EVOLUTION OF LEGAL SYSTEM AND RIGHTS

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EVOLUTION OF LEGAL SYSTEM AND RIGHTS

• THE ANGLO-AMERICAN LEGAL TRADITION

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ACCUSATORIAL SYSTEM

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

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IMPORTANCE OF OATHS

• Clergy were involved in all trials
• Oaths taken dead seriously as one would endanger
  ones soul by breaking one.
• Compurgation sworn statement supported by oaths
  of a of fellow swearers to their knowledge of
  the truth of claim. Today character witnesses.

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MEDIEVAL TRIALS for serious crimes

• Trial by Ordeal
• If your wound
• was healing
• cleanly after 3
• days you were
• considered not
• Guilty.

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TRIAL BY BATTLE
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THE ADVERSARY SYSTEM

• Trial by battle was originally a fight between
  the two parties involved. Sometimes a sworn
  witness could prove the case of a party
  sometimes it was real combat.
• Gradually, champions were hired to fight for
  parties who could not fight for themselves.
• Today, theyre lawyers who fight each other with
  words and evidence to win the case.

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NORMAN CONQUEST Reorganization and some new
practices, but basically adapted Saxon legal
customs

• Hundreds Hundred families.
• Shires counties
• Circuits courts moved from place to place
  within the shire. Court called an eyre.
• Outlaw a person outside the law

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JURIES

• Took place of community meeting. Originally,
  decided on what kind of trial should be held.
• Word comes from Latin juris meaning law.
• Issued a presentment which decided if a crime
  was committed and what kind of trial would be
  held. This later became the grand jury.

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CONSTITUTIONS OF CLARENDON

• King Henry II 1154-1189
• 1169-Established use of juries of twelve knights
  from the locality to decide verdicts in property
  disputes.
• Institutionalized Englands accusatorial legal
  customs

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Juries continued

• Catholic Church outlawed clergy participation in
  trial by ordeal in 1215. Effectively ended
  trials by ordeal.
• That left trial by battle. That evolved into the
  two sides arguing the case out in front of a
  jury. Twelve peers of accused became the
  standard.
• 12 may have roots in England, among Normans or
  from Islamic North Africa and Spain where there
  were also 12-man sworn juries.
• By 1400s juries were interviewing witnesses and
  helping to solve cases.

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JURY VERDICTS

• Verdict means to speak the truth.
• Juries represented the entire community and were
  considered to be its voice.
• Therefore they had to speak with one voice, so
  verdicts had to be unanimous.

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Throckmorton and Bushell Cases

• In 1554, Sir Nicholas Throckmorton tried for
  treason. Despite no advance preparation of his
  case he defended himself and was acquitted.
• All 12 jurors put in jail, but released after six
  months.
• Established principle that juries should not be
  punished for their decisions.

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The Case of Edward Bushell

• In 1670, Quakers William Penn and William Mead
  were tried for preaching unlawfully to a crowd in
  London and refusing to remove their hats as a
  mark of respect.
• Mead refused to answer questions about whether he
  was there (self-incrimination).
• Jury found them guilty of speaking. Court tried
  to force them to change the verdict instead,
  they acquitted Penn and Mead.
• Court fined the jury but Edward Bushell and 3
  other jurors appealed the fines.
• Higher Court held that a jury could not be
  punished for its verdict.
• Confirmed principle of jury freedom from
  punishment.

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JURY NULLIFICATION

• Jury nullification occurs when a jury returns a
  verdict of "Not Guilty" despite its belief that
  the defendant is guilty of the violation
  charged.  The jury in effect nullifies a law that
  it believes is either immoral or wrongly applied
  to the defendant whose fate they are charged with
  deciding.
• Example Northern juries refusing to prosecute
  people accused of harboring fugitive slaves
  before the Civil War.
• Juries can judge not only the case but the law
  that theyre asked to apply.

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USE OF TORTURE

• English judges and English common law believed
  torture to extract a confession was wrong.
  However..
• The king could order torture in certain cases,
  and.
• It was a custom that if a person refused to plead
  innocent or guilty, they could be alternately
  starved and minimally fed, then have pieces of
  iron piled on them until they made a plea.
• Overall, though, regular use of torture was
  abhorred in English law.

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RIGHT OF HABEAS CORPUS

• We command you to have the body

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MAGNA CARTA GREAT CHARTER

• Makes King subject to law
• 1215, King John forced to sign by nobles and
  bishops

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

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More from Magna Carta

• 38) In future no official shall place a man on
  trial upon his own unsupported statement, without
  producing credible witnesses to the truth of it.
• (39) No free man shall be seized or imprisoned,
  or stripped of his rights or possessions, or
  outlawed or exiled, or deprived of his standing
  in any other way, nor will we proceed with force
  against him, or send others to do so, except by
  the lawful judgement of his equals or by the law
  of the land.
• (40) To no one will we sell, to no one deny or
  delay right or justice.
• (45) We will appoint as justices, constables,
  sheriffs, or other officials, only men that know
  the law of the realm and are minded to keep it
  well.

