Chapter 15: Law in America · enced our legal system is the Ten Commandments Sources of American...

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Law Made for You When you signa contract, drive a car, get married, or have a conflict with your neighbor,the law is there to bring about justice.This chapter will explain how civil andcriminal laws work to protect you andresolve conflicts in everyday life.

To learn more about civil andcriminal law and how they af-

fect you, view the Democracy in Action Chapter 15 video lesson:

The Law and You

Chapter Overview Visit the United StatesGovernment: Democracy in Action Web siteat gov.glencoe.com and click on Chapter15—Overview to preview chapter information.

GOVERNMENT

★ ★ ★ ★ ★ ★ ★ ★ ★ ★

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http://www.gov.glencoe.com

CHAPTER 15: LAW IN AMERICA 423

The set of rules and standards by which asociety governs itself is known as law. Lawdefines the individual’s rights and obliga-tions and specifies the ways citizens and

government relate to each other. Law serves sever-al functions in our society. It is used to resolve con-flict, protect rights, limit government, promotegeneral welfare, set social goals, and control crime.

Laws affect nearly everything we do—the foodwe eat, how we drive our cars, how we buy and sellthings, and even what happens when we are born andwhen we die. Laws establish “rules of the game” inbusiness, in our personal lives, and in politics. Theycan also help us resolve and even avoid conflicts.

While so many laws might seem to limit ourfreedom, laws also guarantee our individual liber-ties. Indeed, the rule of law is the principle thatboth the government and its citizens should besubject to law, and that no person is above the law,regardless of his or her position. This principle is ahallmark of democratic societies because it meansgovernment decisions and actions should be madeaccording to established laws rather than by arbi-trary actions and decrees.

Early Systems of LawThe earliest known written laws or ruleswere based on practices in tribal societies.

The most well-known of these was the Code ofHammurabi,1 a collection of laws assembled byHammurabi, king of Babylonia from 1792 to1750 B.C. This code was made up of 282 legalcases that spelled out relationships among indi-viduals as well as punishments in areas that wewould now call property law, family law, civillaw, and criminal law.

Another early set of written laws that has influ-enced our legal system is the Ten Commandments

Sources of American LawS e c t i o n 1S e c t i o n 1

Famous Lawmaker DiesBABYLON, MESOPOTAMIA, 1750 B.C.

Hammurabi, who united

Mesopotamia’s tribes

under one rule, is dead. As

king, he will be best remem-

bered for his decrees on

many aspects of life. He de-

cided disputes involving

trade and business, family re-

lations, criminal offenses

such as theft and assault, and

civil matters such as slavery

and debt. In recent years, 282

of these rulings were record-

ed on stone slabs in the tem-

ple. Some requirements, such

as an eye for an eye and trial

by ordeal, merely continue common practices. Oth-

ers, such as bans on blood feuds and private revenge,

are considered advanced by some Babylonians.

Ancient tablet depicts King Hammurabi

Reader’s Guide

Key Termslaw, constitutional law, statute, ordinance, statuto-ry law, administrative law, common law, equity, dueprocess, substantive due process, procedural dueprocess, adversary system, presumed innocence

Find Out■ What are the four major sources of law in the

United States?■ How do the key principles of the legal system

provide justice for citizens?

Understanding ConceptsCivic Participation Why is understanding the lawan important civic responsibility?

County courthouse in Rutland, Vermont▲

See the following footnoted materials in the Reference Handbook:1. The Code of Hammurabi, pages 800-801.

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found in the Bible. The Bible served as the source oflaw for the Hebrews living in ancient Palestine. Ac-cording to Christians and Jews who believe in theOld Testament, Moses received the Command-ments from God on Mount Sinai in the thirteenthcentury B.C. The Commandments proclaim moralrules instructing people on how they should be-have toward one another. The Commandment“Thou shalt not steal” is reflected in our laws today.

Our Legal HeritageThe laws that govern our lives and protectour rights are commonly known as consti-

tutional law, statutory law, administrative law,common law, and equity. These laws come fromseveral sources including state and federal consti-tutions, lawmaking bodies, administrative agen-cies, and court decisions.

Constitutional Law The Constitution is themost fundamental and important source of law inthe United States. The Constitution establishes ourcountry as a representative democracy, outlinesthe structure of our government, and sets forth

our basic rights. The Constitution applies to allAmericans and is the supreme law of the land—thestandard against which all other laws are judged.Both federal and state courts apply or use provi-sions of the U.S. Constitution to make decisions.

State constitutions were the first written con-stitutions in the United States. Eleven of the origi-nal 13 states adopted written constitutions between1776 and 1780. These constitutions spell out gov-ernmental arrangements in the states and the rightsof citizens that are protected from interference bystate governments. Because state constitutions areeasier to amend than the United States Constitu-tion, they reflect shifting popular concerns morereadily. State constitutions sometimes set forthrights not mentioned in the U.S. Constitution.

State courts decide cases involving state con-stitutions. State court systems usually adopt theU.S. Supreme Court’s rulings on the U.S. Consti-tution as a guide to interpreting their own consti-tutions, but they do not have to. Some state courtshave ruled that their constitutions protect theright to privacy even though the U.S. Constitutiondoes not. State court rulings on their own consti-tutions may be appealed to the U.S. Supreme

Court if it is claimed that the stateconstitution or state court violates theU.S. Constitution. In the end, the U.S.Supreme Court has the final word onthe meaning of the U.S. Constitution.

The term constitutional law ap-plies to that branch of the law dealingwith the formation, construction,and interpretation of constitutions.For the most part, cases involvingconstitutional law decide the limits ofthe government’s power and therights of the individual. Day-to-daydecisions by the president, Congress,and other public officials often in-volve interpreting the meaning of theConstitution and thus can shape con-stitutional law. However, the deci-sions of courts, especially the U.S.Supreme Court, are the main sourcesof information about the meaningand interpretation of the U.S. Consti-tution and state constitutions. Con-stitutional law cases may deal eitherwith civil law or criminal law.

424 CHAPTER 15: LAW IN AMERICA

State Constitutions Artist George Catlin depicted the delegates involved in creating Virginia’s constitution in 1829.Catlin titled his painting Last Meeting of the Giants. Why is a constitution necessary at the state level?

Virginia’s Constitutional Convention

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Statutory Law Another source of Americanlaw is statutory law. A statute is a law written by a legislative branch of government. The United States Congress, state legislatures, and local legislative bodies write thousands of these laws. Statutes passed by city councils are called ordinances.

Statutes may limit citizens’ behavior when, forinstance, they set speed limits, specify rules for in-specting food products, or set the minimum age toobtain a work permit. Statutes are also the sourceof many of the rights and benefits we take forgranted, such as the right to get a Social Securitycheck, to enter a veterans’ hospital, to get a driver’slicense, to check your credit record, or return mer-chandise you have bought but do not like.

Most decisions of federal courts deal withstatutory law, and many of the cases decided bythe Supreme Court are devoted to interpretingstatutory laws. In most of these cases, the courtsdetermine what a statute means or whether it deprives a person of a constitutional right when it is carried out.

Statutory law is sometimes called “Romanlaw” because it is based on an approach to mak-ing laws derived from the ancient Romans. Theplebeians, or the common people, of Rome firstdemanded that the laws of Rome be written downso that everyone might know and understandthem. In about 450 B.C. the government of Romepublished its laws on 12 tablets. Over the nextthousand years, as the Roman Empire spreadacross Europe to Egypt, Roman leaders keptadding to these written codes until Roman lawbecame very complex. In the A.D. 530s the Romanemperor Justinian had scholars reorganize andsimplify all the laws into a final Roman legal codecalled the Justinian Code.

This codification of all its written laws was oneof Rome’s greatest contributions to civilization.Many countries today have legal systems based onwritten codes of law that contain ideas from theJustinian Code. The most important of these wasthe Napoleonic Code, created in 1804 by theFrench emperor Napoleon Bonaparte. Napoleon’supdated version of the Justinian Code is still inforce in France today and became the model forthe legal systems of many other European coun-tries, parts of Africa, most of Latin America, and ofJapan. In addition, both the state of Louisiana and

the Canadian province of Quebec—once Frenchcolonies—have a system of laws based on theNapoleonic Code.

