The United States Supreme Court

 

The United States Supreme Court is the highest court in the federal judiciary. It consists of the Chief Justice of the United States and eight associate justices. The court always sits en bane, with all nine justices hearing and deciding all cases together. The jurisdiction of the Supreme Court is almost completely discretionary, and, to be exercised, requires the agreement of at least four justices to hear a case. (In a small number of spe­cial cases, such as boundary disputes between the states, the Supreme Court acts either as the court of first instance or exercises mandatory appellate review). As a general rule, the Court only agrees to decide cases where there is a split of opinion among the courts of appeals or where there is an important constitutional question or issue of feder­al law that needs to be clarified.

UNITED STATES FEDERAL JUDGES

part i

 

Appointment of judges

Justices of the Supreme Court, judges of the courts of appeals and the district courts, and judges of the Court of International Trade, are appointed under Article III of the Constitution. They are nominated and appointed by the President of the United States and must be confirmed by a majority vote of the Senate. Article III judges are appointed for life, and they can only be removed by the Congress through the impeachment process specified in the Constitution. The judiciary plays no role in the nomination or confirmation process.

The primary criterion for appointment to a feder­al judgeship is a person’s total career and academic achievements. No examinations are administered to judicial candidates. Rather, a person seeking a judgeship is required to complete a lengthy set of forms that set forth in detail his or her personal qualifications and career accomplishments, including such matters as academic background, job experi­ences, public writings, intellectual pursuits, legal cases handled, and outside activities. Candidates also are subject to extensive interviews, background investigations, and follow-up questioning.

Politics is an important factor in the appointment of Article III judges. Candidates are normally select­ed by the President from a list of candidates provid­ed by the Senators or other office holders from the President’s own party within the state in which the appointment is to be made. In addition, the President’s nominee must appear in person at a hearing before the Judiciary Committee of the Senate, and the Senate must vote to confirm each judge. Article III judges are usually nominated by the President from among the ranks of prominent practicing lawyers, lower federal court judges, state court judges, or law professors who reside within the district or circuit where the courtsits.

Each federal judge is appointed to fill a specific, authorized judgeship in a specific district or circuit. Judges have no authority to hear cases in other courts unless they are formally designated to do so. Because of heavy caseloads in certain districts, judges from other courts are often asked to hear cases in these districts.

 

part ii

 

Other federal judges

Bankruptcy judges and magistrate judges are judicial officers of the district courts, but they are not Article III judges. They are not appointed under a political process, and the President and Senate play no role in their selection. Rather, they are appointed by the courts of appeals and the district courts, respectively, with the assistance of merit selection panels composed of local lawyers and other citizens.

Bankruptcy judges are appointed by the judges of the courts of appeals for 14-year terms. Magistrate judges are appointed by the judges of the district court for eight-year terms. Before reappointing a bankruptcy judge or a magistrate judge to an additional term, the appointing court must publish a public notice seeking comments on the incum­bent’s performance and convene a merit panel to recommend to the court whether the incumbent should be reappointed.

Judges of the Court of Federal Claims are appointed for terms of 15 years by the President, subject to confirmation by a majority of the Senate.

 

part iii

 

State judges

 

State judges handle most cases in the United States, but they are not part of the federal court system. Rather, they serve in the state court systems estab­lished by state governments. Like federal judges, state judges are required to support the federal Constitution and may invalidate state laws that they find inconsistent with the Constitution. State judges are selected in several ways, according to state consti­tutions and statutes. Most are either elected by the public in general elections or are appointed by the governor of the state for an original term and may be retained for additional terms by popular vote in a general election.

 

PREPARATION FOR TRIAL

Part I

 

Very careful preparation on the part of the state and the defense precedes the trial. However, the defense may first enter a motion challenging the jurisdiction of the court over the particular offense involved, or over the particular defend­ant. The defense attorney also may file a demurrer, or mo­tion for dismissal. In preparing for trial, attorneys for both sides will interview prospective witnesses, and if deemed necessary, secure expert evidence, and gather testimony con­cerning ballistics, chemical tests, casts, and other similar data.

tried before a jury, the judge rules upon points of law dealing with trial procedure, presentation of the evidence and the law of the case. If the case is tried before the judge alone, he will determine the facts in addition to performing the afore­mentioned duties.

