US federal courts and what they do

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US federal courts and what they do

What is a court?

A court is an institution that is set up by the government to settle disputes through a legal process. Disputes come to court when people can not agree about what happened: did Bill Jones run a red light before his car ran into John Smith’s, or was the light green, as he says it was? Did Frank Williams rob the bank, or was it his twin brother, Joe?

Courts decide what really happened and what should be done about it: if the accident was Jones’ fault, how much should he pay Smith for the damage he did? If Williams did rob the bank, how should he be punished?

Courts play an important role in our society for a number of reasons. They decide whether a person committed a crime and what the punishment should be. They also provide a peaceful way to decide private disputes that people can’t resolve between themselves. Sometimes a court decision affects people other than individuals who are involved in the lawsuit.

You probably realize that there are both federal and state courts. The two kinds of courts are a result of a feature of our Constitution called federalism. Federalism gives some functions to the United States government, while leaving the other functions to the states. The functions of the US –or federal- government involve the nation as a whole and include tasks such as cleaning up our national waterways, providing for the national defense, and supervising our national parks. State governments perform most of the functions you probably connect with “government”, such as running the schools, managing the police departments, and paving the streets.

Federal courtsare established by the US government to decide disputes concerning the federal constitution and laws passed by Congress, called statutes. State courts are established by a state, or by a county or city within the state. Although state courts must enforce the federal Constitution and laws, most of the cases they decide involve the constitution and laws of the particular state.

Of all the federal courts, the United States district courts are the most numerous. Congress has divided the country into 94 federal judicial districts, and in each district there is a federal district court. The US district courts are federal trial courts – the places where cases are tried, witnesses testify, and juries serve.

Congress placed each of the 94 districts in one of 12 regional circuits, and each circuit has a court of appeals. If you lose a trial in a district court, you can ask a court of appeals to review the case to see if the judge applied the law correctly. Sometimes courts of appeals are also asked to review decisions of federal administrative agencies, such as the National Labor Relations Board1.

The Supreme Court of the United States, in Washington, D.C., is the most famous federal court. If you lose in the court of appeals (or, sometimes, in the state supreme court), you can ask the Supreme Court to hear your appeal. However, unlike a court of appeals, the Supreme Court does not have to hear it. In fact, the Supreme Court hears only a small percentage of the cases it is asked to take.

Article III of the Constitution calls for a Supreme Court and whatever other federal courts Congress thinks are necessary. Congress creates the district courts and the courts of appeals, sets the number of judges in each federal court (including the Supreme Court), and determines what kinds of cases they will hear.

State courtsare essential to the administration of justice in the United States because they handle by far the largest number of cases and have the most contact with the public. If you are ever involved in a court proceeding, it is more likely to be in a state court than in a federal court. State courts handle the cases that the public is most likely to be involved in, such as robberies, assaults, and traffic violations.

State courts have such a heavy caseload because their general, unlimited jurisdiction allows them to decide almost every type of case. Jurisdiction refers to the kinds of cases a court is authorized to hear. In recent years, the annual number of state court cases has been well over 27 million, not including traffic and parking violations.

By contrast, in the same period, only about one million cases have been brought each year in the federal courts; half of these were bankruptcy filings, and one-tenth was minor criminal cases. The number of judges in each system further illustrates the difference: there are fewer than 1,500 judges and magistrates2 in the federal courts, but almost 30,000 in the state courts.

As the preceding numbers suggest, federal courts do not have the same broad jurisdiction that state courts have. Federal court jurisdiction is limited to certain kinds of cases listed in the Constitution. For the most part, federal courts only hear cases, in which the United States is a party, cases involving violations of the Constitution or federal laws, cases involving foreign diplomats, and some special kinds of cases, such as bankruptcy cases and cases concerning incidents at sea. In addition, federal courts hear cases based on state laws that involve parties from different states.

Some cases are such that only federal courts have jurisdiction over them. In other cases, parties can choose whether to go to state or to federal court. Most of the time, however, they can only go to state court.

Most cases in federal courts are civil rather than criminal. As you probably know, Congress has passed laws imposing on employer a legal duty not to deny jobs to applicants because of their race, sex, or other characteristics irrelevant to job performance. One type of federal civil case might involve a claim by a private citizen that a company failed to carry out its duty under the law – that the company refused to hire the citizen simply because she was a woman. Another kind of federal civil case might be a lawsuit by a private citizen claiming that he is entitled to receive money under a government program, such as benefits from Social Security. A third type of federal civil lawsuit might require the court to decide whether a corporation is violating federal laws by having a monopoly over a certain kind of business.

