Types of Legal Systems around the World Learning Outcomes By the end of this section, you will be able to: Describe the different types of legal systems and explain how they differ. Explain how the rule of law applies in different judicial systems. Analyze how different judicial systems operate. There are five basic types of legal systems in the world. They are civil law , common law , customary law , religious law, and hybrid or mixed systems. Today, mixed or hybrid systems are common. Because each system varies by country, this chapter will focus on the characteristic traits of each kind of system. This map shows the different types of legal systems in place around the world. While the United States is a common law system, note that the state of Louisiana has a hybrid system, utilizing civil law for many state matters because of its origins as a French territory. (attribution: Copyright Rice University, OpenStax, under CC BY NC-SA 4.0 license) Note that before discussing different law systems, it is important to distinguish between what the term civil means in the context of legal systems and what it means in terms of civil versus criminal laws. Common Law Systems The US legal system, and other legal systems that emanate from British rule, is a common law system . Albert Roland Kiralfy et al., “Common Law,” Britannica, Encyclopædia Britannica, last updated October 30, 2020, https://www.britannica.com/topic/common-law. Originally, common law meant judge-made law that filled in gaps when there was no written law. Judges looked to prior decisions to determine the unwritten judge-made law and apply it to new cases. However, today, almost all law is in writing and enacted by a legislature as statutes. Many statutes codify established common law, change it, or abolish it altogether, depending on the topic of the law. There are instances in which some unwritten common law is still enforced, but these are rare. In a common law system such as the one in the United States, the courts’ reliance on precedent is referred to as stare decisis , or a policy of using judicial decisions made in the past to interpret written laws and appropriately apply those laws to the facts in the present case. “Common Law,” Legal Information Institute, Cornell Law School, last updated May 2020, https://www.law.cornell.edu/wex/common_law. The court interprets written laws, and these interpretations and applications of precedent from prior interpretations constitute what is meant by common law today. Precedent is critical for interpreting later cases, and only the same or a higher court can overturn precedent. The court process is adversarial rather than investigatory, with each side trying to win or persuade the court to agree with its perspective. “Civil Law vs. Common Law,” Diffen, accessed December 21, 2021, https://www.diffen.com/difference/Civil_Law_vs_Common_Law. What Is Precedent? This video discusses precedent and its importance in common law systems. Common law courts are adversarial; that is, there is a winner-takes-all attitude in the court. In an adversarial system, each side determines the issues and questions it wants the court to resolve, conducts its own investigation, and prepares and presents its own evidence. Each side calls witnesses, who are questioned directly and by cross-examination. Each side brings out information it thinks is pertinent to prove its point. In a criminal case, the police and prosecutor work together closely to establish their viewpoint using the government’s resources. Defendants must rely on their own resources to defend against the charges, either hiring an attorney or using a court-appointed one. In a civil case, the procedures are similar; however, each side must rely on its resources to prove its point. If a jury is present, it decides all factual questions while the judge determines the legal issues and moderates the proceedings. In some cases, the judge can act as a fact finder in place of a jury. Civil Law Systems Most of Europe and South America use a civil law system . Ibid. A civil law system relies on comprehensive legal codes that contain all laws for the country. Case law—that is, judicial decisions—is secondary to these codes. Decisions are binding only on the parties to the case, not as a precedent for later cases on the same issues. While attorneys will consult prior decisions when advising clients, judges are rarely bound to follow precedent. For this reason, codes of statutes are usually more extensive and detailed than in common law systems. In civil law systems, court cases are investigations by the court to see how the facts fit into the already established codes applicable to the situation. The court system is set up so that the jurisdiction of each court is a specific type of code: tax courts, administrative courts, maritime courts, constitutional courts, and so on. The system is more inquisitorial than adversarial. The process is a series of meetings, hearings, and written communications in which the judge takes testimony. The judge crafts the issues to be decided based on discussions with the parties. Typically, the judge questions the witnesses and can include or exclude any queries submitted by the attorneys when crafting questions. Finally, the judge determines the issues and gathers the evidence before announcing a decision. For an example of a civil legal system, see this explanation of the system in France: Ministère de la Justice, ed., The French Legal System (Paris: Ministère de la Justice, November 2012), https://www.justice.gouv.fr/art_pix/french_legal_system.pdf. Only at the final hearing do the attorneys and parties make arguments to the judge. If there is a jury, its members usually are not drawn from the general public but are selected for their expertise in the particular area in question. While juries of ordinary people are rare in civil law systems, they are increasingly used in serious criminal cases. These two systems, common law and civil law systems, are the most widely used legal systems in the world. They differ in terms of the weight they give to judicial precedent and their views on the purpose of the trial process. Religious Systems In a religious law system , the law relies on religious texts as its primary basis, and the courts interpret the present facts and statutes in light of those religious texts. Many Middle Eastern countries use religious law systems for all or part of their laws. “Sharia Law Countries 2021,” World Population Review, accessed December 21, 2021, https://worldpopulationreview.com/country-rankings/sharia-law-countries. For example, in Saudi Arabia, the legal system is based on sharia law , derived from the Koran, the Islamic religious text, as well as from the Sunnah and the Hadith. “Legal and Judicial Structure,” The Embassy of the Kingdom of Saudi Arabia, accessed December 21, 2021, https://www.saudiembassy.net/legal-and-judicial-structure-0. The legislature enacts statutes, but all are tested against Islamic tenets. Certain religious leaders can overrule any government act, including court decisions, on religious grounds. The legal system includes general and summary sharia courts, with some administrative tribunals for specific topics. Religious law systems do not use juries, and criminal trials do not present defensive evidence to the same extent as in other legal systems. Each judge, a specialist in the religious sharia text, makes their interpretation of the law and is not bound by any precedent. Israel also uses some religious laws and courts to determine cases. “The Judiciary: The Court System,” Israel Ministry of Foreign Affairs, State of Israel, last modified June 24, 2021, https://mfa.gov.il/mfa/aboutisrael/state/democracy/pages/the%20judiciary-%20the%20court%20system.aspx. For example, religious courts in Israel include Jewish rabbinical courts, Islamic sharia courts, Druze religious courts, and ecclesiastical courts of the 10 recognized Christian communities. In Israel, these courts are limited to some specific issues of family law. The secular court system decides all other matters. Customary Systems A customary law system is a system based on long-standing traditions in a particular community. The traditions have become so ingrained in society that the courts recognize them as enforceable rules. However, it is rare for customary laws to be interpreted and enforced by the government. Instead, select leaders of the group usually implement the customary laws. As a result, customary laws are typically unwritten and revealed only to group members. Today, customary laws are found in closed, isolated communities combined with common or civil law systems, allowing them to exist alongside government systems in a hybrid system. Andorra, a small country in the Pyrenees bordering Spain and France, relies partly on customary law. In Andorra, sources of customary law include canon law, the ecclesiastical law of the Catholic Church, Castilian law, French law, and Roman law. Andorra was invaded and under the control of other European powers at different times in its history, and the Andorran legal system now reflects elements of each invader’s laws. Today, Andorra is a parliamentary co-principality between the president of France and the Roman Catholic bishop of Catalonia (Urgell). Andorra also has an elected parliament that can enact new laws. “Andorra,” The World Factbook , Central Intelligence Agency, last updated December 14, 2021, https://www.cia.gov/the-world-factbook/countries/andorra/. Differences among Major Legal Systems Common Law Civil Law Religious Law Customary Law Other Names Judge-made law; Anglo-American law Continental law; European law; Roman law Differs by religion; two prominent ones are sharia (Islamic law) and halakha (Jewish law) Differs by area, ethnicity, and tribe Source of Law Case law and statutes, which may be organized in codes Statutes organized in codes Religious texts Long-standing