Fundamental Law and Courts-Related: ARTICLE

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The Judicial Process - Where We Confront our Rights - or the Lack of Them
by Shane Flait (2010)

People discover what rights they actually have when they’re confronted by the state under criminal prosecution or under a civil suit. The body of law dealing with how to go to court and the rules of what to do is called Procedural Law. This article overviews both the civil and criminal processes.

When a crime is committed, i.e. breaking of a criminal law, the state seeks a suspect that it believes committed the crime and prosecutes him. A civil case is between two private parties and deals with a contract breakdown or a noncriminal wrong (a tort) committed by one against the other. Jail is not generally an option in a civil case.

Each person is under two jurisdictions under of our American system - that of the federal and the state in which the incident took place. There are specifically federal crimes (like kidnapping, and mail fraud) and state crimes (rape, murder, theft, etc.)

Some crimes can be picked up by federal law (drugs, and those involving interstate issues). Federal civil cases must involve either federal (constitutional) issues or the litigants must come from different states. Otherwise, your civil case will be tried in the state judicial system where you live.

We should all be aware of the legal procedure by which these actions are carried out.

The criminal procedure begins with:

1. a warrant for the arrest of a person. (Remember how warrants shall issue in our constitution!)

2. this is followed by an arraignment or indictment in which the charges against the person is made known to him and to which the state -as prosecutor- will, through the trial procedure seek, conviction of the person, the defendant, for charges made against him. The defendant has a like opportunity to defend himself against such charges.

3. A discovery process ensues during which both the prosecution and the defendant (with his lawyer) have a right to gather all available evidence and witnesses in preparation for a trial.

4. A pre-trial hearing is scheduled to clarify or possibly focus the issues for the trial. These days, about 95% of the time, a Plea Bargain arrangement is made here to pre-empt the need for trial. Plea bargaining produces more convictions but is a form of extortion and torture since often defendants who have not committed a wrong admit to one in fear of an ‘unfair’ trial judgment. Plea bargaining doesn’t make the system more efficient – just more unjust. It generally goes hand-in-hand with unfairness in the trial process.

5. Lastly, the trial – if no agreement - takes place where the prosecution must make its case beyond a reasonable doubt to the jury.

The civil case is analogous and starts with:

1. a complaint filed be the one who feels he was wronged in some way or in the breakdown of some contract. He is called the plaintiff, the other side complained about is the defendant.

2. The defendant answers the complaint to establish his position with regard to the issue of the complaint.

3. A discovery process takes place by both plaintiff and defendant incorporating the collection of evidence and witnesses, by means of depositions, production of documents, interrogatories, and affirmations on information relevant for the trial on the issues of the complaint.

Hearings may occur during this discovery process to either clarify or enforce discovery procedures or to temporarily make arrangements between the obligations of the litigants (plaintiff and defendant) until the matter is decided after the trial.

4. After discovery is completed, a pre-trial hearing is setup to focus the issues for trial –and eliminating some issues, perhaps. It’s at this stage that plaintiff and defendant may make an agreement between themselves that would pre-empt the need for a trial. This is most often, 90%, the case.

5. Lastly, a trial takes place, if no full agreement is made, where each side defends his position and requests determination of the matter by the judge -after the jury finds either for the plaintiff or defendant. The jury may help in deciding the nature and amount of award. If you may suffer the loss of a constitutional right-such as legal or physical custody of your child, the burden of proof against you -such as your fitness - must be clear and convincing.

But Family court allows no jury and ignores this standard of proof yet deprives fathers his parental rights, and much of his future income.  It’s a severe breakdown in our legal systems in the protection of our rights.

The losing party in both these processes, criminal and civil, can appeal to a higher (Appeal) court if he feels that the trial, the judgment, or procedures leading to it were unfair in some respect.



Shane Flait is a writer and educator