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THE INQUISITION

• Established in 1200s by Pope to root out heretics
• Investigation by a panel of judges, usually
  clergy
• Had to swear to tell the truth to any question
  without knowing what you were accused of.
• Confession was the objective, to save the soul of
  the accused.
• Torture allowed as long as no blood was shed.

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Accusatorial System vs. Inquisition

• Courts held in public
• Oral combat before a jury of peers
• Jury has the final say judge is neutral
• Confrontational named witnesses
• Specific charges spelled out in indictment by
  grand jury
• Innocent until proven guilty
• Discouraged use of torture.
• Evidence made public
• No double jeopardy
• Did not have to testify against oneself.

• Proceedings secret
• Official prosecution by a judge
• Guilt was assumed
• Witnesses against the accused not identified
• Routinely used torture to extract confessions
• Questioning done secretly
• Suspect could be retried indefinitely
• Used self-incriminating oath

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THE STAR CHAMBER

• A secret court of the Kings Privy Council
• Could rule on cases outside common courts
• Could impose any penalty ex. Death
• No jury, no appeals
• People made to testify against themselves
• A way for king to get rid of powerful enemies.

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PETITION OF RIGHT -1628

• A list of grievances to King Charles I
• . Nevertheless, against the tenor of the said
  statutes, and other the good laws and statutes of
  your realm to that end provided, divers of your
  subjects have of late been imprisoned without any
  cause showed and when for their deliverance they
  were brought before your justices by your
  Majesty's writs of habeas corpus, there to
  undergo and receive as the court should order,
  and their keepers commanded to certify the causes
  of their detainer, no cause was certified, but
  that they were detained by your Majesty's special
  command, signified by the lords of your Privy
  Council, and yet were returned back to several
  prisons, without being charged with anything to
  which they might make answer according to the
  law.
• VI. And whereas of late great companies of
  soldiers and mariners have been dispersed into
  divers counties of the realm, and the inhabitants
  against their wills have been compelled to
  receive 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 vexation of the people.

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(No Transcript)
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ENGLISH BILL OF RIGHTS

• 1689
• Follows abdication of King James II in Glorious
  Revolution
• Meant to confirm liberties abused by the King
• Assent of new King William and Queen Mary meant
  they agreed to rule of law. Swore they would obey
  laws of parliament
• Ended concept of divine right of kings in
  England

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WILLIAM III and JAMES II
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EXCERPTS How Many in Our Bill of Rights?

• That the pretended power of suspending of laws,
  or the execution of laws, by regal authority,
  without consent of parliament, is illegal.
• 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.
• 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.
• 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
  illegal.
• That it is the right of the subjects to petition
  the King, and all commitments and prosecutions
  for such petitioning are illegal.
• 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.
• That the subjects which are protestants, may have
  arms for their defence suitable to their
  conditions, and as allowed by law.
• 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
  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 unusual
  punishments inflicted.
• That jurors ought to be duly impanelled and
  returned, and jurors which pass upon men in
  trials of high treason ought to be freeholders.
• That all grants and promises of fines and
  forfeitures of particular persons before
  conviction, are illegal and void.
• And that for redress of all grievances, and for
  the amending, strengthening and preserving of the
  laws, parliaments ought to be held frequently.

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COURTS and Court Officials

• Physical elements of a court
• Bench
• Bar
• Jury box
• Witness stand

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COURT CASES

• Always written as ___ v.(versus) ___ because of
  _____________ system
• Docket cases waiting to be heard
• Brief a lawyers arguments (where does he or
  she keep the brief? In a _______, of course.

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BRIEFCASE
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STEPS IN A TRIAL
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THE CORONER

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

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THE CROWNER (CORONER)

• Originally, coroner (crowner) decided who was
  dead, whether they died violently and whether
  they were Norman or Saxon. He held an inquest
  that required all males over twelve from four
  surrounding towns to attend, later cut down to a
  jury of twelve. The community had to prove the
  victim wasnt a Norman, otherwise whole community
  had to pay a murdrum fine.
• Today, the coroner investigates and certifies
  cause of death.

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TODAY Dr. Henry Lee
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THE SHERIFF

• Top local official was the Reeve a serf elected
  by other serfs. He mediated disputes and made
  sure no one cheated the lord. He represented the
  lords interests. Similar to modern justice of
  the peace.
• Reeve of a whole shire was
• Appointed by King
• Issued writs and captured wrongdoers
• Shire reeve became Sheriff
• Now usually an elected office.