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Most Important Characteristics of the U.S. Legal System

The origins of common law have been administered in English courts since the Middle Ages. Common law is based in custom and general principles and is embodied in case law. Common law constitutionalism is the theory that legal principles such as equality and fairness rest within common law, are "constitutive of legality, and inform or should inform statutory interpretation on judicial review" (Allan, 2001). Because the principles of common law are gradually settled through the assemblage of judicial precedents, common law is presumed to encompass the deepest values of the community and thereby, judges are therefore entitled to rely on these principles when they perform their rule of law duty and read down statutes to keep the administration in check (511). Common law serves as the precedent or can be applied to situations not covered by statutory law. Under the common law system, when courts make decisions and report those decisions regarding a particular case, the case then becomes part of the body of law and can be used at a later time with cases involving similar matters. Common law is usually understood as a theory about the rule of law and the role of judges as the "rule of law guardians" (Decent, 511).

Moreover, common law does not impact the federal system in that the federal government functions on the basis of a written constitution "through which the people delegate power to the government" (Hogue, 1986). However, federal judges have the ability to apply common law to cases involving people from different states when there is no federal law to address a particular situation or case. An example of common law heritage is how the U.S. Supreme Court's use of precedents in determining cases. The Supreme Court sets precedents that apply to future cases in the exercise of judicial review of particular case. Additionally, if a statute in one state is determined to be unconstitutional, the Supreme Court's decision is applicable to similar statutes in all the other states (Tribe, 1978).

The United States Constitution, officially adopted September 17, 1787, in Philadelphia Pennsylvania defines and establishes a contextual framework for the country's law and order. It addresses the need for the integration of the states within a unified legal paradigm. The constitution is considered the "supreme law enforcer" of the United States (Borade, 2010). The Constitution provides the foundation of legal authority and serves as a guideline to the U.S. government. The constitution creates the three branches of government, explains their functions, and establishes a system of check and balances in order to prevent any one branch from becoming too powerful. The Constitutions further limits the power of the federal government in order to protect the rights of the states and the people. Further, there are provisions within the document that allow for changes to keep the constitution a living document.

The primary purpose of the Constitution is to offer a sense of direction to the organization of the three branches of government, their individual and combined powers; while reserving the rights of each individual state. The Constitution articulates the importance of civil liberties, jury trials, as well as the accountability of the government (Borade, 2010).

The U.S. Constitution establishes government based on the sharing of power between the national and state governments. The power sharing form of government serves to provide each state with its own constitution; however, all provision of state constitutions must comply and be in accordance with the U.S. constitution.

There are certain powers that are exclusive to the federal government inclusive of printing money, declaring war, establish a navy and army, entering into treaties with foreign countries, regulating commerce between states as well as international trade, establishing post office and issuing postage, and making the laws needed to enforce the constitution. As well, the states have exclusive powers to include establishing local governments, issuing various licenses, regulating intrastate commerce, conducting elections, ratifying amendments to the U.S. constitution, providing for public health and safety, exercising powers neither delegated to the national government or prohibited from the states by the U.S. constitution. Shared or concurrent powers between state and national government include taking private property with just compensation, spending money for the betterment of the general welfare, chartering banks and corporations, making and enforcing laws, borrowing money, building highways, creating and collecting taxes, and setting up courts.

However, there has been great criticism as to whether the separation of power equates to a balance of power. Federalism and the separation of powers both imply constitutional limits on state power through territorial or functional division of governmental roles and offices (Rokkan, 1999). "The separation of powers makes it nearly impossible for one faction to speak unequivocally or univocally on behalf of We The People" (Ackerman, 1993).

Although commentators and others have argued that the aforementioned characteristics of the legal system are the most important ideally, because of the impact on society as a whole, the impact of judicial policies via the Supreme Court is the most important characteristic of the legal system. There have been some very specific policies that have systematically changed the face of America and the legal system with regards to racial equality, abortion, and the criminal justice system.

One of the most impactful decisions that many point to was the Supreme Court's decision in Brown vs. The Board of Education as the driving force behind racial equality in the United States; although the executive branch and Congress were involved in ensuring implementation of the desegregation policy. But the courts were the ones who initiated a pursuit of national policy of racial equality. Some considered the courts initial decisions to be vague which led to easy evasion of the new policy. Many lower courts and the Supreme Court justices were persistent though, and kept the policy on the national agenda. There fortitude paid off with the passage of the Civil Rights Act in 1964; some 10 years following the Brown decision. The highly visible Brown decision paved the way for not only integration in the schools but desegregation in other facets of American life.