customs, which may be oral or written Degree of Judicial Independence High; important to society that judiciary appears to be independent of executive and legislature High; important to society that judiciary appears to be independent of executive and legislature Wide range, from very limited to high Wide range, from limited to high Judges Wide variety of selection and qualification standards Career position requiring training and testing; civil servants Religious and legal training Varies widely with customs of the area Policy-Making Role Due to stare decisis, shares power with individuals who come before the court and with government branches Equal but separate power as the enforcer of codes Depends on territory and topic area; paramount in some cases, advisory only in others Depends on territory and topic area; paramount in some cases, advisory only in others Examples US (except Louisiana), UK, Canada (except Quebec) All European Union countries, Quebec, Louisiana Saudi Arabia, Iran, United Arab Emirates, Israel Guernsey, Andorra The island of Guernsey is another example of a customary law system. Though it is one of the Channel Islands off the coast of England, Guernsey is not part of the United Kingdom. Guernsey’s legal system is derived from the medieval power of the monarch, the Duke of Normandy. “History & Constitution,” Law Officers of the Crown, Guernsey, last modified November 14, 2017, http://www.guernseylawofficers.gg/article/162463/History--Constitution; “Guernsey,” The World Factbook , Central Intelligence Agency, last updated December 14, 2021, https://www.cia.gov/the-world-factbook/countries/guernsey/; “Normandy,” Britannica, Encyclopædia Britannica, last updated September 27, 2018, https://www.britannica.com/place/Normandy. The ancient duchy law of Normandy is an influential source of law in Guernsey. The duchy laws developed in two periods, the Ancienne coutume of 1199–1538 and the Coutume reformée of 1538–1804. Jersey Business Law Handbook , vol. 1, Strategic Information and Laws (Washington, DC: International Business Publications USA, 2013), 16–17. Guernsey’s legal system also has elements of English common law and modern statutory law enacted by the island’s elected legislature. Guernsey enjoys almost complete autonomy over its internal affairs, and the country determines many issues based on ancient customary laws, with elected bailiffs and jurats making decisions. “Guernsey,” World Factbook ; “Jurats and the States of Election,” The Royal Court of Guernsey, last modified July 19, 2017, http://www.guernseyroyalcourt.gg/article/1950/Jurats-and-the-States-of-Election. In the United States, some customary laws may be used in tribal matters on tribal lands recognized by the US government. “Tribal Governments,” USLegal, airSlate Legal Forms, accessed December 21, 2021, https://system.uslegal.com/tribal-governments/. However, the US government does exercise some control over tribal legal systems in the United States. There is a growing worldwide movement to recognize tribal autonomy and customary legal systems. University of Colorado Law School, Native American Rights Fund, and University of California, Los Angeles, Tribal Implementation Toolkit (Boulder, CO: Native American Rights Fund, 2021), https://www.narf.org/tribal-implementation-toolkit-united-nations-declaration-on-the-rights-of-indigenous-peoples/. For example, some Maori customary law is now recognized in New Zealand. Law Commission, Māori Custom and Values in New Zealand Law , Study Paper 9 (Wellington, New Zealand: Law Commission, 2001), https://www.lawcom.govt.nz/sites/default/files/projectAvailableFormats/NZLC%20SP9.pdf; Nā Carwyn Jones, “Tikanga Māori in NZ Common Law,” New Zealand Law Society / Te Kāhui Ture o Aotearoa, September 15, 2020, https://www.lawsociety.org.nz/news/lawtalk/lawtalk-issue-943/tikanga-maori-in-nz-common-law/. Hybrid or Mixed Systems A hybrid legal system combines parts of more than one approach to create a system unique to the country. Many countries have mixed legal systems incorporating common, civil, religious, and customary law systems. “Mixed Legal Systems,” JuriGlobe, University of Ottawa, last updated April 1, 2021, https://www.juriglobe.ca/eng/sys-juri/class-poli/sys-mixtes.php. For example, the US state of Louisiana has a hybrid system. Louisiana uses some common law, but it also utilizes a civil law system for much of its state law and procedures because of its origins as a French territory. Also, on recognized tribal lands, customary laws of the tribe may be used rather than state or federal laws. Another example is the Philippine system, which includes French civil law, US-style common law, sharia law , and Indigenous customary law due to its history. Milagros Santos-Ong, “Update: Philippine Legal Research,” GlobaLex, Hauser Global Law School Program, New York University School of Law, January/February 2020, https://www.nyulawglobal.org/globalex/Philippines1.html#_Legal_System. Many African countries include a parallel tribal or ethnic legal system to adjudicate family law matters. Muna Ndulo, “African Customary Law, Customs, and Women’s Rights,” Cornell Law Faculty Publications 187 (Winter 2011), http://scholarship.law.cornell.edu/facpub/187. This map shows the different types of legal systems present in Africa. (attribution: Copyright Rice University, OpenStax, under CC BY NC-SA 4.0 license) There are five basic types of legal systems in the world: civil law, common law, customary law, religious law, and hybrid or mixed systems. The US and other legal systems that emanate from British rule use a common law legal system. Today, almost all law in common law systems is in writing and enacted by a legislature as statutes. Many statutes codify established common law, change it, or altogether abolish it, depending on the topic of the law. Most of Europe and South America uses a civil law system, which relies on comprehensive legal codes that contain all the laws for the country. Case law—that is, judicial decisions—are secondary to these codes. Decisions are binding only on the parties to the case and not as a precedent for later cases on the same issues. While attorneys will consult prior decisions when advising clients, judges are rarely bound to follow the precedent. For this reason, codes of statutes are usually more extensive and detailed than in common law systems. In a religious law system, the law relies on religious texts as its primary basis, and the courts interpret the present facts and statutes in light of those religious texts. Customary systems are based on long-standing traditions in a particular community that have become so ingrained in society that the courts recognize them as enforceable rules. It is rare for customary laws to be interpreted and enforced by the government. Instead, select leaders of the group usually implement the customary laws. As a result, customary laws are typically unwritten and revealed only to group members. A hybrid system combines parts of more than one approach to create a system unique to that country. Many countries have mixed legal systems incorporating common, civil, religious, and customary law systems. On recognized tribal lands, customary laws of the tribe may be used rather than state or federal laws. civil law system a legal system that relies heavily on codes of statutes, in which the judicial process is mainly investigatory rather than adversarial common law system a legal system that relies on precedent, in which the judicial process is adversarial customary law system a legal system based on long-standing traditions in a particular community precedent prior court decisions that provide guidance in a current case religious law system a legal system that bases its laws on religious texts or beliefs

Social Sciences


Criminal versus Civil Laws Learning Outcomes By the end of this section, you will be able to: Differentiate between criminal and civil laws. Discuss the purposes of criminal laws. Discuss the types of criminal laws. Discuss the rights of the accused in criminal proceedings in different systems. Discuss the use of the death penalty in different systems. Within a given legal system, there are two major types of law, criminal and civil. Criminal law applies to offenses against the state. The action is punished because it harms society. Criminal law requires a statute to create the offense, its elements, and its punishment. An act is not a crime unless a written law establishes it as one. Only the government can prosecute a criminal case. A criminal case begins with an alleged crime, an arrest by the police, and a charge filed by a prosecutor. Anything that is not criminal law falls under civil law , which applies when one individual is harmed by another and seeks compensation for the harm. In civil law legal systems, civil offenses are only by statute. In common law legal systems, civil offenses can be by statute or case precedent. “Civil Law vs. Common Law,” Diffen. The overarching purpose of criminal laws is to protect society as a whole. There are five general purposes of criminal punishment: Incapacitation: Punishment removes the offending person from society, inhibiting their ability to cause further harm to society. Retribution: The punishment of the individual is said to satisfy the public’s desire for revenge. Deterrence: Punishing a person for committing an offense is intended to deter others from committing that same offense. Restitution: Punishment for a criminal offense may involve a financial penalty to compensate the victim of the crime monetarily. Rehabilitation: Punishment may attempt to refocus the offender’s energy on a more acceptable pursuit to prevent recidivism . Recidivism is the repetition of a crime by an individual already found guilty of and punished for the crime. “The Purposes of Punishment,” Criminal Law (Minneapolis: University of Minnesota Libraries Publishing, 