Court Procedures

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Researching Court Records

This article is part of a series.
Overview of Court Records
Court Procedures
Equity Cases
Divorce Actions
Types of Court Records
List of Court Record Types
Researching Court Records
Selected Proceedings and Courts
Justice of the Peace Courts
List of Useful Court References

This article originally appeared in "Court Records" by Sandra Hargreaves Luebking, FUGA, Loretto Dennis Szucs, FUGA, and Arlene H. Eakle, Ph.D. in The Source: A Guidebook to American Genealogy

Court procedures differ slightly from state to state, and more than three centuries have seen the evolution of American court procedures, yet many procedures date from the Middle Ages. On 1 June 1872, federal courts changed their procedural rules to conform to those of the states within which they were located. An overview of civil, criminal, and equity actions will define basic words and illuminate what is happening in court minutes and on the dockets.<ref>Based on Clarence N. Callender, American Courts: Their Organization and Procedures (New York: McGraw-Hill, 1927).</ref>

Starting the Action (Pleadings) in Civil Cases

Every civil action begins with the issuing of a writ, in modern times usually a writ of summons, a command that notifies the defendant to appear before the court to answer a charge. The clerk, upon request of the plaintiff or an attorney, issues the writ under the court's authority.

The court directs the sheriff or constable to serve the initiating writ on the defendant. In most jurisdictions, the defendant must receive it personally, but in a few, the sheriff can leave it with an adult member of the family or with someone in charge at the place of business. The usual procedure is for the sheriff to produce the original writ, tell the defendant its contents, and provide him or her with a copy. The sheriff will then make out a return, usually on the back of the original writ, stating where, when, and upon whom he has served it, sign it, and return it to the clerk of the court on or before the return day specified in the writ. The writ and the return are filed in the case file or packet as part of the permanent record of the case. In most cases, an action cannot proceed until the writ has actually been served. The notable exception is in divorce actions. The writ may be published in newspapers when the defendant is outside of the court's jurisdiction or when his or her whereabouts are unknown. In some cases, property may be seized by the sheriff to compel an absent defendant to appear.

The next step is the filing of the plaintiff's claim. This pleading may be called a statement of claim, a complaint, or a petition. The purpose of the declaration or petition is to explain clearly the plaintiff's reason for taking action so that the defendant knows the nature of the claim and so that there is "a cause of action sufficient in law" to justify a judgment in favor of the plaintiff. The declaration and notice are filed with the court clerk, and a copy is served on the defendant or his attorney. In some jurisdictions, only the attorneys exchange pleadings, not filing them with the clerk of the court until they have been completed or until a judgment may be entered.

The defendant then counters with an answer or affidavit of defense admitting or denying the various claims contained in the plaintiff's declaration. It may also present new information bearing on the defense. It is filed with the court clerk, and a copy is served upon the plaintiff or his attorney. If the defendant fails to file an answer within the time allowed by law, the plaintiff is entitled upon motion of the court to enter judgment by default for "failure to file and answer." The clerk enters the judgment in the court records, and the court provides for the enforcement of the judgment.

When the declaration and answer have been filed, and if the case has not been judged before, then it is "at issue"-ready for trial before a judge and jury. (In many courts, the parties can waive a jury trial and elect to have their case tried before the judge alone.) The case is then scheduled on the court's docket. In earlier times, there could be repeated exchanges of pleas between the plaintiff and the defendant, each exchange with its own name, like reply or replication, rejoinder, sur rejoinder, and rebutter.

Most jurisdictions encourage litigating parties to settle their case out of court to save time and money. When it happens, the clerk usually notes it in the court records. Some jurisdictions require that civil cases under a certain amount be brought before a court of arbitration or conciliation before a trial. At this point, there are certain motions that can be entered to delay (stay) judgment. These motions pertain to points of law (legal technicalities). A record of them and their disposition is also part of the case file.

Starting the Action (Pleadings) in Criminal Cases

When a crime has been committed, the offender must be brought, by some legal process, before a tribunal to hear the complaint and take appropriate action. Before the days of organized law enforcement, in any locality, the citizens of a community were responsible to see that offenses were reported and the alleged offenders physically brought to court (presentment). Presentment could be made by private persons, constables, town watchmen, selectmen of the town, elected town presenters, grand jurors, government officials, paid informers, church wardens, tithing men, or by the court itself. For example, during the seventeenth century, the English tithing system was established in some colonies for short periods of time. Every male over age twelve was enrolled in a tithing (usually ten households), and one was appointed tithing man, responsible to inspect the households under his supervision regularly so that "sin and disorder may be prevented and suppressed," to see that everyone attended church on Sunday and kept the day holy, retired at curfew, and did not play cards or engage in other illegal gaming. The tithing man had to report offenders to the court or be fined.

