Système Juridique Américain

The American judiciary.

Separation of powers (suspicion of power by founding fathers). Checks & balances.
Judiciary is a co-equal and independent power (_ authority).
    Constitution:    Art. 1 => Congress
            Art. 2 => President
            Art. 3 => Judiciary power

• Before the Constitution, Federalist/anti-federalists about judicial system:
Hamilton showed that:
    - federal judiciary was necessary and the least dangerous of powers (reassure anti-federalists).
"The executive holds the sword, the legislative commands the purse and prescribe rules.
The judiciary has neither of those".
    - In order to have a limited Constitution (powers) => limited legislative. Judiciary guarantees this, so justices are appointed for life (guarantee of independence).
    - Judicial review enables the court to declare an act of Congress or of the President unconstitutional.

• Constitution (art. 3) guarantees the independence of the judiciary.
    - Supreme Court is the only court that has constitutional existence. Others are created by Congress.
    - Judges hold their offices during good behaviour (_ crime, treason => impeached).
    - Judges receive a compensation that shall not be diminished during their career. Congress fixes their salary, but can decide not to raise it…

Rest of art. 3 deals with the jurisdiction of the Supreme Court and of other courts.
9 justices in the Supreme Court (1 chief justice). Their number is decided by Congress (nothing is said).
    Their number hasn't changed since 1869, even though Roosevelt wanted to increase their number to 15 in order to pass his New Deal laws (end of opposition). But he didn't have to do that.
To change their number endangers the system of Checks & balances.

The Supreme Court sits for 1 term/year (1st Monday of October => end of June).

Powers of the Court.
Nothing is said about Judicial review in the Constitution.
Original jurisdiction and appellate jurisdiction are found in the Constitution.

. Important cases go directly to the Supreme Court (original jurisdiction). Cases involving ambassadors, public ministers and those were a State is a party.
. For most cases, the Supreme Court is an appellate jurisdiction.
District court => appeal court (12, 1/district circuit).
Supreme Court has appellate both as to law and fact (_ France).

Art. 3, section 2: controversy between 2 or more states, between state/citizen from another state
    => case can be judged by a federal court in order to have a fair trial. But clogged system, and states are supposed to be impartial. Today, federal courts only hear cases above $ 50 000 exclusive of interests and costs.

Federal question (Constitution, powers of federal Government) => federal court.
Case can be appealed to the Supreme Court.

Supreme Court as an appellate jurisdiction. Cases reach it by 2 methods:
    - by appeal. Has to hear the case (obligatory review or mandatory review).
    - by writ of certiorari. Request, and no obligation to hear the case (discretionary review).
Petition can be wrote in order to convince the Supreme Court to hear the case. Must be of general significance
If 4 justices out of 9 accept => review of certiorari.

More and more cases are presented to the Supreme Court (growing caseload), but no increase of decisions.

THE SOURCES OF LAW IN CONTEMPORY AMERICA.

Common law country (= GB). But today because of the constitution and statutory law, the syst is not that different anymore, (very important idea)
The US Constitution is "the Supreme Law of the land".
Britain hasn't got a written Constitution (_ US).

Law = Set of rules that have a general application in soc, that imposes sanctions for the violation
Civil law countries: countries with codes.
The classification between substantive law (sets out the right and duties governing people as they act in soc) and
procedural law (rules of procedure).

Constitutional law, because of the role of the SC and the Bill of Rights, is slightly different: made mainly by the decisions of the Supreme court, it is very judicial.

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2 things that are ¹ in America about the law:

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Federal system: 51 different legal system (50 states + federal law)

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Common law country

There are 4 sources of law:
    - Constitutions and Treaties.
    - Legislation (statutory law).
    - Rules and regulations (decisions of administrative agencies).
    - Judicial decisions (rule of precedent).

I/ Constitutions and Treaties.

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51 constitutions (Federal + 1 /State).

The State Constitutions are generally very similar to that of the Federal one (design of the Government State executive - Governor, Congress and judiciary).

Only difference: state constitution are more specific and detailed in their provisions (Federal constitution is written in broad terms. Supreme Court can thus interpret it and adapt it to news conditions).

State constitutions are subordinate to the US Constitution. But they are superior to state law (all other sources of law at the State level). Strict hierarchy (Federal Constitution > State Constitution > laws and regulations).

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Treaties are also an important source of law. They are signed by the president, and gratified by 2/3 of the Senate. They are the "Supreme Law of the land". That means that they may override upon acts of Congress or state legislatures, or others laws which are inconsistent (not in conformity with the treaties, in contradiction with...).

The treaty prevails on the contradictory law. Treaties are international in their nature

II/ Statute law.
Laws voted by the legislature.

Some are voted at the Federal level (US Congress), others are voted in each state.
They may add details to the gvt framework. They can establish rules, create regulatory agencies.
Statutory law is more important today than the Common law
Origin of the laws in the states - State Congress (civil law, criminal law).

Some portions are regulated at the federal level (Constitution).
Commerce law (interstate commerce) is regulated by the US Congress (_ State).
Although the US is a common law country, there are laws voted every day at the federal and state level.
Each state votes its own law => no uniformity. Statutory law varies from state to state (sails, company law, publishing...)
è if parties to a contract are citizens of the same state, no pb. If the controversy in intrastate, no pb
è pb if interstates implication: taken to the SC
A number want to pass uniform laws (text prepared by lawyers and which has no legal value at that stage. Then proposed for adoption by each legislature of the 50 states). 2 methods

è have federal law (2 limitations: constitutional reason: congress cannot deal with everything. For political reason, Congress doesn't like to pass laws that could infringe on the state field)

è laws redacted by some bodies: American Law Institute (ALI) or National conference of commissioners on State Law. They propose a model act, that doesn't have a legal value. 2 steps are required for the legal value:

àtext has to be approuved by the national conference

àthe uniforms are sent to the states legislatures and recommended for adoption (the conference will send the text to the legislatures of all the states and present it as the result of their work, and as sth to be adpoter). To encourage the state, the states are not obliged to adopt everythingà non uniform uniform state law.

The State has the possibility to make a few amendments to the law (never uniform).

    Ex: UCC (Uniform Commercial Code) regulates a wide variety of commercial transactions (sales, securities - give an object for a debt).

10 years ago, although it was called UCC, people said that it wasn't uniform (some states only adopted parts of it) and that it wasn't commercial. Not a Code for French lawyers.

III. ordinancies
Enactments taken by local units

IV/ Rules and decisions of regulatory agencies.
Congress (at the federal level) and state legislatures (at the state level) can delegate some of their powers to agencies.
    ICC (Interstate Commerce Commission) created in 1887 (1st one).
    FTC (Federal Trade Agency) created in 1914, regulates anti-trust. promotes free competition
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Then, agencies created to regulate one sector (transportation, communication).
Agencies created to protect one sector or one activity
    EPA (Environmental Protection Agency)
    EEOC (Equal Employment Opportunity Commission).

These commissions are called "agencies", "commissions", "boards".
• They are independent from the executive power and the legislative power.
• They can make rules and regulations (legislative power). They are sources of laws.
• These agencies can enforce their regulations (if not respected, find). Executive power
• They have quasi-judicial powers (can serve as courts and render judicial decisions).

They are very powerful in America (legislative, executive and quasi- judicial power).
In America, the economic approach was the functioning of the market. Around the New Deal period, there was a shift to regulation.
Many agencies created during the New Deal period.
Then, in the 70's (oil crisis, stagflation) creation of many agencies.
In the 80's, deregulation that is still working today.