2015), https://open.lib.umn.edu/criminallaw/chapter/1-5-the-purposes-of-punishment/. Many countries have moved to a focus on rehabilitation as a means of stopping future crime. Rebecca McCray, “Seven International Prisons That Put Rehabilitation before Punishment,” TakePart, Participant Media, April 23, 2015, https://www.takepart.com/article/2015/04/21/seven-international-prisons-put-rehabilitation-punishment/. The use of rehabilitation is common in Europe, especially for nonviolent or drug offenses. Sonja Meijer, “Rehabilitation as a Positive Obligation,” European Journal of Crime, Criminal Law and Criminal Justice 25, no. 2 (2017): 145–162, https://doi.org/10.1163/15718174-25022110. The US state of Oregon is enacting similar policies to rehabilitate those who are found guilty of illegal drug use. “Principles and Strategies,” Alcohol and Drug Policy Commission, Oregon.gov, accessed December 21, 2021, https://www.oregon.gov/adpc/Pages/Principles-Strategies.aspx. While all punishments are intended to serve as deterrence and retribution, many common punishments are intended to serve other purposes as well. (attribution: Copyright Rice University, OpenStax, under CC BY NC-SA 4.0 license) There are two main types of offenses in criminal law : serious offenses, often called felonies , and less serious offenses, often called misdemeanors . Punishments for serious offenses may involve imprisonment for a term of several years to life—and, in a few countries, the death penalty . “Death Penalty in 2020: Facts and Figures,” Amnesty International, last modified April 21, 202, https://www.amnesty.org/en/latest/news/2021/04/death-penalty-in-2020-facts-and-figures/. Lesser crimes are often punishable by no more than a fine. If a misdemeanor carries a prison sentence at all, that sentence is usually less than a year in length and is served in the local jail. The divisions between serious and lesser punishments and trial processes vary widely by country. “Criminal Justice Systems Around the World,” Criminal Defense Wiki, International Bridges to Justice, las edited December 6, 2021, http://defensewiki.ibj.org/index.php?title=Criminal_Justice_Systems_Around_the_World. Within serious and nonserious crimes, penalties vary by the perceived severity of the crime. The US categories, both state and federal, are typical, so they will serve as an example. The state categories align with the federal, so we will use the federal sentencing guidelines as a template. 18 USC § 3559, https://www.govinfo.gov/content/pkg/USCODE-2011-title18/pdf/USCODE-2011-title18-partII-chap227-subchapA-sec3559.pdf. In the United States, misdemeanors are commonly divided into three categories: Class A misdemeanor: Punishable by a jail sentence of between six months and one year Class B misdemeanor: Punishable by a jail sentence of between 30 days and six months Class C misdemeanor: Punishable by a jail sentence of between five days and 30 days Each level also carries a possible fine that can be imposed instead of or in addition to the sentence. In the United States, felonies, whether state or federal, are broken down into five categories: Capital or class A felony: Punishable by life imprisonment or the death penalty First-degree or class B felony: Punishable by a prison sentence of 25 or more years Second-degree or class C felony: Punishable by a prison sentence of between 10 and 25 years Third-degree or class D felony: Punishable by a prison sentence of between five and 10 years Fourth-degree or class E felony: Punishable by a prison sentence of between one and five years In all rule-of-law countries, including the United States, the government cannot enact any ex post facto laws . Ex post facto is Latin for “after the fact.” Thus, if something was not a crime when you did it, you cannot later be charged with a crime even if the government changes the law. For example, the posted speed limit on a road is 40 miles per hour. A camera captures you driving 40 miles per hour on Monday. On Wednesday, a new law is enacted that changes the speed limit to 25 miles per hour and is claimed to apply retroactively for the past month. This would be an ex post facto law. New laws can only apply prospectively to the future, not retroactively, to the past. In rule-by-law systems, authoritarian governments often use ex post facto laws and the lack of habeas corpus to jail opponents and keep them in jail indefinitely. Defendants’ rights and the burden of proof for guilt are similar in rule-of-law systems. In all rule-of-law countries, the burden of proof for a criminal offense is beyond a reasonable doubt. In the United States, because a criminal case can impact a person’s liberty, the burden of proof is always on the government, and the standard of proof is always guilt beyond a reasonable doubt . In addition, every rule-of-law country has protections for individuals who are accused of crimes. To compare French protections of individual rights in a criminal case, see Ministère de la Justice, French Legal System . In the United States, individuals accused of crimes have several constitutional protections in criminal cases. Rights and Liberties in the US Constitution That Apply to Criminal Proceedings Rights and Liberties in the US Constitution that Apply to Criminal Proceedings Art. I, sec. 9, cl. 2 Right of habeas corpus Art. I, sec. 9, cl. 3; Art. I, sec. 10, cl. 1 No ex post facto laws Fourth Amendment Right to be secure from unreasonable search and seizure Fifth Amendment Right to due process before deprivation of life, liberty, or property Right to indictment by a grand jury when charged with capital crimes Protection against self-incrimination Sixth Amendment Right to a speedy trial by an impartial jury Right to a defense attorney Eighth Amendment Protection against excessive bail, excessive fines, and cruel and unusual punishment Rights upon Arrest In rule-of-law countries, police must advise you at the time of arrest of certain rights. These include the right to have an attorney assist you with your case and the right to be cautioned that anything you say can be used against you in court—what are referred to in the United States as Miranda rights . A Library of Congress report found that 108 countries, including civil law and common law legal systems, require something similar to the US Miranda rights. “Miranda Warning Equivalents Abroad,” Law Library of Congress, Library of Congress, last updated December 30, 2020, https://web.archive.org/web/20210318051525/https://www.loc.gov/law/help/miranda-warning-equivalents-abroad/index.php. The European Convention on Human Rights and the Universal Declaration of Human Rights both contain similar provisions. When a person is arrested in the United States, the arresting officer must read them their Miranda rights, also called a Miranda warning, and advise them of their constitutional rights under the Fifth and Sixth Amendments to the US Constitution. The text of the Miranda warning reads along the following lines: “You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand each of these rights as I have read them to you?” There are no magic, specific words police officers must say when informing a person of their Miranda rights, but the gist of the above must be included in a language the person under arrest understands. First, the person under arrest must be allowed to contact an attorney or, upon proving themselves financially unable to afford one, request that an attorney be appointed to them. Second, if the person under arrest wishes to remain silent, they must state that wish. If they speak other than for comfort or to request an attorney, they must reinvoke the right to remain silent. The right to remain silent applies only when an arrested person is being interrogated by police. It does not apply to forensic investigative work, and it does not preclude police officers from speaking in front of the person who is under arrest or trying to trick them into saying something. It only stops them from asking a direct question. Different rule-of-law countries have slightly different equivalents to the Miranda warning. The following table compares the US and UK versions of this warning. Comparison of US and British Arrest Warnings Warning United States United Kingdom Right to remain silent At time of detention: “You have the right to remain silent. Anything you say can be used against you in court.” At the time of detention: “You do not have to say anything. But it may harm your defense if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.” Right to an attorney At time of detention: “You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.” The custody officer at the police station must explain the arrested individual’s rights. They have the right to receive free legal advice. Language check At time of detention: “Do you understand each of these rights as I have read them to you?” When the custody officer explains the individual’s rights, the individual can ask for a notice in their language or an interpreter to explain the notice. Procedural warnings Not required in the United States; implied and determined on a case-by-case basis The custody officer at the police station must explain that the individual has the rights to tell someone where they are; receive medical help if they need it; see the rules the police must follow; and see a written notice about their rights, e.g., regular breaks for food and to use the toilet. Search and Seizure Another way rule-of-law systems defend the rights of individuals is through protection against unreasonable searches and seizures. This means that law enforcement may perform reasonable searches and seizures, and much of the litigation in this area deals with the reasonableness of the search and seizure. The UN has created recommendations for best policing practices for all countries, including limiting the police’s right to search an arrested individual’s person, home, or belongings to this standard. United Nations, Office of the United Nations High Commissioner on Human Rights. Human Rights Standards and Practice for the Police. New York, NY and Geneva, Switzerland: United Nations, 2004, https://www.ohchr.org/Documents/Publications/training5Add3en.pdf The recommended level of proof to warrant a search is probable cause that evidence of a crime will be found in the place to be searched. Probable cause is more than suspicion but a lot less than guilt beyond a reasonable doubt. There is no exact definition of the term probable cause , and review is on a case-by-case basis. This protection in rule-of-law countries rests on recognizing a right to privacy and to be left alone by the police. See Christopher Slobogin, “An Empirically Based Comparison of American and European Regulatory Approaches to Police Investigation,” Michigan Journal of International Law 22, issue 3 (2001), https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1377&context=mjil for an example of countries with right to privacy protections. However, many countries do not follow these limitations. In those countries, the police can search a person’s home and belongings or interrogate a person whenever they want to do so. For an example of a country with low protections, see David Tate Cicotte, “Saudi Search and Seizure Law Compared with the Fourth Amendment” (2014). Law School Student Scholarship. 