EVOLUTION OF LEGAL EVOLUTION OF LEGAL SYSTEM AND RIGHTSSYSTEM AND RIGHTS

THE ANGLO-AMERICAN LEGAL THE ANGLO-AMERICAN LEGAL TRADITIONTRADITION

ACCUSATORIAL SYSTEMACCUSATORIAL SYSTEM

In Anglo-Saxon England:In Anglo-Saxon England: No distinction between civil and criminal casesNo distinction between civil and criminal cases One party accused the other at a meeting of the entire community.One party accused the other at a meeting of the entire community. Community judged how it should be resolved: compurgation, ordeal, Community judged how it should be resolved: compurgation, ordeal,

battlebattle

IMPORTANCE OF OATHSIMPORTANCE OF OATHS

Clergy were involved in all trialsClergy were involved in all trials Oaths taken dead seriously as one Oaths taken dead seriously as one

would endanger one’s soul by breaking would endanger one’s soul by breaking one.one.

Compurgation: sworn statement Compurgation: sworn statement supported by oaths of a # of fellow supported by oaths of a # of fellow swearers to their knowledge of the truth swearers to their knowledge of the truth of claim. Today: character witnesses.of claim. Today: character witnesses.

MEDIEVAL TRIALS for serious MEDIEVAL TRIALS for serious crimescrimes

Trial by OrdealTrial by Ordeal If your wound If your wound

was healing was healing

cleanly after 3cleanly after 3

days you were days you were

considered notconsidered not

Guilty.Guilty.

TRIAL BY BATTLETRIAL BY BATTLE

THE ADVERSARY SYSTEMTHE ADVERSARY SYSTEM

Trial by battle was originally a fight between Trial by battle was originally a fight between the two parties involved. Sometimes a the two parties involved. Sometimes a sworn witness could prove the case of a sworn witness could prove the case of a party; sometimes it was real combat.party; sometimes it was real combat.

Gradually, champions were hired to fight for Gradually, champions were hired to fight for parties who could not fight for themselves.parties who could not fight for themselves.

Today, they’re lawyers who fight each other Today, they’re lawyers who fight each other with words and evidence to win the case.with words and evidence to win the case.

NORMAN CONQUEST – NORMAN CONQUEST – Reorganization and some new Reorganization and some new

practices, but basically practices, but basically adapted Saxon legal customsadapted Saxon legal customs Hundreds – Hundred families. Hundreds – Hundred families.

Shires – countiesShires – counties Circuits – courts moved from place to Circuits – courts moved from place to

place within the shire. Court called place within the shire. Court called an “eyre.”an “eyre.”

Outlaw – a person outside the “law”Outlaw – a person outside the “law”

JURIESJURIES

Took place of community meeting. Took place of community meeting. Originally, decided on what kind of trial Originally, decided on what kind of trial should be held.should be held.

Word comes from Latin “juris” meaning Word comes from Latin “juris” meaning ‘law.’‘law.’

Issued a “presentment” which decided if a Issued a “presentment” which decided if a crime was committed and what kind of crime was committed and what kind of trial would be held. This later became the trial would be held. This later became the grand jury.grand jury.

CONSTITUTIONS OF CONSTITUTIONS OF CLARENDONCLARENDON

King Henry II – 1154-King Henry II – 1154-11891189

1169-Established use of 1169-Established use of juries of twelve knights juries of twelve knights from the locality to from the locality to decide verdicts in decide verdicts in property disputes.property disputes.

Institutionalized Institutionalized England’s accusatorial England’s accusatorial legal customslegal customs

Juries continuedJuries continued

Catholic Church outlawed clergy participation in Catholic Church outlawed clergy participation in trial by ordeal in 1215. Effectively ended trials trial by ordeal in 1215. Effectively ended trials by ordeal. by ordeal.

That left trial by battle. That evolved into the That left trial by battle. That evolved into the two sides arguing the case out in front of a jury. two sides arguing the case out in front of a jury. Twelve peers of accused became the standard. Twelve peers of accused became the standard.

#12 may have roots in England, among #12 may have roots in England, among Normans or from Islamic North Africa and Spain Normans or from Islamic North Africa and Spain where there were also 12-man sworn juries.where there were also 12-man sworn juries.

By 1400s juries were interviewing witnesses By 1400s juries were interviewing witnesses and helping to solve cases.and helping to solve cases.

JURY VERDICTSJURY VERDICTS

Verdict means “to speak the truth.”Verdict means “to speak the truth.” Juries represented the entire Juries represented the entire

community and were considered to community and were considered to be its “voice.”be its “voice.”