V/ EXECUTIVE ORDERS
Same authority as law if granted by statute

VI/ Judicial decisions (court decisions).
The role of a court decisions varies in France and in America.
In France, its role is to find a solution to a dispute. The decision has the power of res judicata (case is judged).
In a common law country, the value is the one of a precedent (> res judicata). One decision should be followed by judges in the future in similar circumstances.

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3 roles

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Determine the meaning of the statutes

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find the law in settling dispute, when there is no other applicable rule

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Am court interpret law and review the constitutionality of both the laws of the legislative and the acts of the executive

    Stare Decisis (page 8)

    The concept of precedent (previous case, decision).
    To stand by decisions (obey and not disturb what is settled).
    Judicial decision create precedent where there is no legislation.

    Court writes the opinion. The opinion sets forth the reasons for its decision (holding).
    Rules of law can be deduced from this opinions.

Certainty (can rely on the law), predictability (can predict the decis° of the judge), stability (courts don't like to overturn a precedent).

    At the level of the Supreme Court, it will wait for the legislature to make a law.

    Stare Decisis: the American judge must apply a precedent. But this rule doesn't apply to everybody.
This rule applies to judges subordinate to the Court that rendered the decision.
    Subordinate courts in the same jurisdiction are bond to the decision.
    Exception: if it is a famous Supreme Court (in a large State), other courts will look at the decisions, but they don't have to be applied as precedent.

    Rule of precedent is much less strictly applied in America than in GB (British law was exported to US, and wasn't always well received).
    Large volume of judicial decisions.
    Application of the rule of precedent limited to each jurisdiction (State).
    US created very early electronic tools of research (data basis of legal decisions - Lexis     "Mexis", Wesbond).

    • 2nd difficulty in the application of case law.
        => conflicting precedents.
    Lawyer for party A will bring some precedents and Lawyer for party B will do the same (different decisions).
    The judge will have to determine which of those precedents apply to the case in question

    • 3rd problem.
    No text for new technologies (Internet).

    • 4th problem.
    Difference between the holding (a legal reasoning at the basis of the case) and dictum (a) of the case (elements of law added to the decision, but not directly necessary to the decision).

    Rejection of Precedent.
    A precedent can be overturned. When a reviewing court (appeal) finds that a prior decision was     wrong, it can reverse the precedent (rare).

In America, court decisions can do 3 things (make law in 3 different ways):
    - determine the meaning of statutes, administrative rules and executive orders (President).
    - determine the law in settling disputes when there is no other source of law available.
    - review the constitutionality of the acts of the legislative and judicial branches.

Interpretation of the law.

- Court will search for legislative intent. A law, as voted by Congress, expresses the will (intent) of the legislature. At the beginning of the law, Congress recalls the reasons why the law was voted
    Federal election campaign law in 1974.
    Limit corruption, equalise access to the elections, diminish the amount of money spent in the     elections.
If the Court wanted to interpret the law, it has to object these reasons.
Law contains elements stating the intent.
But sometimes, no intent is stated in the law, or stated in general terms

- Legislative history is the other way. Examine the legislative history of the act to determine the evil it was designed to correct.

Different rules of interpretation:
    - criminal law should be interpreted narrowly.
    - statutes that remedy a situation should be interpreted in a liberal manner.

the rule of precedent in America

It has to be distinguished from Res Judicata

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when a judge render a decision he does 2 things: àdisposes of the controversy, finds a solution

àthe decision he renders establishes a precedent so that a case arising in the future would probably decided in the same way. STARE DECISIS= to stand by the decisions and not disturb the settle points.

This rule was received as part of the Common law.

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Equality: if we apply the same rule, the result is equality of treatment

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predictability: if the courts follow the precedent consistently, one can predict the outcome

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economy: the use of established material saves time and energy

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respect: due respect to the wisdom and experience of prior generations of judges.

In America, this rule is much more flexible and not the same authority than in UK because: àfederal syst

àtechnological changes

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How does it work?

distinction between 2 kinds of case law authority
case law is divided into 2 classes: they have

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persuasive authority: decisions of other jurisdiction cannot have binding authority on courts of another state. But it

can have persuasive authority.

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binding authority: court cannot disregard

When the judges justify their decision, you must look at the holding (Ratio decidendi) = the rule of law that was necessary for the decision
dictum = dicta
Distinction between the holding (binding) and the dicta (which is not in theory). A dictum can become a holding

COMMON LAW

Body of judge-made law, that was administered in the English courts
Equity was administered by the king, created to judge in equity in the Chancery court
Both the Common law and Equity were reset in the American colonies
The SC is a common law court (is there a federal common law ?)

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Other sources of law besides the common law

The common law is not always clear cut. Period during which it was rejected as part of the rejection of England. They were provisions that said that any law must conform to the legal culture of the mother country

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Equity

It found its ways in most of the colonies despite the rejection for the same reasons than the Common law. They even more dislike Equity, which was administered by the King. But generally it was received (legal term) in the states, then develop by the courts and subject of treaties.
When the court seats; it's a common law court
law remedy = under the common law syst
equitable remedy = under equity system
If you seek relief in the wrong court, you have to begin again everything.
In the 19th, 1848, demand of the states to merge the courts;
code of civil procedure abolished the distinction between "a suit in equity and an action at law" and substituted a single action.

Today, law and equity procedure has been merged in practically all states, and also in federal courts 1938.
The merger is indeed not fully realised: we have to think of the origin, then right to adjourn it.
For historical reasons, and in spite of the merger, we still have to pay attention to the distinction common law and equity.
When legal (contrary of illegal or, as opposed to political, here issue according to the common law) and equitable issues at the same time, equitable issues are decided by the judge and the legal issues by a jury.

There has been a merger, but we have still to look at the past

The Blue Book

Finding the law

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Is there a federal common law ?

Federal courts deal with federal questions and federal law.
But in some cases, questions of what law applies ?

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Judiciary Act 1789: congress required the federal courts to apply the laws of the states as rules of decision in common law actions in federal courts; that means: we have a case without no federal law applying. So the judge must apply the common law of the states.

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Swift v. Tison 1842: the SC has the power to interpret the law and says that the federal law can apply state status, not state case law; and on all matters not regulated by a state statue, fed courts are free to adopt and apply federal principles of federal common law. There is a federal law

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The pbs: in 2 separate cases, one before federal court and the other before state court, 2 different laws will apply.

There were 2 separates syst of laws. It led to "forum shopping": the lawyers can go around and find the court that will apply the law most favourable to your case. Today, forum shopping means that certain courts are more favourable. There is still an amount of forum

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Erie v. Tomkins, 1938: Reversal of the Swift's decision. Stated the constitutional obligation of federal courts to apply state substantive law. The judiciary act applies to statutory law and also to state common law. So in theory no common law.

the 1st difficulty: the question of determining whether a particular matter is substantive or procedural belongs to the federal courts. Characterisation of an issue. The only thing important is what the law is. Today state law, federal procedure.

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Easy to finds the US and states constitution. In the last 3 years, the situation has changed tremendously. If you need a law, the 1st state: the law becomes a sleep law. If it's a law, it's called public law.

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how they are numbered ?

