Criminal Courts Outline

**I have submitted the chapter, the topic is Colonial and Early American Courts**

Your paper should consist of three basic parts: the introduction, the body, and the conclusion.

Introduction: The introduction identifies the central theme of the paper and previews major points to be made. It tells the reader what your paper is about and what key points you will discuss.

Body of the paper: The body of the paper can be described as the “meat” of the paper. It is where you make your arguments, present your evidence, and provide a detailed discussion of the main points of your paper.

Conclusion: The conclusion summarizes key points and brings the paper to a logical close. It should not be used to introduce new thoughts but should leave the reader with a good summary of your paper.

For your outline, you are expected to provide: (1) a detailed introduction, (2) a bulleted overview of key points that will be addressed in the body of your paper, and (3) a detailed conclusion. As students tend to have difficulties preparing an introduction and a conclusion, an example of each, as well as comments regarding the examples, is provided below.

Step

The Courts Get Involved:
The History of Courts and the

Arrangement of Modern Courts

04
0

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

29
30
31
32
33
34
35
36
37
38
39
40
41
42
43

❖

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,

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

N 29
L 30

IS
B

0
-5

3
6
-1

6
5
4
4
-0

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

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41

42 N
43 L

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.)

IS
BN

:
0
-5

3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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.

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41

N 42
L 43

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.

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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!).

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42 N
43 L

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

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
N 42
L 43

The History of Courts 79

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

(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

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42 N
43 L

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).

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
N 42
L 43

The History of Courts 81

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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;

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42 N
43 L

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

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
N 42
L 43

The History of Courts 83

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42 N
43 L

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

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
N 42
L 43

Colonial and Early American Courts 85

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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.

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42 N
43 L

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.

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
N 42
L 43

Colonial and Early American Courts 87

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).

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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;

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42 N
43 L

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

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
N 42
L 43

Colonial and Early American Courts 89

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

N
L

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.

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
N 42
L 43

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.

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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.

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42 N
43 L

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

BN
:

0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
N 42
L 43

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.

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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.

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42 N
43 L

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

↓ ↓

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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)

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
N 42
L 43

The Puzzle of Modern Courts 95

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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-

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42 N
43 L

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

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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.

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
N 42
L 43

The Puzzle of Modern Courts 97

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
C
IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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-

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42 N
43 L

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.

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
N 42
L 43

The Puzzle of Modern Courts 99

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42 N
43 L

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

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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.

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
N 42
L 43

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

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42 N
43 L

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)

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
N 42
L 43

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.

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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.

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42 N
43 L

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

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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?

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
N 42
L 43

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.

IS
BN
:
0
-5
3
6
-1
6
5
4
4
-0
The Courts in Our Criminal Justice System, by Jon’a F. Meyer and Diana R. Grant. Published by Prentice-Hall. Copyright © 2003 by Pearson Education, Inc.

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.

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42 N
43 L

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.

R E F E R E N C E S

American Revolution HTML Project. (1997). Text of the Magna Charta. Prepared and reprinted
from the 1215 original. Available at odur.let.rug.nl/~usa/D/1400/magna.htm noot1.

Andrews, W. (1991). Old Time Punishments. New York: Dorset Press. (Originally published in 1890,
London: Simpkin, Marshall, Hamilton and Kent.)

Babwin, D. (1998). Stealing history. Chicago, 47(10): 90–93, 132–123, 143.

Beveridge, A.J. (1928). Abraham Lincoln 1809–1865 (vol. II). Boston: Houghton Mifflin.

Blackstone, W. (1897). Commentaries on the Laws of England, in Four Books. Philadelphia: Reese
Welsh and Company. (Originally published in 1765 as Commentaries on the laws of England,
Oxford: Clarendon Press.)

Bracton, H. de. (1968) On the Laws and Customs of England. Translated by S.E. Thorne from G.E.
Woodbine’s edition of the Latin text. Cambridge, MA: Harvard University Press. (Originally pub-
lished as De legibus et consuetudinibus Angliae, c. 1250.)