Administrative Law A significant feature oflocal, state, and national government in Americatoday is the large number of administrative agen-cies that run government programs and provideservices. These agencies range in size and powerfrom the huge Social Security Administration tothe Food and Nutrition Service. Administrativelaw spells out the authority and procedures to befollowed by these agencies, as well as the rules andregulations issued by such agencies. Since theGreat Depression in the 1930s, law in the UnitedStates has been increasingly made through admin-istrative agencies. One legal scholar has stated,“Law promulgated by the agencies now occupiesan importance equal to statutory law in regulatingevery aspect of American society.”

Many administrative law cases deal withproblems of fairness and due process becausemost administrative agencies either regulate peo-ple’s behavior, or provide or deny governmentbenefits such as welfare payments or medical insurance. Thus, disputes constantly arise overwhether agencies have acted fairly and given people the opportunity to present facts relevantto their case.


Loopy Laws Justice is blind—andsometimes strange. Some actual state lawsand local statutes might make you wonder. InAlabama, you may not have an ice creamcone in your back pocket. People in Bostonare not allowed to eat peanuts in church. Residents of Idaho may not fish from the back of a giraffe. Yamhill, Oregon,prohibits people from predicting the future.

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Choosing a Lawyer

B eing sued or having to sign a document youdo not completely understand—these arejust two reasons that you might need a

lawyer. Some lawyers are general practitioners.Others specialize in certain areas, such as person-al injury, divorce, or criminal law. Look for an attor-ney who handles the kind of problem you have.

The best way to find a lawyer is to talk with rel-atives and friends who have used lawyers. If theirlegal problems were similar to yours, see if theywould recommend their lawyer. Another goodsource is the Martindale-Hubbell Law Directory,found in every courthouse library. This book listsnearly every lawyer in the United States by special-ty. Your county bar association can also refer you

to a competent attorney. Theattorney referral services list-ed in the Yellow Pages areusually businesses that someattorneys pay for referrals.

If possible, talk with twoor more attorneys before hir-ing your attorney. Many offer a first meeting for free.

Make a List Create an imaginary situation whichwould require you to hire a lawyer. Prepare a listof topics and questions that you would want todiscuss during your first meeting with a lawyer.

A C T I V I T YA C T I V I T Yarticipating

I N G O V E R N M E N T articipating

I N G O V E R N M E N T

Searching anonline law directory

Common Law The single most important basisof the American legal system is common law, alsocalled case law. This is law made by judges in theprocess of resolving individual cases.

Common law originated in England. In theeleventh century English monarchs sent judgesacross the land to hold trials and administer thelaw. Judges began to record the facts of the casesand their decisions in yearbooks. Over time, judgesbegan to compare the facts and rulings from earli-er cases to new cases. When a new case was similarto cases already decided and in the books, thejudges followed the earlier ruling, or precedent.This was the origin of stare decisis (literally, “let thedecision stand”), a basic principle used by the U.S.Supreme Court today. In cases without precedent,judges decided using common sense and customs,creating precedent for future cases.

Common Law in America The Englishcolonists used common law in America. Legal training in the colonies was greatly assisted by thepublication between 1765 and 1769 of WilliamBlackstone’s four-volume compilation of the vastbody of English common law, Commentaries on theLaws of England. Thomas Jefferson studied theCommentaries as a young lawyer, as did other legalscholars. After the Revolution, Americans had to

choose what parts of English law would remain inforce. While many states attempted to resist the in-fluence of English law, common law remained inforce throughout the nation. For example, theDelaware constitution of 1776 provided that “Thecommon law of England as well as so much of thestatute law. . . shall remain in force.” State constitu-tions today and the federal Constitution are wordedin legal terms reflecting English common law. Thepractice of common law continues across the Unit-ed States today, except in Louisiana, where legal pro-cedures based on the Napoleonic Code persist.

Equity Equity is a system of rules by which dis-putes are resolved on the grounds of fairness. Theprinciple of equity developed in medieval times asa rival to common law. The office of a royal official,the chancellor, became a court. This court, whichrepresented the king’s conscience, developed thetheory of equity. Its remedies were much differentfrom those of common law. An equity court couldrequire an action beyond the payment of money oreven stop a wrong before it occurred. For example,an equity court could issue an injunction (see page433) to prevent an action such as a neighbor build-ing a fence across your property. In nineteenth-century America equity and common law merged.Today a single court can administer both systems.


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Legal System Principles Four basic principles underlie the operationof both federal and state courts and the ac-

tions of the thousands of men and women whoserve in the American legal system. These princi-ples include equal justice under the law, dueprocess of law, the adversary system of justice, andthe presumption of innocence.

Equal Justice Under the Law The phrase“equal justice under the law” refers to the goal ofthe American court system to treat all personsalike. It means that every person, regardless ofwealth, social status, ethnic group, gender, or age, isentitled to the full protection of the law. The equaljustice principle grants all Americans rights, suchas the right to a trial by a jury of one’s peers. TheFifth through the Eighth Amendments to the Con-stitution spell out these specific guarantees.

Due Process of Law Closely related to theprinciple of equal justice is the principle of dueprocess of law. Due process has both a substantive

part and a procedural part. Substantive dueprocess is a kind of shorthand for certain rights,some that are specified in the Constitution (likefree speech) and some that are not specified (likethe right of privacy in making personal decisions).The Fifth and Fourteenth Amendments containthe due process principle.

Examples of laws that the Supreme Court hasfound to violate substantive due process include:(1) a law that limits dwellings to single families,thus preventing grandparents from living withtheir grandchildren; (2) a school board regulationthat prevents a female teacher from returning towork sooner than three months after the birth ofher child; and (3) a law that requires all children toattend public schools and does not permit them toattend private schools.

Cases about the way a law is administered in-volve procedural due process. Procedural dueprocess prohibits arbitrary enforcement of the law.It also provides safeguards intended to ensure thatconstitutional and statutory rights are protected bylaw enforcement. At the most basic level, proce-dural due process requires (1) notice to a person


Constitutional RightsParents and students areguaranteed a choice betweenpublic and private schools because of substantive dueprocess. Here a studentcompletes an art class project at Tabor Academy, a private school in Marion,Massachusetts. How is substantive due processdifferent from proceduraldue process?

A Constitutional Choice

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The Adversary System American courts op-erate according to the adversary system of justice.Under the current adversary system, the court-room is a kind of arena in which lawyers for theopposing sides try to present their strongest cases.The lawyer for each side is generally expected to doall that is legally permissible to advance the causeof his or her client. The judge in the court has animpartial role and should be as fair to both sides aspossible, especially in implementing the essence ofthe law.

Some observers of the judicial system have at-tacked the adversary system. They have claimedthat it encourages lawyers to ignore evidence notfavorable to their sides and to be more concernedabout victory than justice. Supporters of the ad-versary system, on the other hand, maintain thatthe system is the best way to bring out the facts ofa case.

Presumption of Innocence In the UnitedStates system of justice, the government’s policepower is balanced against the presumption that aperson, although accused, is innocent until provenguilty. The notion of presumed innocence is notmentioned in the Constitution, but it is deeplyrooted in the English legal heritage. The burden ofproving an accusation against a defendant falls onthe prosecution. The defendant does not have toprove his or her innocence. Unless the prosecutionsucceeds in proving the accusation, the court mustdeclare the defendant not guilty.

that he or she has done something wrong and thatthe government intends to take specific action thatwill affect the person, and (2) giving the affectedperson the right to respond or be heard concern-ing the accusation of wrongdoing.

Protecting all Americans This police officerreads a suspect his rights. Proper procedures mustbe followed when police arrest and the courts trysuspected offenders. Why should the rights ofpeople who may be criminals be protected?

Sect ion 1 AssessmentSect ion 1 Assessment

Civic Participation Laws affect nearly everythingpeople do. Laws change to meet the needs of thetimes. Work with a partner to either brainstormnew laws or identify laws that should be repealed.Create and present a skit showing a situationthat requires a new law to be established or anexisting law to be repealed.

Checking for Understanding1. Main Idea In a graphic organizer, identify the major

sources of American law and the key principles ofthe American legal system.