453, https://scholarship.shu.edu/student_scholarship/453. This is particularly true in rule-by-law countries. Writ of Habeas Corpus and the Right to Appear Before the Court In all rule-of-law countries, a person held in jail has a right to demand to be brought before the court and told why they are being jailed. UN General Assembly, Resolution 43/173, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, A/RES/43/173 (Dec. 9, 1988), https://www.ohchr.org/en/professionalinterest/pages/detentionorimprisonment.aspx. In some countries, this process is referred to as a petition for a writ of habeas corpus . In rule-by-law countries, this right is not recognized. In those countries, a person can be held indefinitely, incommunicado, without any right to seek their freedom or to demand that the government prove the charges against them. In rule-of-law countries, the writ of habeas corpus process usually occurs automatically. Countries that adhere to the UN Charter on Human Rights follow these requirements. Ibid. The US Constitution and state constitutions protect this automatic procedure, which is called arraignment . An arraignment is a type of court hearing held within 72 hours of arrest, at which an arrested individual is notified of the charges against them. In the United Kingdom, a person can be held for 24 to 96 hours before their first hearing, depending on the crime. “Being arrested: your rights,” Crime, justice and the law, GOV.UK, accessed January 11, 2022, https://www.gov.uk/arrested-your-rights/how-long-you-can-be-held-in-custody. All rule-of-law countries have some limit on the time a person can be held in custody before appearing in court to hear the charges against them and to have the court reiterate their rights to remain silent and to have an attorney. “Criminal Justice,” Factors, WJP Rule of Law Index, World Justice Project, accessed January 11, 2022, https://worldjusticeproject.org/rule-of-law-index/factors/2020/Criminal%2520Justice. At an arraignment in the United States, the arrested person is allowed to enter a plea, and the court sets bail . Bail is an amount of money to be paid or an agreement to restrictions on a person’s freedom in exchange for release from jail while they are waiting for trial. Bail is not intended to be punitive; it is intended to ensure that the person being charged will appear for their court hearings and trial. “How Courts Work,” Division for Public Education, American Bar Association, September 9, 2019, https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/bail/. In the United States, if someone is charged with a misdemeanor, the case moves directly from the police to the prosecutor to investigate and prepare the case against that person. If the government wants to charge someone with a felony, they must receive the approval of a grand jury. A grand jury is a group of citizens who only hear evidence from the prosecutor and must determine whether probable cause exists to proceed with the charge and trial against the accused. If the grand jury decides there is probable cause, they issue an indictment , the formal charge for the crime. Note that the standard for a grand jury to issue the indictment is only probable cause, well below the standard of guilt beyond a reasonable doubt. Further, a defendant has no right to appear or defend themselves at the grand jury hearing, so it is a one-sided presentation of the evidence. What to Expect as a Juror Jury duty is a responsibility individuals have to their communities. What should you expect if you are called for jury duty? This short video explains. Capital Punishment The death penalty is a form of capital punishment . Capital crimes are those for which a person who is found guilty can be sentenced to the death penalty or to automatic life in prison without parole, depending on the laws in a specific country. A person can be found guilty of a capital crime even if the country does not have a death penalty. Some countries that still impose the death penalty can impose it for crimes other than murder and are permitted to impose it on juveniles. “Executions of Juveniles Outside of the US,” Juveniles, Policy Issues, Death Penalty Information Center, accessed January 11, 2022, https://deathpenaltyinfo.org/policy-issues/juveniles/execution-of-juveniles-outside-of-the-u-s; “Juveniles and the Death Penalty,” ACLU, accessed January 11, 2022, https://www.aclu.org/other/juveniles-and-death-penalty; “TalkAboutIt: Capital punishment around the world,” ABC News Australia, last updated April 7, 2015, https://www.abc.net.au/news/2015-04-06/explainer-capital-punishment-around-the-world/6371238. These countries primarily include China and countries in the Middle East and Africa. From 2009 to 2020, about 35 countries, including the United States, Belarus, and several countries in central Africa, the Middle East, and Asia, carried out executions. (source: Amnesty International; attribution: Copyright Rice University, OpenStax, under CC BY NC-SA 4.0 license) Many countries, including all European countries with the exception of Belarus, have abolished the death penalty . “Countries That Have Abolished the Death Penalty Since 1976,” International, Policy Issues, Death Penalty Information Center, accessed January 11, 2022, https://deathpenaltyinfo.org/policy-issues/international/countries-that-have-abolished-the-death-penalty-since-1976. In these places, the maximum sentence is life in prison without parole. Since 1991, the number of countries that have abolished the death penalty has more than doubled. (source: Amnesty International; attribution: Copyright Rice University, OpenStax, under CC BY NC-SA 4.0 license) In the United States, many assert that the death penalty violates the US Constitution’s prohibition of the imposition of “ cruel and unusual punishments.” In the United States in 1972, the procedures for execution being used in some states were found to violate the “cruel and unusual” standard. Furman v. Georgia, 408 U.S. 238 (1972). Some states responded by changing their procedures and reinstating the death penalty. SCOTUS upheld those revisions as constitutional in 1976. Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976). Other states decided not to reinstate the death penalty. “States and Capital Punishment,” National Conference of State Legislatures, August 11, 2021, https://www.ncsl.org/research/civil-and-criminal-justice/death-penalty.aspx. The federal government did not reinstate the death penalty for federal crimes until 1988 and has rarely imposed the death penalty or carried it out. “Federal Death Penalty,” State & Federal Info, Death Penalty Information Center, accessed January 11, 2022, https://deathpenaltyinfo.org/state-and-federal-info/federal-death-penalty#:~:text=Overview.%20The%20federal%20death%20penalty%20applies%20in%20all,six-month%20period%20between%20July%202020%20and%20January%202021. Since that time, more US states have abolished the death penalty, making a total of 23 states (plus the District of Columbia) without the death penalty and three that are no longer carrying out executions. “State by State,” Death Penalty Information Center, last updated June 13, 2019, https://deathpenaltyinfo.org/state-and-federal-info/state-by-state. As of August 2021, 27 of 50 US states had the death penalty, although three of those states—California, Oregon, and Pennsylvania—have imposed moratoriums on executions. “States with and without the death penalty—2021,” State by State, State & Federal Info, Death Penalty Information Center, accessed January 11, 2022, https://deathpenaltyinfo.org/state-and-federal-info/state-by-state. (source: National Conference of State Legislatures; attribution: Copyright Rice University, OpenStax, under CC BY NC-SA 4.0 license) In the United States, only certain types of murder, such as premeditated murder for hire or murder of certain government officials, qualify as capital crimes . “Summary of Death Penalty Statutes,” Crimes Punishable by Death, Facts & Research, Death Penalty Information Center, accessed January 11, 2022, https://deathpenaltyinfo.org/facts-and-research/crimes-punishable-by-death/summary-of-state-death-penalty-statutes. In a few states, if someone is killed during the commission of a felony, anyone involved in committing that felony can be sentenced to the death penalty, even if they are not the one who committed the killing, under a principle called the law of the parties . Many oppose this imposition of the death penalty on someone other than the person who did the actual killing, and