The 1973 Supreme Court decision in Roe vs. Wade ruled that a woman has an absolute right to an abortion during the first trimester of pregnancy;

that a state may regulate the abortion procedure during the second trimester in order to protect the mother's health' and that during the third trimester, the state may regulate or even prohibit abortions, except where the life or health of the mother is endangered (Allan, 2001).

There was a great deal of negative although immediate reaction to this decision, from all facets of society. Even the hospitals did not wholly support the decision due to the controversial nature. Even today, Roe v Wade continues to be a hotly debated issue, and is often played out between the two major political parties and delineated along those same lines; with Democrats generally expressing support for the decision, and Republicans typically expressing opposition. Although several attempts have been made, there has been no constitutional amendment passed to overturn Roe vs. Wade.

Another very important Supreme Court decision has been in relation to criminal due process including Miranda vs. Arizona, Gideon vs. Wainwright, and Mapp vs. Ohio. Miranda vs. Arizona ruled that police officers must advise suspects taken into custody of their constitutional rights, including the right to have an attorney present during questioning. The requirements of Miranda are exceptionally clear and to this day, many police department officers quote the ruling verbatim. However, there has been some criticism as there is no way of ensuring the ruling is explained to suspects to ensure they understand, and not just read to them. The Gideon vs. Wainwright decision provided that indigent defendants had to be provided legal counsel for trials in felony cases in the state courts. The impact of Gideon vs. Wainwright was much more widely accepted than the Mapp ruling; as some states had already been providing attorneys prior to the ruling taking effect. In addition, the policy guidelines in Gideon were more sharply defined then the Mapp decision. The Mapp rule required state courts to exclude evidence from trial illegally seized by the police, and extended the exclusionary rule from the national government to the states. The Supreme Court decision was not unanimous in the beginning, and there have been several subsequent Supreme Court decisions that have broadened the scope of legal searches, limiting the applicability of the Mapp ruling.

Question 2: Advantages and Disadvantages of the American Jury System

Most American's consider the trial by jury system to be a foundational component of the justice citizen. The jury system is designed to ensure each citizen's absolute right and the guarantee of an impartial and fair judgment, ideally. The American jury system is rooted in Medieval England, when as early as the 1100's, groups of 12 knights were assembled to resolve disputes over taxation and land titles (Landsman & Hastings, 1992). The group is said to have evolved into a jury with the ability to ask questions and give testimony regarding the accused and accuser. They also had the power to decide the merits of evidence and arguments. In the 19th century, judges gained greater control over juries and the role of juries became what it is currently; hearing evidence presented on both sides and determining the guilt or innocence of the accused.

The advantages of the jury system lie in the foundational elements articulated and supported by amendments and the Supreme Court. The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial" (Landsman & Hastings 1992). A speedy trial was emphasized to avoid the accused languishing in prison for extended periods of time prior to a trial, or have the accused fate put off for an indeterminate amount of time. Further, the Sixth Amendment guarantees every citizens right to an impartial jury. The intent is that the prospective juries not enter into the trial prejudiced one way or the other even before the trial is initiated. The Supreme Court ruled that no class of people (based on race, ethnicity or gender), could be summarily excluded from jury service. In addition, the accused have the right to be tried in the same location where the crime was committed, to be informed of the charges against them, and they have the right to be confronted with the witnesses that will be testifying against them, in order that a proper defense can be prepared.

Moreover, the Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life and limb" (Landsman & Hastings, 1992). This double jeopardy clause means that no one can be tried twice for the same crime by either the state or federal government. However, it does not mean a person may not be tried twice for the same crime if that crime has indeed violated both state and national laws. In addition, the accused cannot be compelled to testify against themselves. The fact that someone elects to not testify on their own behalf may not be used against them by the judge or jury. This effectually supports that the burden of proof is on the state and the accused are considered innocent until proven otherwise with an evidentiary basis beyond a reasonable doubt.

The Fourth Amendment to the constitution maintains that due process ensures that no evidence procured from an illegal search and seizure can be used against the accused during trial. This ruling was designed to eliminate any incentive for police working in cooperation with the state to illegally obtain evidence.

With regard to the jury trial, at the federal level, 12 jurors have to render a unanimous decision. The criteria at the state level applies only to the most egregious and serious crimes. There are a number of states where the jury can be comprised of less than 12 persons and a unanimous verdict is not required.