2. Define law, constitutional law, statute, ordinance,statutory law, administrative law, common law,equity, due process, substantive due process,procedural due process, adversary system, presumed innocence.

3. Identify Code of Hammurabi, Justinian Code,precedent, “equal justice under the law.”

Critical Thinking4. Identifying Alternatives Permitting rental agen-

cies to refuse to rent apartments to families withchildren would violate what kind of due process?


AmericanLaw PrinciplesSources

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429

Questions to Consider1. Does the evidence suggest that Americans ac-

cept the death penalty for minors?2. Are the differences between minors and older

persons significant enough to justify holding mi-nors to a different legal standard than adults?

3. Does the constitutional ban on “cruel and unusu-al punishments” prohibit the death penalty forpeople under age 16 at the time of their crime?

You Be the JudgeThe question confronting the Court was

“whether the youth of the defendant . . . is a suffi-cient reason for denying the State the power to sen-tence him to death.” Did the evidence from existingstate laws, the behavior of juries toward minors,and the very nature of childhood provide sufficientreason to sentence people to death for crimes theycommitted as minors?

Debating the CaseDebating the Case

Nearly every state treatspeople under the age of 16 as minors. Minors, for in-

stance, cannot drive or get married without their parents’ consent, nor canthey vote or serve on a jury. Can a person convicted of committing murderwhen he was 15 years old be given the death penalty? The Court answeredthis question in the case of Thompson v. Oklahoma.

Protesting thedeath penalty

Thompson v.Oklahoma, 1988

CASES TO DEBATE

Background of the CaseIn January 1983, 15-year-old William Wayne

Thompson, along with three older persons, activelyparticipated in the brutal murder of his former broth-er-in-law. Because Thompson was a “child” underOklahoma law, the district attorney filed a petitionrequesting that Thompson be tried as an adult. Eachof the four was found guilty and sentenced todeath. Thompson’s sentence was appealed on thegrounds that his execution would violate the EighthAmendment’s ban on “cruel and unusual punish-ments” because he was only 15 years old at thetime of his offense. An appeals court upheld theconviction and sentence.

The Constitutional IssueBecause the Constitution provides no clear

guidance as to the meaning of “cruel and unusualpunishments” for minors, the Court would interpret

the meaning of the Constitution in terms of whetherit thought American society would consider suchpunishment acceptable to standards of commondecency. Would modern society approve of thedeath penalty for a minor who committed murder?

The Court found that 14 states did not autho-rize capital punishment at all, and 19 others thatapproved the death penalty, including Oklahoma,set no minimum age. However, there were 18states that had set a minimum age of 16 in deathpenalty cases. Further, the American Bar Associa-tion had formally expressed its opposition to thedeath penalty for minors.

The Court also considered the verdicts of juriesin relevant cases. The justices found that about 18 to 20 people under the age of 16 had been executed in the United States up to 1948, but that no such executions had taken place sincethat time. In a recent period, from 1982 to 1986,1,393 persons had been sentenced to death, but only 5 were younger than 16 at the time oftheir offense.

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Civil law concerns disputes among two ormore individuals or between individualsand the government. Civil cases arise be-cause one party believes it has suffered

an injury at the hands of another party or wants toprevent a harmful action from taking place.

Types of Civil LawCivil law touches nearly every phase of dailylife—from buying a house to getting mar-

ried. About 90 percent of the cases heard in statecourts concern civil laws. Four of the most impor-tant branches, or types, of civil law deal with con-tracts, property, family relations, and civil wrongscausing physical injury or injury to property, calledtorts.

Contracts A contract is a set of voluntarypromises, enforceable by the law, between parties who agree to do or not do something.We enter into contracts all the time: when wejoin a health club, buy a car with credit, get married, or agree to do a job for someone. In anexpressed contract the terms are specificallystated by the parties, usually in writing. An implied contract is one in which the terms are not expressly stated but can be inferred from the actions of the people involved and the circumstances.

A valid contract has several characteristics.All parties to a contract must be mentally com-petent and in most cases must be legal ageadults. The contract cannot involve doing orselling anything illegal. The contract’s elementsmust include an offer, acceptance, and in mostcases a consideration.

An offer is a promise that something will or will not happen. For instance, the auto shopsays it will repair your smashed bumper for$500. One party to a contract must then acceptthe offer made by the other party. If you agreein writing or orally to have the bumper fixed,

Civil LawS e c t i o n 2S e c t i o n 2

Record Holder Sues,Wins Millions

COLUMBUS, OHIO, DECEMBER 14, 1992

Federal judge Joseph

Kinneary has ordered

the International Ama-

teur Athletic Federation

to pay local runner Butch

Reynolds nearly $28 mil-

lion. Reynolds, who holds

the world record at 400

meters, sued the IAAF

after it suspended him

from competition in 1990,

alleging steroid use. When

a court order allowed Reynolds to compete in the

Olympic trials last June, the IAAF responded by ex-

tending his suspension. Kinneary ruled that the or-

ganization acted with malice toward Reynolds.

Butch Reynolds


Reader’s Guide

Key Termscivil law, contract, expressed contract, implied contract, real property, personal property, mortgage, tort, plaintiff, defendant, injunction, complaint, summons, answer, discovery, mediation, affidavit

Find Out■ What are the various types of civil law that

affect people today?■ What are the steps in a civil law case?

Understanding ConceptsPolitical Processes How does the legal systemattempt to provide justice for all?

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this constitutes the acceptance. Finally, the partiesmust give some type of consideration. They mustgive, exchange, perform, or promise each othersomething of value, such as a refinished bumper inreturn for $500. A very large number of civil suitsinvolve disagreements over contracts.

Property Law An important type of civil lawdeals with the use and ownership of property. Theability of private individuals to own, buy, and sellproperty is one feature of a democratic society.Real property has been defined by the courts to beland and whatever is attached to or growing on it,such as houses and trees. Personal property in-cludes movable things like clothes or jewelry aswell as intangible items like stocks, bonds, copy-rights, or patents.

Many kinds of legal disputes arise over using,owning, buying, and selling property. Owners ofbuildings, for example, may fail to repair them or may try to discriminate against others whenrenting or selling. For many Americans, buying ahouse is the biggest financial investment they willever make. This usually involves obtaining a mort-gage—a loan to pay for the house—as well as adeed, title, and insurance. Both state governmentsand the federal government have passed many laws

dealing with real property. For example, the feder-al Fair Housing Act aims to protect people againstdiscrimination on the basis of race, religion, color,national origin, or gender when they try to buy thehome they want or obtain a loan.

Family Law Another branch of civil law dealswith the relationships among family members.This includes marriage, divorce, and parent-childrelationships, including child custody issues.

In seventeenth-century England family law wasstrongly influenced by religious law. In the UnitedStates there was no established state religion, sofamily law developed outside the church. Each statedeveloped its individual family law. For example, inAmerica marriage became a civil contract. Twoforms of marriage existed in nineteenth-centuryAmerica—the civil ceremony and the common-lawmarriage. Because many people lived outside thecities and there was a shortage of clergy, many mar-riages were simple makeshift ceremonies withoutofficial sanction. The law nevertheless tended torecognize these common-law marriages as valid.

Today marriage is a civil contract entered intoby both parties. Divorce legally ends a marriageand leaves both parties free to remarry. Legal dis-putes involving such domestic relations account


Open Housing Propertylaws prohibit discriminationin the sale and rental ofhousing on the basis of race, religion, handicap, family status, or nationality.What is the difference between personal propertyand real property?

Buying a Home

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for a large number of civil cases in state courts.Family law is changing rapidly as the meaning offamily changes in American society.

Torts or Civil Wrongs A tort is any wrongfulact, other than breach of contract, for which theinjured party has the right to sue for damages in acivil court. Those responsible for damage causedto someone’s property, such as breaking a window,or for injury to someone caused by negligence,such as failing to clear ice from the sidewalk, maybe sued by the party suffering the damage or in-jury. Further, the wronged party may sometimesseek punitive damages—additional money—as away to punish the party causing the injury.