state legislatures are reviewing the situation. “Texas House of Representatives Passes Bill to Limit Death-Penalty Eligibility for Defendants Who Do Not Kill,” News, Death Penalty Information Center, May 7, 2021, https://deathpenaltyinfo.org/news/texas-house-of-representatives-passes-bill-to-limit-death-penalty-eligibility-for-defendants-who-did-not-kill. In the United States, even states that impose the death penalty cannot impose it on an individual who is under 18 or mentally disabled at the time of the crime. Roper, Superintendent, Potosi Correctional Center v. Simmons, 543 US 551 (2005); Daryl Renard Atkins, Petitioner v. Virginia, 536 US 304 (2002). The harshest sentence a juvenile can receive in the United States is life in prison without parole. Even in those states that use the death penalty, it is being applied less often. In the 30-year period from 1988 to 2018, new death sentences in the United States decreased from close to 300 in 1988 to less than 50 in 2018, a reduction of more than 80 percent. (source: Death Penalty Information Center; attribution: Copyright Rice University, OpenStax, under CC BY NC-SA 4.0 license) The federal death penalty applies in all 50 states and US territories but is used relatively infrequently. As of November 2021, there were 45 federal prisoners on death row. “List of Federal Death Row Prisoners,” State & Federal Info, Death Penalty Information Center, accessed January 11, 2022, https://deathpenaltyinfo.org/state-and-federal-info/federal-death-penalty/list-of-federal-death-row-prisoners. No federal government executions occurred after 2003 until 2020, when President Donald Trump ordered federal officials to begin carrying out executions. During the remainder of his presidency, 13 federal prisoners were executed. Michael Tarm, “On federal death row, inmates talk about Biden, executions,” APNews , March 22, 2021, https://apnews.com/article/federal-death-row-inmates-talk-biden-executions-6381ed8b3e821a34a6b6ade6bb3375c0; “Capital Punishment,” History, About, Federal Bureau of Prisons, accessed January 11, 2022, https://www.bop.gov/about/history/federal_executions.jsp. As of November 2021, there were 45 inmates on federal death row in the United States. (source: Death Penalty Information Center; attribution: Copyright Rice University, OpenStax, under CC BY NC-SA 4.0 license) At the end of 2018, 2,567 prisoners were on death row in US states. From 1977 to 2018, 34 states carried out 1,490 executions. Texas carried out 37 percent of those executions. While California has the most people on death row, it has not carried out any executions for many years. Since March 2019, when Governor Gavin Newsom placed a stoppage on executions, all death row inmates in California have effectively been serving life sentences. “Data on the Death Penalty in the US,” USAFacts, last updated January 13, 2021, https://usafacts.org/articles/death-penalty-us-what-data-says/. For more information about the death penalty and executions in the United States since 1978, visit USAFacts , where you can explore interactive graphics that provide comparative data showing how each state and the federal government has applied the death penalty. The split internationally and between the states on support for or opposition to the death penalty reflects the general division in society over whether or not the death penalty is intrinsically cruel and unusual under current human rights standards. “Death Penalty,” Your Human Rights, United Nations Office of the High Commissioner on Human Rights, accessed January 11, 2022, https://www.ohchr.org/EN/Issues/DeathPenalty/Pages/DPIndex.aspx. The US Supreme Court has held that the meaning of “cruel and unusual” rests on society’s “evolving standard of decency,” and thus there is no set standard. Trop v. Dulles, 356 US 86 (1958) As society’s view of the death penalty changes, so can the application of the concept of cruel and unusual punishment. Those who oppose the death penalty “Reasons to Oppose the Death Penalty,” Virginians for Alternatives to the Death Penalty, accessed January 11, 2022, https://www.vadp.org/dp-info/reasons-to-oppose-the-death-penalty/, “The Facts: 13 Reasons to Oppose the Death Penalty,” Facts, Oregonians for Alternatives to the Death Penalty, accessed January 11, 2022, https://www.oadp.org/facts/13-reasons; “Death penalty: key facts about the situation in Europe and the rest of the world,” World, News, European Parliament, last updated July 28, 2020, https://www.europarl.europa.eu/news/en/headlines/world/20190212STO25910/death-penalty-in-europe-and-the-rest-of-the-world-key-facts. make a number of different arguments. Some argue that life without parole meets the purposes of criminal punishment better than execution. They say that a life without parole permanently removes from society the person who has been sentenced just as much as the death penalty would; thus, the standard of incapacitation of the person to commit another crime is met. “Should Life without Parole Replace the Death Penalty?” ProCon.org, accessed January 11, 2022, https://deathpenalty.procon.org/questions/is-life-in-prison-without-parole-a-better-option-than-the-death-penalty/. Some argue that because investigations have found that some people executed or placed on death row are innocent, injustice cannot be corrected if the death penalty is carried out. “The Innocent and the Death Penalty,” Innocence Project, News, February 10, 2009, https://innocenceproject.org/the-innocent-and-the-death-penalty/#:~:text=Eighteen%20people%20have%20been%20proven%20innocent%20and%20exonerated,death%20row%20%E2%80%93%20for%20crimes%20they%20didn%E2%80%99t%20commit. Killing someone for the crime of killing has been held up as state hypocrisy. Additionally, there are questions about the equal application of justice in death penalty cases because racial minority defendants tend to receive the death penalty more often than White defendants who are convicted of committing the same or similar crimes. “Race and the Death Penalty by the Numbers,” Race, Policy Issues, Death Penalty Information Center, accessed January 11, 2022, https://deathpenaltyinfo.org/policy-issues/race/race-and-the-death-penalty-by-the-numbers/. Further, the race of the victim is a factor. A 1990 US government report states that “in 82 percent of the studies [reviewed], race of victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks.” United States General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities (Washington, DC: General Accounting Office, February 1990), 5, http://racialviolenceus.org/Articles/GAO_Death_Penalty_Sentencing.pdf. Historically in the United States, more than twice as many Black defendants have been executed as have defendants in cases in which the victim was Black. (source: Death Penalty Information Center; attribution: Copyright Rice University, OpenStax, under CC BY NC-SA 4.0 license) Civil Law Civil law is everything that is not criminal law . Thus, it is wide-ranging and complex, covering everything from family matters (marriage, divorce, adoption, guardianship, probate, etc.) to personal injury, workers’ compensation, medical malpractice, and business disputes. Civil law differs from criminal law in that individuals or groups file cases rather than the state. The legislature enacts laws that establish standards of conduct and recognizes relationships. The legislature will establish the duty owed and rights between individuals, what constitutes a breach, and what damages may be recovered for that breach. Because civil law topics are so wide-ranging, the burden of proof for the complaining party similarly varies. It can range from merely a preponderance of evidence to clear and convincing evidence. A Comparison of Civil Law and Criminal Law Civil Law Criminal Law Definitions Laws concerned with interpersonal disputes such as divorce, debt, personal injury Statutes that identify conduct as criminal felonies or misdemeanors; punishable by the government Cases Filed By Individuals The government Type of Punishment Monetary damages, disposition of property and/or a relationship Incarceration, fines, probation Burden of Proof Ranges from a preponderance of evidence to clear and convincing evidence, depending on the topic Always guilt beyond a reasonable doubt Appeals Filed By Any dissatisfied party The defendant Right to a Jury Must pay a fee to have a jury Automatic in some cases, requested in others; no fee charged Jury Verdict Does not always have to be unanimous Must be unanimous There are two major divisions in law, criminal and civil. Criminal law applies to offenses against the state that are punished because they harm society. Criminal law requires a statute to create an offense, its elements, and its punishment. An act is not a crime unless a written law establishes it as one. Only the government can prosecute a criminal case. A criminal case begins with an alleged crime, an arrest by the police, and a charge filed by a prosecutor. Anything that is not criminal law falls under civil law, such as when one individual is harmed by another and seeks compensation for the harm. In civil law legal systems, civil offenses are only by statute. In common law legal systems, civil offenses can be by statute or case precedent. There are five general purposes for criminal punishment: incapacitation, retribution, deterrence, restitution, and rehabilitation. There are two main types of criminal law: serious offenses, often called felonies, and less serious offenses, often called misdemeanors. Punishments for serious offenses may involve imprisonment for a term of years to life and, in a few countries, the death penalty. Lesser crimes are often punishable by no more than a fine. If a misdemeanor carries a prison sentence at all, that sentence is usually less than a year in length and is served in the local jail. The divisions between serious and lesser punishments and trial processes vary