Bradford, W. (1952). Of Plymouth Plantation, 1620–1647 (new ed., annotated by S.E. Morison).
New York: Alfred A. Knopf. (Written by Bradford in 1646).

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

Bushell’s Case, 124 Eng. Rep. 1006 (C.P. 1670). Reprinted in I. Howell, Cobbett’s Complete Collec-
tion of State Trials, Vol. VI, (1810): 999–1026.

Carrington, P.D. (1997). A tale of two lawyers. Northwestern University Law Review, 91: 615–635.

Caton, J.D. (1893). Early bench and bar of Illinois. Chicago: Chicago Legal News, pp. 241–242.

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
N 42
L 43

References 107

Chaiken, J.M. (1998). Compendium of Federal Justice Statistics, 1995. Washington, DC: Bureau of
Justice Statistics.

Cornish, W.R. (1968). The Jury. London: Allen Lane.

Deloria, V., and Lytle, C.M. (1983). American Indians, American Justice. Austin: University of Texas
Press.

Devlin, P. (1966). Trial by Jury (3rd ed.), London: Stevens and Sons.

Devlin, P. (1979). The Judge. Oxford: Oxford University Press.

Dickson-Gilmore, E.J. (1992). Finding the ways of the ancestors: Cultural change and the invention
of tradition in the development of separate legal systems. Canadian Journal of Criminology, 34:
472–502.

Farrand, M. (1929). The Book of the General Lawes and Liberties Concerning the Inhabitants of the
Massachusetts (facsimile edition). Cambridge: Harvard University Press. (Originally published
in 1648.)

Freedman, E.M. (1996). The suspension clause in the ratification debates. Buffalo Law Review, 44:
451–468.

Friedman, L.M. (1993). Crime and Punishment in American History. New York: Basic Books.

Greek, C. (1991). Drug control and asset seizures: A review of the history of forfeiture in England
and colonial America. In T. Mieczkowski (Ed.), Drugs, Crime, and Social Policy. Boston: Allyn
and Bacon.

Greenberg, M.A. (1984). Auxiliary Police: The Citizen’s Approach to Public Safety. Westport, CN:
Greenwood Press.

Gross, E.K. (1999). Preliminary Report to the National Institute of Justice Regarding Grant #97-IJ-
CX-0039.

Henderson, E.F. (1896). Select Historical Documents of the Middle Ages. London: George Bell and
Sons.

Hill, F. (1995). A Delusion of Satan: The Full Story of the Salem Witch Trials. New York: Doubleday.

Holmes, O.W. (1881). The Common Law. Boston: Little, Brown.

Holten, N.G., and Lamar, L.L. (1991). The Criminal Courts: Structures, Personnel, and Processes.
New York: McGraw-Hill.

Johnson, H.A. (1988). History of Criminal Justice. Cincinnati: Anderson.

Judicial Council of California. (1992). 1992 Annual Report. Volume II: Judicial Statistics for Fiscal
Year 1990–1991. Sacramento: Judicial Council of California.

Judiciary Act of 1789. Act of September 24, 1789, 1 Stat. 73.

Kroeber, A.L., and Gifford, E.W. (1980). Karok Myths. Berkeley: University of California Press.

Labaree, B.W. (1972). America’s Nation-Time: 1607–1789. Boston: Allyn and Bacon.

Langan, P.A., and Brown, J.M. (1997). Felony Sentences in the United States, 1994. Washington, DC:
Bureau of Justice Statistics.

Langdon, G.D. (1966). Pilgrim Colony: A History of New Plymouth, 1620–1691. New Haven, CT:
Yale University Press.

Lea, H.C. (1996). Superstition and Force: Torture, Ordeal, and Trial by Combat in Medieval Law.
New York: Barnes and Noble. (Originally published in 1870.)

