7.2: Traditional American Courts

Due Process

Since colonial days, the courts of the United States have taken their own path, developing and changing to suit the needs and social conscience of the new nation. The following history of the American jury system, the concepts of due process, common law, and the adversary process should further broaden the understanding of the American judicial system.

Along with trial by jury, the guarantees of due process of law are among the firmest bulwarks of our liberty. The value of these guarantees is shown by how our national and state governments have retained them, in strength through each change of status, from colonies to nation, from territory to state.

Daniel Webster defined due process as "a law which hears before it condemns, which proceeds on inquiry, and renders judgment only after a trial". It is a course of legal proceedings according to the rules and principles established by custom and constitution for the enforcement and protection of the rights of private citizens. To give this established course of legal proceedings a valid and competent tribunal is the duty of the courts.

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The two essential elements of due process:

1. Notice shall be given to a person that matters concerning him are before the court.
2. That person shall be given an opportunity to be heard and defend himself in an orderly proceeding adapted to the nature of the case.

These mean that no person shall be deprived of life, liberty, property or any right granted him by statute unless the matter involved shall first be adjudicated in a trial or hearing conducted according to the rules for judicial proceedings, and no matter shall be adjudicated without the opportunity for a hearing. Due process has been a concern of men determined to establish justice in governments for at least seven and one-half centuries. The Magna Carta, signed by King John of England in 1215, is one of the first historical documents of men demanding rights of their government. This protection may seem self-evident however; historically governments have incarcerated people for disagreeing with those in power under the guise of punishing criminal behavior.

The elements of due process are contained in the Constitution of the United States (Amendment V and Amendment XIV, Section 1). Due process is one of our basic American Constitutional rights. For a democratic government to survive and prosper and for their own protection, citizens must understand and value these rights. Aside from all else "due process" means fundamental fairness. This principal guide the judicial system that to function with integrity and honor.

Common Law

Common law is court-made law and differs from statutory law which is made by legislative bodies. Court-made law develops and is passed on to future courts through the decisions and opinions of judges hearing cases. Common law derives its authority from the uses and customs of time, or from the judgment or decrees of courts recognizing and enforcing such uses and customs.

Common Law is especially recognized as the ancient unwritten law of England. In the 11th and 12th Centuries' the English King resolved disputes with the aid of advisers at his court. Formal judicial courts began to develop during the 16th and 17th Centuries, and the judges of these courts studied earlier decisions for guidance. Established decisions came to be called the common law. This form of judicial lawmaking is still used in the England, and the United States, who adopted this policy from the English.

Juries

The Sixth Amendment in the Bill of Rights guarantees, among other ideas, speedy and public trials, that defendants shall be informed of all charges against them, and a trial by jury. The idea of juries is so closely interwoven with that of the courts, that for most members of the American public, the image of a courtroom means a judge in a black robe, the persuasive legal advocate and the rows of twelve men and women looking on and listening closely to the testimony as it unfolds. Although the United States accounts for 90% of the jury trials held throughout the world today, most of the work conducted in a typical American court takes place without a jury.

Juries determine the facts in a trial, the truth or falsehood of testimony, the guilt or innocence of criminal defendants, and the liabilities in a civil trial. In the United States, juries are still seen as the best tool for ensuring that the rigidity of the rule of law can be shaped to justice in any specific case.

Calling citizens to hear disputes has been known throughout history. Modern day juries are the hybrids of Egyptian, Greek, Roman, and European jury customs. English juries have also been a leading influence in shaping the American jury system. The following history of the evolution of the English and American jury system will provide insight and a deeper sense of understanding of this aspect of the criminal justice system.

England, under King Alfred (871-901 A.D.) had a rough system of juries. Representatives were brought together to decide the questions put before them. This system disintegrated on the death of Alfred, although testimony of witnesses did begin to appear. The Normans left partially intact much of the Saxon court system, which included appeals to the King. They did separate temporal and spiritual courts and appointed "circuit" judges to represent the King across the country. They introduced trial by combat as well.

