A Brief History of Law
Written by Steven Kellams, All Rights Reserved by Steven Kellams
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Since the beginning of time man has found a need to place rules upon the way people interact. These rules have governed everything from how to destroy a witch to how to prepare meals. Amazingly, the concept of law has changed little in over 6,000 years.
The evolution of law can be traced from the ancient Sumerians to modern day. What began as eighteen laws pressed out by a reed into a mud tablet has grown into volumes of text written and studied by an entire profession of individuals. How mankind evolved and changed was directly related to how man’s laws evolved and changed. The fall of the Roman Empire can be attributed to a series of laws that devalued human life.
Laws are created and changed every day. Law evolved from a framework of rules for society to an industry employing millions of people throughout the world. Legislators are responsible for creating and amending the laws, attorneys are responsible for attacking and defending the laws, police are responsible for enforcing the laws, and judges make rulings on laws. It is a complex process not usually understood by the layman.
In order to understand modern laws or to create laws for a campaign, one must understand the history and development of law. Law has evolved with civilization and is a common and important element of culture. Without law there cannot be a society. Any community of people will have laws that control the way in which they interact.
The following brief history of the evolution of law will assist in the understanding of legal concepts. It will give necessary information on historic legal systems and allow for the creation of specific legal codes within a campaign. Information on who creates the laws and who is responsible for applying the laws is included.
Crime, Deviance, and Natural Law
Crime has several definitions. It is sometimes seen as a struggle between good and evil, other times as a manifestation of abnormal behavior. To most people, crime is simply the violation of accepted rules. There are two generally accepted theories on crime. They are very different from one another, but they both address how behavior becomes crime. The two theories are Natural Law and crime as a social construct.
First, Socrates proposed the theory that crime is based on Natural Law. Natural Law holds that what is right and wrong is based on a higher order, one that has been handed down by the gods. Men do not make the law, but follow nature’s rules. Philosophers such as Plato, Aristotle, and Thomas Aquinas took up this theory. These great thinkers posed that Natural Law applied to all men regardless of their culture or society. In the absence of man-made law, Natural Law ruled. Natural Law was essential to the Code of Hammurabi and is important in Roman and Anglo-American legal systems.
Second is the theory that crime is a social construct. It is believed that the definition of criminal behavior evolves over time. As man creates acceptable ways of acting, those people who deviate from the norm are perceived as criminals. Therefore, crime does not exist until laws are created.
This theory leads to the concept that laws are only created after people define actions that are dangerous or embarrassing to the community. Once this labeling has occurred, the offender is deviant from the norms of society. Deviance is a term that has a broader meaning than crime and is used to define activity that may not actually be criminal.
An example of the theory of crime as a social construct is the 18th Amendment to the U.S. Constitution, otherwise known as Prohibition. Prohibition came about because of a movement to assert the “rural Protestant” ethics in response to the “immoral” urban culture of the early 20th Century. Prohibition made the manufacture and sale of alcohol illegal. Once the 18th Amendment had been passed, thousands of people suddenly became criminals. As the demand for alcohol increased, entire criminal organizations were formed to fill the demand for drink. Not only is Prohibition an example of society making laws that create crime, but also an example that not all crime is deviant behavior. The 18th Amendment was ultimately repealed because most Americans did not want alcohol to be illegal.
Accadian Laws and the Code of Hammurabi
The Accadians were a Finnic-Tatar race originally from the mountains to the southwest of the Caspian Sea. The Accadians migrated to the area that was later known as Babylonia. They were one of the earliest civilizations in the area and were the developers of cuneiform, the first known system of writing, a method in which a thin reed was used to press marks into a mud tablet. The mud was dried and the tablets were stored for later use.
Because cuneiform is the first known written language, it is only logical that it is the first evidence historians have of ancient laws. It becomes obvious looking at the Accadian codes that their laws were created in response to their culture. They were a patriarchal society with an emphasis on the importance of the mother. The laws dictate many rules and there are several which are important to the future of law.
Law three states, “For the future (the Judge may) cause a sanctuary to be erected in a private demesne,” and law four follows with, “(A man) has full possession of his sanctuary in his own high place.” These two laws seem to provide man protection while in his home. The idea of a man’s home being his sanctuary carries over into today’s legal system and is covered by the Fourth Amendment of the U.S. Constitution, which protects against unreasonable search and seizure.