PL 96 272 ? = PL (public law) 96 (96 Congress) 272 (the 272 law passed during the 96 Congress).
But the laws are published and are bound in chronological order at the end of a session. This book is called "US statutes at large", compilat° of the laws. Very useful in the 1st year, because will be added to the codes; the official code is USC .
The USC is the official compilat° of the laws and is published by the fed gvt every 6 years. 50 titles, subdivided in sect°
The other codes are private complications: USCA and USCS (service). Preferred by lawyers: more annotations for further research, are published more rapidly.
In the code "42 dot 4" (number of the title and §)

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Another source of law is regulation. Gradually, a large nb of regulations were issued and 1997, need to organise. Therefore Congress voted a law to pass the Code of Federal Regulations, contains the doc of each agency of the gvt having general applicability and legal effect. The regulations are codified, 50 titles. But education is title 20 in the USC, 40 in CFR, but generally it's the same title.

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There is also the Federal Register, created by the Federal Register Act to establish a central point for all federal texts, not only legislations. Equivalent of the JO

The aim of that publication is to provide any parties affected by regulation with constructive notice of its contents (the JO gives you the original law). In 1946, Adm procedure Act: formalise this attitude and gave the public the right to participate in agency rule making. Publicat° of the proposed legislations. The purpose is to make comments to the law.
Freedom of Information Act, 1966 added further improvements
1976, Sunshine Act, requires agencies to publish notices

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Finding case law (cf p 6 of the poly)

There are lots of federal and state decisions. You have to be familiar with 2 syst. Trial courts opinion are not published.
The structure of a court decision: - 2 names (Marbury v. Madison)

- the plaintiff or defendant, can be the state or an institution

- "Head note"

- sometimes a "digest" = summary

- statement of the facts

portion that caries legal authority: ratio decidendi

HISTORY OF THE AMERICAN SUPREME COURT.

The supreme court: Establishment of the union

More or less activist according to periods.
Discussion in 1787 whether to have a state court system / national court system.
Federalist (nationalist - J. Madison) wanted a federal judiciary that would enforce national law and supervise State judiciaries.
Constitution created the Supreme Court, and all other courts are created by Congress.
Federal judiciary organised by Congress ("judiciary acts"), but opposition between federalists and anti-federalists:

Judiciary Act of 1789 (federalist):     6 justices in the Supreme Court.
                    3 tier federal judicial structure.
    One US district Court/State (1st level)
    Circuit court (district judge + 2 justices of the Supreme Court in circuit). Not permanent.

Before Marshall
At first, little esteem and recognition. Only defined the functions of the federal Courts: the SC had to define its role
First it tried to establish a relationship between the judiciary and the two other branches. It also tried to extend its authority over the states.
Hyalton v. U.S. (1796) 1st claim of judicial review.

Expansion of the court's power: Marshall period
Then gradually moved towards judicial review (not mention in the Constitution).
    Malbury v. Madison (1803).
Establishment of judicial review by chief justice Marshall: an act of Congress in conflict with the Constit must be banned.

Judiciary Act of 1801 (anti-federalist): Permanent circuit with own judges (_ judges of Supreme Court).
Jefferson tried to limit the power of the Court by threatening to impeach judges and justices.
But federal judges can't be dismissed (_ good behaviour).
Impeachment (2 step-procedure): House of Representatives decides if there is evidence for an indictment, then Senate decides whether the judge is guilty or not (2/3 votes).

• J. Marshall became chief justice in 1801 => 1835 (activist). Wanted to expand the court's power and to establish it as a co-equal partner next to Congress and the President.
    => judicial review (compares a statute with the Constitution).
    => economic role
    Fletcher v. Peck (1810)
Broad reading of the contract clause of art.1: provided that contracts clause is more important than state regulation.

    => Establish Supreme Court and Federal Government powers / States
    Mc Callock v. Maryland (1819).
Congress may charter a national bank (extension of the government's power).

    Gibbons v. Ogden (1924).
    Regulation of interstate commerce by the Congress.
    Extension of the power of Congress.

1801 => 1824: period of expansion of the Court. Then, period of retreat.

• New chief justice … Ney

The third period is referred to the dual Freudian period (after 1836). It is the continuation of the Marshall period but not as extended.

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The civil war is about Federalism. The Supreme Court is to be redefined in comparison to States.

1913: 16th Amendment: it is about income tax.

    Swift v. Tyson (1842)
    Extension of federal power and the Court supervision of the economy.

The period is also known as cases concerning slavery.
    Jones v. Van Zandt (1847)
    Sustained the constitutionality of the Fugitive Slave Act that provided civil penalties against persons who
    assisted in the liberation of a fugitive.

    Dred Scott (1857).
    Whether a black person is a citizen and enjoys the privilege to sue => no.

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New period of reconstruction after the civil war (1865 => 1929).

From an economic point of view.

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End of slavery doesn't satisfy all the States.

Amendment 13th of the Constitution puts an end to slavery.
Period of the KKK.

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Industrial revolution, rise of huge companies (trusts).

11 million people worked in manufacturing and mining. Rapid development of capitalism.
Agencies regulated commerce (IIC in 1887). Law tries to fight against trust (Sherman Act, 1890).

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Depression (1929) and rise of legal liberality.

    Attempts by Roosevelt to implement a New Deal policy.
    The justices of the Supreme Court of the time were Brandinse, B. Cardozo, O. Roberts.
    They constituted at the time a conservative block (majority opposed to reform legislation).
    Taft is the chief justice of the conservative Supreme Court. It believed in a liberal government (no     intervention of the government in the economy).
    Roosevelt tries to move towards the welfare state (Government plays a role in social, economic     field). "New
    Deal under fire".
    Democratic President (Roosevelt), a Democratic Congress (voting New Deal legislation) and a     Conservative Supreme Court opposing reform legislation.

In 1932, some state cases reached the Court. Some States had tried to regulate business, and the laws voted at the State level were taken to Court.
    Oklahoma tried, but the Supreme Court said that is exceeded its powers.
    Court limited the powers of the States.
Brandice wrote a very interesting descent, dissenting opinion (against the majority decision of the Supreme Court) in which he mentioned federalism with an interesting approach. Good idea that individual states that serve as social laboratories in the face of the crisis for the Federal government. This descent played a very important role, and the Court approved this descent 2 years later and came back on its decision.
A concurring opinion is when a justice votes with the majority, but for different reasons.
Often, 2 justices can write together a concurring or dissenting opinion.

    The Court invalidated (void, strike down) the NRA (National Recovery Administration) and NIRA (National Industrial Recovery Act), a minimum wage in the State of NY.
    Roosevelt wanted to add 6 justices in the Supreme Court and 44 in the lower courts.
    But Roosevelt said that he was proposing the reform in order to ease the work of the Supreme Court     ("crowed docket, too many cases"). Not many people believed this excuse, and many justices wrote     letters to the Senate judiciary commission to protest against this decision.
    Increasing the number of justices would be counter-productive (too long to decide).
    The majority realised that this was a serious attack against the independence of the judiciary     (dangerous because can serve for the President - decide to appoint new justices).
    Roosevelt didn't do his reform, because of the retirement of a number of justices.
    Roosevelt appointed H. Black (1938), S. Reed, F. Frankfurter (1939) and W. O'Douglas (1939).

Page 9 of brochure.
Earl Warren period

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1950's: chief justice is Earl Warren (Liberal and activist).

Appointed by Eisenhower (unhappy by the decisions rendered by the Supreme Court).

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Tries to increase the rights of the accused (Miranda v. Arizona, 1966)

1963: Gideon v. Wainwright=> first time the court says that a accused have the right to a lawyer paid by the Government.
5th amendment: right to have a lawyer.

