How does the judicial system work?
Any of us may become involved in the judicial system
voluntarily and involuntarily. You may have witnessed
a car accident, may be involved in a divorce, may have
been sued in the course of your care of a patient. It
helps to have a basic understanding of criminal and
civil procedures and terminology.
court system is basically divided between civil and
criminal cases and there are many divisions within those
categories. Criminal cases can involve misdemeanor and
felony prosecutions. Civil cases can involve traffic
tickets, divorce, personal injury law suits, litigation
over business issues like contracts and landlord-tenant
issues, just to name a few. There are general procedures
followed in each kind of case.
prosecutions are cases brought by a government lawyer,
(e.g., county prosecutor for the county, Attorney General
for the state, or U.S. Attorney for the federal government)
on behalf of the People of the State of Michigan or
the United States Government against someone who has
been accused of a crime. Misdemeanors are crimes generally
punishable by jail terms of a year or less. Felonies
typically are crimes punishable by jail terms of a year
may be either issued by the prosecutor, in his or her
discretion, based on information provided by a police
agency as a result of an investigation, or handed down
by a Grand Jury. A group of citizens is formed as a
Grand Jury to hear evidence presented by the prosecutor
and they are asked to decide if there is enough evidence
to believe a crime has been committed and by whom.
the charges have been issued and arrests made, prosecutions
usually begin with the Arraignment. The Arraignment
is the opening stage of the prosecution in which charges
are read to the accused in open court before the judge
and the accused has the right to enter a plea at that
time, that is, to deny the charges, admit the charges
or stand mute. Arraignments are held to insure that
there are no secret charges being made against an individual.
The judge verifies that the charges have been read and
understood by the accused the accused has an opportunity
to respond at that time. Under our system, if the accused
does not enter a plea or stands mute, a plea of not
guilty is entered on behalf of the accused because everyone
in our system is presumed to be innocent until the government
proves her/him guilty. Arguments about bail are often
held at this time. Bail is a way to prompt accused persons
to come back for trial - money or property is pledged
to the court to insure the accused's appearance later
at trial. If the defendant fails to show, the money
or property is forfeited. Our Constitution guarantees
that reasonable bail not be denied accused persons.
The court will consider if it can release the accused
and be reasonably assured that the accused will come
back to court for the trial. Whether bail should be
granted and the amount required depend on a number of
factors pertaining to the likelihood that the accused
will return for trial. Factors like the extent of community
ties the accused may have, the presence of family, property,
business in the community and the seriousness of the
charges are all considered.
next stage in a felony prosecution is usually the Preliminary
Exam. The prosecutor is required at this hearing to
admit sufficient evidence to show 1) that a crime has
been committed and 2) that there is reasonable grounds
to believe that the accused committed the crime. The
reason for this hearing is to ensure that there are
good reasons for the accusation and that accused persons
are not being jailed and accused unnecessarily. The
hearing is a screening device to allow the court to
determine the reasonableness and substance behind the
charges. The hearing also allows the accused an opportunity
to see some of the evidence the prosecutor intends to
introduce at trial. The Fifth Amendment of our Constitution
guarantees that the accused cannot be compelled to testify
personally in a case against him.
the court finds that the prosecution has satisfied its
burden of proof at the preliminary exam, the court "binds
the defendant over for trial." At that point, the
court usually revisits the issue of bail and may revise
the amount or change its decision now that it has determined
that the accused will stand trial on the charges. A
trial is then held, unless the parties enter a plea
bargain. A plea bargain is an agreement between the
accused and the prosecution in which the accused admits
guilt in return for an agreed-upon punishment. The courts
are not required to accept the prosecutor's deal and
may impose a sentence greater than the one agreed upon,
in which case the accused usually can rescind the agreement
and proceed to trial. Plea bargains are arranged as
an alternative to the expense and uncertainty of trial
for both sides. If a trial is held, the prosecution
has the burden of proof, which means showing, beyond
a reasonable doubt, that a crime was committed and that
the defendant is guilty of the crime. The courts have
the power to command the attendance of a witness or
production of evidence by the use of subpoenas. The
prosecutor and the defendant's attorney are considered
officers of the court and have the power to issue subpoenas.
