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
We should all be aware of the legal
procedure by which these actions are
The criminal procedure begins with:
1. a warrant for the arrest of a person.
(Remember how warrants shall issue in
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
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
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
Shane Flait is a writer and educator