Appeals for review of federal administrative agency actions are also federal civil cases. Suppose, for example, that the Environmental Protection Agency3 issued a permit to a paper mill to discharge water used in its milling process into the Scenic River, over the objection of area residents. The citizens could ask a federal court to review the agency’s decision. Almost always, however, administrative agency actions are reviewed directly by the courts of appeals, not by the district courts.

The reason why there are so many more federal civil cases than criminal cases is because most crimes concern problems that the Constitution leaves to the states to solve. We all know, for example, that robbery is a crime. But what law says it is a crime? By and large, state laws, not federal laws, make robbery a crime. There are only a few federal laws about robbery, such as the law that makes it a federal crime to rob a bank whose deposits are insured by a federal agency. Other federal crimes are illegal importation of drugs into the country and use of the US mails to swindle consumers.

Federal courts also hear bankruptcy cases and have special bankruptcy judges to hear these cases. The judges develop and oversee plans for people who are deeply in debt to distribute whatever money they have to their creditors. Even if the bills are not paid in full, under the federal bankruptcy laws the debts will be considered discharged, and the debtors will be entitled to a “fresh start” in life.

Although the federal courts hear significantly fewer cases than the state courts, the cases they do hear tend more often to be of national importance, because of the federal laws they enforce and the federal rights they protect.

Courts can’t reach out to decide controversies on their own initiative. They must wait for someone to bring controversy to them. Moreover, courts only decide legal controversies. They are not intended to decide every disagreement that individuals have with one another.

Civil cases. A federal civil case begins when someone, or more likely, someone’s lawyer – files a paper with the clerk of the court that states a claim against a person believed to have committed a wrongful act. Judges and lawyers would say that a plaintiff files a complaint against the defendant. The defendant may then file an answer to the complaint. These written statements of the positions of the parties are called pleadings.

Criminal cases. The beginning of a federal criminal case is more complicated. A criminal case begins when a lawyer for the executive branch of the US government –the US attorney or an assistant– tells a federal grand jury about the evidence that a indicates a specific person committed a crime. That person may or may not already have been arrested when the grand jury meets. The US attorney will try to convince the grand jury that there is enough evidence to show that a person probably committed the crime and should be formally accused of it. If the grand jury agrees, it issues a formal accusation, called the indictment.

The grand jury is different from a trial jury, also called a petit jury. A grand jury determines whether there should be a trial; a petit (or trial) jury5 listens to the evidence presented at the trial. “Petit” is the French word for “small”; trial juries consist of between 6 and 12 jurors. “Grand” is the French word for “large”; grand juries have between 16 and 23 jurors.

After the grand jury issues the indictment, the accused person (the defendant) is arrested, if not already under arrest. The next step is an arraignment, where the defendant is brought before the judge and asked to plead guilty or not guilty. If the plea is “guilty”, a time is set for the defendant to return to court to be sentenced. If the defendant pleads “not guilty”, a time is set for the trial. Grand jury indictments are most often used for felonies6, which are the more serious crimes, such as bank robberies. Grand jury indictments are not usually necessary to prosecute less serious crimes, called misdeameanors7, and are not necessary for all felonies. Instead, the US attorney issues an information, which takes the place of an indictment. Typical misdemeanors are disturbing the peace (a state misdemeanor) and speeding on a highway in a national park (a federal misdemeanor).

Although there is an absolute right to trial in both civil and criminal cases, trials are often emotionally and financially draining, and a person may not wish to exercise the right to trial. Also, if the court grants summery judgment8 to either party or decides to dismiss the case, no trial is held. Thus, about 9 out of 10 civil cases never come to trail, and about the same proportion of criminal defendants plead guilty rather than stand trial. If you watch a trial in progress, remember that what you’re seeing is only one part –though a very important part- of the total legal process. If the parties can’t agree on how to settle a case on their own, or if a criminal defendant pleads not guilty, the court will decide a dispute through a trial. The purpose of a trial is to find out whether the criminal defendant committed the crime charged or, in a civil case, whether the defendant failed to fulfill a legal duty to the plaintiff.