Subpoenas, considered orders of the court, cannot be
ignored. Penalties for failing to obey a subpoena can
include a finding of contempt of court punishable by
financial penalties and jail time for disobedience.
litigation is a lawsuit brought by one party against
other parties to resolve a dispute or correct a condition.
The goal of the case may be to recover monetary damages,
get divorced, evict someone, ask the court to order
someone to do something or refrain from doing something
(actions for injunctions). Parties to lawsuits may be
individual people, groups of people, companies and organizations.
The party bringing the lawsuit is the plaintiff - the
person or party being sued is the defendant.
are very expensive. Civil cases must take a back seat
to criminal trials. The court system is motivated to
do whatever it can to resolve civil cases without resorting
to time consuming and expensive trials needlessly. Indeed,
less than 10% of cases filed actually require a trial
to decide the dispute. To accomplish this, litigants
in civil cases usually have the right to pretrial discovery.
Discovery is a process by which the parties, through
various means, learn about the theories and evidence
their opponents intend to introduce at trial. The parties
can use discovery tools, like subpoenas for records,
requiring litigants to submit to independent medical
and psychological exams and allowing experts to inspect
and test and examine people, accident sites, allegedly
defective products and nearly anything else that is
relevant to the issues raised in the suit. Parties may
take pretrial testimony in proceedings called depositions,
in order to find out what a witness's testimony would
be at trial should the matter proceed that far. Depositions
proceed in much the same way as trial testimony is taken,
except in most cases the judge is not present during
the deposition. Witnesses may be represented by their
own attorneys and the parties to the case are invited
to have their lawyers present and participate in the
questioning. Witnesses may be subpoenaed to appear for
deposition, just like trial.
the parties learn more about their opponent's evidence
and arguments, the court usually employs various means
to stimulate settlement amicably and without the need
for a trial. The court may require them to attend settlement
conferences, during which time the parties may attempt
negotiations on their own or with the assistance of
the court. The court may require them to have a facilitated
settlement conference called mediation, during which
a person unconnected to the litigation and skilled in
mediating disputes serves as a go-between and attempts
to move the parties to a settlement. The court can also
require the parties to submit their case to case evaluation.
Case evaluation requires that the case be presented
by both parties in writing and in a relatively brief
oral presentation before a panel of three lawyers, one
who typically represents plaintiffs, another who usually
represents defendants and a third neutral. The panel
reads the summaries and hears the arguments and renders
a largely advisory opinion on the value of the case.
The parties have 28 days to accept or reject the opinion.
If both parties accept, the case is settled for that
amount. If a party rejects and does not improve his
position at trial, the court can order penalties equal
to the opposition's actual attorneys fees and costs.
case is also assigned a trial date. Because criminal
cases have priority and because civil cases sometimes
settle "on the courthouse steps," usually
several civil cases are assigned the same trial date.
It is not unusual for trials in civil cases to be adjourned,
or rescheduled to another date. Adjournments can cause
great anxiety and time consuming expense as parties
prepare literally and emotionally for trial, only to
be adjourned, sometimes at the last minute, to another
the parties have not settled the case and it actually
proceeds to trial, the parties start the case with opening
statements. The plaintiff goes first because the plaintiff
has the burden of proof. The burden of proof in a civil
case is a preponderance of the evidence, often characterized
by attorneys as merely 51%. You should note that the
burden in a civil action is different than the burden
of proof in a criminal case, which requires proof beyond
a reasonable doubt in order to support a guilty verdict.
The civil plaintiff puts in his or her case first, calling
any witnesses whose testimony is relevant and helpful
to their case. They can present the testimony of eye
witnesses and expert witnesses. Expert witnesses have
been described by well known trial attorney Michael
Tigar as witnesses, "who were not there when it
happened, but who for a fee will gladly imagine that
they were." Generally, only experts are permitted
to offer opinions in trials, and usually only on matters
deemed outside the experience and training of the average
juror. Other witnesses are restricted to just relating
the facts allowing the jury to reach its own conclusions.
the end of the trial a verdict is rendered by a jury,
in a jury trial and by the judge in a "bench trial."
The verdict itself has no force of law; after receiving
the verdict, the court is then asked to enter judgment
on the verdict, or sometimes, notwithstanding the verdict.
It is the Court's judgment which is enforceable.