The court clerk is an officer of the court, also either elect­ed or appointed, who at the beginning of the trial, upon the judge’s instruction, gives the entire panel of prospective ju­rors (veniremen) on oath. By this oath the venireman promises that if called he will truly answer any questions touching upon his qualifications to sit as a juror in the case. Any ve­nireman who is disqualified by law, or has a valid reason to be excused under the law, ordinarily is excused by the judge at this time. A person may be disqualified from jury duty because he is not a resident voter or householder, because of age, hearing defects, or because he has served recently on a ju­ry. Then the court clerk will draw the names of the additional, veniremen from a box, and they will take seats in the jury-box. After twelve veniremen have been approved as jurors by the judge and the attorneys, the court clerk will adminis­ter an oath to the persons so chosen "to well and truly try the cause".

The bailiff is an officer of the court whose duties are to keep order in the courtroom, to call the witnesses, and to take charge of the jury, as instructed by the court, at such times as the jury may not be in the courtroom, and particu­larly when, having received the case, the jury is deliberating upon its decision. It is the duty of the bailiff to see that no one talks with or attempts to influence the jurors in any man­ner whatsoever.

The court reporter has the duty of recording all of the proceedings in the courtroom, including testimony of the witnesses, objections made to evidence by the attorneys and the rulings of the court thereon, and listing and marking for identification any exhibits offered or introduced into evi­dence. In some states, the clerk of the court has charge of ex­hibits.

The attorneys are officers of the court whose duties are to represent their respective clients and present the evidence on their behalf, to the end that the jury or the judge may reach a just verdict or decision.

The role of the attorney is sometimes misunderstood, particularly in criminal proceedings. The present system of jurisprudence presumes every defendant to be innocent until other training in the institution or medical treatment will substantially enhance his capacity to lead a law-abiding life when released at a later date.

Part II

Beyond these grounds of decision, the Code puts forward a set of considerations that a board should take into account, measuring them against the criteria, in determining whether the prisoner should be released at that time. These guides are somewhat similar to the variables that have been included in various parole prediction tables, though their focus is more largely upon the prisoner’s response to the institutional treat­ment program, his parole plan, and his attitude rather than merely upon the background factors associated with personal adjustment. Attention is directed toward the prisoner’s rel­ative readiness at the time of eligibility, as compared with some later time, and toward relevant considerations involv­ing the community and the offender’s adjustment there, rather than toward the absolute probabilities of parole vio­lation. These are the matters the Code proposed that parole agencies should take into account in weighing the criteria noted above:

1. The prisoner’s personality, including his maturity, stability, sense of responsibility and any apparent develop­ment in his personality which may promote or hinder his conformity to law.

2. The adequacy of the prisoner’s parole plan.

3. The prisoner’s ability and readiness to assume obliga­tions and undertake responsibilities.

4. The prisoner’s intelligence and training.

5. The prisoner’s family status and whether he has rela­tives who display an interest in him, or whether he has other close and constructive associations in the community.

6. The prisoner’s employment history, his occupational skills, and the stability of his past employment.

7. The type of residence, neighborhood or community in which the prisoner plans to live.

8. The prisoner’s past use of narcotics, or past habitual and excessive use of alcohol.

9. The prisoner’s mental of physical make-up, including any disability or handicaps which may affect his conformity to law.

10. The prisoner’s prior criminal record, including the na­ture and circumstances, recency and frequency of previous offenses.

11. The prisoner’s attitude toward law and authority.

12. The prisoner’s conduct in the institution, including particularly whether he’has taken advantage of the opportu­nities for constructive activity afforded by the institutional program, whether he has been punished for misconduct with­in six months prior to his hearing or reconsideration for pa­role release, whether he has forfeited any reductions of term during his period of imprisonment, and whether such reduc­tions have been restored at the time of hearing or reconsid­eration.

13. The prisoner’s conduct and attitude during any pre­vious experience of probation or parole and the recency of such experience.