Potential jurors are summoned to court and questioned in open court regarding their general qualifications to serve. Both the prosecutor and defense attorney are able to raise questions in an effort to determine if the juror is potentially biased or prejudiced in some way; as well as to determine if the juror is capable of rendering an impartial decision. This is both an advantage and a weakness of the jury system. The advantage of this process lies in the fact that jurors are openly questions and thereby openly selected. This may serve to eliminate any clandestine arrangements between the prospective juror and either the defense or prosecuting attorney. Another advantage of this process is that the number of challenges or causes for dismissal of a juror is limited; with the judge ultimately determining if the causes are valid. The disadvantage in this part of the process is that there really does not have to be 'credible' evidence of a juror's inability to serve, and there are times when arbitrary reasons can be given to eliminate a potential juror to avoid the real reason for elimination being made obvious. For example, a juror can be eliminated because of occupation but the real reason they are challenged is due to race or gender; with one side effectually attempting to move the jury closer to the demographics of their client.

The role of the jury during trial is of a passive observer in the sense that they are to listen attentively to the case that is being presented and then reach a decision based solely on the evidence that is put before them. Juries are typically not allowed to raise questions of the witnesses or the judge, nor can they take notes during the proceedings. These 'rules' regarding jury behavior is based on traditional American court practice vs. statutory limits. The jury receives instruction regarding the law from the judge and how the law is to be applied. During instruction, there are times when the judge may have to explain not only the charge as assigned by the state based on their evidence, but also lesser charges that may apply as well. In addition, the judge must remind the jury that the burden of proof in on the state and that the accused is presumed innocent. The jury is reminded that if there is reasonable doubt as to the guilt of the accused, they must render a not guilty verdict. This is one of the weaknesses noted in the jury system as a number of cases have been overturned on appeal due to faulty jury instruction. Moreover, what is reasonable doubt? What one person considers reasonable may not be reasonable to another. There is no cut and dry definition of reasonable doubt that can be effectively and effectually applied across the board to ensure 'fairness' in verdicts. Regardless of the instructions given, and the efforts taken to secure an objective jury, there are no insurances that prejudice or bias will impact a juror's decision.

The jury deliberates the facts of the case in absolute privacy with no outside observation or participation in the process. Jurors are able to request clarification during deliberation as it relates to clarification of legal questions from the judge. The jury may also look at times of evidence or portions of the transcript but nothing else. This part of the jury process has advantages and disadvantages as well. The fact that law requires the jury to make their decision based on the information and evidence offered during the trial only is designed to ensure no other ancillary information is taken into account. However, the fact that jurors, who come from a variety of backgrounds and educational levels, cannot consult other potentially helpful tools such as law dictionaries, opinions from experts, or other legal writings can be a tremendous disadvantage to the accused. If for some reason the instructions from the judge were not clear, for example, and if parts of the trial some jury members may not have understood, how then are they in a position to make a decision that could significantly impact the life of the accused and in some cases the community at large?

When the jury reaches a decision based on the voting of the members, then they come back into the courtroom for the announcement of the verdict. If however, the jury has not reached a decision and deliberation carries over into nightfall, the jurors are then sent home with direct instructions to neither discuss the case with anyone or watch television or read newspapers about the case. In some high profile cases, the jury is sequestered by the judge and kept away from the public. This is another component of the jury system that has weaknesses; although sequestering a jury has less notable weaknesses. In the case of jurors being sent home with firm instructions, what processes or procedures are in place to ensure they adhere to said instructions? This provision is based on a system of honor that cannot be verified in the way it currently stands. Although jurors take an oath to uphold their end of the bargain, who is to say that they don't watch television, inadvertently see something about the case on the internet, or discuss the situation with friends or loved ones? If they did commit such an infraction, most would not admit to it for fear of causing a mistrial or being kicked off the jury. There are no guarantees that members of the jury are not exposed to additional information once they are allowed to leave the confines of the courtroom.

In the case of juries being sequestered, the court system has far greater control over the kind of information jurors are exposed to, but this safety measure is only utilized in high profile cases. One of the reasons for this is the fact that jury sequestering can be cost prohibitive, particularly if deliberation lasts several days or even weeks.

In the event the jury is deadlocked and cannot reach a decision, the judge can instruct them to continue deliberating in an effort to reach a verdict. However, if the judge is convinced that the jury is hopelessly deadlocked then a mistrial can be declared and the jury dismissed. Again, there are advantages and disadvantages to this part of the process. For example, in the case where the jury is initially deadlocked and the judge instructs them to go back and try it again. What if because they are tired, or want to go home, or don't care anymore, they rush to a decision? On the other hand, how does the judge determine that a jury is hopelessly deadlocked? Is it because they say so? How can that be proven?