If the parties choose to have a jury trial, determining the facts is the task of the petit jury. If they decide not to have a jury and to leave the fact-finding task to the judge, the trial is called a bench trial. In either kind of trial, the judge decides what legal standards to apply. In a robbery case, for example, the judge would tell the jury that using an unloaded gun to rob a store is legally the same as using the gun that is loaded. But the jury would have to decide whether the defendant on trial was actually the person who committed the robbery and used the gun.

Adversary process. Courts use the adversary process to help them reach a decision. Through this process, each side in a dispute presents its most persuasive arguments to the fact finder (judge or jury) and emphasizes the facts that best support its case. Each side also draws attention to any flaws in its opponent’s arguments. The fact finder then decides the case. American judicial tradition holds that the truth will be reached most effectively through this adversary process.

The evidence the jury (or judge) relies on to decide the case usually consists of two types: 1) physical evidence, such as documents, photographs and objects, and 2) the testimony of witnesses who are questioned by the lawyers.

Standards of proof. Congress has established different standards by which facts must be proven in civil and criminal cases. In criminal cases (federal or state), the defendant can be convicted only if the jury (or judge) believes that the government has proved guilt “beyond a reasonable doubt”. Remember that for the grand jury to issue an indictment, it only has to believe that the defendant probably committed the crime. But for the petit jury actually to find the defendant guilty “probably” isn’t good enough. The trial jury must be more certain that the defendant committed the crime; it can have no reasonable doubt about it. A jury verdict must be unanimous, meaning that all 12 jurors must vote either “guilty” or “not guilty”. If the jurors cannot agree, the judge declares a mistrial, and the case must be presented to another jury.

In civil cases, in order to decide for the plaintiff, the jury must determine by a preponderance of the evidence that the defendant failed to perform a legal duty and violated the plaintiff’s rights. A “preponderance of the evidence” means that more of the evidence favors the plaintiff’s position than favors the defendant’s.

Admittedly, these standards aren’t precise, but when the judge explains them, they do help guide the jury in its task of deciding the case.

Much of the way our court system works can be traced back to developments in England in the 17th century, at the time when America was a colony. During that century, England abolished the hated Court of the Star Chamber, a court that was tied closely to the prosecutor and that brought enemies of the king to trial for treason and other serious crimes, invariably finding them guilty. A century of criminal justice reforms in England resulted in a number of protections for individuals accused of crimes and adoption of the idea that courts should make judgments free of pressure from prosecutors. American courts inherited these traditions from England and incorporated them into our judicial system.


1. National Labor Relations Board – национальное управление трудовых отношений

2. Magistrate – магистрат (должностное лицо, осуществляющее правосудие, судья; мировой судья)

3. Environmental Protection Agency – агентство по защите окружающей среды

4. Grand jury – большое жюри (коллегия присяжных, решающая вопрос о предании обвиняемого суду присяжных на основании изучения обвинительного акта)

5. Petit jury – присяжные с функциями разрешения спорных вопросов и определения подлежащих уплате сумм

6. Felony (фелония) – в англо-саксонской системе права особая категория тяжких уголовных преступлений

7. Misdemeanor (мисдиминор) – категория наименее опасных преступлений, граничащих с административными правонарушениями

8. Summary judgment – решение, вынесенное в порядке упрошенного суммарного производства

Active vocabulary

A judicial system

A legal duty

To commit a crime


A lawsuit

To punish

An accident




To send to prison

To prosecute

A victim

An indictment

An arraignment

A court proceeding

A plaintiff

To file a complaint

To file an answer


A defendant

To dismiss the case

Adversary process

A summary judgment


Assignment I. Answer the questions

1. What is a court?

2. What is a federal court? What functions does it perform?

3. How is the federal court system set up?

4. What kinds of cases are tried in State and in Federal Courts?

5. How does a case come to a Federal court?

6. What is the difference between a grand jury and a petit jury?

7. What is the purpose of the trial?


Assignment II. Topics for discussion.

1. Federal courts and their jurisdiction.

2. Federal civil and criminal cases.

3. Adversary process and standards of proof.


Federal courts

A Trial in Progress

The federal courts have always encouraged citizens to observe trials and other public proceedings. But be sure to remember when you’re in the courtroom that the trial is very important to the parties involved, who may lose their freedom or who may lose or gain a great deal of money as a result of the court’s decision. Behave in a manner befitting the formality of the courtroom. Don’t talk or laugh during the proceedings, and stand when the judge enters or leaves the courtroom. Exit quietly if the court is still in session when you leave, and comply with the federal court rules that forbid the spectators to take pictures or use tape-recorders while the court is in session.