Law nine of the Accadian code states, “This imperial rescript must be learnt.” Accadians believed that ignorance of the law was no excuse to break it. That same reasoning is held in modern legal systems.
Lastly, law 18 brings slavery and the treatment of slaves under the law. “A decision. A master kills (his) slaves, cuts them to pieces, injures their offspring, drives them from the land and makes them small; his hand every day a half-measure of corn measures out (in requital).” Even though slavery was legal, the mistreatment of slaves was not allowed. In practice, this was rarely enforced.
Code of Hammurabi
The Accadian rule eventually gave way to the Amorites, a Semitic-speaking people from the Mesopotamian area. The law was further refined just as civilization was refined. The laws of Babylonia were formed into a fairly complete legal system and recorded by Hammurabi, ruler of the Amorite people. These laws became known as the Code of Hammurabi and are remarkable not only for the fact that they are the first known legal system, but also because the ideas were so advanced for their time.
M. De Morgan, a French archaeologist, discovered the Code of Hammurabi in 1902. The Code is actually a pillar of stone standing eight feet high and measuring two feet across. Inscribed on the column are cuneiform characters that form 282 sections. The pillar is believed to be from the period of 2270 B.C.
The 282 sections of the code make up the individual laws. The laws deal with many aspects of life in Babylonia. One of the most interesting aspects of the code is the fact that the first law is a ban on magic and sorcery. The prevalence of magic among the Babylonians must have been great. The penalty for practicing magic was death. Clearly a superstitious people, the Babylonians set forth stoning as the method of execution for a sorcerer.
Aspects of the code are quite primitive. The Babylonians still hold punitive and retaliatory principles such as an eye for an eye. Other portions of the code show very advanced aspects of law. For example, all justice is administered by the state, and foreigners are not subjected to discrimination.
Laws regarding trade and commerce are very explicit and show the importance of business in their culture. While many other legal systems in the pre-Christian era had elements similar to those found in the Code of Hammurabi, none matched the complexity and completeness of the Babylonian laws.
Their ruler, Hammurabi, codified the laws of Babylonia. However, it is interesting to note that the majority of the laws evolved from the citizens’ perspective. They dealt with the everyday lives of the citizens and how they interacted with one another. The laws set forth positions of judges and representatives of the state that would ensure proper conduct in their legal system. The Code proves that even an ancient civilization could still develop advanced legal ideas and regulate complex interaction between its people.
The Laws of Harmhab, Gortyn, and Manu
The next three legal systems describe what was going on in other parts of the world between the Babylonian code and the rise of Roman law. They date from approximately 1350 B.C. to 200 B.C.
Edict of Harmhab
During the time of Hammurabi, an advanced civilization was developing in Egypt. During the nineteenth dynasty, the edict of Harmhab made incredible advances in the ideas of law. The edict of Harmhab was devised to prevent state officials from abusing the poor people of Egypt. Apparently tax collectors and other state officials were robbing the poor in the name of the state. This edict not only laid out the specific instances of abuse, but also gave penalties for violation of the edict. The edict was very advanced in that it recognized the possibility of corruption by the ruling government and attempted to solve those problems. The idea that the state could be corrupt and that law needs to be in writing to protect the citizens from the state carries over into today’s legal systems.
Laws of Gortyn
In 450 B.C., Greek law was being recorded in the Laws of Gortyn. These laws were discovered in 1884 on the island of Crete. They were in the form of twelve tablets built into a limestone wall. The Laws of Gortyn are not a complete legal system. What makes these laws interesting is that they dictate that slaves are personal property. Prior to these laws, slaves tended to be seen as people under the protection of their master. This precedent would be built upon until the abolishment of slavery in 1865 by the 13th Amendment to the U.S. Constitution.
Laws of Manu
India was the center of a vast civilization. Led by Aryan rulers, the lands of India came under one religion, Hindu. The Laws of Manu are religious laws that require the participation of priests called Brahma. The doctrines set forth in Manu are important in that they set aside the exact rituals to run a court of law. The law describes who is to be involved in the court and their responsibilities. The law also dictates in what order business will be conducted. By putting the specific instructions for running a court into their laws, the Hindu codified every aspect of the legal system. This ensured that no violations would occur during the court hearings. This concept is still used today.