Lehman, G.D. (1988). The Ordeal of Edward Bushell. San Francisco: Lexicon Publishing.

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42 N
43 L

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

Lueckenhoff, S.K. (1996). A. Lincoln, a corporate attorney and the Illinois Central Railroad. Mis-
souri Law Review, 61: 393–428.

Luthin, R.H. (1960). The Real Abraham Lincoln: A Complete One Volume History of His Life and
Times. Englewood Cliffs, NJ: Prentice-Hall.

Maine, H. (1861). Ancient Law: Its Connection with the Early History of Society and Its Relation to
Modern Ideas. London: J. Murray.

Maitland, F.W. (1897). Domesday Book and Beyond: Three Essays in the Early History of England.
Cambridge: Cambridge University Press.

Major Crimes Act (18 U.S.C. sec. 1153).

Meyer, J.F. (1998). History repeats itself: Restorative justice in Native American communities. Jour-
nal of Contemporary Criminal Justice, 14: 42–57.

Miranda v. Arizona, 384 U.S. 436 (1966).

Moore L.E. (1973). The Jury: Tool of Kings, Palladium of Liberty. Cincinnati: W.H. Anderson.

Murphy, W.F., and Pritchett, C.H. (1986). Courts, Judges, and Politics: An Introduction to the Judi-
cial Process (4th ed.). New York: McGraw-Hill.

New York v. Uplinger, 467 U.S. 246 (1984).

O’Connor, S.D. (1995). Juries: They May Be Broke, But We Can Fix Them. Paper presented at the
First Worldwide Common Law Judiciary Conference, Washington, DC.

Oldham, J.C. (1983). The origins of the special jury. University of Chicago Law Review, 50: 137–214.

Owen, D.R., and Tolley, M.C. (1995). Courts of Admiralty in Colonial America: The Maryland Expe-
rience, 1634–1776. Durham, NC: Carolina Academic Press.

Penn and Mead’s Case, 22 Charles II. (1670). Reprinted in I. Howell, Cobbett’s Complete Collection
of State Trials (Vol. VI). (1810): 951–999.

Pollock, F., and Maitland F.W. (1952). History of English Law Before the Time of Edward I (2nd ed.)
(Vol. 1). London: Cambridge University Press. (Originally published in 1895.)

Rottman, D.B., Flango, C.R., Cantrell, M.T., Hansen, R., & LaFountain, N. (2000). State Court
Organization, 1998. Washington, DC: U.S. Department of Justice.

Spooner, L. (1852). An Essay on the Trial by Jury. Boston: J.P. Jewett.

Stephen, J.F. (1883). A History of the Criminal Law of England (Vols. 1 and 3). London: MacMillan.

Thomas, B.P. (1968). Abraham Lincoln: A Biography. New York: The Modern Library.

United States v. Tauil-Hernandez and Mordan, 88 F.3d 576 (8th Cir. 1996).

United States v. Tejada, 956 F.2d 1256 (2d Cir., 1992). Certiorari denied.

Usher, R.G. (1984). The Pilgrims and Their History. Williamstown, MA: Corner House.

Vicenti, D., Jimson, L.B., Conn, S., and Kellogg, M.J.L. (1972). Diné Bibee Haz’áanii: The Law of
the People. Ramah, NM: Ramah Navajo High School Press.

Waechter, R. (1997). Jurisprudential and historical aspects of jury service in Victoria. In Jury Service
in Victoria. Melbourne, Australia: Victorian Law Review Committee.

Walker, S. (1980). Popular Justice: A History of American Criminal Justice. New York: Oxford Uni-
versity Press.

Wall, R.E. (1972). Massachusetts Bay: The Crucial Decade, 1640–1650. New Haven, CT: Yale Uni-
versity Press.

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
N 42
L 43

References 109

Watson, B. (1998). “Hang ’em first, try ’em later.” Smithsonian, 29(3):96–107.