widely by country. In all rule-of-law countries, the burden of proof for a criminal offense is beyond a reasonable doubt. In the United States, because a criminal case can impact an accused person’s liberty, the burden of proof is always on the government, and the standard of proof is always guilt beyond a reasonable doubt. In rule-of-law countries, police must advise an individual at the time of arrest of certain rights, including the right to have an attorney assist them with their case and the right to be cautioned that anything they say can be used against them in court. Rule-of-law systems protect individuals against unreasonable searches and seizures. The UN has created recommendations for best policing practices for all countries, including limiting the police’s right to search an individual, their home, or their belongings to this standard. In all rule-of-law countries, a person held in jail has a right to demand to be brought into court and told why they are being jailed. In rule-by-law countries, this right is not recognized. Capital crimes are those for which a person who is found guilty can be sentenced to the death penalty or to automatic life in prison without parole, depending on the laws in a specific country. Civil law includes everything that is not criminal law. It differs from criminal law in that individuals or groups file cases. Civil law covers everything from family matters (marriage, divorce, adoption, guardianship, probate, etc.) to personal injury, workers’ compensation, medical malpractice, and business disputes. arraignment the initial court hearing in which an arrested individual is informed of the specific criminal charges against them, bail is set, and the individual is appointed an attorney if they have not already secured one bail court-determined conditions that must be met for an arrested individual to be released from jail, designed to ensure that the individual will appear for all hearings and the trial in a criminal case; may include fines or restrictions on activity capital punishment the imposition of the death penalty on persons convicted of specific crimes civil law a system of laws concerned with the peaceful resolution of disputes between individuals rather than with criminal conduct felonies serious crimes that carry more severe sentences than misdemeanor crimes grand jury a body of citizens that reviews evidence to determine if there is probable cause to charge a person with a felony guilt beyond a reasonable doubt the standard required to convict someone of a crime in a rule-of-law system misdemeanors minor criminal offenses that are often punishable by a fine probable cause the amount of evidence required for the government to take specific actions against a defendant in a criminal investigation or case; determined on a case-by-case basis

Social Sciences


Due Process and Judicial Fairness Learning Outcomes By the end of this section, you will be able to: Describe the elements of due process. Discuss the need for fairness in a judicial system. Discuss the hierarchy of courts. Discuss the different types of courts and their operations. Due process is the legal requirement that the government must respect the rights of the accused and take procedural steps to create a fair system of government action against the accused. The concept of due process appeared as far back as the Magna Carta , which held that no noble could be deprived of liberty or property without due process in a hearing before their peers. G. R. C. Davis, Magna Carta , Revised Edition, British Library, 1989, accessed January 11, 2022 from “The Text of Magna Carta,” Fordham University, https://sourcebooks.fordham.edu/source/magnacarta.asp. The Universal Declaration of Human Rights protects people’s right to due process before a government can take action against them. “Universal Declaration of Human Rights,” About Us, United Nations, accessed January 11, 2022, https://www.un.org/en/about-us/universal-declaration-of-human-rights. The European Convention on Human Rights provides for due process of law by a fair and impartial hearing before the government. European Court of Human Rights, “European Convention on Human Rights,” France: Council of Europe, 2013, https://www.echr.coe.int/Documents/Convention_ENG.pdf. As discussed in Chapter 4: Civil Liberties , there are two due process clauses in the US Constitution: one in the Fifth Amendment , which applies to the federal government, and one in the 14th Amendment , which applies to the states. Other than the entities to which they apply, both clauses are identical. The clauses provide that “no person shall . . . be deprived of life, liberty, or property without due process of law” U.S. Const. amend. V. and “nor shall any state deprive any person of life, liberty, or property without due process of law,” U.S. Const. amend. XIV, § 1. respectively. They apply to all persons, not just citizens of the United States. All rule-of-law systems have similar due process requirements. To understand the application of due process, one must first ask what procedures are due and what deprivation of “life, liberty, or property” means. There are two types of due process, procedural and substantive. Procedural due process is the steps the government must take before depriving an individual of life, liberty, or property. The US Supreme Court has held that procedural due process at a minimum requires (1) notice, (2) an opportunity to be heard, and (3) an impartial tribunal. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). When determining if a process is constitutional, courts consider (1) the nature of the right at issue, (2) the adequacy of the procedure compared to other procedures, and (3) the burdens other procedures would impose on the state. Mathews v. Eldridge, 424 U.S. 319 (1976). These procedures can be seen in criminal and civil cases, where special rules of procedure and evidence apply. These will be discussed in greater detail when the trial process is explored. Due process that attempts to ensure that the system of laws and courts is fair to all persons is substantive due process . Substantive due process applies the protections of individual rights under the Constitution and measures the activities of government to determine if they treat each person fairly and equally, without infringing on those constitutional rights. As the image of Lady Justice that opens this chapter shows, the scales of justice need to be in balance, and justice must be blind so that everyone is equal in the eyes of the law. When reviewing how fair a system is, it is important to consider to what degree the judge and jury are impartial. One way of looking at judicial impartiality is to examine judicial independence. If the judiciary is not independent of influence, people will not believe it is fair or impartial. You learned about some of these issues in the discussion of judicial selection. There is a high degree of concern about judicial impartiality in some countries because the judiciary in those countries is not independent of other branches of government or oversight by religious leaders. In China, the Chinese Communist Party controls all government offices, including the judiciary. Thus, it is rare for the judiciary to overrule any government action. The Iranian constitution states that the judiciary upholds Islamic law; thus, it is restricted in reviewing government actions against citizens. Further, the judiciary is under the supreme leader and Guardian Council, religious figures who can overrule the court’s actions at will. See the Iranian constitution at https://en.parliran.ir/eng/en/Constitution. How independent of pressure from the executive can these supreme court justices feel when reviewing government actions against individuals? In the United States, the president nominates judges to the federal courts. The Senate then reviews these nominations and may confirm or deny them. Federal judges are appointed for life, regardless of who the next president may be. The judiciary is thus said to be independent and neutral of political forces. How impartial and independent it really is remains in question, as presidents tend to nominate persons with political views similar to their own. Even after attaining office, an individual judge may continue to decide cases in keeping with those political views. Further, how equally are people treated under the same law? For example, there are long-standing concerns in the United States about how fairly the criminal justice system treats racial minorities. Unfortunately, this issue is not limited to the United States but is a problem around the world. It is one that the UN continually works to remedy. “Rule of Law and Justice,” United Nations and the Rule of Law, United Nations, last modified October 8, 2019, https://www.un.org/ruleoflaw/thematic-areas/justice-2/. In rule-of-law countries, the standard style of court system is a three-tier hierarchy, although the names of the parts and what they can do vary widely by country. In the United States, trial courts are subordinate to intermediate courts of appeals, which are subordinate to the highest courts. (attribution: Copyright Rice University, OpenStax, under CC BY NC-SA 4.0 license) In the US Article III federal court system, there are 94 district courts, which are trial courts organized into 12 circuits or regions. “Court Role and Structure,” About Federal Courts, United States Courts, accessed January 11, 2022, https://www.uscourts.gov/about-federal-courts/court-role-and-structure. Each circuit has its own court of appeals that reviews cases decided by district courts within the circuit. The US Court of Appeals for the Federal Circuit hears cases of a particular type from across the nation. There are two levels of appeal in the United States, the intermediate court of appeals and the Supreme Court of the United States. Each state has its own court system, but all states