The judge presides over the trial from the desk behind an elevated platform called a bench. He or she has four basic tasks. The first is simply to preside over the proceeding and to see that order is maintained. The second is to determine whether any of the evidence that the parties want to use is illegal or improper. Third, before the jury begins its deliberations about the facts of the case, the judge must give instructions to the jury about the law that applies to the case. Fourth, in bench trials, the judge must also determine the facts.

Federal district judges are appointed to office by the President of the United States, with the approval of the US Senate. Before their appointments, most judges were private attorneys, but some were judges in state courts or US attorneys, and a few were law professors. Once they become judges, they are strictly prohibited from working as lawyers. They must be careful not to do anything that might cause people to think they would favor one side in a case over another. For this reason, they can’t give speeches urging voters to pick one candidate over another for public office, or ask people to contribute money for civic organizations.

Presidents almost always appoint judges who are members of their political party, but that doesn’t mean that judges get their appointments solely for political reasons. The professional qualifications of prospective federal judges are closely evaluated by the Department of Justice, and by a committee of the American Bar Association, a national lawyers’ organization.

Most federal judges retire from full-time service at around 65 or 70 years of age, but are still federal judges, eligible to earn their full salary and to continue hearing cases if they wish. Most of them continue to serve part-time after retirement.

Under Article III of the Constitution, federal judges serve “during good behavior”. Therefore, they may be removed from their jobs against their will only if Congress determines, through a lengthy process called impeachment1 and conviction, that they are guilty of “treason, bribery, or other high crimes and misdemeanors”. Congress has found it necessary to use this process only a few times in the history of our country. Generally, federal judges hold office for as long as they wish and are sometimes said to have life tenure. Article III also prohibits lowering the salaries of federal judges “during their continuance in office”.

The Constitution includes both of these protections –life tenure and unreduced salary- so that federal judges will not fear losing their jobs or getting a pay cut if they make a decision that is unpopular with the President or Congress. Sometimes the court decides that a law that has been passed by Congress and signed by the President, or that has been passed by a state violates the Constitution and should not be enforced. For example, the Supreme Court’s decision in Brown v. Board of Education2 in 1954 declared racial segregation in public schools to be unconstitutional. This decision was not popular with large segments of society when it was handed down. Some members of Congress even wanted to replace the judges who made the decision. The Constitution wouldn’t let them do so, and today, almost everybody realizes that the decision was the right one to make.

The constitutional protection of federal judges that gives them the freedom and independence to make decisions that are politically and socially unpopular is one of the basic elements of our democracy. According to the Declaration of Independence, one reason why the American colonies wanted to separate from England was because King George III “made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries”.

Bankruptcy judges and magistrates conduct some of the proceedings held in a federal court. Both of these types of judicial officers assist the district judges. Bankruptcy judges hear all of the bankruptcy cases. Magistrates get the district judges’ cases ready for trial. They also may preside over misdemeanor trials and, when both parties agree to have the case heard by a magistrate instead of a judge, over civil trials. Magistrates and bankruptcy judges don’t have the same protections as judges appointed under Article III of the Constitution.

The group of people seated in the boxed-in area on one side of the courtroom is the petit jury or trial jury. You won’t be able to observe the grand jury during your visit, because its proceedings are always secret. The idea of the jury is an ancient one that goes back in English history hundreds of years. The jury was another factor in the vents that led up to the Revolutionary War. The Declaration of Independence charged that King George III deprived the colonists “in many cases, of the benefits of the trial by jury”. Thus, our Constitution now guarantees the option of a jury trial to every criminal defendant and to the parties in most civil cases.

For federal criminal cases, there are usually 12 jurors, but for federal civil cases there can be between 6 and 12. The one or two additional people in the jury box are alternate jurors, who will become part of the jury if any of the regular jurors get sick or for other reasons cannot continue to participate.