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Brown v. Board of education (1954)

the Supreme Court said «separate but equal», was a violation of the equal citizenship of the 14th Amendment.

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Baker v. Carr (1962)

Concerned electoral apportionment in Tennessee. After this decision most states reapportioned their districts.
This third period concerns especially criminal cases: Warrent's aim is to increase the rights of defendant.
Warrent remained Chief Justice until 1969.

Burger period
For the First ten years, the Supreme Court was not very conservative, because it was very divided. But it then became more and more conservative

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1970's brings some changes (some expected).

1968, Nixon is president (unhappy with the Supreme Court). Appoints justices more sympathetic with the police. In 1969, he chooses W. E. Burger (chief justice). He is conservative. End of the reforms of the Warren period. But 9 justices and need a majority to change things. The Court became more conservative, but did not overrule most of the Warren decisions (one man can't change things). In some fields, the courts remained liberal

    Furman v. … (1972): Justices outlawed capital punishment. But death penalty isn't unconstitutional.. The
    supreme court refers to the 8th amendment and talks about civil treatments

    Roe v. Wade (1973) => guarantee women to the right of abortion in the first 2 months of pregnancy.
    But in the 80's, abortion is more difficult to obtain for women. Decision is reduced.

    1976, capital punishment is accepted in some cases.

    Buckley (1976) => money in political campaigns.

    University of California Regents v. Bakke. Affirmative action decision.

• Reagan is president in 1980. He appointed the first woman to the Supreme Court (Sandra O'Connor).
1986, Reagan chooses Rehnquist to succeed to Burger (Conservative).
A. Scalia is another conservative to replace Rehnquist's seat (1st Italian-American in the Supreme Court). A balance between the regions, religions and ethnic groups should be respected in the Court.
President nominates somebody. Then, the approval by the Senate is needed.
1987, Reagan wanted Bork to be appointed (very conservative). But this nomination is rejected by the Senate. Kennedy is another conservative, and is accepted.

1989 is the turning point. The court had majority conservative on most issues. (p 10) 1989, Court still upholds regulat°

• 1990's (Bush - Republican).
2 justices are appointed (Souter is approved by an overall majority. Marshall resigned in 1991 and C. Thomas is accepted also (accused of sexual harassment), but not as easily and after bitter debates between women and blacks - youngest justice of the Court).
    1992 changes the Roe v. Wade decision. Planned parenthood v. Casey decision.
    It reaffirms the Roe decision (level 1), but gives the states more power to regulate abortion.

1993, White retires (31 years).
Clinton (Democrat) nominates R. Ginsburg (2nd woman).
1994, Clinton appoints another justice (Brier). But they aren't very liberal. Policy of compromising with the republicans.

THE NOMINATION OF FEDERAL JUDGES

(Remember that the judiciary in America is very political and this is well accepted)
Choosing a nominative system was not an obvious choice.
àThe reason: Madison says that the SC is not supposed to be a democratic institution, but is to check the excesses of legislative majorities
Dahl says that it doesn't matter if the SC is not elected. It is true that procedurally it is undemocratic, but it is substantively democratic because it is responsive to national majorities (nominated by the president with the approval of the Senate).

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The nomination process itself

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The president nominates, chooses a nominee. There is a background check for the potential names (if they smoke marijuana, employ illegal immigrants) with the help of the FBI

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Then it goes to the Senate. Not the full body, but the Senate judicial committee will conduct the investigation and some hearings. We know about some famous hearings: Justice Clarence, 2nd black member of the court (see brochure). Famous, because accused of sexual harassment. Difficult situation for senators: they can be accused of racism, while they will be accused of sexism if they confirm the nomination. Finally, they confirmed the nomination

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statistics: 81% of the nominees have been confirmed. During some periods it can change if president and senate are from the same party: the rate will be higher.

90% for confirmation when the 2 belong to the same party. 90% when the individual proposed belongs to the same party.
It can fall to 67%, because of political reasons.
The 20% rejected have some common points:
à33% of the unsuccessful nominations have been made by succession presidents
à49% in the last years of the president term
à the rest when the senate and the presidency were controlled by different parties.

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Senatorial courtesy: old custom that still plays a imp role. Senate refusing to confirm certain nominations, depending on the state and the statute of the senators. The custom: Refuse to confirm a nominee if a senator representing the state in which the nominees resign and belonging to the president party has not given

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other factors: some states have had a justice from the state sitting for many years. If the justice that leaves the court, they feel that the vacancy belongs to California

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religious groups: they also feel to entitle representation in the court. Those groups are the Catholics, and Jewish seats; tradition of roman catholic seat since 1884, and Jewish seat, for more that an 100 years.

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minority: idea that there should be a black seat, but also a women seat (Sandra O'Connor). Now 2 women sitting in the court.

All that plays an important role balanced by the senatorial courtesy.

The fight is harder if we're talking about chief justice, and if the president tries to replace a conservative by a very liberal (Nixon proposed harsh conservative, Clement Haynsworth, to replace Harold Carswill, very liberal)

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THE PRESENT SITUATION

Characterised as vacancies. Very serious crisis according to certain person. 10% of federal judgeships are vacant. It creates a pb: 1/3 of the 28 judges for the court of appeal for the district of California are not appointed, because for the nomination, Clinton is not good at picking nominees) and for the confirmation, pb of different parties. The republicans make sure that they block the nomination.

The magistrate (lower judge) are in charge of misdemeanour: lower criminal offence
Courts of appeal: 179 judgeships but 24 vacant positions
District court: 632, 60 vacancies (10%°)
But in America, on the other hand of the vacancies, more that 400 retired judges who continue to work, tradition in
US.
CCL°: the nb is 1000. Some people says that we should have more federal judges, because the population is growing. It has double in 30 years, so it can continue to grow. Others says that the number should be limited to 1000.

HOW IS THE INDEPENDENCE OF THE JUDICIARY PROTECTED ?

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Independence is guaranteed by

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constitutional protection, art 3 (to know by heart)

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appointed for life

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appointed by the president with the approval of the senate

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congress cannot diminished their salary

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independent administration of the judiciary by the judiciary. It is regulated by 3 judicial bodies composed of judges

The rules of procedure are not decided by Congress but by the courts

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The authority is in the hands of judiciary

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The manner of which conflicts of interest are handled. They are addressed specifically, and always the possibility for the judge to recuse himself (the word is "challenged" for the jury)

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The US is described as an elderly country. cultural reasons: Americans are more law abiding, but also for technical reasons

The conclusion is that the judiciary is independent, but independence is not total. Cf what happened during the Watergate: Nixon asks the attorney general to get rid of the prosecutor.
There is a conservative majority in the court, that's Renquith's, O'Connor's, Thomas, Kennedy...

Text "Do the Current attacks ?" Are federal judges being too activist ? Is judicial independence threatened ?
The Senate even refuses to consider the nominations.
§3 refers to a TV program. Some judges consider that it is their role to move in the political process.
Read the last §: efforts to block the confirmation process. It is the most severe assault to judicial independence since Roosevelt.

The legal profession in the US.

Two levels: state level and bar association
Each state has its own requirements for admission to practice.

• Law school.

•

In the US, when student want to go to school, they have to complete 4 years of undergraduate studies (Bachelor's Degree). Application doesn't mean that you'll be admitted (heavy selection). They must take a test (Law School Aptitude Test). The results of the test enable to apply to more or less famous law schools.