Therefore they had to speak with Therefore they had to speak with one voice, so verdicts had to be one voice, so verdicts had to be unanimous.unanimous.

Throckmorton and Bushell Throckmorton and Bushell CasesCases

In 1554, Sir Nicholas Throckmorton In 1554, Sir Nicholas Throckmorton tried for treason. Despite no advance tried for treason. Despite no advance preparation of his case he defended preparation of his case he defended himself and was acquitted. himself and was acquitted.

All 12 jurors put in jail, but released All 12 jurors put in jail, but released after six months.after six months.

Established principle that juries Established principle that juries should not be punished for their should not be punished for their decisions.decisions.

The Case of Edward BushellThe Case of Edward Bushell

In 1670, Quakers William Penn and William Mead were tried In 1670, Quakers William Penn and William Mead were tried for preaching unlawfully to a crowd in London and refusing for preaching unlawfully to a crowd in London and refusing to remove their hats as a mark of respect.to remove their hats as a mark of respect.

Mead refused to answer questions about whether he was Mead refused to answer questions about whether he was there (self-incrimination).there (self-incrimination).

Jury found them guilty of “speaking.” Court tried to force Jury found them guilty of “speaking.” Court tried to force them to change the verdict; instead, they acquitted Penn them to change the verdict; instead, they acquitted Penn and Mead.and Mead.

Court fined the jury but Edward Bushell and 3 other jurors Court fined the jury but Edward Bushell and 3 other jurors appealed the fines. appealed the fines.

Higher Court held that a jury could not be punished for its Higher Court held that a jury could not be punished for its verdict.verdict.

Confirmed principle of jury freedom from punishment. Confirmed principle of jury freedom from punishment.

JURY NULLIFICATIONJURY NULLIFICATION

Jury nullification occurs when a jury returns a Jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its belief that verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation the defendant is guilty of the violation charged.  The jury in effect charged.  The jury in effect nullifiesnullifies a law a law that it believes is either immoral or wrongly that it believes is either immoral or wrongly applied to the defendant whose fate they applied to the defendant whose fate they are charged with deciding.are charged with deciding.

Example: Northern juries refusing to Example: Northern juries refusing to prosecute people accused of harboring prosecute people accused of harboring fugitive slaves before the Civil War.fugitive slaves before the Civil War.

Juries can judge not only the case but the Juries can judge not only the case but the law that they’re asked to apply.law that they’re asked to apply.

USE OF TORTUREUSE OF TORTURE

English judges and English common law English judges and English common law believed torture to extract a confession was believed torture to extract a confession was wrong. However…..wrong. However…..

The king could order torture in certain cases, The king could order torture in certain cases, and….and….

It was a custom that if a person refused to It was a custom that if a person refused to plead innocent or guilty, they could be plead innocent or guilty, they could be alternately starved and minimally fed, then alternately starved and minimally fed, then have pieces of iron piled on them until they have pieces of iron piled on them until they made a plea.made a plea.

Overall, though, regular use of torture was Overall, though, regular use of torture was abhorred in English law.abhorred in English law.

RIGHT OF HABEAS CORPUSRIGHT OF HABEAS CORPUS

““We command you We command you to have the body”to have the body”

MAGNA CARTA – “GREAT MAGNA CARTA – “GREAT CHARTER”CHARTER”

Makes King subject Makes King subject to lawto law

1215, King John 1215, King John forced to sign by forced to sign by nobles and bishopsnobles and bishops

For a trivial offence, For a trivial offence, a free man shall be a free man shall be fined only in fined only in proportion to the proportion to the degree of his degree of his offence, and for a offence, and for a serious offence serious offence correspondingly, correspondingly, but not so heavily but not so heavily as to deprive him of as to deprive him of his livelihood. his livelihood.

More from Magna CartaMore from Magna Carta

38) In future no official shall place a man on trial 38) In future no official shall place a man on trial upon his own unsupported statement, without upon his own unsupported statement, without producing credible witnesses to the truth of it. producing credible witnesses to the truth of it.

+ (39) No free man shall be seized or imprisoned, or + (39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his others to do so, except by the lawful judgement of his equals or by the law of the land. equals or by the law of the land.

+ (40) To no one will we sell, to no one deny or delay + (40) To no one will we sell, to no one deny or delay right or justice. right or justice.