Two aspects of Manu must be looked at closely. First, the Hindu law did not allow any false testimony during court proceedings. The truth was the most important aspect of hearings and if a man was found lying, he would suffer severe punishment. Second, the Laws of Manu spoke heavily of justice. One law stated, “The only friend who follows men even after death is justice; for everything else is lost at the time when the body perishes.” The idea that law and justice could be interchangeable began with Manu. However, later legal systems prove that this concept is naive.
Rome is believed to have been founded in 753 B.C. by Romulus and was ruled by a succession of kings until 509 B.C. These kings dictated the laws on ancient Rome. A considerable number of laws have been attributed to the Kings Romulus, Numa Pompilius and Servius Tullius. One of the traditions begun by Romulus had a profound effect on the concept of modern legal systems.
Patricians and Plebeians
Romulus instituted a class system that divided the upper and lower classes. He also legislated the duties of each class. The upper class was composed of magistrates and priests who ruled on legal issues. They were called patricians. The lower class, or plebeians, was expected to engage in commerce and farming. Patricians were responsible for the plebeians and their responsibilities were many. They were to assist in the marrying of the children, ransom the children from enemies, and award damages in private suits. The plebeians were allowed to choose their own patrician. This was the beginning of the Law of Patronage.
The relationship between the patrician and the plebeian is very similar to the feudal system of medieval Europe. What is remarkable is the way in which this system evolved as Rome became a republic. Since plebeians were not knowledgeable in the ways of the Roman legal traditions it became necessary for them to use specialists, or consuls, to argue their cases for them. The concept of a consul survives today in the profession of law, as lawyers are often referred to as counsel.
The Roman Republic and subsequent Empire lasted for over a thousand years. The legal traditions of Rome are long and in many cases well documented. The earliest written record of laws in Rome is known as the Twelve Tablets.
The Twelve Tablets date from 300 B.C. They were printed on twelve columns and form the basis of the legal system of ancient Rome. The Twelve Tablets deal with all aspects of Roman life. What is interesting about the Twelve Tablets is that they are primarily substantive in nature. They deal with what is against the law and not with how to adjudicate the grievance. It is in later documents such as the Corpus Juris where we find rules for hearings laid forth.
Advancement of Roman Civil Law
The last 200 years of the Roman Republic is considered to be the most astounding in the history of legal development. While criminal law was very similar to the early systems of vengeance that developed with Hammurabi’s Code, civil law progressed at an amazing rate. The concepts of literal and abstract interpretations of the law were developed, as consul argued for and against the laws. For example, in one case a will from the period reads, “Let my son be my heir. If my son dies before reaching puberty, let M’. Curius be my heir.” Consul argued that the will should be interpreted literally and that because the deceased had no sons, they could not have died before reaching puberty. Therefore, M’. Curius could not be heir. It was through innovative thinking such as this that the concepts of law were pushed beyond anything yet seen in the world.
The Courts of Rome
In practice, there were two distinct sections of Roman Law. The first section is known as in jure. This was a proceeding before a judicial officer, or magistrate. The object of the in jure was for the magistrate to decide if the claim being made was admissible. To be admissible the claim must show that one party had injured another in some way or that a law had been broken. After the claim was deemed admissible, the magistrate would formulate the legal issues. The in jure would never lead to a judgement by the magistrate. The magistrate was considered a formal representative of the republic, and as such, his word was considered an imperial order. From there, the second section of Roman law was developed. It was called in judicio and was run by private citizens. After the magistrate had finished the in jure, an in judicio was formed. The members would review the case, interview witnesses, and decide on guilt or innocence. A judgment would then be passed by the in judicio
The elements of the Roman concepts of in jure
and in judicio have carried over into the English and American legal systems.
The idea of a man being judged by private citizens and not the State is still in
use today as the jury system. While Roman law is considered civil law, the
advances that were made in that field have been adopted into many aspects of
modern criminal law. In fact, criminal law’s evolution from an eye for an eye
vengeance based system into a true legal system owes a great debt to the Roman
system of civil jurisprudence.
English Common Law
Many different types of people, from the paleolithic and neolithic tribes of the Stone Age to the Celts and Romans, have populated the British Isles. The true legal history of Britain does not begin until approximately 450 when Germanic tribes known as Angles, Saxons, and Jutes invaded the Islands. They came separately, organized into warrior bands led by a chief. The native Celts resisted, but were ultimately overwhelmed.