The lawyers for each party will either be sitting at the counsel tables facing the bench or be speaking to the judge, a witness, or the jury. The lawyers’ task is to bring out those facts that put their clients’ case in the most favorable light, but to do so using approved legal procedures. In criminal cases, one of the lawyers works for the executive branch of the government, which is the branch that prosecutes claims on behalf of society. In federal criminal cases, the lawyer is the US attorney or an assistant US attorney. A US attorney is chosen by the President, with the approval of the Senate, for each of the 94 judicial districts. The US attorney also represents the United States in civil cases in which the US government is a party. Under the Constitution, as the Supreme Court has interpreted it, criminal defendants who cannot afford to hire a lawyer must have lawyers appointed by the judge to represent them. These lawyers are usually paid with public funds. However, although the judge may appoint these lawyers they do not work for the judge – they work for their client, the defendant.

On rare occasions, criminal defendants, or parties in civil cases, may attempt to present their cases themselves, without using a lawyer. Parties who act on their own behalf are said to act pro se, a Latin phrase meaning “for himself”.

The parties may or may not be present at the counsel table with their lawyers. Defendants in criminal cases have a constitutional right to be present. Specifically, the Sixth Amendment to the Constitution provides that “the accused shall enjoy the right …to be confronted with the witnesses against him”. Parties in civil cases may be present if they wish, but are often absent.

Witnesses give testimony about the facts that are in dispute. During their testimony, they sit at the witness stand, facing the courtroom. Because the witnesses are asked to testify by one party or the other, they are often referred to as plaintiff’s witnesses, government witnesses, or defense witnesses.

The courtroom deputy or courtroom clerk, who is usually seated near the judge, administers oaths to the witnesses, marks the exhibits, and generally helps keep the trial running smoothly. Sometimes the deputy or clerk is away from the courtroom performing other tasks during parts of the trial. The courtroom deputy is employed by the office of the clerk of the court. The clerk of the court is appointed by all of the judges on the court and works closely with the chief district judge, who is responsible for the court’s overall administration.

The court reporter sits near the witness stand and usually types on a stenographic machine. (In some courts, the official record is taken on a tape or recorder.) Federal law requires that a word-for-word record be made of every trial. The court reporter also produces a written transcript of the proceedings if either party appeals the case or if either party requires a transcript to review.

Pretrial activity in civil cases.In most cases, the lawyers and judge agree before trial, often at pretrial conferences, what issues are in dispute and must be decided by the jury and what issues are not in dispute. Both sides reveal whom they intend to call as witnesses, and generally, what evidence they will introduce at trial. However, just because they agree on these matters before the trial doesn’t mean that they agree on how the case should be decided. Rather, they hold conference to avoid wasting time during the trial on irrelevant issues.

Through the pretrial discovery process, the lawyers try to learn as much as possible about their opponent’s case by asking to inspect documents and talking to people who know something about what happened. If the lawyers have done a thorough job of preparing the case, they shouldn’t be surprised at any of the answers the opposing witnesses give to their questions. One of the basic rules trial lawyers follow is “Don’t ask a question if you don’t know what the answer will be”. The lawyers and witnesses for each side also prepare for the trial by rehearsing their own question and answers. Frequently, all of this pretrial activity results in a decision by both parties to settle the case without going through a trial.

Pretrial activity in criminal cases.A good defense lawyer will also conduct a thorough investigation before trial in a criminal case, interviewing witnesses, visiting the scene of the crime, and examining any physical evidence. An important part of this investigation is determining whether the evidence the government plans to use to prove its case was obtained legally. The Fourth Amendment to the Constitution forbids unreasonable searches and seizures. To enforce this protection, the Supreme Court has decided that illegally seized evidence cannot be used at trial. For example if the police seize evidence from a defendant’s home without a warrant, the lawyer for the defendant can petition the court to rule on whether the evidence can be used at trial. The court then holds a hearing to determine whether the search was unreasonable under the circumstances. If the court rules that key evidence was illegally seized and so cannot be used, the government may drop the charges. However, if the government already has a strong case and the court rules that the evidence was obtained legally, the defendant may decide to plead guilty rather than go to trial.

Jury selection. If the parties have chosen a jury trial, it begins with the selection of jurors. Citizens are chosen for jury service through a process that is set out in laws passed by Congress and in rules adopted by the federal courts. First, citizens are chosen to come to court to be available to serve on juries. These citizens are selected at random from all the registered voters in the district or from lists of licensed drivers. The judge and the lawyers in each case then choose the actual persons who will serve on their jury. To choose the jurors, the judge, and sometimes the lawyers ask prospective jurors questions, to determine if they will be able to decide the case fairly. This process is called voir dire3. The judge excuses any jurors he or she thinks may not be able to be impartial, such as those who know either party in the case or who have had an experience that might make them favor one side over the other. The lawyers can reject a certain number of jurors without giving any justification.