Tort law was an insignificant branch of lawbefore the Industrial Revolution. Almost everyleading case in the late 1800s was connected withrailroads. Courts hesitated to award damages toinjured workers because they feared such awardswould hurt business enterprises. By the 1900s,however, the state and federal governmentsbegan to issue safety regulations for industry,and courts established a doctrine of liability for

industrial hazards. Today, some would argue thatcourts are more likely to favor workers claiminginjury.

There are two major categories of torts. An in-tentional tort involves a deliberate act that resultsin harm to a person or property. The person com-mitting the act may have obviously sought to hurtsomeone, for instance, by hitting them or spread-ing lies about them. Assault and battery anddefamation of character are examples. Or, the per-son may be liable for doing harm even if his or her actions, such as playing a practical joke that unintentionally results in an injury, seemed inno-cent at the time.

Negligence is another kind of tort involvingcareless or reckless behavior. A person is negligentwhen he or she fails to do something a reasonableperson would have done, or does something a prudent person would not have done. Leaving asharp kitchen knife where small children couldeasily reach it and not having the brakes checkedon an old car with high mileage are examples ofnegligence that could result in legal liability ifsomeone is injured.


Laws Through the AgesHow might thefailure to pay adebt be dealtwith today?

Past A medieval English chancellor followedlaw codes which might have permitted a cred-itor to seize a debtor’s property and have theperson imprisoned for failure to pay a debt.

Present Today judges, like J. Manuel Banales in Corpus Christi, Texas, also followlaw codes; however, punishments for offens-es differ from those of earlier times.

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A Heritage of Legal Codes

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Steps in a Civil CaseCivil cases are called lawsuits. The plaintiffis the person who brings charges in a law-

suit, called the complaint. The person againstwhom the suit is brought is the defendant. Theplaintiff in a civil suit usually seeks damages, anaward of money from the defendant. If the courtdecides in favor of the plaintiff, the defendant mustpay the damages to the plaintiff. Usually the defen-dant is also required to pay court costs. If the courtdecides in favor of the defendant, the plaintiffmust pay all the court costs and of course receivesnothing from the defendant.

In some lawsuits involving equity, the plaintiffmay ask the court to issue an injunction, a courtorder that forbids a defendant to take or continuea certain action. For example, suppose a companyplans to build a factory in the middle of a residen-tial area. Citizens believe that the factory wouldpollute the air. They take the factory owner tocourt and argue that residents would suffer serioushealth problems if the factory is constructed. If thecitizens win this suit in equity, the judge issues aninjunction ordering the company not to build itsfactory.

Lawsuits are the ultimate method to settle suchdisputes. However, lawsuits can be time-consum-ing and expensive with no guarantee that the win-ner will readily collect any damages that may havebeen awarded. Lawsuits follow certain steps.

Hiring a Lawyer Tostart a lawsuit, a personalmost always needs alawyer. Lawyers may workfor a contingency fee, typ-ically one-fifth to one-halfof the total money won inthe lawsuit, or they willwork for an hourly fee. Ifthe plaintiff and attorneyagree to a contingency fee,no fee is paid if the plain-tiff loses the case. Theplaintiff, however, paysfor the costs of the suitsuch as copying charges,or fees for investigators orspecial experts.


Filing the Complaint Most suits go to statecourts unless they involve the Constitution or afederal statute or regulation. The plaintiff setsforth the charges against the defendant in a com-plaint, a legal document filed with the court thathas jurisdiction over the problem. The complainttells the defendant what is at issue—that is, whatthe defendant allegedly did wrong—so that a de-fense can be mounted. The defendant receives asummons, an official notice of the lawsuit that in-cludes the date, time, and place of the initial courtappearance. The defendant’s lawyer may file a mo-tion to dismiss, asking the court to end the suit. Ifthe court denies this motion, the defendant mustthen file an answer, or formal response to thecharges in the complaint, within a certain time,usually 10 to 60 days. Failure to answer means vic-tory by default for the plaintiff. The defendant mayalso respond by filing a counterclaim, or lawsuitagainst the plaintiff in which the defendant assertsthat the plaintiff also did something wrong.

Pretrial Discovery The next step, called discovery, occurs when both sides prepare for trialby checking facts and gathering evidence to sup-port their case. The attorneys and private investi-gators in major cases may interview witnesses,examine records and photos, and file motionsagainst the other side. This phase can be very ex-pensive as well as time-consuming. In complicatedcases discovery may take months or even years.

Lawsuits in America Lawsuits involving major sums of moneyoften go to civil court where a jury hears them. Do you think thatjustice would be better served by relying more or less on juries?Explain your answer.

Suing for Damages

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Civil CourtroomsWhy do you thinkmany common-lawprinciples are stillin effect today?

Past American colonists continued to fol-low the British traditions of common law intheir early courts.

Present Modern civil courts still use com-mon-law principles in all states exceptLouisiana.

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America’s Legal Heritage

Resolution Without Trial Ninety percent ofall civil lawsuits are settled before trial through oneof several techniques. Either party in a lawsuit maypropose a settlement at any time, including duringthe trial. This often happens during the discoveryphase as costs mount and people become morewilling to compromise. Judges may encouragepeople to settle by calling a pretrial conferencewhere the parties talk things over. The court mayalso require or encourage the parties to settle theirdispute outside of court.

During mediation each side is given the op-portunity to explain its side of the dispute andmust listen to the other side. A trained mediatorconducts the sessions by acting as a neutral partyand promoting open communication. The media-tor does not decide the issue; the parties them-selves do that with the mediator’s help. The partiesmay also agree to submit their dispute to arbitra-tion. This process is conducted by a professionalarbitrator who acts somewhat like a judge by re-viewing evidence and deciding how the problemwill be settled. The arbitrator’s decision is usuallybinding on all parties.

Trial If all else fails, lawsuits eventually go to trial,although the courts are so crowded this may takeyears. Civil trials, like criminal trials, may be heard

by a judge only or by a jury of 6 to 12 people. Theplaintiff presents its side first, followed by the de-fendant. Both sides then summarize their cases,and the judge or jury renders a verdict.

The Award Because of the merging of commonlaw and equity, courts have many options in resolv-ing cases, and judges have more power to adjust de-cisions made by juries. When the plaintiff wins, thecourt awards damages, injunctive relief, or both. In-junctive relief, stemming from equity, is a courtorder to prevent a future act. The damages awardmay be more or less than the plaintiff requested.Occasionally the judge modifies a jury’s award if itseems out of line. Even after the award, the case maynot be over. The loser may appeal or refuse to paydamages. If the defendant refuses to pay, the plain-tiff must get a court order to enforce the payment ofdamages in one of several ways, such as takingmoney out of the defendant’s paycheck or seizingand selling the defendant’s assets.

Small Claims CourtMost states today have provided an alterna-tive to the lengthy trial process by creating

small claims courts. These courts hear civil casescommonly dealing with collecting small debts,

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property damage, landlord-tenant disputes, smallbusiness problems, and the like. Cases are usuallyheard by a judge and involve claims ranging up toa maximum of $1,000 to $5,000, depending on thestate. Plaintiffs with larger claims can waive theamount of their claim that exceeds the dollar limitand still use these courts, but they cannot recovermore than the limit.

Most of these courts have simple forms tocomplete in order to file a complaint. The forms askfor the defendant’s name and address, a descriptionof the dispute, and the amount of damages re-quested. The defendant is given two to four weeksto respond, and a date for the case is set. No lawyersare required because the idea is to provide ordinarypeople with a simple and inexpensive means of re-solving their disputes. These courts usually chargea $10 to $50 filing fee. Plaintiffs bring evidence oftheir claim to court and are asked to explain theircase in nonlegal terms. The evidence may includetestimony from witnesses or their affidavits, writ-ten statements to verify or prove statements of factthat have been signed by the witness under oath be-fore a magistrate or notary.

A judge typically hears the case and gives a de-cision that is legally binding. When a defendantfails to appear for the hearing, the plaintiff usual-ly wins a default judgment for the amount of theclaim. Winning is no guarantee of collecting. Ifthe defendant is unwilling or unable to pay, the

plaintiff obtains a written order from the courtand then turns the order, along with other infor-mation about the defendant, over to the police orsheriff to enforce collection. Usually such judg-ments are good for five years and may be renewed.