Between the 15th and 18th Centuries juries began to evolve. Trial by "peers" became more authentic as Knighthood was no longer a requirement for a juror. Expert witnesses began to be used. Exemptions from jury duty were developed, as for Quakers, who could not swear to oaths. Grounds for challenging a juror for cause at common law included the juror having served on the indicting jury, the juror was a serf or servant, the juror has been convicted of certain crimes, the juror was related to one of the parties or the sheriff, or the juror had stated his opinion of the case in public. Eventually defendants were allowed to call witnesses and defense counsel was allowed to cross-examine witnesses.

Figure \(\PageIndex{1}\): Jury of 12 in 15th Century Normandy. Image is in the public domain.

During American colonial times, the jury became one of the symbols of rebellion against the English King. A primary complaint of the colonists was that they were being denied the rights granted to all other Englishmen, one of which, was the right to a jury trial as guaranteed by the Magna Carta of 1215. The Magna Carta held several references to trials and juries. That the Common Pleas assemblies shall not follow the court (royal court), but be held "in some certain place", and that juries shall consist of "honest men of the neighborhood" were sample references in the Magna Carta.

Trial by jury was not completely denied to the colonists, however. Early charters, such as the Virginia Company, which established Jamestown in 1607, included the mention of such rights. In New York, the jury found John Peter Zenger not guilty of libel in 1735 on the grounds that what he had written about the royal governor was true. Virginia jurors had great latitude in deciding verdicts. They could even bring in verdicts for offenses other than the ones for which a defendant was charged. It was the British Vice-Admiralty courts, sitting without juries, which ignited the ire of the colonists.

In response to these contentions of unfairness and the abrogation of rights, the colonists included in their earliest documents guarantees of the right to trial by jury. The First Congress of American Colonies, in 1765, recommended trials with juries. The First Continental Congress in 1774, declared that the respective three colonies were entitled to the common law of England and more especially to the great and inestimable privilege of being tried by peers, according to the course of that law. In the Declaration of Independence, Thomas Jefferson listed among the various complaints against King George, that he had obstructed the administration of justice by refusing his Assent to Laws for establishing Judiciary Powers, made judges dependent on his will for appointment for salary, depriving us in many cases if the benefits of Trial by Jury, and transporting (defendants) beyond seas for trial. All these, along with other complaints, led to the United States Constitution in 1787, and in 1897 the first ten amendments.

Jury duty is a right and a responsibility of American citizenship. Juries serve several important purposes: (1) they serve as an arbiter regarding the conflict of facts and evidence as presented at criminal and civil trials; (2) they provide a means by which community values and sentiments are injected into the judicial process; and (3) they help to increase the public's acceptance of legal decisions. Jury duty, along with voting, is one of the primary means by which the average citizen participates in our government. Developing a historical appreciation for the role of juries contributes to willingness and ability of citizens to serve as impartial jurors when called to judge their peers. Use of juries is just one thread running through the historical development of the American judicial system.

Adversarial System

The development and maturation of the adversary system as it exists in American criminal courts today can be traced to the rising importance of the jury during medieval England. As the jury replaced trial by combat, it also changed from a body of witnesses to an impartial body of factfinders. As the jury became neutral, the parties to a case adopted the role of adversaries. The term "adversary" implies two conflicting parties. In American courts those two parties are the plaintiff and defendant. These parties present to the Court all the evidence and testimony they can find, in the most persuasive manner allowable, in order to achieve a decision favorable to their interests. The attorneys serve as advocates, and the judge sits as a neutral "referee."

In all Courts, each side is bound by many rules as to how the case may be conducted. These rules are meant to ensure fair and consistent treatment for all parties, in all cases, across all situations. This adherence to rules and procedures is a hallmark of the adversary system, unlike the inquisitorial system, for example, in which few technical rules of evidence exist. The inquisitorial approach is less sensitive to claims concerning individual rights. An inquisitorial style is less likely to serve as a check on government powers, the role American Courts play in our system of checks and balances. The function of the American Criminal Courts is to inquire into the truth of the matter and establish guilt or innocence. And that all defendants in United States Courts are considered innocent until proven guilty, is one of the most important fundamentals of the American judicial system. The adversary system, allowing each side equal access to a neutral body is the method by which our courts uphold this ideal.