Some people eat, sleep and chew gum, I do genealogy and write...

Friday, December 2, 2011

The Mechanics of a Criminal Case for Genealogists

Current criminal law practices and civil law practices are entirely different. The case law, the statutes, the procedures and almost everything else is entirely different between the two areas of the law. Historically, there was not the same distinction. The same judge might hear both criminal and civil cases the same day. In most trial courts in the U.S. except for small claims and justice courts, judges are assigned to hear only criminal or only civil cases.

The distinction is most marked in the area of procedural rules. There are two different sets of rules, one for civil practice and one set for criminal practice. If you are doing genealogical research into court records it is extremely important to recognize the difference. It is one thing to find the records and it is another thing to understand what you are looking at. If you want to get an idea of the complexity of the Rules of Criminal Procedure, you can find the Federal Rules and the rules for each of the states of the United States online. For example see Federal Rules of Criminal Procedure.

Here is a brief outline of the different procedural steps in a criminal prosecution. In our modern practice many of these steps, but not all, can be waived by the accused.

  • The Complaint or Indictment - A statement of the charges against the accused.
  • The Arrest Warrant or Summons on the Complaint - An order to appear before the Court.
  • Initial Appearance - An appearance before a judge to determine the conditions of release or jail and to set bond, if any.
  • Preliminary Hearing - An evidentiary hearing to determine if there is probably cause that a crime has been committed and that the accused, now the defendant, committed the crime. If probably cause exists the accused is bound over to the court for an arraignment and trial setting.
  • Arraignment - An appearance before a judge to determine the plea, guilty or not guilty.
  • Disclosure - This is relatively new in the law, but both the prosecutor must disclose the substance of the case against the defendant. The defendant must give notice of certain defenses such as insanity. 
  • Discovery - In some cases the parties are entitled to take witnesses testimony in a deposition.
  • Pretrial Conference - The attorneys get ready for trial and discuss how the trial will be conducted with the judge.
  • Trial - Either to the court (judge) without a jury or to a jury.
  • Judgment or Verdict - Guilty or not Guilty
  • Sentencing Hearing - If found guilty the judge hears testimony about what sentence should be imposed.
  • Sentencing - The defendant is sent to jail, prison, released or made subject to whatever sentence is imposed.
OK, for all of you out there who were raised watching Perry Mason or Court TV, forget all you saw. Court proceedings are hardly ever as dramatic as TV or movies. In addition to all these steps in the proceedings, the parties can file motions, that is, documents to the court asking the judge to take some action or another, such as suppress evidence or bar witnesses from testifying. In large criminal trials involving major crimes, the number of documents filed can be huge.

For a genealogist, except for the fact that your ancestor's name might be on some of those documents, most of what you see in a court's criminal file is interesting but has very little genealogical value. There are some notable exceptions. Part of what you might find depends on the nature of the case. If your ancestor stole a horse, you might not learn too much. But if your ancestor was involved in the murder of a relative, you might find out a whole lot you might not want to know.

The documents to look for, if they appear in the court file, are anything having to do with disclosure or discovery. A deposition may be priceless if it has been transcribed. Affidavits are also very helpful as they commonly come from family members. If you can get a transcript of a trial or other hearings, these also may contain a lot of information about the accused and possibly his or her family. I think the most valuable documents can be a transcript of the sentencing hearing. At this hearing the court hears evidence that may mitigate the sentence.

As you go back in time, the court procedures and some of the names of the various documents and such change. But you might be surprised to see how little some of the court procedures and documents have changed over the last 300 years or so.

More whenever.

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