Minor Lawsuits Small claims courts, such asthis one, conduct proceedings in everyday languageand avoid technical legal terms. Almost every statehas a court that handles small claims. What kindsof cases are heard in small claims courts?


Political Processes Interview relatives or aneighbor who has been involved in a lawsuit orin small claims court. Find out the nature of thedispute and the way the lawsuit was resolved.Make sure you get the individual’s permissionbefore discussing the case in class. Present abrief documentary of your findings to the class.

Checking for Understanding1. Main Idea Use a graphic

organizer like the one to the right to show the five steps in a civil lawsuit.

2. Define civil law, contract, expressed contract, implied contract, real property, personal property, mortgage, tort, plain-tiff, defendant, injunction, complaint, summons,answer, discovery, mediation, affidavit.

3. Identify Fair Housing Act.4. What do four of the most important branches

of civil law deal with?5. What is the difference between intentional tort

and negligence tort?

Critical Thinking 6. Drawing Conclusions In your opinion should

mediation and arbitration be used to settle mostcivil lawsuits in order to prevent overburdeningthe court system?


5.4.

3.2.

1.

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436

Understanding Cause and Effect

Understanding cause and effect involves con-sidering how or why an event occurred.A cause is the action or situation that

produces an event. An effect is the result or consequence of an action or situation.

Learning the Skill

To identify cause-and-effect relationships,follow these steps:1. Identify two or more events or developments.2. Decide whether one event caused the other.

Look for “clue words” such as because, led to,brought about, produced, as a result of, so that,since, and therefore.

3. Identify the outcomes of events.Making a graphic organizer can aid in under-

standing cause and effect. Read the passage belowand examine the graphic organizer that follows.

Causes Effects

Crackdown on A drop intruancy crime

Poor school Increased attendance potential to

commit crime

Practicing the Skill

On a separate piece of paper, make a cause-and-effect diagram for each statement below.1. Under Hammurabi’s code a son found guilty

of striking his father had his hand cut off.2. As Roman law became more complex, the

task of interpreting it fell to a group of highlyskilled lawyers called juris prudentes. Since that time, the science of law has been knownas jurisprudence.

3. Congress and state legislatures pass thousandsof laws every year, and as the number of lawsgrows, more and more aspects of life becomeregulated by government.

Application ActivityApplication Activity

Concern has been raisedover a disturbingissue—the chronictruancy of stu-dents who havebeen convicted ofcrimes. Truancyappears to have a direct impact

on the crime rate. Many cities reported adrop of 50 percent or more in shoplifting,daytime burglaries and other crimes in thewake of crackdowns on truants. In addition,virtually all of the youths accused of violentcrimes had poor school attendance, accord-ing to one judge.

Application ActivityApplication Activity

The Glencoe SkillbuilderInteractive Workbook, Level 2provides instruction and practicein key social studies skills.

Read an account of a recent criminal orcivil trial in your community as reported ina local newspaper. Determine at least onecause and one effect of that event. Show thecause-and-effect relationship in a chart.

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In criminal law cases, the government chargessomeone with a crime and is always the pros-ecution. The defendant is the person accusedof a crime. A crime is an act that breaks a

criminal law and causes injury or harm to peopleor to society in general. Not doing something mayalso be considered a crime. For example, in somestates it is a crime for doctors who suspect that oneof their young patients is being abused to fail to re-port the case to the authorities.

By far, most crimes committed in the UnitedStates break state laws and are tried in state courts.In recent years, however, there have been an in-creasing number of federal criminal cases. A feder-al criminal case might involve such crimes as taxfraud, counterfeiting, selling narcotics, mail fraud,kidnapping, and driving a stolen car across statelines. If a criminal court finds a person guilty, thejudge may order the defendant to serve a term inprison, to pay a fine, or both.

The criminal justice system is the system ofstate and federal courts, judges, lawyers, police,and prisons that has the responsibility for enforc-ing criminal law. There is a separate juvenile justice system with special rules and proceduresfor handling cases dealing with juveniles, who inmost states are people under the age of 18.

Types of Crime State governments have jurisdiction overmost crimes. Each state has its own penal

code, written laws that spell out what constitutesa crime and the punishments that go with it.Crimes may be classified as petty offenses, mis-demeanors, or felonies.

Petty Offenses Minor crimes such as park-ing illegally, littering, disturbing the peace,minor trespassing, and driving beyond thespeed limit are petty offenses. When peoplecommit a petty offense, they often receive aticket, or citation, rather than being arrested.

Criminal LawS e c t i o n 3S e c t i o n 3

Pizza Thief Sentenced REDONDO BEACH, CALIFORNIA, JANUARY 1995

California’s mandatory

sentencing law for re-

peat offenders, commonly

known as the “three-strikes

law,” has attracted attention

in the local case of Jerry

Williams involving a stolen

slice of pizza. Ordinarily,

Williams’s crime would be

a misdemeanor. However,

Williams has two previous

felony convictions. Under

California’s three-strikes law, the judge was required

to sentence Williams to 25 years to life in prison.

Opponents of the three-strikes law point to the

Williams case as an example of how such laws require

sentences that may be out of proportion to the crime.

To date, 13 other states have passed sentencing laws

similar to California’s.

Stolen property


Reader’s Guide

Key Termscriminal law, criminal justice system, petty offense, misdemeanor, felony, arrest warrant,grand jury, indictment, information, plea bargaining, jury, verdict, hung jury, sentence

Find Out■ How are the types of crime identified according

to severity?■ What are the main steps in a criminal case?

Understanding ConceptsPolitical Processes How does the criminal justice system attempt to balance the rights of theaccused and the rights of society?

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If they do not challenge the citation, they may onlyhave to pay a fine. Ignoring a petty offense, such as not paying a fine, may itself constitute a moreserious crime.

Misdemeanors More serious crimes like van-dalism, simple assault, stealing inexpensive items,writing bad checks for modest amounts, beingdrunk and disorderly, and so on are misdemeanors.A person found guilty of a misdemeanor may befined or sentenced to jail, usually for one year or less.

Felonies Serious crimes such as burglary, kid-napping, arson, rape, fraud, forgery, manslaughter,or murder are considered felonies. These crimes arepunishable by imprisonment for a year or more. Inthe case of murder, the punishment could be death.People convicted of felonies may also lose certaincivil rights such as the right to vote, possess afirearm, or serve on a jury. Further, they may loseemployment opportunities in some careers such asthe military, law, teaching, or law enforcement. Mis-demeanors may sometimes be treated as felonies.

Drunk driving, for instance, is often a misdemeanor.However, if a person has been arrested for drunkdriving and has been convicted of the same offensebefore, that person may be charged with a felony.

Steps in Criminal CasesThere are several steps which nearly everycriminal case follows, although the exact

procedures often vary from state to state. At eachstep defendants are entitled to the protections ofdue process guaranteed in the Bill of Rights. Theprosecutor, a government lawyer with the respon-sibility for bringing and proving criminal chargesagainst a defendant, must prove beyond a reason-able doubt to a judge or jury that the defendant vi-olated the law.

Investigation and Arrest Criminal casesmay begin when police believe a crime has beencommitted and start an investigation to gatherenough evidence to convince a judge to give them awarrant to arrest someone. A valid arrest warrant


Critical Thinking Crime rates in countries around the world often vary dramatically. According to the information above, in which country is it the safest to live? Why?

Source: Encyclopedia Britannica, 2002 Book of the Year (Chicago, IL: Encyclopedia Britannica, 2002).

Population per Police OfficerOffenses Reported to the Police (per 100,000 population)

Australia

France

Canada

Colombia

Israel

Japan

The Netherlands

United States

8,640

630420 210

480 510 318438

7,001

6,096

8,453

790

5,017

1,671

7,808

5,374

3.6

3.7

4.3

56.3

2.4

1.1

10.9

9.0

713.7

148.4

142.3

61.8

463.0

15.4

242.8

430.2

2,338.4

676.9

1,155.7

57.9

1,122.3

187.9

3,100.4

1,041.8

706.2

546.2

547.2

75.3

694.1

28.4

239.0

591.2

Country Total Burglary AutoTheftAssaultMurder

Crime and Law Enforcement, 2000

COMPARING GovernmentsCOMPARING Governments

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must list the suspect’s name and thealleged crime. An arrest may occurwithout a warrant if the police catchsomeone in the act of committing acrime or, in some cases, if they havereasonable suspicion to believe thata person has broken the law.

