. Why did you choose this topic?

Example: I chose this topic because the exclusionary rule plays such an important role in the

criminal justice system. The rule is designed to ensure the police respect the rights of accused. If

they violate these rights, the suspect or defendant could be set free, even if he or she is guilty. I

find it interesting that the criminal justice system would intentionally allow a guilty person to go

free, and I am interested in exploring how this rule came about.

5. What aspects of this topic do you intend to discuss?

Example: I intend to discuss exactly what the exclusionary rule means, how it came about, and

why it was established. I will address the legal and constitutional basis of the exclusionary rule,

the limits it places on law enforcement officials, and how it impacts law enforcement operations.

I will also provide any available statistics or data on how often the exclusion rule is used.

6. Based on your preliminary research, are you confident you can find sufficient academic data
and resources to complete your paper?

Example: Yes.

7. Do you understand that the instructor must approve your topic, and that you cannot change
topics once approved?

Example: Yes.

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