The development of English Law during the Anglo-Saxon period faced the same problems as the Anglo-Saxon government. The attempt to evolve from tribal civilization into one common State was difficult. The courts of the time focused on individuals and not the community as a whole. Blood feuds, vigilantism, and violence pervaded the community, and thus pervaded the court.
Organization of Anglo-Saxon Courts
The Anglo-Saxon invaders divided the country into small sections. The largest section was known as the shire, or county. An ealdorman (chief man) was appointed by the king to oversee the shire. This position evolved over time and gained more power as ealdormen were given more than one shire to oversee. They became known as earls. The court of the shire was composed of the landholders of the shire. These courts dealt with all aspects of Anglo-Saxon life.
The shires were further subdivided and the largest section was called the Hundred. The Hundred was a collection of one hundred men originally used as local militia. In certain areas, the Hundred was used as a unit of taxation. The Hundred was led by a hundredman, or hundred reeve, who was an agent of the earl. The hundredman’s duty was the same as the earl, but on a much smaller scale. There was also a Hundred court, which met every four weeks and conducted administrative and legal duties similar to the shire court.
The lowest level of public court was the borough, or village, court. The borough head was called a royal reeve, or port reeve. They focused their attention on the villages. The royal reeve was assisted by borough councils and met three times a year.
Notification of Grievance
The first step in the Anglo-Saxon court was formal notification of the case to be given by the plaintiff to the defendant. The plaintiff was to gather a witness and go to the defendant’s home in broad daylight, advise him of the charge, and demand his presence in court on a specified day.
Court Appearance and Outlawry
The next step of the process was to compel the defendant to appear in court. It was not uncommon for one’s adversary to refuse to attend court. If the defendant would not appear, he would be summoned twice more to court and would have fines levied against him for each failure to appear. After the third summons, the accuser would again go to the defendant’s home with a witness and seize some of the defendant’s goods, typically cattle. Often the goods were held until the defendant appeared in court. Sometimes, however, the plaintiff kept them as payment. If this method failed to get the proper response, then the defendant might be outlawed. Outlaws were denied any privileges of the court, their goods could be seized, and they could be killed on sight.
If the defendant appeared in court, the next step in his trial was pleading. Pleading was a formal dispute designed to advise the court of the grievance. The plaintiff would present his case under an oath of good faith. A promise of payment was essential if it was discovered that the plaintiff made a false case. He also had to produce a group of friends called a secta to prove his sincerity.
Once the case had been properly presented, the defendant was forced to make a sworn denial. The presentation of the denial was required to be in a set form with complete verbal accuracy. No corrections or stammering was allowed. A legal proverb stated, “He who fails in a syllable fails in everything.” The purpose for this was because the Anglo-Saxons believed that a man swearing falsely before God would be unable to speak without falter.
Preliminary Judgement and Trial
The judge would make a preliminary judgement to one of the sides in the dispute. The side awarded the judgement was allowed to substantiate his claims in a manner stipulated by the court. During the trial, the winner of the preliminary judgement may be asked to produce impartial evidence or witnesses to the offense. Often they only needed to gather together a designated number of people to swear on their behalf. If the offense was serious, the accused may be forced to submit to an Ordeal. An Ordeal was a trial against God. The accused would be wounded in some manner, usually by being forced to carry a piece of hot iron in his bare hands or by pulling a stone from boiling water. The wound would be inspected in three days and if it was healing properly, then the accused was declared innocent. Also, trial by combat was not uncommon. The defendant and plaintiff were forced to face each other in battle and the victor would not only win the combat, but also the court case.
Once the trial was completed, the court would make judgement. If the trial showed the defendant to be innocent, then the plaintiff was forced to pay a fine for his false claim. If the charge had been proven, then the defendant faced imprisonment, corporal punishment, or monetary restitution. Corporal punishment could result in the dismemberment of the defendant or even death. Monetary restitution was the judgement most commonly used. These monetary fines were referred to as wergeld and wite. In the Anglo-Saxon court there were normally no appeals and all judgements were final.