The arrested person is taken to a police stationwhere the charges are recorded or “booked.”At thispoint the suspect may be fingerprinted, pho-tographed, or put in a lineup to be identified bywitnesses. Police may (often with a court order)administer a blood test, or take a handwriting sam-ple. These procedures do not violate a person’sconstitutional rights, and lawyers do not have to bepresent. However, suspects have the right to ask fora lawyer before answering questions.

Initial Appearance Whenever someone is arrested, he or she must be brought before a judgeas quickly as possible, usually within 24 hours, tobe formally charged with a crime. The judge ex-plains the charges to the defendant and reads theperson’s rights. If the charge is a misdemeanor, thedefendant may plead guilty and the judge will de-cide on a penalty. If the defendant pleads notguilty, a date is set for a trial.

When the crime is a felony, thedefendant usually is not asked toenter a plea. Rather, the judge sets adate for a preliminary hearing, anda process aimed at determining themerits of the charges begins. Thejudge may also decide whether the

suspect will be released or “held to answer.” A sus-pect may be released on his or her “own recog-nizance” if the judge thinks the person is a goodrisk to return to court for trial, or the judge may re-quire bail, a sum of money the accused leaves withthe court until he or she returns for trial. Accord-ing to the Eighth Amendment,1 the amount ofbail required should fit the severity of the chargebut cannot be excessive. In some cases bail may bedenied, as when a defendant is likely to flee.

Preliminary Hearing or Grand Jury Thenext step in the criminal justice process also variesfrom state to state and between state and the feder-al governments. In federal courts and in many statecourts, cases will go to a grand jury, a group of cit-izens who review the prosecution’s allegations in


MADD display in frontof the Capitol

Rights on the Road Drunkdriving is a serious nationalproblem. Here a police officeradministers a test to determinethe alcohol content of a breathsample. Mothers Against DrunkDriving, or MADD, is an interestgroup that encourages the publicto become actively involved inthe fight against drunk driving.Do you think that it is consti-tutional for a police officer to test someone for drunk driving?

Driving Under the Influence of Alcohol

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See the following footnoted materials in the Reference Handbook:1. The Constitution, pages 774–799.

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order to determine if there is enough evidence to“hand up”an indictment, or formal criminal charge.

Grand jury hearings are conducted in secretand may consider types of evidence not allowed intrials. Defendants are not entitled to have an attor-ney represent them, although their attorney maybe able to observe the proceedings.

If a preliminary hearing is used instead of agrand jury indictment, the prosecution presentsits case to a judge. The defendant’s lawyer may also present certain kinds of evidence on behalfof the defendant. If the judge believes there is aprobable cause to believe the defendant commit-ted the crime, the case moves to the next stage. Ifthe judge decides the government does not haveenough evidence, the charges are dropped. Insome states the prosecuting attorney is allowed totry to obtain a grand jury indictment if a judgedismisses a case at the preliminary hearing.

Convening a grand jury is time-consuming andexpensive. Today, in misdemeanor cases and inmany felony cases, courts use an information ratherthan a grand jury indictment. An information is a

sworn statement by the prosecution asserting thatthere is sufficient evidence to go to trial. Becausegrand juries most often follow the recommenda-tions of the prosecution, many people believe thata grand jury is an unnecessary expense.

Plea Bargaining In about 90 percent of allcriminal cases, the process comes to an end with aguilty plea because of plea bargaining. In thispretrial process the prosecutor, defense lawyer,and police work out an agreement through whichthe defendant pleads guilty to a lesser crime (orfewer crimes) in return for the government not


Mary Ellen Beaver

Making a DifferenceMaking a Difference Mary Ellen Beaver has de-veloped a reputation thathas earned her the nick-

name “Fighting Grandma.” Since1969 Beaver has been workinghard to help migrant workers un-derstand their legal rights and im-prove their working conditions.

Beaver, now in her sixties,began her campaign after seeinggroups of poorly dressed tomatopickers pass by her Pennsylvaniafarm each day in run-down buses.“I was outraged. They had norights and were being exploited,”she said.

Beaver collected clothing totake to the workers and orga-nized a group of churches to helpprovide support. Her work helpedto convince Pennsylvania legisla-tors to pass the state’s 1978Farm Labor Law. She also creat-ed a support group for workers

called Friends of Farm Workers.For her dedication and hard work, she earned a humanitarianmedal from Pope John Paul IIin 1984.

Other states have benefitedfrom Beaver’s efforts. After leav-ing Pennsylvania she worked withthe Neighborhood Legal Assis-tance Program in South Carolinato monitor migrant working condi-tions in the state’s peach or-chards. She also worked for theFlorida Rural Legal Services, whichprovides legal support to Florida’smigrant workers. In a lawsuit filedagainst a sugarcane company,Florida cane workers were award-ed $51 million in back wages.

Beaver says the reward forher work is “when a workercomes up to me and says, ‘Noone has ever treated me with re-spect before.’”

Student Web Activity Visit the United StatesGovernment: Democracy in Action Web site atgov.glencoe.com and click on Chapter 15—Student Web Activities for an activity about criminal law.

GOVERNMENT

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prosecuting the more serious (or additional)crime with which the defendant was originallycharged. In many courts the judge also partici-pates in the process, especially if the length of thesentence is part of the negotiation. Plea bargain-ing has become very widely used as a way to han-dle the tremendous volume of criminal cases thecourts must process every year.

Supporters of the process claim it is efficient andsaves the state the cost of a trial in situations whereguilt is obvious, as well as those where the govern-ment’s case may have weaknesses. Some opponentsargue “copping a plea” allows criminals to get offlightly. Others say that it encourages people to giveup their rights to a fair trial. The Supreme Court inseveral decisions has approved the process as consti-tutional. In Santobello v.New York 1 (1971) the Courtsaid plea bargaining was “an essential component ofthe administration of justice. Properly administered,it is to be encouraged.”

Arraignment and Pleas After the indict-ment by a grand jury, a preliminary hearing, or aninformation, the next step is the arraignment. Atthe arraignment the judge reads the formal chargeagainst the defendant in an open courtroom. Thedefendant is represented by an attorney. Duringthis process the judge may ask the defendant ques-tions to ensure the person understands the chargesand the process. A copy of the charges is given tothe defendant, and the judge asks if the defendantpleads guilty or not guilty.

The defendant then enters one of four pleas re-sponding to the charges. It could be: (1) not guilty,(2) not guilty by reason of insanity, (3) guilty or, insome states, (4) no contest (nolo contendere). Bypleading nolo contendere the defendant indirectlyadmits guilt by saying, “I will not contest it;” how-ever, this does not go on the records as a guilty plea.If the defendant pleads guilty or nolo contendere, heor she has given up the right to a defense, the judgethen decides a punishment, and the defendant maybe sent to prison immediately. If the plea is notguilty, there must be a trial, and a court date is set.


Choice of Trial Although a defendantmay waive the right to a trial by jury, ajudge may order such a trial. In most federal cases, the jury that hears a criminal case must have 12 members;some federal courts allow for a smallerjury. Several states provide for smaller juries, often of six members. Why woulda judge order a jury trial against thewishes of a defendant?

▲

▲

Right to a Fair Trial

Trial by jury

Bench trial

See the following footnoted materials in the Reference Handbook:1. Santobello v. New York case summary, page 765.

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The Trial The Sixth Amendment 1 guaranteesthat defendants should not have to wait a longtime before their trial starts. However, the courtsare so crowded that long delays are common. De-fendants accused of a felony have a right to choosebetween a jury trial or one heard only by a judge,known as a bench trial. In a bench trial the judgehears all the evidence and determines guilt or in-nocence. Experience has shown that judges aremore likely to find defendants guilty than are ju-ries. A jury is a group of citizens who hear evi-dence during a trial in order to decide guilt orinnocence. The prosecuting and defense attorneysselect jurors from a large pool of residents withinthe court’s jurisdiction. Both sides try to avoid ju-rors who might be unfavorable to their side.