•

Law school is 3 years of very hard work, using the case method (using cases in order to learn the law). Introduced in 1871, and embittered by Christopher Langdel (Lawyer who thought law in Harvard Law School). He should collect a number of cases in a book (Appellate court decisions) for the use of the students. Study the opinions was the best way to learn the law.

American student must read and prepare the case. It is based on the case method
Methods in text books have changed (cases, legal statutes, analysis and legal forms).
Students do a lot a research and writing.
Most courses are a simulation of a real case ("lawyers" defend the case in front of a judge).
Most law schools have a law journal (revue) which is written by students.

•

Jurisdoctor (JD) is the diploma (3 years).

Most Americans stop after the JD

•

To become a lawyer, you have to take the bar exam (1/state) in the state where you want to practice.

Bar exams are very difficult. It is regulated by the bar (legal profession). Usually, possibilities to practice in other states with another state bar exam.

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The bar: the legal profession

Regulated at the state level. Each state has a bar that organises the legal profession.
Some law schools are accredited by the state bar (the best ones).
This means that the lawyer is only permitted to practice in the state where he has been admitted. In case in other state, you retain local councils (work with another lawyer of the state). Lawyer is usually admitted to another bar without taking the state bar examination if he has practised for some years.

•

There is more mobility in the American syst

•

The diploma is the same for all kinds of lawyers

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prosecutors are lawyers

Lawyer doesn't have to accept a case.
A lawyer is permitted to engage in any activity besides being a lawyer (sit on a board of directors - even of his corporate client, participate in public affairs, become a judge, an employee of the Government, a law profession…).
He can return to his private practice whenever he wants.
There is no formal division among lawyer according to functions. 70% work in private practice (in a law firm or on their own). They can also work in associations, corporations (12%), in government agencies (12%), in universities (6%) or become judges. 800 000 lawyers in total.
But all of them are lawyers (no distinction between lawyers and judges).
Mitigation lawyers: possibility not to be specialised.

•

The Functions of the lawyers

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Advocacy (represent an individual in court - who can represent himself),

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counselling (ask for legal advice to a lawyer) and

•

drafting (legal documents, contracts).

A lawyer in the US does counselling and drafting the more.
Usually, a foreign lawyer is not allowed to give advice in US. You have to have a correspond with who you work with.

•

If You don't want to be a prosecutor or law professor, you can be

    - Lawyers in private practice (70%).
Then can either work and practice on their own (single practitioners), but they are most of the time organised in a law firm (partners and associates). Partner = associé. Associate = collaborateur (young lawyers).
There are some very important law firms (large cities), but there are also little law firms.
American lawyers tend to specialise more and more (real estate transactions, contract,…).
There is first internship, and normally they hire you after

    - Lawyers that work in corporations, insurance companies, and so on... ("in house council" or corporate council).
They are paid a salary, and are employed by a business company, insurance company or a bank. He remains a member of the bar, but is very familiar with the particular feature of the firm. Tries to advise the company and prevent problems.

    - Lawyers in Government agencies (state, federal and local level).
This does not include the judiciary. All the agencies (FDC…) are staffed by lawyers that work on the new rules adopted by them.
Other lawyers are employed as public prosecutors (federal or state prosecutors. _ judge as in France). They are US attorney, appointed by the President are under the Attorney General.
In State, they are elected.

If you're a corporate lawyer, you will be paid by the hour
A plaintiff lawyer, and trial lawyers are paid by the contingency fee system
A lawyer has the right to advertise (¹France)

    - Judges.
Required to be admitted to practice (to have the Bar exam). But generally do not practice when they are on the bench.
They are drawn from the practising bar.
States puts requirements to become a judge.
Judges serve from 4 to 6 years. They are usually re-elected.

•

Bar.

The legal profession is organised in bars (barreau). There's one in each city, state and on the federal level (ABA).

•

Function of a bar is to SET professional standards and lawyer competence. It's part of the state Supreme Court, and sees to lawyer's misconduct (sanction - suspension and disbarment).

•

ACESS TO JUSTICE: The bar controls the bar exam, and decides which law schools are to be acredited.

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Bar delivers legal services, and sees that people get access to justice. But not everybody can't afford to pay a lawyer. Organise legal service access (program delivers free services).

Encourage the lawyers to do pro-bono work (lawyers work for free for their clients a part of the time).
In the Californian Bar. 10% volunteered in pro-bono programs.
The Legal Services Corporation receives federal funds in order to help the poor.
In America, there is nothing similar to "aide légale" found in France.
Right to council (6th amendment) for criminal matters, but nothing is said if you are poor in civil matters.

•

Administration of justice at several levels (State bar, sometimes federal bar).

    . Groups that work on certain subjects and propose legislation in order to improve the functioning of justice.
    . Give views communicated to the legislators about legislation.
    . State Bar helps the Governor select trial and Appellate Court judges (nominated by the Governor in States). Submit the name of each person being considered for a judgeship to the bar's commission for evaluation of judicial nominees.
    . Public information (legal rights, legal profession,…) and explains how justice is organised.

Crisis of the civil justice system.
- Many lawyers.
300 for 100 000 people in the US.
100 for 100 000 in GB.

- Advertising is legal for the lawyer (Vates v. State Bar of Arizona).
Based on the 1st amendment: commercial speech protected by the amendment.
Corporate law firms do not advertise (give brochures…).
Small law firms advertise. But civil liability is a problem.
Some are specialised in tort law (responsabilité civile).
Contingency fee system => fee depends of the success or failure of the case. Some lawyer will go after victims in order to defend the case before the court. If the lawyer wins the case, the victim gets damages and the lawyer gets a %. If the lawyer loses the case, he doesn't get paid.

- Jury tend to be in favour of the person who is victim.
- people tend to go a lot to court. Many civil cases that could be solved outside of court.

General dissatisfaction of the civil justice system.

Statistics show that they are more and more cases taken to courts.
1990, new cases filed in all state courts topped 100 000 000 for the 1st time.

68% of cases are not serious cases (traffic violations).
The real number of civil cases in only 18% of the total.

Dissatisfaction because media pays attention to trials which involve liability and tort.

Reasons of the situation:         - number of lawyers
                - lawyers can advertise.
                - plaintiff lawyers (trial lawyers)
                - possibility to file a class action (group action) in which several people who have the same problem don't have to file several individual suits. They are stronger, it costs less money and they are supported by an association.
People have a tendency to go more to court (easy).
                - No social protect° as in F. Because of this, people go to court to get damages.
                - Role of juries.
Right to be judge by a jury of your peers, also in civil cases. Juries tend to identify to the victim. The jury can award compensatory damages, and punitive damages (very important).
Crisis of insurance system in 1985-1986 because they had to pay these punitive damages.
Difficult for people and companies to find an insurance (too dangerous for doctors, helmets, vaccines,…).
The States decided to reform the system by voting legislation in order to limit the amount of punitive damages, of contingency fees that a lawyer could get, and provided for sanctions if they filed a frivolous case (no legal foundation).
They is no federal law governing the subject (no uniformity). Protect° depends on the state where the damage is done.
Federal Congress passed a law (Republican) in 1996 (Common Sense Reform Act of 1996).
But vetoed by Clinton. Trial lawyers were against the law and the group gave a lot of pol contribut° to Clinton (elect°…).
Only improvements at the state level;

Because of all this, emergence of ADR (Alternative Dispute Resolution systems).
Other methods used by individuals or companies instead of going to court.
- Arbitration: go to get a arbitration award which binds the parties. Used in consumer and labour disputes.
- Mini-trial: used for disputes between corporations. Shortens all the arguments. Evidence is summarised and showed to a panel (neutral advisor and executives from each company).
Shorter, and in the control of companies.
- Private judging (rent a judge technique): use a retired judge that is paid by the parties to conduct the trial. The 2 parties have to agree, and the decision is legally binding. Normal trial court procedures can be used. Corporations can have their own special court.
- Mediation: the 3rd party (mediator) does not have the authority to decide the outcome of the dispute. He can help the people reach an agreement. Do not issue a decision that is binding for the parties.