Today, the injured person, or the state acting for society as a whole, enters a complaint. The court orders the offender to be summoned, usually by means of a warrant or writ of capias issued to an authorized officer (the sheriff, marshal, or other police officer). The officer takes the person named in the writ into custody and usually holds him or her in jail. This officer must produce the accused before the court at a specified time for a hearing. If the apprehension was legal, the person will be recommitted to jail or released on bail to await trial. If not, he or she will be released unconditionally.

Bail is the posting of a bond, a written promise to pay a set amount of money if the accused does not appear in court, and a cash deposit, surety bond from an insurance company, or pledge of property may be required to guarantee payment. In default of bail, the accused is committed to jail and kept in custody until the case is disposed of by trial or appeal. Capital crimes may have no provisions for bail.

If the crime is minor, the matter may be disposed of by a summary trial before the magistrate without a jury. For example, if the police arrest a vagrant upon the street without a formal complaint having been made, the magistrate decides both facts and law. The amount of the fine or the type of punishment a magistrate may impose is limited by statute.

In most cases, however, the next step is a preliminary hearing held before a magistrate to determine if the evidence against the accused is sufficient to justify holding him or her for trial. Guilt or innocence is not the issue. Witnesses are often called to testify, and the court, in some jurisdictions, requires the testimony to be written, attested, and signed by the witnesses.

The magistrate must prepare a copy of the hearing and the case, usually within a limited number of days, to send to the court where the trial is to take place. It contains the name of the defendant, the nature of the charge, the names of the prosecutors and witnesses (sometimes their evidence), the information upon which the arrest was made, and the bail bond.

In earlier times in the case of murder, the coroner held an inquest before a jury, which heard evidence and rendered a verdict about the cause of death. The coroner then provided a return to the court based upon this semi-judicial investigation. This report was usually presented at the preliminary hearing and became a part of the court record. In recent years, coroners' records have come under the jurisdiction of the state or county medical examiners and no longer include a determination of guilt set by an inquest jury.

In the next step, the defendant is brought before the court (arraigned), either to plead guilty and be sentenced at once without further trial or to plead not guilty and be bound over for the trial.

Collecting Testimony

At the point when the trial is scheduled, civil and criminal procedures are similar. Witnesses are summoned by subpoena to appear at the trial on behalf of the plaintiff or the defendant. If witnesses must bring documents, the writ describes them. The sheriff, marshal, or constable must serve the subpoena directly on the witness and submit a return to the court. If the witness fails to appear at the time and place specified, a bench warrant is issued on the spot for his or her arrest, and an officer of the court goes out to find the witness.

A representative of the court interviews and takes depositions from witnesses who live outside the jurisdiction of the court or who are ill, maimed, or unable to appear in person. Sometimes the testimony consists of answers to written questions (interrogatories) prepared by the court and forwarded to a local court where the witness resides.

These written statements must be attested, and the witness must sign them. Depositions, and any interrogatories, become part of the permanent record of the court. In early cases, these depositions may be the only written accounts of what the witnesses actually said. They are especially valuable if an out-of-state family member is providing testimony needed to probate an estate or divide a piece of property.

The Trial

Trial procedures may be prescribed by law or by local custom. The jury is selected by drawing names from a list prepared at the beginning of the court term (these lists are recorded in the minutes) or by summoning "twelve good and lawful men, housekeepers" as their names appeared in rotation on the tax rolls. Each party has the right to challenge jurors and dismiss those it feels are "prejudicial to the case." The jury is then to perform its duties impartially, based on the evidence presented. Where jury trial is waived, the judge considers the case. A non-jury trial will usually be shorter, with fewer documents.

Presenting the case includes statements by the plaintiff and the defendant (or their attorneys), testimony from the witnesses and cross-examination, introduction of written depositions, review of documents or other exhibits before the court, summation of the case with a parting speech to the judge and/or jury by each side, and instructions to the jury on the points of law at issue. At this point, the jury or the judge retires to consider the case and arrive at a verdict. The verdict must be unanimous.