use the three-tier hierarchy. The names of the courts vary as well as the types of cases they hear. Trial Courts Trial courts are the first level of courts in any system. The common characteristic of trial courts worldwide is that they are courts of original jurisdiction, the first courts with authority to hear a case. The exact process for a trial varies widely by country. In the United States, trial courts are bound by strict procedures and evidence designed to ensure due process. “Your Day in Court,” Judicial Learning Center, accessed January 11, 2022, https://judiciallearningcenter.org/your-day-in-court/; “How Courts Work,” Division for Public Education, September 9, 2019, https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/cases/. After judgment in a US trial court, the final decision of the case is written down in a document called an order or judgment that an aggrieved party might use to appeal a case to a higher court. The basic trial court process in the United States is as follows: “Justice 101,” Offices of the United States Attorneys, accessed January 11, 2022, https://www.justice.gov/usao/justice-101/trial. Filing of complaint and pretrial documents: All cases rest on written pleadings of the parties asserting claims or defenses. In these documents, the specific questions of the case are detailed. Matters that are not mentioned in the pleadings cannot be brought up during the case. Pretrial discovery: This occurs during the investigative stage. The parties seek evidence to support their positions. The evidence must be in a form that can be admitted in court. There are strict rules of evidence; not everything is admissible. The trial: There are several stages to the actual trial. Voir dire: In this stage, the people who have been called for jury duty are questioned to see if they have any prior knowledge or biases that would prevent them from being eligible to sit on the jury for a specific case. Opening statements: The attorneys give synopses of what they hope to prove with the evidence. The jury listens to these synopses but cannot use them in making their decision. Evidence: During this stage, testimony and documents are formally presented in the court. Strict rules ensure truthfulness, the accuracy of the evidence, and that only information related to the questions in the case is presented to the jury. The jury may only rely on the evidence presented in court when making their decision. Each side has an opportunity to call and question any witness. The attorney calling the witness conducts direct examination, asking questions that support their view of the case. The opposing attorney can then cross-examine the witness in an attempt to elicit information supporting their perspective or to discredit the witness’s testimony so that the jury may question whether it is reliable. Closing statements: Each attorney summarizes their case and tries to convince the jury that the evidence presented supports their conclusion. The jury listens to the closing statements, but they are not supposed to rely on them in making their decision. Verdict: The jury is given specific questions to answer. They can only answer these questions. Their answer is the verdict, or decision, in the case. Judgment: Judgment is the formal legal acceptance of the decision in the case. The judgment is the document used to enforce the decision on the parties. How a Trial Works Criminal and civil common law trials are adversary in nature. Ideally, the combined arguments of the prosecution and the defense, with the judge's moderation, reveal something close to the truth in a case. The prosecution and the defense focus on the facts of the case, while the judge focuses on proper procedure and the substance of the law. In a civil case, any party dissatisfied with the judgment can request an appeal, and in a criminal case, a defendant who is found guilty can request an appeal. The government cannot appeal in a criminal case if the defendant is found not guilty due to the US Constitution’s prohibition against double jeopardy . All rule-of-law countries recognize some form of double jeopardy. The US Constitution provides that “no person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. This means that if a person is acquitted, or found not guilty, they cannot be tried again for the same offense at a criminal trial. They can, however, be tried for another offense or in another jurisdiction. For example, if you rob a bank and shoot someone as you are getting away, you have violated both federal and state statutes and can be charged and tried separately by each jurisdiction for the offenses. In this example, you can be charged with and tried for at least two federal and two state charges. Many people mistakenly think this is double jeopardy, but double jeopardy only applies when a person is found not guilty of a crime and then tried again in the same jurisdiction for the same crime. In the above example, if the federal government tried you for bank robbery and you were acquitted, the state could still try you for bank robbery, but the federal government could not try you a second time for that crime. Appellate Courts An appeal is a higher court’s review of a lower court’s decision. The workings of the appeals process vary widely around the world. In the United States, an appeal serves only to determine if an error of law occurred in the lower court that may have resulted in the rendition of an improper judgment. An appeal is not a do-over of the original trial. There are strict standards for reviewing the lower court’s action, which vary by type of case. Katherine A. Currier, Thomas E. Eimermann, and Marisa S. Campbell, “The Court System and the Role of Judges,” in The Study of Law: A Critical Thinking Approach , 5th ed. (New York: Wolters Kluwer, 2020). This photo was taken inside a court of appeals in Annapolis, Maryland. (credit: “Chief Judge Robert Bell’s Portrait Unveiling at the Court of Appeals” by Maryland GovPics/Flickr, CC BY 2.0) No witnesses are called during an appeal, no new evidence is taken, and there is no jury. A panel of judges reviews the written record of the lower court proceeding and compares this to the written law being applied. In judicial review systems, the appellate panel of judges also looks at the precedent of similar cases. Relying on this review of the lower court’s proceeding, the law, and, if applicable, the precedent, the judge determines if the lower court made a substantive legal error. If they do not find there was a significant error, they affirm the lower court’s judgment. If they find an error, they reverse the case. When they reverse, they can order one of two things, remand or rendition. In reverse and remand , the court instructs the lower court on correcting the error and sends the case back for a new trial. In the rare instances of reverse and render , the court finds that the error was so serious that they need to enter the correct judgment, and there are no further proceedings in the trial court. For an example of a court opinion reversing and rendering a decision, see Medina v. Zuniga, https://www.txcourts.gov/media/1443995/170498.pdf, and Valentine v. Collier, http://www.ca5.uscourts.gov/opinions/pub/20/20-20525-CV1.pdf. For an example of rules allowing rendition on reversal, see Texas Rules of Appellate Procedure at https://www.txcourts.gov/media/1437631/texas-rules-of-appellate-procedure-updated-with-amendments-effective-2117-with-appendices.pdf. If a case is before an intermediate court of appeals and one of the parties is dissatisfied with the decision, the parties can request that the highest court review the case. SCOTUS is the highest court in the US system. It can hear cases from lower federal courts or from a state’s highest court if an issue involving the US Constitution has been raised. SCOTUS is not required to hear any appeal. Instead, they hear cases at their discretion, which is called a writ of certiorari . Thousands of cases from around the country are filed with the court each year, of which they hear and decide less than 100. “About the Supreme Court,” United States Courts, accessed January 11, 2022, https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about. Thus, the Supreme Court carefully selects its cases to address major issues concerning the entire nation. The people pay close attention to the court’s decisions because many of these cases involve important political issues of the day. Once the highest court decides, the case is final, and the judicial review system’s decision becomes precedent. Other countries have similar hierarchical systems. The exact jurisdictions and names of the courts may differ, but the hierarchical style of trial and review applies. A major difference between the countries is whether or not they use judicial review or recognize parliamentary sovereignty. Due process is the legal requirement that the government must respect the rights of the accused and take procedural steps to create a fair system of government action against the accused. Procedural due process is the steps the government must take before depriving an individual of life, liberty, or property. Substantive due process attempts to ensure that the system of laws and courts does not infringe on individual constitutional rights. When reviewing how fair a system is, it is important to consider to what degree the judge and jury are impartial. In rule-of-law countries, the standard style of court system is a three-tier hierarchy. Trial courts are the first level of courts. They are courts of original jurisdiction, the first courts with authority to hear a case. An appeal is a higher court’s review of a lower court’s decision. The workings of the appeals process vary widely around the world. In the United States, an appeal serves only to determine if an error of law occurred in the lower court that may have resulted in the rendition of an improper judgment. Strict standards for reviewing the lower court’s action vary by type of case. appeal a higher court’s review of a lower court’s decision to determine if an error of law caused the rendition of an improper judgment by the lower court due process a legal requirement that the government respect the rights of the accused and take procedural steps to create a fair system of government action against the accused procedural due process the process, procedures, and rules that the government must follow when taking any legal action against an individual so that their rights under the constitution are protected substantive due process the principle that due process applies not only to legal procedures but also to broader government actions, such as the passing of laws, and that such actions are subject to review to ensure that they do not infringe on individuals’ constitutional rights