They were created to minimise the crisis.

The proper role of the judiciary

Depending on the various periods and on the personality of the chief justices, the Supreme Court plays a prominent role. Periods of judicial activism and periods of judicial restraints.
Difference between those who want to limit the powers of the Court to "strict construction of the Constitution" (strict interpretation of the Constitution and of the Bill of Rights), and those who try to find the intend of the Founding Fathers (what they had in mind), and adapt it to the new reality and problems.

In general, Republican president are in favour of judicial restraint and strict construction of the Constitution. They want the Court to guard the Constitution, and not to temper with it (interpret it according to liberal views).

• Judicial activism can be either liberal or conservative. The justices are activists, and will often play the role that is in theory devoted to the president or Congress. Activism can go towards liberal solutions (Warran period) or towards conservative solution.

Today, the court is activist. But does it go towards activism or restraint. Activism _ liberal.
    New Deal period, the Court was activist, but blocking the liberal agenda.

• Judicial restraint says that the power of the Court is rooted in the 3rd art. of the Constitution. Distinguish between the judicial power and legislative power.
Judicial power is limited to cases and controversy. Court can play a role only if there is a case and controversy. Case cannot decide a despite if there is no concrete injury (préjudice) to be relieved by judicial decision.
    - Case should be controversial, concrete (real).
    - Then, the conflict should be actual, real (_ maybe…). The conflict between the parties is a matter of actuality.
    - Case should not be finished (mootness).

Capacity for the court to intervene is limited by these conditions. Also, separation of powers and Republican government (Constitution).
Courts should avoid limiting the authority of the 2 other branches, and should act only when required by its judicial function.
    Text page 5 (judicial self-restraint).
    Conditions required are mentioned.
    Justice Brandeis, advocate of judicial restraint: Court should not do things when they are not     indispensable.
"The court will not anticipate a question of constitutional law in advance of the necessity of deciding it…" If a case is before the Court, the justices can decide the case by using legal (_ constitutional) point.
If there is another way to bring a solution to a case, then they should do it.
"The court will not formulate a rule of constitution broader than it is required.
If possibility to give a limited answer, no need to give a general rule of law.

"Court will not pass upon a constitutional question if there is also presence some other ground…"

"When the validity of an act of Congress is drawn in question… the court will first uncertain whether a construction of the statute is fairly possible…".

Page 16

Is the Rehnquist court practising judicial restraint?
2 answers:    - yes. Giuffra is a former clerk. The political branch reign supreme (Congress => law. President => governs. Court doesn't make the important decisions (political, social).
The court is practising judicial restraint, is not getting involved in political matters (Warran-Burger period). Rehnquist will not strike down laws approved by the President and Congress.
The Court does not consider that they are more representative of the people than the Congress or President (question of legitimacy). Court has no legitimacy deriving from universal suffrage. When the "govern", it's a "Republic or government of judges".
Court has become a less contentious (controversial) place. Voluntarily decide to avoid big problems and hot issues. Lower profile => improve the efficiency of the judicial system.
But court is more interested in social issues than to improve the judicial system.
        - no. Schwartz (Professor at the American University, Washington DC).
Activist court on the Conservative side (right). The 5 years have just been dominated by conservatism. 5-4 majority (among 5 people, hard-core conservative with Rehnquist, Scallia, Thomas). Easy for them to get a conservative decision (just find 2 other in favour). Will the 2 justices appointed by Clinton make the difference?
The 2 Clinton appointees are not really making a difference (Conservatives). The Supreme Activist conservative block that takes conservative decisions and undoes what was made during the Warran period.

Read page 7 and 8 of the brochure.

COURT SYSTEM IN THE US

Dual system (Federal and state courts).
- State court can see every type of case (only limited by state law).

- Only few cases go up to the federal Courts (US) which have limited powers (mentioned in Constitution).
    - diversity of citizenship cases (citizens from _ states)
    - federal question.
US court system resembles a pyramid.

Supreme Court => uniformity of decision for important or constitutional questions.
Over 4000 cases/year, but ± 90 are argued (1995). It also issues Signed opinions (75 in 1995).
It doesn't have to accept the case (discretionary power).

Courts of Appeal (12)
Circuit includes 3 or more states. West circuits are larger than east circuits.
They receive 40,000 cases/year (crisis).

US court of appeal for federal circuit (created in 1981 by the Federal Courts improvement act).
Located in Washington DC. Result of the merger of the US court of claims and the US court of custom and patterned appeals. It hears appeals from any district court, and from US claims court (against Government) and US court of International Trade
    . US Court of International Trade (former "custom court") composed by judges appointed for life by the President, with consent of the Senate (custom duties, classification and evaluation of imported goods).
    . US Claims Court created by Congress in 1982 (former "US Court of claims" - 1855). Possibility to sue the Government (responsible). Aliens can also go in front of this court if reciprocity in their country…
Composed of 16 judges appointed for 15 years by the President (consent of the Senate). Located in Washington DC, but can sit in any city. Important docket (number of cases seen) because of the number of contracts with Federal Government (nation's largest contractor, employer, purchaser).

Court of general jurisdiction: can hear all types of cases (droit commun).
Court of limited jurisdiction: can hear some cases (d'exception).

NEW YORK COURT SYSTEM (page 3)
Supreme Court is called the "Court of Appeals" with mandatory and discretionary jurisdiction.

4 types of courts on the first level:
    . Criminal court (felony - serious offences - and misdemeanour - minor offences with 1 year in jail        limitation (DWI - driving while intoxicated, DUI - driving under influence). Jury trial.
    . Civil court (tort - civil responsibility - contract, real responsibility). Jury trial.
    . Town and village justice courts for minor cases. Jury trial.

District courts in the State system (_ US district court - federal).
Supreme Court in NY is the Court of 1st instance (general + exclusive jurisdiction).

California Court system (page 4).
First level: limited and general jurisdiction. Jury trial.
Court of appeal (judges sit in panels = collège).

Statistics.
Case load (number of cases filed before a court) increases before Federal courts and courts of appeal.
For district court, increase of 8% for civil cases (liability, personal injury) and 5% for criminal cases (drugs, immigration). Number of cases increases/same number of judges.

Judiciary is independent, even though Congress has a great influence over it.
    Functioning (laws)
    Creation of new judges
    Appropriation of money for judiciary budget
    Can refuse to raise salaries (_ diminish). Didn't increase in the 5 past years (loss of 8,6% of purchasing power). Negative effect because this doesn't attract bright people to the federal judiciary.

2 laws voted by Congress have helped a little:
    - anti-terrorism and effective death penalty Act. 1 year deadline for filling petitions, limits successive petitions and restricts access to federal judiciary when access to state judiciary is possible.
    - Federal Courts improvement Act (raises the amount to $ 50,000 and raises filling fees.

