Chapter Four: The Legal System and Its Players

The Adversarial System of Justice The adversarial system of justice is the American trial procedure which is derived from English common law and applies to both criminal and civil cases. Both sides present their case for the purpose of convincing the judge or jury that their viewpoint is the truth. For example, in criminal cases it is the prosecutor and defense attorney. The judge has minimal participation with exhibits, evidence, and witnesses, however, he/she is instrumental in maintaining order, ruling on legal issues, plea negotiations, instructing jurors, and sentencing. A competitive setting in which the judge(s) or jury have to choose between two versions of the truth. ** Contrasted to the European inquisitorial approach in which judges are the main participants and they control the presentation of evidence as well as the questioning of witnesses. The attorneys, representing both sides, play a secondary role.

Federal Courts Federal courts have authority over issues which “raise a federal question.” Those issues include cases whose decisions rest on the Constitution or laws of the United States (cases are both civil and criminal. There are three levels of federal courts: U.S. District Courts; U.S. Courts of Appeals; and the U.S. Supreme Court (Judicial bodies established by Congress under Article III and are known as constitutional courts). Federal judges are appointed by the President and confirmed by the Senate. They are appointed for life. ** Federal, Article III courts are in contrast to judicial bodies established by Congress under Article I and are known as legislative courts which include bankruptcy judges and federal magistrates.

State Courts State courts are unique to each individual state. All state courts process civil and criminal cases. Their authority is specific to the laws of each state.* State court systems are inherently different, however, in general they are made up of trial courts of limited jurisdiction (also known as inferior courts or “lower courts); trial courts of general jurisdiction (also known as major trial courts); intermediate courts of appeal; and courts or last resort or state supreme courts. State judges are selected by either partisan elections; nonpartisan elections; appointment by either the governor or the legislature; or, by merit selection (Missouri Bar Plan). * An exception is that a state court may her a case pursuant to a Federal Civil Rights Act.

Discussion Questions Are federal and state court judges subject to political and public pressure? If so, how? What offender characteristics affect judicial decision ? Do judges stereotype offenders?

Juvenile Courts The concept of juvenile courts in the early twentieth century brought with it an attitude of benevolence toward a children, not punishment. The doctrine of parens patriae was the underlying philosophy. Juvenile courts differ from adult courts in five important ways: they emphasize helping the child, they are informal, they are based on civil law, they are secret, and the rarely involve a jury. Whereas adults are arrested, tried, and sentenced to prison, juveniles are summoned, have a hearing, and are committed to residential placement.* Jurisdiction is normally determined by age (states vary on what age constitutes a juvenile). * The U.S. Supreme Court cases, In re Gault and In re Winship, have upheld the Due Process Clause of the Fourteenth Amendment in juvenile proceedings.

Discussion Questions: Should juveniles be prosecuted as adults? If so, under what conditions? Is there a particular age that constitutes criminal responsibility?

Alternative Dispute Resolution ADR Arbitration: Similar to a trial and an informal alternative to litigation. The parties present evidence and argue the case – an arbitrator makes an award. Binding or nonbinding. Summary Jury Trial (SJT): There is no witness testimony – lawyers instruct the jury as to witness testimony, the judge instructs the jury as to the facts and the law. It is a nonbinding decision. Mediation: A mediator facilitates a settlement between litigants and their lawyers over the issue in conflict. Either evaluative or non- evaluative. Evaluative is concerned with worth and substance as opposed to communications and the process concerns of the non- evaluative approach. * A counterargument to ADR is that litigants have a right to trial by judge or jury.

Lawyers What are the psychological implications of the huge numbers of lawyers currently in the United States? Does race or gender affect the role of being a lawyer?

Criticisms of Lawyers*: Indifference to the middle and lower class. Self-serving definition of ethics. Tendency to make the law overly complicated. Promote excessive billing. Filing frivolous lawsuits. Disregard for the truth. Face-to-face solicitation. * Public Perceptions.

Discussion question: Should states, not the ABA, discipline lawyers who overcharge or perform badly?

Discuss the following ethical issues: Should you put a witness on the stand who you know is going to lie under oath? (i.e., commit perjury). Should you attempt to destroy the testimony of an opposing witness who you know is testifying accurately and truthfully? Should you give your client legal advice when that advice will tempt the client to commit perjury?

Adversarial System: Info-Trac Article 3 of 12: Harvard Journal of Law & Public Policy, Wntr 2003 v26 i1 p157(17) Is the criminal process about truth?: A German perspective. (Panel III: Truth, the Jury, and the Adversarial System)(Federalist Society 2002 Symposium on Law and Truth) Thomas Weigend. Article 4 of 12: Harvard Journal of Law & Public Policy, Wntr 2003 v26 i1 p175(12) America's adversarial and jury systems: more likely to do justice. (Panel III: Truth, the Jury, and the Adversarial System)(Federalist Society 2002 Symposium on Law and Truth) Gerald Walpin. * Info-Trac Key Word: Adversarial system