Social Sciences


Judicial Review versus Executive Sovereignty Learning Outcomes By the end of this section, you will be able to: Define judicial review. Discuss restraints on judicial review. Explain who and what is subject to judicial review. Explain executive sovereignty. Explain who and what is subject to executive sovereignty. Judicial review is one means of checking to see whether the other branches are following a country’s constitution and its principles. In some countries, this review is conducted not by the judicial courts but by a group that reviews proposed laws while the legislature is still debating them. For example, in France, the Constitutional Council reviews all acts of Parliament before they are enacted to ensure that they do not violate the French constitution. Constitutional Council, accessed January 11, 2022, https://www.conseil-constitutionnel.fr/en. If the council finds that a proposal does violate the constitution, Parliament can correct it before enacting the law. In the United States, the courts perform judicial review. U.S. Const. art. III, VI. The US Constitution, not a branch of government or an individual, is the supreme law of the United States. The power of judicial review includes the power to make sure that all branches of government at all levels comply with the US Constitution. Even though judicial review exists in the United States, all laws and government actions that come before the court enjoy a presumption of constitutionality. The amount of deference to that constitutionality varies with the type of action and the judge. For example, since World War II, individual and civil rights have been broadened, and courts have been less deferential to government actions restricting personal liberty. Still, courts rarely hold that an act is unconstitutional. “Constitution of the United States of America: Analysis and Interpretation,” Govinfo.gov, US Government Publishing Office, accessed May 25, 2021, https://www.govinfo.gov/collection/constitution-annotated. As of 2014, out of the millions of actions Congress and the president have taken in the history of the United States, SCOTUS had only ever held 176 acts of Congress to be unconstitutional. Congress passed 15,817 laws from 1954 to 2002. The Supreme Court ruled 103 of them, a total of two-thirds of 1 percent, unconstitutional. In that same period, state legislatures enacted 1,006,649 laws. The court ruled 452 of those, less than one-twentieth of 1 percent, unconstitutional. The federal government adopted 21,462 regulations from 1986 to 2006. The court held 121 of them, about one-half of 1 percent, unconstitutional. See Clark Neily and Dick M. Carpenter II, Government Unchecked: The False Problem of “Judicial Activism” and the Need for Judicial Engagement (Arlington, VA: Center for Judicial Engagement, September 2011), https://www.ij.org/images/pdf_folder/other_pubs/grvnmtunchkd.pdf. Another myth about judicial review is that SCOTUS frequently finds actions of the other branches of state governments unconstitutional. More state laws have been struck, but the percentage is still meager, given that the 50 states take millions of actions each year. Most of the state laws the court has struck since 1960 have involved civil rights, with only 483 state laws declared unconstitutional as of 2019. “Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court,” Constitution Annotated, Library of Congress, accessed May 25, 2021, https://constitution.congress.gov/resources/unconstitutional-laws/. Using judicial review, the courts check all government actions against the Constitution and ensure that it is the supreme law of the land. In a parliamentary sovereignty system , this check is not available. In an executive sovereignty system , a parliamentary sovereignty system, or a legislative sovereignty system , the courts cannot overrule executive or parliamentary action through judicial review. In executive, parliamentary, or legislative supremacy systems, the legislative body is supreme over all other government institutions. The legislature may change or repeal any law and, in some countries, is not bound by case precedent or a constitution. The United Kingdom is an example of a country with parliamentary sovereignty. In the UK, the monarch initially was all-powerful and could do anything they wanted. Even after a royal parliament had been in place for many years, the monarch retained near-total power and could dissolve the parliament. After the English Civil Wars, Parliament became all-powerful, and since that time, the monarch’s role has been largely ceremonial. In the era of parliamentary preeminence, the Houses of Parliament (the House of Commons and the House of Lords), under the unwritten constitutional principles of the UK, hold the right to make or repeal any law. No one can override a parliamentary act. Parliament can make or change any law. UK Supreme Court Rules Prorogation “Unlawful” In 2019, the UK Supreme Court ruled that Prime Minister Boris Johnson acted unlawfully when he stopped the work of Parliament during Brexit debates. Furthermore, an act of Parliament cannot be challenged in court as unconstitutional, as Parliament is the supreme lawmaker. However, since World War II, the British Parliament’s power has been curtailed in some measure by new laws and agreements to be bound by international treaties. Nevertheless, Parliament retains the ability to repeal these laws or consent to any of these international agreements. “Parliament’s Authority,” What is the role of Parliament?, UK Parliament, accessed January 11, 2022, https://www.parliament.uk/about/how/role/sovereignty/. Brexit , the recent parliamentary vote and referendum of the people of the UK to leave the European Union (EU), which had bound the British courts to follow specific economic laws and policies effective throughout Europe, provides a prime example of such a repeal. While the parliaments that joined and stayed with the EU bound themselves temporarily to international agreements, a later parliament retained the right to undo the binding and reassert supremacy. Any check on the British Parliament rests in the public perception of and support for the government. If the public loses confidence in Parliament, elections can be called, and new members who agree to vote in line with public sentiment can be voted into office. Judicial review is one means of checking to see whether the other branches are following a country’s constitution and its principles. In some countries, this review is conducted not by judicial courts but by a group that reviews proposed laws while the legislature is still debating them. Suggested Readings Goldman, Sheldon. Picking Federal Judges: Lower Court Selection from Roosevelt through Reagan . New Haven, CT: Yale University Press, 1997. Malleson, Kate, and Peter H. Russell, eds. Appointing Judges in an Age of Judicial Power: Critical Perspectives from around the World . Toronto: University of Toronto Press, 2006. National Center for State Courts. “Judicial Reform.” Last modified May 20, 2020. https://www.ncsc.org/topics/international/judicial-reform-around-the-world/home/judicial-reform. United Nations Office on Drugs and Crime. The Doha Declaration: Promoting a Culture of Lawfulness (website). Accessed December 21, 2021. https://www.unodc.org/dohadeclaration/index.html. executive sovereignty system a system in which the actions of a parliament or the executive cannot be reviewed for their constitutionality

Social Sciences


Introduction Republican Vice President Richard Nixon and Democratic Senator John F. Kennedy participated in the United States’ first televised presidential debate in 1960. (credit: “ Richard Nixon and John F. Kennedy Debate in Chicago While Being Televised ” by Richard Nixon Library & Birthplace/National Archives) It was 1960, and Republican Vice President Richard Nixon stood at the podium, appearing drained and sweaty, while his opponent, Democratic Senator John F. Kennedy (JFK), looked as if he had been ready for this moment, the United States’ first televised presidential debate, his whole life. When asked which candidate did better, Nixon’s running mate, Ambassador Henry Cabot Lodge, who had watched the debate on television, said he thought JFK did a better job. In contrast, Senator Lyndon B. Johnson , who was running on the Democratic ticket with JFK, listened to the debate on the radio and deemed Nixon the winner. Did Senator Kennedy’s good looks and confidence “win” the televised debate over a pale, overtired Nixon? Did the fact that the debate was televised change the outcome of the election? While academics have been unable to definitively answer these questions, one thing is sure: television changed politics that evening in 1960, and as an institution, the media continues to influence how people understand government, candidates, and policies. How JFK’s Clever TV Strategies Helped Him Win the Election John F. Kennedy’s presidential campaign took advantage of the popularity and reach of television.

Social Sciences