When the jury and alternate jurors have beenselected, the prosecution presents its case againstthe defendant. Witnesses are called, and evidence ispresented. The defense attorney has the right tocross-examine prosecution witnesses, and at anytime either side can object to statements or actions

by the other side. Next, the defense has its turn andmay call witnesses. The prosecuting attorney hasthe right to cross-examine them. Under the FifthAmendment 2 defendants do not have to testify,and refusal to testify cannot be taken as an ad-mission of guilt. The attorneys for both sides thenpresent closing arguments that summarize thecases and respond to the opposition’s case.

The Decision After closing arguments thejudge gives the jury a set of instructions on properlegal procedures for the case, and explains the lawthat the jury is required to apply to the factsbrought out at trial. The jury members then go toa jury room to decide if the defendant is guilty ornot guilty. The jury selects a foreperson to leadtheir discussions and serve as their spokesperson.Jury deliberations are secret and have no set time


Critical Thinking The total number of prisoners held in state penal institutions exceeds 1 million people. Which states have the highest number of prisoners per 100,000 people?

Source: U.S. Department of Justice.

State Prison Populations, 2002State Prison Populations, 2002

WA

ORID

MT

WY

CA

AK

HI

NV UT

AZ NM

CO

TX

OK

KS

NE

SD

ND

MNWI

IA

MO

AR

LA

MS AL GA

FL

SC

NC

WV VA

VT

NY

PA OHIN

MI

IL DE NJ

CT RI MA

ME

NH

TN

KY

MD

Incarceration Rate(Prison population

per 100,000 people)

85 – 200

201 – 300

301 – 400

401 – 500

501 – 900

N

See the following footnoted materials in the Reference Handbook:1. The Constitution, pages 774–799. 2. The Constitution, pages 774–799.

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limit. During its deliberations the jury may askquestions of the judge or ask to review evidence. Todecide that a person is guilty, the jury must find theevidence convincing “beyond a reasonable doubt.”Nearly all criminal cases require a unanimous votefor a verdict, or decision, of guilty. If the jury can-not agree on a verdict, a situation known as a hungjury, the court usually declares a mistrial. A newtrial with another jury may be scheduled later.

Sentencing When the verdict is “not guilty,”the defendant is released immediately and withvery few exceptions cannot be tried again for thesame crime. If the verdict is “guilty,” the judge usu-ally determines the sentence, the punishment to beimposed on the offender. Sentences may requiretime in prison, the payment of a fine, or a numberof hours of community service. In a few statesjurors may play a role in sentencing, particularly incases in which the death penalty is a possible sen-tence. Today, victims of the crime are often allowedto make statements about the sentence, and judgesmay take those statements into account. The lawusually sets minimum and maximum penalties forvarious crimes, and the judge chooses a punish-ment from within those ranges. With a seriouscrime the judge may hold hearings in order toconsider how the defendant’s background andother circumstances of the crime might affect thesentence. This type of hearing is constitutionallyrequired in death penalty cases. People convicted ofmisdemeanors and felonies have the right to appealtheir cases to a higher court, although this right toappeal is not a constitutional one.

In the 1990s, many citizens became frustratedwith both the short sentences given for serious crimesand the number of repeat offenders. Beginning withWashington in 1993, many states passed a “three-strikes law” requiring individuals convicted of threeserious offenses to be sentenced to 25 years to life in prison.Three-strikes laws are controversial.Oppo-nents argue that they are unfair, but supporters notethat states with three-strikes laws have experienceda dramatic drop in serious crime.

Hearing Cases Bertina Lampkin is a supervising judge in Cook County, Illinois, assigned to Night Narcotics Court. She claims, “I don’t think there is a better job. I love to hear the arguments.” Lampkin takes the bench at 4 P.M., sometimes working until 1 A.M. Why do you think court is held at night?


Political Processes Create a political cartoonthat illustrates the way the criminal justice sys-tem tries to balance the rights of the accusedagainst the rights of society.

Checking for Understanding1. Main Idea Use a Venn diagram like the one here

to show the differences and similarities between the steps in criminal and civil lawsuits.

2. Define criminal law, criminal justice system,petty offense, misdemeanor, felony, arrest war-rant, grand jury, indictment, information, pleabargaining, jury, verdict, hung jury, sentence.

3. Identify Sixth Amendment, Fifth Amendment.4. Identify three classifications of crimes.

Critical Thinking5. Demonstrating Reasoned Judgment Do you

think people charged with violent crimes shouldbe allowed to raise bail? Why?


Criminal Civilboth

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444

IN CHAPTER 15 you learned that mostlaws that affect people in their everydaylives are state and local laws. People who violate those laws are tried in statecourts. This activity will help you understand the criminal trial processand the steps that someonemust go through if he or she has been charged withcommitting a felony.

The following excerpt from TIME profiles a sketch artistwho uses psychology to help witnesses recall thefaces of criminals.

J eanne Boylan was workingin a small Oregon sheriff ’soffice in 1973 when she

began to wonder why the police sketches she sawdidn’t match descriptions she had heard from thevictims. There’s a better way, she thought. Andthere was. Today Boylan is acclaimed for develop-ing a technique so accurate that an FBI agent whohas worked with her likens the results to “some-thing drawn from a photograph.”

The self-described “facial-identification specialist” has drawn more than 7,000 faces in her career. Her secret? A diligent reading—and application—of memory science.

Most sketch artists ask witnesses to examinedrawings or photographs meant to jog their memories. But that process can muddy fragile recollections. “Human memories are very malleable, especially at the height of emotion,”Boylan says. “Ask, ‘Did he have a moustache?’Well, he does now, because you’re implanting thatimage.” Boylan’s interviews are long chats aboutother topics, with only occasional questions related

to the pad she holds just out of sight.“The assumption is that this work isabout art,” says Boylan, “but it’s about the complexity of memory.

“My ultimate dream of dreamswould be to see this job done bytrained psychologists.”

— From TIME,March 19, 2001

Boylan drew this police sketch based on a description by an eyewitness.

▲

JEA

NN

E M

. BO

YLA

N

JEANNE M. BOYLAN

ClassroomCourtroomClassroomCourtroom

444-447 classroom courtroom 2/1/05 9:52 AM Page 444

Setting Up the Workshop1 Select volunteers to play the following roles in

the courtroom trial:

• defendant• judge• bailiff• three-member prosecution attorney team• three-member defense attorney team• witnesses• jury

2Gather props to use in court to represent the evidence that exists in the case. You will alsoneed paper and pencils to take notes.

3Rearrange the classroom to make it resemble a courtroom.

Gathering the Facts of the CaseYour trial is based on the following incident:

On the evening of December 22, a personwearing a ski mask and carrying a gun robbed aconvenience store. The person entered the storeat approximately 1 A.M. when only the clerk andone other customer were present. The suspectheld the gun on the clerk and demanded the con-tents of the cash register. The clerk gave him $78in cash, and the suspect left the store withoutnoticing the customer hiding in the rear of thestore. According to the clerk, the suspect drove offin a light-colored pickup truck. The clerk was ableto provide a partial license plate number.

At 1:05 A.M. the clerk called 911 to report thecrime. A police cruiser responded to take informa-tion from the clerk (Sara Mason) and the customer(Jason Allen) and to gather evidence. Ten minuteslater a second cruiser responded.

The second officer reported he had just pulledsomeone over in a light-colored truck for speeding.The partial license plate number given by the clerk matched some of the numbers on that vehicle’s plate.

The vehicle’s owner (Thomas Cole) was arrested at his residence later that evening. Policequestioned and later charged him in the robbery of the convenience store.

The Plea Based on evidence presented to thegrand jury, the defendant was indicted and pleaded not guilty at his arraignment. Accordingto his statement to the police, he had lent histruck to a friend (Todd Elright) for the evening.