Opening statements.Once the jury has been selected, the lawyers for both sides give their opening statements. The purpose of the opening statement is to allow each side to present its version of the issues in the case to the jury. Each lawyer also describes the evidence that will be introduced to try to persuade the jury to decide the case in favor of his or her client.

Direct and cross-examination.The first actual introduction of the evidence begins after the opening statements. First, the government’s attorney, or the plaintiff’s lawyer, questions his or her own witnesses. When lawyers question witnesses whom they have asked to testify, it is called direct examination. After the direct examination of a government or plaintiff’s witness the defendant’s lawyer has a chance to question the witness; this is called cross-examination. If, after the cross-examination, the plaintiff’s lawyer wants to ask additional questions, that lawyer may do so on re-direct examination, after which the defendant’s lawyer has an opportunity for a re-cross examination. After all of the plaintiff’s witnesses have been examined, the defense calls its witnesses, and the same procedures are repeated. The lawyers often introduce such documents as bank records, or objects, such as firearms, as additional evidence.

Closing statements and instructions.After the evidence has been presented, the lawyers make their closing statements to the jury, concluding the presentation of their cases. Like the opening statements, the closing statements don’t present evidence but, rather, summarize the most important features of each side’s case. Following the closing statements, the judge gives instructions to the jury, explaining the relevant law, how the law applies to the case being tried, and what questions the jury must decide. The jury then retires to the jury room to discuss the evidence and to reach a verdict. In criminal cases the jury’s verdict must be unanimous. The verdict must also be unanimous in civil cases, unless the parties have agreed before the trial that they will accept a verdict that is not unanimous.

By serving on a jury, citizens take advantage of a unique opportunity to participate directly in the operation of our government. They also make an important and vital contribution to the smooth functioning of our judicial system. To encourage citizens to participate, the courts spend great deal of time and money trying to make jury service as comfortable and rewarding as possible.

Post trial matters and sentencing.In federal criminal cases, if the jury (or judge, if there is no jury) decides that the defendant is guilty, the judge sets a date for imposing the sentence. In federal courts, the jury doesn’t decide the punishment. When determining a sentence, the judge usually consults a written “pre-sentence report”, which is prepared by one of the court’s probation officers4. The report describes the past criminal record of the defendant (if any), provides information about the defendant’s family and employment status, and includes the defendant’s and the government’s version of the events. The judge considers all of these factors in determining the proper sentence.

In civil cases, if the jury (or judge) decides in favor of the plaintiff, the judge usually orders the defendant to pay the plaintiff money (damages) or to take some specific action that will restore the plaintiff’s rights. If the defendant wins the case, however, there is nothing more the trial court needs to do.


1. Impeachment – процедура привлечения к уголовной ответственности высших должностных лиц

2. Brown v. Board of Education – Браун против Министерства образования

3. voir dire [vwahr deer] – процедура отбора присяжных; юридический термин, означающий «говорить правду»

4. probation officer – инспектор, наблюдающий за поведением условно осужденных


Active vocabulary

A trial

To preside over trials

A conviction

Life tenure

Physical evidence

A testimony of witnesses

An oath of a witness

To rule

To drop charges

To seize evidence

To obtain (il)legally



The relevant law

Opening and closing statements

A direct and cross examination

Selection of jurors

A unanimous verdict

To impose a sentence

To decide in favor of

Assignment I.Topics for discussion.

1. A judge, his functions, appointment and retirement, and constitutional protections.

2. The role of witnesses, the courtroom deputy, and the court reporter.

3. The purpose of pretrial activity in civil and criminal cases.

4. Selection of jurors and their job

5. The task of a lawyer in the trial (opening and closing statements, direct and cross examination)

Federal courts

What happens after the trial?

A defendant who is found guilty in a federal criminal case, and the losing party in a federal civil case, both have a right to appeal their case to the US court of appeals. The grounds for appeal usually allege that the district judge made an error either in procedure (such as by admitting improper evidence) or in interpreting the law.

The government cannot appeal if a criminal defendant is found not guilty, because the Fifth Amendment to the Constitution provides that no person shall “be twice put in jeopardy of life or limb” for the same offence. This reflects our society’s belief that it is better to let a guilty person go free than to allow the government to harass a defendant through repeated re-trials. The government can appeal in civil cases, as any other party can. Also, the losing party cannot appeal if there was no trial, if the defendant decided to plead guilty or if the parties settled their civil cases out of court.