Internet sites:    www.Vote-smart.org-Congress
        www.vote-smart.org-judiciary
        www.UScourts.gov

THE CRIMINAL JUSTICE SYSTEM IN THE US.

Dual system, with federal and State courts (federal and state investigation, prison…).
Criminal trials at the federal level and criminal trials at the state level.
A federal crime has to do with a federal crime or which is labelled "federal crime" in a federal law.
Everything is governed by criminal procedure. Federal rules of criminal procedure at the federal level. In each state, there are criminal rules also.

• Role of the police.
Department of Justice has 4 agencies:
- FBI (Federal Bureau of Investigation - 1908). Investigates all the violations of federal law (crime, conspiracy, fraud, immigration…). FBI investigates crime against federal law, organised crime, drugs, counter terrorism, and white colour crime

- The US attorneys. There are 94, one for each of the district court to take care of federal crime
US Attorney office investigates also the violations of federal law.

- DEA (Drug enforcement administration) investigates federal narcotics laws.
DEA (Drug Enforcement Agency - 1973). Enforces and investigates federal narcotics law. Seizes the drugs and
forfeit assets derived from illicit drug profit.
DEA (Drug enforcement administration) investigates federal narcotics laws.

-INS (Immigration and Naturalisation Service - 1891). Positive (facilitate the entry of lawful immigrants to the US) and negative (prevent and apprehend illegal aliens) aspect.

- Marshals assist.
The US Marshalls protect the witness

Department of Treasury:
- ATP (Bureau of Alcohol, Tobacco and Fire Arms - 1972). Enforce laws doing with fire arms and explosives, regulates the distribution of alcohol and tobacco product. Arson (start a fire), narcotic traffickers, gun sales….
Organisations that are part of the department of Treasury (ATF: alcohol, tobacco and firearms)
- US Custom Service (1789). Seizes counterfeited goods. US Custom Service makes sure that there is no contraband

- US Secret services. Protection of the President, violation of the law referring to the US currency ($), theft of treasury checks. The Secret Service protects the president of the US, investigate currency counterfeiting

- IRS (Internal Revenue Service). Collects taxes from companies and individuals. The IRS (internal revenue service) investigate fraudulent taxes, money laundering


-CID (Criminal Investigation Division). Money laundering activities (insert illegal money in the financial cricuit.

-The Postal Service (stealing letters is a federal crime)
All these cases are federal crimes


US Postal service, …

All the agencies are responsible with enforcing the law.
Grand Jury has to hear the evidence, investigate the case in order to determine whether to indict the person. If there's a decision to indict, it will go to a district court. Then possibility to appeal.

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The common points between federal and states systems are some institutions and also the application of constitutional guarantees (Bill of rights), which apply to state owing to the incorporation process by the 14th amendment

•

The institutions: -the Jury, 6th amendment for criminal trials and 7th for civil trials.

-The grand jury: its role is to issue an indictment if enough evidence to guarantee indictment.

Extraordinary powers.

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The guarantees

Provides the methods for the apprehension of a person (arrest) when there is reasonable and probable cause (person is believed to have committed a crime).
Provides the indictment.
Provides for the trial and the punishment if convicted.
The court has to be competent, legally constituted, with jurisdiction of the subject matter, on the person and on the particular case. If not, possibility to appeal the case and to get it voided.

• There are constitutional guarantees that apply at all steps of the procedures.

•

Before the defendant is arrested

4th amendment: protects against illegal search and seizure, there must be a probable cause

•

The defendant has some rights when he is arrested.

    6th amendment: right to know why you are arrested. Guarantee to a speedy and public trial (can't be held in jail for too long).
    5th amendment: right to remain silent at the time when you are arrested and during the trial (privilege against self-incrimination).
Right to have a lawyer as soon as you are arrested.
    8th amendment: rights while waiting for trial. Right to a reasonable bail (money left with the court which guarantees that you won't leave the country and that you will show up at the trial).

•

The defendant has some rights in court:

- 6th amendment: right to confront and meet the witnesses for the defendant. Right to question them. Right to compel a witness in your favour to testify in your favour (Subpoena). Right to know why you were arrested
5th amendment can also be used because right to remain silent

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The defendant has some rights when waiting for trial

8th amendment: you don't have to stay in prison. Except if evidence that you're a danger for society. But granting bail is the rule. If you appear in court, your money will be given back to you.

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The defendant has some rights if convicted:

- 8th amendment: right not to be subject to cruel and unusual punishment.

•

If innocent, guarantee not to be tried again for the same crime (5th amendment). It's the guarantee against double-jeopardy.

But federal court _ state court. Criminal _ civil.

•

14th amendment: due process rights at all stages of the procedure. Fair treatment by the government (court and legislative).

In some cases, bargaining between the prosecution and the counsel: Klee bargaining. It's a process by which persons accused of a crime plead guilty, to lower charges in return for a breed upon sentence than he would get if he went to court. 90% of the cases are bargained.
Thanks to this system there is no explosion of the judicial system.
But it is criticised because it means that the defendant renounce many of their constitutional rights. But the SC said it was constitutional.
Although it's constitutional it doesn't mean equal justice: if you're poor, the chances are that there is going to be bargaining.

These guarantees were extended in the 1960's, and people think that the crime is explained by too much protection of the criminals.

ACCESS TO JUSTICE
The financial aspect: the fact that you don't have money is a barrier ?
Distinction between and state cases and between criminal and civil cases

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There is a guarantee to a lawyer in the 6th, but it is limited to criminal trials. Nothing to guarantee access to justice in civil trial. Until 1974, no mechanism to provide a lawyer in a civil case (exception: contingency fee system). In 7 creation of the legal service corporation. But cannot take care of enough money.

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Criminal cases. As early as 1932, the SC said there a was a right to appoint lawyer to indigent criminals

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Betts v. Brady (1942) is mentioned in the poly. It was not a capital offence, but a felony. The trial court was right to refuse giving a lawyer, to expend the right to counsel to felony. According to the circumstances of the case, a lawyer was not necessary. 1st time we deal with felony.

•

Gideon v. Wainwright 1963

Procedure, role of the jury and evolution of the court…

PROCEDURE.
• Case begins by a complaint by the victim ("private prosecutor").
Prosecution by the public prosecutor.
    US attorney at the federal level, District attorney at the state level (DA).

• Warrant of arrest if we know the person.
"John Doe warrant" if we don't know the person (X).

• At the local level, the magistrates sees the arrested person quickly to make sure that he is not kept in jail for ever.
    - He can commit the person to jail,
    - Upset the release of the person on bail (8th amendment).

• If the person is committed to jail, the second step is the grand jury (_ Petty jury). It has more jurors. It's a jury of indightment (_ jury of judgement).
It is not fair, balanced. Proceedings are secret. DA can be present, but not the defence council. Only the witnesses of the prosecution are heard (_ witnesses of the defence).
Most of the time, this is abandonned in most states.
    - If enough elements to indict => "true bill" and person goes to trial.
    - If not enough elements, "the bill is not found" and the person doesn't go to trial.

• Indictment and the person goes to trial. The accused is arraigned (must appear before the court). He is asked an essential question: "plead guilty or not guilty?".
    - If he pleads guilty, no judgement and direct negociation between prosecution and defence
("plea bargaining").
    - If he pleads not guilty, it takes longer. A trial has to be organised. Right to a jury of his piers.
Process of selecting the jury before the trial (long process - 11 weeks for OJ Simpson trial). Contributes to the clogging of the court.
    - If he pleads "nolo contenderi" (doesn't contest the indightment). Advantage for the prosecution, because the judgement takes place immediately. Doesn't amount to a recognition of guilty. If there is a civil trial afterwards, this guilty can't be used to ask for damages.