Wheeler, R.R., and Harrison, C. (1994). Creating the Federal Judicial System (2nd ed.). Washington,
DC: Federal Judicial Center.

Whitehead, W.A. (1881). Documents Relating to the Colonial History of the State of New Jersey
(Vol. II). Newark, NJ: Daily Advertiser Printing House.

Yazzie, R. (1994). “Life comes from it”: Navajo justice concepts. New Mexico Law Review, 24:
175–190.

Yazzie, R., and Zion, J.W. (1996). Navajo restorative justice: The law of equality and justice. In
B. Galaway and J. Hudson (Eds.), Restorative Justice: International Perspectives. Monsey, NY:
Criminal Justice Press.

Young, R.W., and Morgan, W. (1951/1994). Colloquial Navaho: A Dictionary. New York: Hip-
pocrene Books. (Originally published by Education Branch, United States Indian Service, Depart-
ment of the Interior, 1951.)

01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42 N
43 L

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

Assignment6A: Research Paper Outline (Example)

Your paper should consist of three basic parts: the introduction, the body, and the conclusion.

Introduction: The introduction identifies the central theme of the paper and previews major

points to be made. It tells the reader what your paper is about and what key points you will

discuss.

Body of the paper: The body of the paper can be described as the “meat” of the paper. It is where

you make your arguments, present your evidence, and provide a detailed discussion of the main

points

of your paper.

Conclusion: The conclusion summarizes key points and brings the paper to a logical close. It

should not be used to introduce new thoughts but should leave the reader with a good summary

of your paper.

For your outline, you are expected to provide: (1) a detailed introduction, (2) a bulleted overview

of key points that will be addressed in the body of your paper, and (3) a detailed conclusion. As

students tend to have difficulties preparing an introduction and a conclusion, an example of each,

as well as comments regarding the examples, is provided below.

Example Introduction:

Enshrined in the Sixth Amendment to the Constitution, the right to legal representation is a

cornerstone of the American criminal justice system. The trial process is complex, and courts

recognize that, without adequate legal representation, defendants may be unable to present an

effective defense against skilled government prosecutors. The Sixth Amendment grants

defendants “the assistance of counsel” but leaves the courts to more clearly define what this

means. Through a multitude of cases, the Supreme Court articulated the importance of legal

assistance and identified when legal representation must be provided. It also addressed the issue

of self-representation and the right of defendants to proceed without legal counsel.

Notes on the example introduction: The example introduction identifies the central theme of the

paper – the right to legal representation. It also previews major points to be made: (1) the

importance of legal assistance; (2) when legal representation must be provided; and (3) the right

of self-representation. The introduction tells the reader what the paper is about and identifies the

key points that will be addressed in

the paper.

Example Conclusion:

The right to legal representation as guaranteed by the Sixth Amendment has undergone quite a

transformation over time. Initially a right in only federal trials, the Court used the Due Process

Clause of the Fourteenth Amendment to expand the right to state trials for capital offenses, then

felony offenses, and finally all cases in which life or liberty are at stake. Without the right to

counsel, there would be an increased likelihood that innocent defendants would be convicted

dueto their inability to prepare and present an adequate defense. As important as the right to

counsel is, however, some defendants opt to represent themselves, without the benefit of legal

assistance. Ultimately, the Court determined that all defendants are entitled to legal assistance,

but this right cannot be forced upon those who knowingly and intelligently choose to waive it.

Notes on the sample conclusion: The example conclusion summarizes key points in the paper

and brings the paper to a logical end. It reviews the central theme of the paper – the right to legal

representation – and summarizes key points of the paper: (1) the right to legal assistance is an

important aspect of the criminal trial process; (2) the right to legal assistance has evolved over

time; and (3) defendants have the right to refuse legal representation, under certain conditions.

The conclusion does not introduce new ideas and leaves the reader with a general summary of

the paper.