Common Law versus Civil Law
The primary characteristic of English common law, which was being formed in the Anglo-Saxon period, was its reliance upon the courts to create the laws. Whereas the Roman civil law system relied upon a set legal code that explained each possible offense, English common law had no such code. Common law relied upon the courts to make decisions on an individual basis and apply those decisions to like cases in the future. Another aspect of common law was the lack of professional lawyers. English proverbs held that, “The law was buried in the breast of every Englishman.” This lack of professional lawyers attributed to the lack of law codes, thus ensuring that custom would dictate the future of law in England.
While the judgements of the early common law system appear to be primitive, there were elements of advanced ideas mixed in. During this period, the idea was formed that the criminal, especially in violent offenses, owes something to society as well as the injured party. Also the idea of fines for failure to appear in the shire court shows the development of the concept that the State could be offended.
The theory of English common law owes much to tradition. The evolution of common law made progress throughout the Middle Ages and into the 20th Century. Eventually, a professional legal system was established, along with civil law codes similar to the Roman system. Common law is not necessarily considered an advance in legal ideas as much as a divergent path for the development of advanced systems.
American Legal System
In May of 1607, Captain John Smith founded the first permanent English settlement in America. The colonization of the New World proceeded quickly and soon thirteen separate colonies clung to the coast of America. The colonists brought with them their ideals and traditions. Included in those traditions was English Common Law. The settlers found themselves in a predicament. The harshness of the New World left little room for the complexities of English law. Instead, laws were made by necessity and based strongly on the special problems that faced the pilgrims.
A single ruling group controlled each settlement. This group was typically made up of a governor or officers from the company holding the charter. As a different group controlled each colony, so too did different laws control the settlements. Geographical isolation, absence of outside control, and the individual character of each colony led to the development of the diverse legal systems.
Colonial criminal law was very harsh and severe. There was no division of labor that allowed imprisonment for crimes and few people were wealthy enough to afford restitution. The idea that no man should be punished for vague or unclear laws led to the development of The Laws and Liberties of Massachusetts. Written in 1648, this document was the first in American history to plainly write down laws.
Punishment in the colonies took on a different tone than those found in England at that time. The colonials also favored open forms of punishment such as public whippings or the stocks. Massachusetts’ law stated that a man convicted of his first offense of burglary would be branded on the forehead with the letter B. If convicted of a second offense, the burglar would be whipped and a third offense was punishable by death.
As the colonies began to hate the rule of England, they banded together. They eventually formed the Continental Congress and declared independence from England in 1776. The first idea of a confederation of states was detailed in the Articles of Confederation written in 1777. Those articles were replaced the following year by a federal constitution.
The United States Constitution held many new ideas on government. One of the most important of those ideas was the separation of powers. The government was to be divided into a legislative branch, which would be elected and make laws, an executive branch, which would run the government and enforce the laws, and a judicial branch, which would rule on the laws created by the legislature.
Some of the creators of the new government wanted to discard English common law in favor of brand new American laws. However, English law was never in danger. Many of the heroes of the revolution were common law attorneys such as John Adams and Thomas Jefferson. The new states ended up picking and choosing the laws, abolishing those they felt unfair and unjust and retaining those laws that worked within American society. From this point on, laws in the United States would be made by elected officials instead of by imperial decree.
The Civil War
The country’s growing pains were far from over. As the United States entered the middle of the 19th Century, a move to reinvent court procedure was underway in New York. The Field Code, named after one of its staunchest supporters, David Dudley Field, was a complete code on civil proceedings. This code was in sharp contrast to the common law background of court proceedings. The Field Code has been called the “death sentence of common law pleading.”
The beginning of the Civil War marked the introduction of Roman-type law into the United States. In 1861, after years of threats the South seceded from the United States and created the Confederate States of America. Ironically, the Confederacy adopted a constitution very similar to the one used by the United States.
The Civil War turned the legal system upside down. Common law heritage still existed, but the introduction of codified laws and the creation of a much stronger central government led to a new era in legal reform. A profound change had occurred not only in the legal system and government of the United States, but also in the attitudes and culture of the citizens as well. Prior to the Civil War, the leaders and lawmakers looked for ways to utilize the country more completely. After the Civil War, the goals of the administrators were to control and regulate the nation. The American legal system, as it exists today, owes its birth to all of the systems that came before it.
The Criminal Justice Process
The criminal justice process in the United States is confusing to the uninitiated. The process facilitates and manages crime and those who commit crime. The process involves many different agencies of the legal system, because in this process people are charged, tried, convicted, and sentenced for crimes.