 

CRIMINAL TRIAL

The judge is the officer of the court who is either elected or appointed to preside over the court. If the case is to be tried before a jury, the judge rules upon points of law dealing with trial procedure, presentation of the evidence, and the law of the case. The attorneys are officers of the court whose duties are to represent their respective clients and present the evidence on their behalf so that the jury or the judge may reach a just ver­dict or decision.

The present system of jurisprudence presumes every defendant to be innocent until proved guilty beyond a reasonable doubt. Every defendant is entitled to be represented by legal counsel, regardless of the unpopularity of his case. This is a constitutional safeguard. In most cases a jury of twelve is required in either civil or criminal proceedings.

After selecting the jury the attorney for the state may make an opening statement for the purpose of advising the jury what he intends to prove in the case. Then the state will begin the presentation of evidence with their witnesses. A witness may testify to a matter of fact. He cannot testify to hearsay, that is, what someone else has told him. An attorney may not ask leading questions of his own witness. A leading question is one which suggests the answer desired.

When the state’s attorney has finished his direct examination of the witness, the defendant’s attorney may then cross-examine the witness upon any matter about which the witness has been questioned. The defence attorney may choose to present no evidence, or he may present certain evidence but not place the defendant upon the stand.

At the conclusion of the defendant’s case the attorney for the state and the defendant’s attorney will present closing arguments to summarise and comment on the evidence. Then the judge reads the instructions to the jury. The instructions cover the law as applicable to the case. The jury is taken to the jury room by the bailiff to deliberate upon its decision. In a criminal case the decision of the jury must be unanimous.

Upon reaching a verdict, the jury returns to the courtroom with the bailiff. When the verdict is read and accepted by the court, the jury is dismissed and the trial is concluded. If the defendant is convicted the judge will impose sentence. In most states and in the federal courts the function of imposing sentence is exclusively that of the judge.

 

PRESUMPTION OF INNOCENCE

 

Criminal trials differ from civil proceedings in one very important respect. Since the outcome of a criminal trial may result in the defendant’s loss of liberty or even life, the courts evolved a rule which casts upon the prosecution a heavy burden of proof. No rule of Criminal Law is of more importance than that which requires the prosecution to prove the accused’s guilt and not for the latter to establish his innocence; he is presumed innocent until the contrary is proved. Sec­ondly, they must satisfy the jury of his guilt beyond reason­able doubt. In civil cases where a plaintiff sues a defendant, he who shows that on a balance of probabilities the evidence is in his favour wins the day. In criminal cases, however, the Crown cannot succeed on a mere balance of probabilities. If there is any reasonable doubt whether the accused is guilty, he must be acquitted. An acquittal therefore either means that the jury believe the accused and are satisfied of his in­nocence, or that while not satisfied that lie is innocent, they do not feel sure of his guilt. In England there is no middle verdict such as the Scottish verdict of "not proven" to cover this sort of situation; "not guilty" is the only alternative to a conviction.

The heavier burden of proof required in criminal trials can also be seen to operate in the rules which provide that in certain cases corroboration is necessary. In some instances the rule is one of law and the absence of corroboration is a bar to conviction. For example, the unsworn evidence of a child must be corroborated. A jury cannot convict on such evidence alone, for the law does not consider it sufficiently reliable to warrant a conviction. In a charge of perjury the jury may not by law convict the accused on the uncorrobo­rated evidence of one witness alone. The falsity of the defendant must present sufficient evidence to convince the magistrate there is reason to believe the defendant has committed the crime with which he is charged. The defendant must be pres­ent at this hearing, but he may or may not present evidence on his own behalf.

If the magistrate believes the evidence justifies it, he will order the defendant bound over for trial in the proper court – i.e., placed under bond for appearance at trial, or held in jail if the charge involved is not a bailable offense, or if the defendant is unable to post bond. On the other hand, the magistrate may dismiss the charge and order the defend­ant released if he concludes the state has failed to produce sufficient evidence in the preliminary hearing.