An appeal in a federal criminal case goes something like this: Suppose that a law is passed by Congress that prohibits demonstration within 500 feet of an embassy. Following the enactment of the law, a group of six people stands on a street corner near the embassy of Malandia and asks passersby to sign the petition protesting Malandia’s human rights policies. The six people are arrested and charged with committing a federal misdemeanor. At trial they say that they were careful to stay more than 500 feet from the embassy. However, the US attorney calls a policeman as a witness, and he testifies that the corner they were standing on is within 500 feet of the embassy.

Before the trial jury begins its deliberations, the lawyer for the defendant asks the district judge to instruct the jury that collecting signatures on a petition is not a “demonstration” and, therefore, if that was all they did, they weren’t violating the law. The lawyer also argues that even if collecting signatures on a petition is a demonstration, the First Amendment to the Constitution prohibits Congress from making it illegal to participate in a demonstration, and thus the judge should dismiss the case. The judge disagrees on both points. She instructs the jury that collecting signatures on a petition is a demonstration and refuses to dismiss the case, saying that Congress may prohibit demonstrations that pose a threat to foreign embassies without violating the First Amendment. To reach her decision, the district judge consults precedents – similar cases that have already been decided by other courts. She pays special attention to prior decisions of the court of appeals of her circuit.

Because the judge has determined that collecting signatures is a demonstration and that Congress has the constitutional power to prohibit the demonstration near the embassy, she instructs the jury to decide, on the basis of the evidence, whether the defendants collected signatures within 500 feet of the embassy.

Suppose, for our purposes, that the jury finds that the defendants did collect signatures within 500 feet of the embassy, and they are convicted of violating the law. The defendants can then appeal this decision to the US court of appeals. The court of appeals probably won’t throw out the jury’s factual finding that the protesters were within 500 feet of the embassy. But the court of appeals may decide that the district judge wrongly interpreted the law; it may decide that Congress didn’t intend for the law to prohibit gathering signatures on a petition. After deciding this, the court will probably determine that it doesn’t have to decide whether it was unconstitutional for Congress to prohibit demonstrations near embassies. That decision will have to wait for a case in which there is an actual demonstration.

If the court of appeals decides that the trial judge incorrectly interpreted the law, as in our example, then it will reverse the district court’s decision. In other words, the court of appeals will say that the district judge made a mistake in interpreting the law, and thus the defendants are not guilty after all. However, most of the time –but certainly not always- courts of appeal uphold, rather than reverse, district court decisions.

Sometimes when a higher court reverses the decision of the district court, it will send the case back to the district court for another trial, or in legal terms, remand it. Foe example, in the famous Miranda case, the Supreme Court ruled that the defendant’s confession could not be used as evidence because he had not been advised to have a lawyer present during questioning. However, the government did have other evidence against him. The case was remanded for a new trial at which the improperly obtained confession was not used as evidence, but the defendant was still convicted.

Appellate court procedure. The courts of appeal usually assign a panel1 of three judges to each case. The panel decides the case for the entire court. Sometimes, when the parties request it, the entire appeals court, sitting en banc2 will reconsider a panel’s decision.

In making its decision, the panel reviews the record on appeal, which consists of all the documents filed in the case at trial along with the transcript of the proceedings at the trial. The court learns about the legal arguments of the lawyers from two sources. One is the lawyers’ briefs3. Briefs are written documents (often anything but brief) that explain each side’s case and tell why the court should decide in its favor. The court may also hear oral argument in a formal courtroom session. At oral argument, the lawyers have a limited amount of time to explain their cases, and the judges frequently question them about the relevant law.

After the submission of briefs and oral argument, the judges discuss the case privately, consider any relevant precedents, and reach a decision. At least two of the three judges on the panel must agree with the decision. One of those who agree is chosen to write an opinion that announces the decision and explains it. Any judge who disagrees with the majority’s opinion may file a dissenting opinion, giving the reasons for disagreeing with the majority opinion. Many appellate opinions are published in books of opinions called reporters. The opinions are read carefully by other judges and lawyers looking for precedents to guide them in their own cases. The accumulated judicial opinions make up a body of law known as case law, which is usually an accurate predictor of how future cases will be decided.