Pre-Trial PreparationAs a class, discuss the details of the crime

as they are presented in Step 1. Decide what additional details are needed to try the case effectively. Create those details to share with theprosecution and defense teams. Members of theprosecution and defense teams should take notes during the discussion to use in preparing their cases for trial. You may want to address the following topics:

1. Who were the witnesses to the crime?

2. What physical description of the suspect did the witnesses provide?

RO

YALT

Y-FR

EE

/CO

RB

IS


446

The defendant’s attorney presentsthe case during a criminal trial.

Conducting the Trial1. Beginning the Proceedings The bailiff, who

is responsible for maintaining order in thecourtroom, should announce that the trial isabout to begin and order those present in thecourtroom to rise as the judge enters. Thejudge will oversee the proceedings. The role ofthe judge will be to decide on the appropriate-ness of the actions of the attorneys and to respond to objections from both sides. To thebest of his or her ability, the judge will need tomake sure that the trial is carried out in a manner that is fair to both sides without infringing on the rights of the defendant.

2. Presenting Their Cases The trial should beginwith an opening statement by the prosecutionand defense teams. The prosecution will thenpresent its case first by calling and questioningits witnesses. After the prosecution questionseach witness, the defense has an opportunityto cross-examine each of the prosecution’s witnesses. After the prosecution rests, the defense presents its case by calling its ownwitnesses to the stand. The prosecution can

also cross-examine the defense’s witnesses. The bailiff calls and swears in

each witness before he or she begins testimony. After the defense rests, the prosecution and defense attorneys will

present closing statements summarizing the case and urging a conclusion of guilt

or innocence.

3. Does the friend who supposedly borrowed thepickup truck exist? If so, was he contacted,and did he make a statement to the police?

4. What physical evidence is available to presentin the trial? Were there articles of clothing, aweapon, or fingerprints found?

5. Was the stolen money recovered?

Attorney PreparationMembers of the prosecution and defense

teams should work separately to prepare their individual strategies for trying their cases. The burden of proof falls on the prosecution team;however, each side will need to be prepared to dothe following:

1. share its witness list and evidence list with theopposing team,

2. present an opening statement when the trialbegins,

3. call witnesses to the stand and ask them questions,

4. present physical evidence to the court,

5. deliver a closing statement to convince the juryof the guilt or innocence of the defendant.

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3. Reaching a Verdict The judge will then charge the jury, or explain its responsibilities.The jury’s duty is to decide on the guilt or innocence of the defendant based on the evidence and whether he is guilty “beyond areasonable doubt.” The jury will then adjourn to discuss the case. Jury members shouldelect a foreperson to lead the proceedings and to announce their verdict to the court.

4. Sentencing Once the verdict has been announced, the judge will sentence the defendant if he is found guilty or dismiss him if the verdict is not guilty. If a unanimous verdict cannot be reached, the jury will be considered a hung jury.

After the trial, members of your classmay want to evaluate the effects of thetrial’s outcome on those people who wereinvolved in the crime. Write a paragraph explaining what your feelings might havebeen after the trial if you were:

• the convenience store clerk

• the defendant

• a member of the jury

Questions for Discussion1. Do you think the trial was fair? Why or

why not?

2. Does determining guilt “beyond a rea-sonable doubt” favor the defendant orthe prosecution in this particular case?

3. Was there vital information that wasknowingly withheld by either side thatcould have affected the jury’s decision? Explain.

4. Based on TIME’s excerpt, do you thinkJeanne Boylan’s psychological approachto drawing sketches of criminals willhelp law-emforcement officials? How?

5. How might the outcome of the trial havechanged if the case had been heard by ajudge only, and not by a jury?

Summary ActivitySummary Activity

▲ “Justice” is often portrayed as a mythic goddess whose blindfolded eyes symbolize impartiality when thescales of justice areheld in balance.

PICTURE RESEARCH CONSULTANTS & ARCHIVES


Reviewing Key TermsOn a separate sheet of paper, choose the letter ofthe term identified in each statement below.

a. administrative law f. misdemeanorb. verdict g. common lawc. indictment h. tortd. contract i. adversary systeme. statute j. injunction

1. a minor or less serious crime2. the procedures of and rules issued by

government agencies3. any wrongful act, other than breach of contract,

for which the injured party has the right to suefor damages in a civil court

4. law made by judges in resolving individual cases5. decision of a jury in a criminal case6. a judicial system in which lawyers for the

opposing sides present their cases in court

7. a law written by a legislative branch8. a charge by a grand jury that a person commit-

ted a particular crime9. a set of voluntary promises, enforceable by

the law, between parties to do or not to dosomething

10. a court order that forbids a defendant to takeor continue a certain action

Recalling Facts1. What two early systems of laws have

influenced the development of the UnitedStates legal system?

2. In the United States, what is the standardagainst which all other laws are judged?

3. When does a court rule that a law violatessubstantive due process?

4. What two kinds of cases do courts in theAmerican legal system hear?

5. Why has plea bargaining become widely usedin criminal cases?

Understanding Concepts1. Civic Participation How may the principle of

“equal justice under law,” applied in federalcourt cases, benefit minorities, poor people, oryoung people?

Assessment and ActivitiesChapter 15Chapter 15

Self-Check Quiz Visit the United States Government:Democracy in Action Web site at gov.glencoe.com andclick on Chapter 15–Self-Check Quizzes to preparefor the chapter test.

GOVERNMENT

Civil Law• Concerns disputes among two or more individuals or

between individuals and the government• Makes up 90 percent of the cases heard in state courts• Deals with contracts, property law, family law, and torts

Criminal Law• Concerns acts that cause injury or harm to people or to

society in general• The government charges someone with a crime and serves

as the prosecution• Includes petty offenses, misdemeanors, and felonies

Kinds of Law• Constitutional law studies and interprets the Constitution

and resolves the tension between individual rights and government powers.

• Statutory law is created by a governing legislature.• Administrative law governs the authority and procedures

practiced by government agencies.• Common law is the historical body of legal decisions that

provide the basis for current and future decisions.• Equity law is a system of legal actions based on the

principle of fairness.

Sources of Law

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2. Political Processes How doesthe idea of “guilty beyond areasonable doubt” protectthe rights of defendants?

Critical Thinking1. Making Comparisons What is

the difference between pro-cedural due process andsubstantive due process?

2. Demonstrating Reasoned Judg-ment Use a graphic organiz-er like the one below toidentify reasons for andagainst plea bargaining.

Analyzing PrimarySourcesHammurabi’s Code was theworld’s first written code of law,compiled by the king of Babylo-nia in the 1700s B.C. The codeformed the basis fo1r many of the principles of themodern legal system. Read the excerpt and thenanswer the questions that follow.

“9. If any one lose an article, and find it in the possessionof another: if the person in whose possession the thing isfound say ‘A merchant sold it to me, I paid for it beforewitnesses,’ and if the owner of the thing say, ‘I will bringwitnesses who know my property,’ then shall the purchaserbring the merchant who sold it to him, and the witnessesbefore whom he bought it, and the owner shall bring witnesses who can identify his property. The judge shallexamine [the witnesses’] testimony. . . . The merchant isthen proved to be a thief and shall be put to death. Theowner of the lost article receives his property, and he whobought it receives the money he paid from the estate of themerchant.”

1. How could this particular code be interpretedas a basis for modern U.S. trial procedures?

2. How do you think Hammurabi’s Code wouldtreat the guilt or innocence of the accused? Isthis similar to or different from American laws?

Interpreting Political Cartoons Activity

Applying Technology SkillsUsing the Internet Locate a Web site on the Inter-net that deals with criminal law. Find out aboutpending federal criminal cases and the issues involved in these cases. Write a short report summarizing the main issues of one caseand share your findings with the class.

Participating in Local GovernmentThe government must providea lawyer for defendants in crimi-nal cases who cannot afford one.This is not true of civil cases. Thus,many lawyers donate their time tohelp poor people with lawsuits. Find out about thework of a legal aid society in your community. Re-port your findings to the class.


Chapter 15Chapter 15

1. What is occurringin this cartoon?

2. How do you thinkthe cartoonistfeels about thereliability of witnesses’ testimonies during court trials?

3. Do you feel thatthe current trialsystem ensuresjustice? Explain.

“Do you swear to tell your version of the truthas you perceive it, clouded perhaps by the

passage of time and preconceived notions?”

Plea BargainingFor Against

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