(45) We will appoint as justices, constables, sheriffs, (45) We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the or other officials, only men that know the law of the realm and are minded to keep it well. realm and are minded to keep it well.

THE INQUISITIONTHE INQUISITION

Established in 1200s by Established in 1200s by Pope to root out hereticsPope to root out heretics

Investigation by a panel Investigation by a panel of judges, usually clergyof judges, usually clergy

Had to swear to tell the Had to swear to tell the truth to any question truth to any question without knowing what you without knowing what you were accused of.were accused of.

Confession was the Confession was the objective, to save the soul objective, to save the soul of the accused. of the accused.

Torture allowed as long as Torture allowed as long as no blood was shed.no blood was shed.

Accusatorial System vs. Accusatorial System vs. InquisitionInquisition

Courts held in publicCourts held in public Oral combat before a jury of Oral combat before a jury of

peerspeers Jury has the final say; judge is Jury has the final say; judge is

neutralneutral Confrontational; named Confrontational; named

witnesseswitnesses Specific charges spelled out in Specific charges spelled out in

indictment by grand juryindictment by grand jury Innocent until proven guiltyInnocent until proven guilty Discouraged use of torture.Discouraged use of torture. Evidence made publicEvidence made public No double jeopardyNo double jeopardy Did not have to testify against Did not have to testify against

oneself.oneself.

Proceedings secretProceedings secret Official prosecution by a Official prosecution by a

judge judge Guilt was assumedGuilt was assumed Witnesses against the Witnesses against the

accused not identifiedaccused not identified Routinely used torture to Routinely used torture to

extract confessionsextract confessions Questioning done secretlyQuestioning done secretly Suspect could be retried Suspect could be retried

indefinitelyindefinitely Used self-incriminating Used self-incriminating

oathoath

THE STAR CHAMBERTHE STAR CHAMBER

A secret court of the A secret court of the King’s Privy CouncilKing’s Privy Council

Could rule on cases Could rule on cases outside common courtsoutside common courts

Could impose any Could impose any penalty ex. Deathpenalty ex. Death

No jury, no appealsNo jury, no appeals People made to testify People made to testify

against themselvesagainst themselves A way for king to get rid A way for king to get rid

of powerful enemies.of powerful enemies.

PETITION OF RIGHT -1628PETITION OF RIGHT -1628

A list of grievances to King Charles IA list of grievances to King Charles I . Nevertheless, against the tenor of the said statutes, and other the . Nevertheless, against the tenor of the said statutes, and other the

good laws and statutes of your realm to that end provided, divers good laws and statutes of your realm to that end provided, divers of your subjects have of late been imprisoned without any cause of your subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before showed; and when for their deliverance they were brought before your justices by your Majesty's writs of habeas corpus, there to your justices by your Majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your Majesty's special certified, but that they were detained by your Majesty's special command, signified by the lords of your Privy Council, and yet were command, signified by the lords of your Privy Council, and yet were returned back to several prisons, without being charged with returned back to several prisons, without being charged with anything to which they might make answer according to the law.anything to which they might make answer according to the law.

VI. And whereas of late great companies of soldiers and mariners VI. And whereas of late great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the have been dispersed into divers counties of the realm, and the inhabitants against their wills have been compelled to receive inhabitants against their wills have been compelled to receive them into their houses, and there to suffer them to sojourn against them into their houses, and there to suffer them to sojourn against the laws and customs of this realm, and to the great grievance and the laws and customs of this realm, and to the great grievance and vexation of the people.vexation of the people.

ENGLISH BILL OF RIGHTSENGLISH BILL OF RIGHTS

16891689 Follows abdication of King Follows abdication of King

James II in “Glorious James II in “Glorious Revolution”Revolution”

Meant to confirm liberties Meant to confirm liberties abused by the Kingabused by the King

Assent of new King Assent of new King William and Queen Mary William and Queen Mary meant they agreed to rule meant they agreed to rule of law. Swore they would of law. Swore they would obey laws of parliamentobey laws of parliament

Ended concept of “divine Ended concept of “divine right of kings” in Englandright of kings” in England

WILLIAM III and JAMES IIWILLIAM III and JAMES II

EXCERPTS EXCERPTS How Many in Our Bill of Rights?How Many in Our Bill of Rights?

That the pretended power of suspending of laws, or the execution of laws, by regal authority, That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal. without consent of parliament, is illegal.

That the pretended power of dispensing with laws, or the executions of laws, by regal That the pretended power of dispensing with laws, or the executions of laws, by regal authority, as it hath been assumed and exercised of late, is illegal. authority, as it hath been assumed and exercised of late, is illegal.