If you visit a court of appeals in session, you will notice that there are no jurors, witnesses, or court reporters. The lawyers for both sides are present, but the parties are usually not. This shows the differing nature of the task of the federal appeals courts, as opposed to that of the federal trial courts or district courts.

The United States Supreme Court

The United States Supreme Court is the highest court in the nation. The decisions of the Supreme Court hands down on cases appealed from lower courts set precedents for the interpretation of the Constitution and federal laws that all other courts, both state and federal, must follow.

Unlike the US courts of appeals, however, the Supreme Court does not have to hear every case that comes to it for review. It is up to the Supreme Court to decide whether or not to hear a case. The Supreme Court is a different kind of appeals court – correcting errors made by trial judges is not its major function. The primary task of the Supreme Court is to clarify the law when other courts disagree about the interpretation of the Constitution or federal laws. Each year, losing parties ask the Supreme Court to review about 5,000 of the most 30 million cases handled by the state and federal courts. Most of these come to the court as petitions for a “writ of certiorari”4. The court selects only about 170 of the most significant cases to review.

The Supreme Court’s power of judicial review makes its role in our government even more vital. Judicial review is the power of a court, when deciding a case, to declare that a law passed by a legislature or that an action of an executive official is invalid because it is inconsistent with the Constitution. Although district courts, courts of appeal, and state courts can exercise the power of judicial review, their decisions are always subject to review by the Supreme Court on appeal. When the Supreme Court declares a law unconstitutional, however, its decision can only be overruled by a later decision of the Supreme Court or by an amendment to the Constitution. Seven of the 26 amendments to the Constitution invalidated decisions of the Supreme Court. However, most Supreme Court cases don’t concern the constitutionality of laws but, rather, the interpretation of laws passed by Congress and the states.

Although Congress has steadily increased the number of district and appeals court judges over the years, the Supreme Court has remained the same size since 1869, with a Chief Justice5 and eight associate justices. Like all federal judges, they are appointed by the President with the advice and consent of the Senate. However, unlike the courts of appeals, the Supreme Court never sits in panels. All nine justices hear every case.

The Supreme Court begins each term on the first Monday of October. The term lasts until the court has announced its decisions in all of the cases it has agreed to hear – usually until July. During the term, the Court hears oral arguments during the week and holds private conference at the end of the week to discuss the cases, reach decisions, and begin preparing the opinions. No opinions are released until the decisions are announced, mostly in the late spring and early summer. The more important Supreme Court decisions are discussed in the national news.

The decisions of the Supreme Court affect the lives of the millions of people, from the arrestee who has a right to remain silent when questioned by the police and who must be informed of that right, to the magazine editor trying to decide whether publishing a disparaging article about a famous person will break the law. The widespread impact of some cases results in lively debates in the press. Some of these issues are never finally resolved in such a way that everyone agrees with the outcome. Nevertheless, by the time cases have been heard by the Supreme Court, all arguments for each side have received extensive consideration. Moreover, the Supreme Court’s decisions are final in the sense that they cannot be overturned by another court.

What are some of the most noteworthy facts and concepts you should remember about the federal courts? What is most noteworthy varies with an individual’s point of view, but everyone should find the following points worth remembering:

ü Federal and state courts exist side by side. State courts are courts of general jurisdiction and decide many more cases than federal courts. Federal courts are courts of limited jurisdiction.

ü Courts resolve disputes through the adversary process, at both the trial and appellate levels, and rely on precedence for guidance in making decisions.

ü Every individual has an absolute right to bring a case in federal court (assuming the court has jurisdiction), along with an absolute right of appeal for review of the district court’s decision. Only in rare instances does a case go as far as the Supreme Court of the United States.

ü In criminal cases, the courts provide legal assistance free of charge to defendants who cannot afford to pay for it themselves.



1. a panel – список присяжных арбитров

2. en banc – в полном составе

3. briefs – краткое письменное изложение дела

4. a writ of certiorari – приказ об истребовании дела (из производства нижестоящего суда в вышестоящий)

5. a Chief Justice – председатель Верховного суда


Active vocabulary

A losing party

to dismiss the case

a prior decision

to reverse or to uphold the district court’s decision

to claim

to remand the case

a judicial review


an oral argument

to file a dissenting opinion

a violation

to announce a decision

to clarify the law

to declare a law unconstitutional

to be inconsistent with the Constitution

an amendment

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