Rendering judgment is the judge's responsibility. The judge relies on the verdict of the jury or personal deliberations to arrive at a decision. In early days, verdict and judgment were given the same day. More recently, there may be up to ninety days between the two. The clerk of the court is required by law to record the names of the parties, the judgment, amounts of money recovered (if any), and the time allowed for meeting the judgment. For example, a money award for damages to crops and fences by a stampeding herd of cattle, to be paid within sixty days, will be entered in the court record. A receipt for payment is often filed with the court, and the clerk may paste it at the top or bottom of the page where the judgment is recorded in the case file or packet.

Before 1865, a jail sentence was unusual. Local jails served only to hold the accused for trial. Criminal courts were often called "gaol delivery" because they emptied the jails of prisoners. Instead of "doing time," the convicted person might be whipped, pilloried, submerged in cold water, forced to labor on a public project, or sentenced to pay fines and damages. Capital crimes brought death or banishment.

A bankruptcy filing from the U. S. District of Michigan found at the National Archives'Great Lakes Region. From a glance at the list of assets, one might assume that this individual was well-read and had led a fairly comfortable existence to this point.

Imprisonment for debt was common in most jurisdictions during the colonial period and even later. Eventually, the courts determined that incarceration rendered a debtor incapable of working to repay the debts. With this realization, more debtors faced fines than prison. Some records of sentencing for debt (or later bankruptcy, see the image at right) include lists of creditors and assets. An excellent history of how the courts dealt with debtors will be found in Debtor's Dominion: A History of Bankruptcy Law in America.<ref>David Skeel, Debtor's Dominion: A History of Bankruptcy Law in America (Princeton, N.J.: Princeton University Press, 2001).</ref> Consult the reference section under Bankruptcy and Debt for other studies.

Enforcing the Judgment (Execution)

Once a judgment is rendered, the court commands the sheriff, marshal, or constable to carry it out. Some courts ordered imprisonment or labor until the judgment had been met.

In the case of debt, imprisonment was often useless because the person in custody had no way to earn the money. "Judgment-proof" debtors-those certified by the court as unable to pay-could laugh at creditors.

If the judgment debtor owned property, the court issued an order for the sheriff to seize and sell it (known as "attachment") to satisfy the creditor's claims. In some jurisdictions, the property must be taken into custody before judgment is given as security that the creditor can recover if the debtor fails to make payment. A companion action is distraint-property is taken into custody to impel the debtor to come to court. When the person appears in court, the property is returned. Personal property is actually brought to the courthouse, and the officer in charge makes an inventory. In some jurisdictions the creditor must post a bond for the value of the property attached to indemnify the officer against unlawful seizure.

Seizure of real property consists of recording a writ against the title, called a judgment lien, and giving notice to the person in possession that the land has become court property and cannot be disposed of or sold by the owner. Homesteads (dwelling house and a small piece of garden property), pensions, bankrupt property, property in hands of guardians or trustees, cemeteries, tools of trade, and insurance are usually exempt from attachment.

If the debtor fails to make payment, the sheriff takes control of the property and posts it for sale by publicly advertising on placards, in newspapers, by town crier, or by Sunday notice in church. Then the property is auctioned to the highest bidder, and the proceeds go to the creditor for redress, costs, and damages.

Each step generates court records. Brief summaries appear in minutes, orders, and judgments; documents, testimony, and exhibits (plus copies of orders), writs, judgments, and notices will be found in the case packets.

New Trials and Appeals

A litigant, usually the loser but sometimes the winner if he or she received less than petitioned for, can appeal the case within a specified period of time. Each state determines by law which court may hear which appeals. Federal judiciary acts provide similarly on the federal level. Some states have only one appeals court; some allow only specific cases to be appealed; and some place a limit on the amount of damages an appeals court can handle.

When the appellate court issues a writ allowing the case to be heard, the litigants prepare briefs containing the facts of the case, errors committed, and reasons why appeal is sought. After printing became common, briefs were printed in multiple copies for the judges, attorneys, litigants, case files, and news media.

New trials or appeals are granted if the judge erred on the admissibility of evidence, the verdict was contrary to the evidence, the verdict was contrary to the law, the judge erred in the charge to the jury, and/or new evidence becomes available.

When errors occur, the case is tried only on the legal technicalities involved, not on the evidence offered in the trial. The judges consider the matter individually, then collectively, and render their opinions-usually in writing-at a later date.

If the court grants a new trial, the case is sent back to the trial court and the whole case is retried in accordance with rules laid down by the appeals court.



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