Sample Outline

I. Introduction

Enshrined in the Sixth Amendment to the Constitution, the right to legal representation is a
cornerstone of the American criminal justice system. The trial process is complex, and courts
recognize that, without adequate legal representation, defendants may be unable to present an
effective defense against skilled government prosecutors. The Sixth Amendment grants
defendants “the assistance of counsel” but leaves the courts to more clearly define what this
means. Through a multitude of cases, the Supreme Court articulated the importance of legal
assistance and identified when legal representation must be provided. It also addressed the issue
of self-representation and the right of defendants to proceed without legal counsel.

II. Body of the Paper

A. Importance of Legal Assistance
1. Ensure Due Process

2. Safeguard Constitutional Rights

3. Fairness and Integrity of the Trial Process

4. Protect the Innocent from Conviction

B. The Right to Counsel

1. Police Actions and Pre-Trial Activities

2. State and Federal Trials

3. Misdemeanors and Felony Trials

4. When life or liberty is at stake

C. The Right to Self-Representation

1. Knowing and Intelligent Waiver of Rights

2. Competency of Defendant

3. Understanding of Court Proceedings

III. Conclusion

The right to legal representation as guaranteed by the Sixth Amendment has undergone quite a
transformation over time. Initially a right in only federal trials, the Court used the Due Process
Clause of the Fourteenth Amendment to expand the right to state trials for capital offenses, then

felony offenses, and finally all cases in which life or liberty are at stake. Without the right to

counsel, there would be an increased likelihood that innocent defendants would be convicted due

to their inability to prepare and present an adequate defense. As important as the right to counsel

seems to be, however, some defendants opt to represent themselves, without the benefit of legal

assistance. Ultimately, the Court determined that all defendants are entitled to legal assistance,

but this right cannot be forced upon those who knowingly and intelligently choose to waive it

Assignment 6A Worksheet

Provide a detailed introduction, a bulleted body, and a detailed conclusion for your research paper. Please see the “Assignment 6A Example” attachment for more information and a sample outline. Post your completed outline as an attachment through the Assignments section.

Introduction (Narrative):

Body of the Paper (Bulleted Outline):

Conclusion (Narrative):

Assignment 2A: Research Paper Topic

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?

ANSWER: The History of Courts and the Justice System

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

ANSWER: The topic is discussed in chapter 4.

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

ANSWER: I am writing an analysis type of paper.

4. Why did you choose this topic?

ANSWER: I settled for this paper because I find it interesting how everyday courts make rulings on complicated matters through the use of evidence and statements from witnesses. The line between what is good and what is bad is very thin and I would like to find out what were foundations of the court system that led to the justice system to be the way it is today. And the best way to understand how the justice system came into being is by analyzing the history of the court system.

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

ANSWER: I will discuss the history of the courts, how the justice system is structured and what major building blocks defined our current justice system. Documents such as the Magna Charta will feature prominently in my discussion and forms of trial used in ancient times in the justice system. I will give a chronological development of the justice system from the ancient times to date.

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

ANSWER: Yes I am confident that I will find sufficient academic data and resources to complete this paper.

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

ANSWER: Yes I understand that the instructor has to approve my topic and that I cannot change my topic once approved.

REFERENCES

Jon’a F. Meyer and Diana R. Grant (2003), The Courts in Our Criminal Justice System, Prentice-

Hall. Pearson Education, Inc.

Turn in your highest-quality paper
Get a qualified writer to help you with

“ Criminal Courts Outline ”

Get high-quality paper

NEW! AI matching with writer

Order a unique copy of this paper

Type of paper needed:

Pages:

600 words

Academic level:

We'll send you the first draft for approval by September 11, 2018 at 10:52 AM

Total price:

$26

Our Services

Criminal Courts Outline

REFERENCES

Jon’a F. Meyer and Diana R. Grant (2003), The Courts in Our Criminal Justice System, Prentice-

Hall. Pearson Education, Inc.

Order a unique copy of this paper