The police control the first part of the criminal justice system. Specific police procedures will be discussed in-depth in Chapter Six. Briefly, the police are responsible for the pre-arrest investigation, the arrest, and the booking of the person responsible for the offense. The rest of the process involves the court where the individual will be tried.
A person’s first involvement with the court system is at the initial appearance. In a reasonable time after the arrest, he is brought before the judge and given a formal notice of the charges against him. He is advised of his rights and bail (the amount of collateral the arrested person is required to provide to be released from jail) is set. At this time, the judge will read an affidavit listing the evidence in the case. If the evidence does not warrant an arrest, the person charged is released and the matter is dismissed.
In some states an initial appearance is not held and the court goes directly to a preliminary hearing. The reverse is also true in some areas; an initial appearance is used in place of a preliminary hearing.
A preliminary hearing is utilized in some states to determine if probable cause exists for the arrest. In this hearing, the State presents its evidence along with a list of witnesses. The State may sometimes call witnesses during the preliminary hearing for specific testimony. The defense will then present their case and briefly state why they feel there is not enough evidence to warrant a trial. The judge decides if there is enough evidence to go ahead with the legal process. This hearing is more thorough than the initial appearance. Often defense attorneys will waive this portion of the process because they do not want the State to know their defense strategy.
Determination of Formal Charges
Grand juries are a holdover from English common law. In 1879, California’s constitution dropped the grand jury element and allowed the prosecutor to determine formal charges. In 1882, a man named Joseph Hurtado was convicted of murder in a California court and sentenced to hang. In an appeal, Hurtado’s lawyers said that he was denied due process of law because he had not been charged by a grand jury. The Supreme Court said that the grand jury system is merely a form of procedure and may be eliminated at will by the states. Today, eighteen states have no form of grand jury, twenty states use a grand jury for felony cases, and three use it for capital or life imprisonment cases. Only eight states use the grand jury system for all offenses.
In the states where grand juries are used, the process of determining formal charges is up to them. The case is brought before the grand jury and the evidence is presented. The grand jury is a fact-finding panel that does not determine innocence or guilt. They concentrate on the evidence of the case. If the grand jury determines that there is enough evidence, then they will return what is called a “True Bill.”
The True Bill lists the type of the offense, the specific statute violated, the nature and elements of the offense, and the time and place of the offense. It also contains the name and address of the accused, the name of all co-defendants, as well as the number of charges, and the signature of the foreman of the grand jury.
Once all of the preliminary facts of the case have been determined the actual trial can begin.
The arraignment is the first phase of the trial. The defendant is asked to enter a plea after the formal charges have been read to him. The defendant may plead “not guilty.” His rights are then read to him, he is provided counsel if necessary, and a determination of competency to stand trial is made. The defendant may also choose between a trial by jury or judge.
If the defendant pleads “guilty,” the judge must decide if the plea was given voluntarily and if the defendant understands the possible consequences. If the judge is satisfied, sentencing is scheduled. If the judge is not satisfied, then he may enter a plea of “not guilty” on behalf of the defendant.
Two other pleas are possible. A defendant may “stand mute.” This means that the judge will enter a plea of “not guilty” for the defendant, but gives the defendant some legal room to protest violations in the process. The other option is “nolo contendre,” or “no contest.” A plea of “nolo contendre” is similar to a guilty plea, but the defendant makes no admissions of guilt. This can be useful in the event of any further trial proceedings.
The next phase in the trial is pretrial motions. At this time the attorneys for each side make motions that will have an affect on the trial. The most common motion is called Discovery. Discovery means that each side must produce evidence and a list of witnesses to the opposing side prior to the trial. This allows each side to be prepared. Other common motions are for dismissal of the case based on legal grounds, the relocation of the trial venue to provide a fair hearing, and the suppression of any evidence believed to have been gathered illegally.
Choosing a Jury
The attorneys for each side now choose a jury. The Seventh Amendment to the U.S. Constitution gives the defendant the right to a trial by jury. The attorneys ask questions of citizens chosen for jury duty. From this pool of possible jurists, the counsel for each side tries to pick a jury they believe will be fair, open minded, and likely to return a verdict in their favor. Once the attorneys agree on the jurists they are sworn in.