That the commission for erecting the late court of commissioners for ecclesiastical causes, That the commission for erecting the late court of commissioners for ecclesiastical causes, and all other commissions and courts of like nature are illegal and pernicious.and all other commissions and courts of like nature are illegal and pernicious.

That levying money for or to the use of the crown, by pretence of prerogative, without grant That levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament, for longer time, or in other manner than the same is or shall be granted, is of parliament, for longer time, or in other manner than the same is or shall be granted, is illegal. illegal.

That it is the right of the subjects to petition the King, and all commitments and prosecutions That it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal. for such petitioning are illegal.

That the raising or keeping a standing army within the kingdom in time of peace, unless it be That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law. with consent of parliament, is against law.

That the subjects which are protestants, may have arms for their defence suitable to their That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law. conditions, and as allowed by law.

That election of members of parliament ought to be free. That election of members of parliament ought to be free. That the freedom of speech, and debates or proceedings in parliament, ought not to be That the freedom of speech, and debates or proceedings in parliament, ought not to be

impeached or questioned in any court or place out of parliament. impeached or questioned in any court or place out of parliament. That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and

unusual punishments inflicted. unusual punishments inflicted. That jurors ought to be duly impanelled and returned, and jurors which pass upon men in That jurors ought to be duly impanelled and returned, and jurors which pass upon men in

trials of high treason ought to be freeholders. trials of high treason ought to be freeholders. That all grants and promises of fines and forfeitures of particular persons before conviction, That all grants and promises of fines and forfeitures of particular persons before conviction,

are illegal and void. are illegal and void. And that for redress of all grievances, and for the amending, strengthening and preserving of And that for redress of all grievances, and for the amending, strengthening and preserving of

the laws, parliaments ought the laws, parliaments ought to be held frequently. to be held frequently.

COURTS and Court OfficialsCOURTS and Court Officials

Physical elements Physical elements of a court:of a court:

BenchBench BarBar Jury boxJury box Witness standWitness stand

COURT CASESCOURT CASES

Always written as ___ v.(versus) ___ Always written as ___ v.(versus) ___ because of _____________ systembecause of _____________ system

Docket – cases waiting to be heardDocket – cases waiting to be heard Brief – a lawyer’s arguments (where Brief – a lawyer’s arguments (where

does he or she keep the brief? In a does he or she keep the brief? In a _______, of course._______, of course.

BRIEFCASEBRIEFCASE

STEPS IN A TRIALSTEPS IN A TRIAL

THE CORONERTHE CORONER

     The Coroner's main The Coroner's main

duty is investigating duty is investigating deaths of individuals deaths of individuals who die suddenly in a who die suddenly in a suspicious manner, in a suspicious manner, in a public place or at work, public place or at work, without benefit of a without benefit of a doctor's care, in doctor's care, in custody, or because of custody, or because of trauma, mechanical trauma, mechanical means or violence.means or violence.

THE CROWNER (CORONER)THE CROWNER (CORONER)

Originally, coroner (“crowner”) decided Originally, coroner (“crowner”) decided who was dead, whether they died who was dead, whether they died violently and whether they were Norman violently and whether they were Norman or Saxon. He held an inquest that or Saxon. He held an inquest that required all males over twelve from four required all males over twelve from four surrounding towns to attend, later cut surrounding towns to attend, later cut down to a jury of twelve. The community down to a jury of twelve. The community had to prove the victim wasn’t a Norman, had to prove the victim wasn’t a Norman, otherwise whole community had to pay a otherwise whole community had to pay a “murdrum” fine.“murdrum” fine.

Today, the coroner investigates and Today, the coroner investigates and certifies cause of death.certifies cause of death.

TODAY – Dr. Henry LeeTODAY – Dr. Henry Lee

THE SHERIFFTHE SHERIFF

Top local official was the Top local official was the

Reeve – a serf elected by Reeve – a serf elected by other serfs. He mediated other serfs. He mediated disputes and made sure no disputes and made sure no one cheated the lord. He one cheated the lord. He represented the lord’s represented the lord’s interests. Similar to modern interests. Similar to modern justice of the peace.justice of the peace.

Reeve of a whole shire was:Reeve of a whole shire was: Appointed by KingAppointed by King Issued writs and captured Issued writs and captured

wrongdoerswrongdoers ““Shire reeve” became Shire reeve” became

“Sheriff“Sheriff Now usually an elected officeNow usually an elected office..