In most instances a criminal case is placed on the court’s calendar for arraignment. On the date fixed, the accused ap­pears, the indictment or information is read to him, his rights are explained by the judge, and he is asked whether he pleads guilty or not guilty to the charge. If he pleads not guilty, his case will be set later for trial; if he pleads guilty, it or­dinarily will be set later for sentencing. In cases of minor offenses, sentences may be imposed immediately. But in some states, arraignment and plea are separate proceedings, held on different days.

 

THE PROBLEM OF PUNISHMENT

 

Compared with other aspects of the Criminal Law, the question of punishment is one of peculiar difficulty. For the lawyer it is a question which presents special problems for a variety of reasons. In the first place, although the task of imposing penalties is that of a subsection of the legal pro­fession, the punishment of a criminal is a combined operation of Parliament, the courts, and the administration. The range of penalties which may be imposed is in most cases set by the legislature, which fixes the maximum sentences for dif­ferent offences. In exceptional cases there may be a fixed or fixed minimum penalty. For the vast majority of offences, however, only the maximum penalty is prescribed by law, so that the court is left free to select in each actual case the appropriate sentence. After the court has selected what sen­tence seems suitable, the carrying out of this sentence falls to the lot of those who administer the penal system: prison governors and prison officers, those who are in charge of borstal and other detention institutions, and probation offi­cers, all of whom work under the aegis of the Home Office. Consequently, the part played by the courts is only one part of the whole operation of punishing the offender.

One result of this is that once sentence has been passed the courts are no longer concerned with the offender’s fate; their task is concluded. This means that the effect of the sentence can be seen less by the courts themselves than by those whose function it is to see that the sentence is carried out and by those who study the social effect of punishment. For tins reason those who actually pass sentence on the of­fender must to some extent work in the dark, unless they are willing to accept the guidance of those who study the effects of punishment.

Another difficulty confronting the lawyer in this field is that the problem of selecting the appropriate sentence is not one which can be solved by normal legal techniques. Purely legal problems he must tackle by threading his way through statutes, reported cases, and so forth in order to discover the legal rules relevant to his problem. The meaning of these rules must be established, and the rules must be applied to the facts of the problem in hand.

 

ENGLISH PRISONS

 

The punishment of criminal and political offenders by confining them in prisons is a modern practice, but prisons as places of detention are common to most societies through­out history.

The use of prisons, not as a means of punishment in them­selves, but as a way of ensuring safe custody, was established in Roman Law by Justinian in the fifth century, BC. The typical Roman prison was an underground cellar to which ac­cess was made from a small grating covering the top. An example of this kind of prisons still exists in Rome.

Imprisonment as a form of punishment was used in a few cases in Saxon England. The laws stipulated at that time that a person convicted of murder should be thrust into prison for one hundred and twenty days before he might be claimed by his kinsmen. A penalty of imprisonment for perjury in a Grand Assize was introduced by Henry II, and Henry III instituted a punishment of one year’s imprisonment for in­fringement of the forest law. In the last half of the thirteenth century Edward I used imprisonment extensively, but mainly to induce confession or to ensure the payment of fines.

In the middle of the eighteenth century most county au­thorities were responsible for the prisons in their capital towns, but almost as many were in private hands. No ques­tions were asked when a prisoner died. Indeed, for many of those who escaped capital punishment, death might have seemed preferable to the utter misery of mind and body which constituted existence in prison.

Attempts to improve this state of affairs were not un­known before Howard came on the scene. But John Ho­ward’s influence on the design and administration of prisons is quite unrivalled, and his proposals greatly influenced the way in which the large walled prisons of nineteenth century England were administered and designed.

Millbank, one of the most famous of the old London pris­ons, was the only national penitentiary to be erected under the provisions of the so-called "Hard Labour Act" passed in 1779. But five years before building work began at Millbank, in 1806, another prison was being erected: Dartmoor. This prison was far better in design than any county gaol or House of correction in England.

The Act of 1823, introducing the classification system at Millbank, was the first statute effecting a general reform of prisons to be enacted by Parliament. Now for the first time Justices were ordered to supply the Home Secretary with quarterly reports "upon every department of their prison administration".

By the Prisons Act of 1877 the Home Secretary was given full ministerial responsibility for everything concerning the English prisons.