The trial opens with statements by the prosecutor. He gives the jury an idea of what the case is going to be about and why the State believes that the defendant committed the crime. After the prosecutor finishes, the defense gives its opening statements. These opening statements tell the jury why the State’s case is flawed and why the defendant is innocent.
After opening statements, the prosecution presents its case. The State calls the witnesses for testimony and presents the evidence. The State’s witnesses are cross-examined by the defense. After the prosecution has introduced all of its evidence, they rest. It is now time for the defense to begin. The defense introduces its witnesses and evidence and when finished, the State gets an opportunity to rebut any of the defense’s claims. The defense is also offered a chance to rebut the prosecution’s claims before each side rests.
The final portion of the trial phase is the closing arguments. Both sides finish by summing up the testimony and evidence. They also have a final opportunity to convince the jury of the guilt or innocence of the accused. After the closing statements, the jury receives final instructions from the judge on the pertinent laws and statutes of the case. The jury then must make a decision and bring back a verdict of guilty or not guilty. A jury that is unable to come to a decision about the case is considered a hung jury. If this happens, the case must be retried with a new jury. The State also has the option not to retry the case.
Post-Trial Motions, Sentencing, and Appeals
After the jury has returned a verdict the final phases of the trial process begins. At this time, any post-trial motions may be made. The defense can ask that the verdict be set aside in the event of a guilty plea, or they may ask for a mistrial if there are any irregularities in the proceedings.
If the verdict is not guilty, the case is over and the defendant set free. If the verdict is guilty, then the judge must sentence the defendant. There are many guidelines used by the judge to aid him in sentencing. Mitigating or extenuating circumstances are taken into consideration along with the nature of the crime, criminal background of the defendant, and sentencing guidelines set forth by the legislature.
When the trial is finished and sentencing has been handed down, the appeals process begins. In capital punishment cases an appeal is automatic. In any other case the appeal must be requested by the defense. The appeal may be denied based on lack of merit. The appeals process is used to ensure that each defendant received due process of law when convicted. The appeals process sends the case to a higher court such as a state appellate or Supreme Court. That court does not look at the crime, but focuses on the legal aspects of the case and how the trial was conducted. The appeals court has the right to overturn a conviction if they find that the defendant’s rights were violated.
The Future of Laws
Law has always been closely connected to the geographical, cultural, and ideological aspects of the people who create it. In any given society, laws may be just or unjust, enforced or ignored, constructive or constrictive. The future of law depends upon the future of civilization.
As the world comes together through high-speed communication, transportation, and the Internet, more laws will be required to control the exchanges between the people of the world. As the law grows and evolves, so will bureaucracy. A world government would have a staggering number of laws that would require specialization to control. Each element of a person’s life would be recorded and scrutinized for violations; from wasting natural resources by flushing the toilet too many times, to infringing upon another’s right in cyberspace. New laws would need to be written to include cloned human beings and artificial intelligence. Would they be given citizenship or become slaves?
The concept of an interplanetary or intergalactic colonization poses an interesting question. What type of planetary government evolved to facilitate such a quest? A race would need to be technologically advanced to achieve intergalactic colonization. With the advancement in technology would come an oppressive number of laws. People might flee the center of civilization for the border planets or solar systems just as the pilgrims fled England for the New World in the early 17th Century. Freedom has an uncanny way of reinventing itself.
On a new planet, the colonists might find themselves streamlining the rules and procedures of the legal system they brought with them out of necessity. As American colonists learned many years ago, necessity makes law. However, as a civilization would continue to grow and faster-than-light communication becomes available, the pressures of administering to a large and diverse people would once again weigh heavily upon the legal system.
On close inspection, a pattern in the
evolution of law becomes apparent. As civilization grows and becomes more
centralized and comfortable, the law grows and becomes more unwieldy. When
civilization takes a step back to a more primitive and survival-oriented
culture, the law makes the same move backwards to a more usable and harsher
form. In a post-apocalyptic scenario, laws would still survive the near
destruction of man and they would become easier to enforce. Warrior chieftains
would administer punishment for violations of unwritten laws within a group.
Death would be the usual punishment. This type of law is much easier to
understand, but barbarism is less appealing than “Big Brother.” Only a truly
unique society would be capable of the balancing act necessary for an easy and
fair system of law.
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