• Once selected, the trial takes place.
Bill of rights says the principles: fair, speedy, jury, lawyer…
Rules of the games: DA or prosecution must prove the guilt beyond a reasonable doubt. No one on the jury must have a doubt, and verdict must be unanimous (difficult).
Accused enjoys the 5th amendment priviledge against self-incrimination (can't be examined by the court or jury - no question asked).
Can be examined as a witness under oath, but only by his lawyer.

Process:    1/ Jury selection ("Voir dire").
The list is established of potential jurors. The list can come from registration of voters, be licensed drivers in the State or county. From those lists, selection of a group of citizens takes places. We ask them to appear for a jury duty at each term of the court. Selection according to statutory (change according to the states) and constitutional provisions (don't change). They must be US citizens, local residents, of age, integrated and intelligent.
Group of jurors are called a panel. 12 jurors and 12 alternate jurors for each case (in case of a problem - dismissed by a judge for a reason, not enough information,…).
2 challenges:     . for cause (each side can refuse a juror for a reason - brother, involved in similar situation).
        . peremptory challenge (each side can challenge jurors without giving any in reason).
    If on the side of the prosecution, rejection of black men (OJ Simpson case).


    Batson v. Kentucky 476-US 79 in 1986 raises this question.
    Poor black man accused. The prosecution challenged all blacks jurors. Because there was no black     juror, the verdict was that he was declared guilty. Violation of his constitutional rights (6th and     14th amendment: jury drawn from a cross section of the community). Not representated if all blacks     are excluded.
    Supreme Court didn't agree with that, denied the appealed and affirmed the verdict.
    Supreme Court reverses the decision, placing substantial limits on prosecutor's use of peremptory     challenge. Not "colour blind", but colour conscience. Racial test to the prosecutor's use of peremptory     challenge. New movement, and many cases involving Hispanics. Must do the best to give to the     defendant a fair and impartial trial (cross section). But some jurors don't want to be discriminated     against.

- Toqueville in favour of the jury: political and educational functions.
"… contributes to form the judgement and to increase the natural intelligence of the people".
Jury system helps to make justice closer to the people, a general support of the legal system, increases appreciation of the difficult task of judging.
- Some people are very hostile to the jury system: justice in the hands of 12 fouls, who know nothing about the justice system… impredictable.
Long tradition of the jury in the US. But jury system is more and more criticised.
It existed in the US from the 18th century, and long dominated the legal system.
Juries in America use to be competent to decide question of facts and questions of law. Discretion to decide cases on the basis of community rules (standards) disregarding the judges instructions to some extent. Important role of the jury, until 1896 (decision of the Supreme Court: jurys can only decide question of facts). Less important role of the juries.
    Baldwin v. NY 1970 decision of the Supreme Court.
    Right to a jury exist only for crimes, not petty crimes.
    Limit: if the violation isn't too serious, no right to a jury.
Severe criticism of the jury system (important recent cases). Jurors are selected not for their impartiality, but because said because they never watched the news, and didn't know anything about the case. Either he is lying, or he isn't a good citizen.
Many reforms are proposed…

        2/ Opening statement to the jury by the prosecution.
Prosecution explains to the jury that evidence will be showed in order to establish the guilt of the defendant. Opening statement to the jury by defence attorney.

        3/ Prosecution starts the case. Direct examination by the prosecutions of the witnesses (125 in OJ Simpson case). Very unpleasant.
Cross examination by the defence attorney.

        4/ Defence case. Lawyers present witnesses for the defence.
Cross examination of the accused's witness by the prosecution.

        5/ Closing arguments.
            By the prosecution (people)
            By the defence
            By the prosecutor
In federal courts, the Government has always the last word (because has the burden of proof).

        6/ Jury instructions read to the jurors by the judge.
The have to judge on the facts (_ law), and should pay attention of what they heard on this, and not on that…

        7/ Deliberation by the jury. Foreman of the jury (President) organises the deliberations. Jury consultants are important in the US (advice to jurors).
It can be a long time.
    - If no conclusion, it's a hug jury => another trial.
    - If the jury decides (guilty/not guilty). Reasonable doubt.

    - If guilty, judge has to impose a sentence (immediatly in state courts, up to 2 months in Federal courts). The accused can appeal the verdict.
    - If not guilty, the prosecution can not appeal the judgement (protection against double-jeopardy).
10% of cases go to trial.
The rest of the time, case solved by plea bargaining (process whereby persons accused of crime plead guilty to specify charges in return for an agreed upon sentence, or the dismissal or reduction of other charges.
Saves time and money.
Negociations and discussions take place between the prosecutor and the defence council (no judge present, except if the discussion is of the sentence itself).
Origin due to the fact that in the 19th century, already heavy case loads, crowed prisons, judges use to be very strict… Lots of guilty verdicts explained that plea bargaining was an attractive alternative.
Advantage of plea bargaining solves many cases quickly and cheaply.
It also raises some questions (constitutional) and problems.
Defendant wave (give up) 3 important constitutional rights:
    - right against self-incrimination.
    - Right to a jury trial
    - confront and cross-examine one accuses.

Many cases went up to the Supreme Court.
    Boykin v. Alabama (1969).
    Court held that somewhere, there should be a record that the defendant voluntarily and     understandly pleaded guilty). Plea bargaining mustn't be imposed to the defendant, free choice.     Same garantee than in Miranda (right to remain silent). If he speaks, must check that he freely     decided to do so.

    Santo Bello v. NY (1971)
    Court says that plea bargaining is essential component of the administration of justice. If it     disappears, no more justice system (explodes). If properly administered, it should be encouraged.

Supreme Court has overcome concerns about due process. It is true that it is different and that it waves some rights, if it is properly administered it is good.
False pleas is a problem. Injustice for the people using plea bargaining (negociation between prosecution and public defender - not interested because paid by public money)?

Problems.
• Police solve too few crimes.
4 . 37 million crimes/year in US. Only 754 000 arrests in 1995.
24% roberies are arrested, 37% burglarers are arrested, 80% homicide in 1970 and 66% in 1993.

• Detectives lose or mishandle evidence (not on purpose).
Not enough money for crime labotories in the US, or training, control of procedures.

• Dangerous suspects commit violent crime while waiting for trial for other charges (on bail).
2/3 of those charged with serious crimes on bail commit another crime while on bail.
1/4 of murderers do also.

• Plea bargaining is considered to be a problem.
Prosecutors do plea bargain in 9/10 cases.
Change of situation: "mandatory sentencing";
"3 strikes and you're out" => 3 fellonies and you're in jail for life. Accused can no longer plea bargain and have to go to trial. Perverse affect => decline of number of plea bargain and more cases go to trial (more money, more time).

• Criminal cases take too much time to be trialed (money…).
They can no longer deal with civil trial. Bankruptcy.

• Jury system is flawd. Too long,…

• Trials with tactics, theatrics…
Bad image of justice.

• JuSticE of the media (TV trials).
Balance between the right of a free press/right to a fair trail.
• Not enough money in the justice system.
America is a federal system, and a lot is decided at t he state level (legal aid depends on initiatives from the States and private individuals.
• justice system is said to be insensitive to the victims of crime (too much attention to criminals).
In the 60-70's, Supreme Court increased the rights of the accused, criminal defendant.

Corto (c)

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