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

Friday, December 2, 2011

What Happens in a Court Case? A Genealogical Inquiry

A major aspect of our government/legal system is the U.S. Court system. Our court system is basically adversarial. That means the parties to a court case usually have opposing claims and that their claims may be decided by a judge or jury and not necessarily through arbitration or settlement. The parties to litigation may or may not be represented by legal counsel, usually a licensed attorney, but their are some exceptions. To find relevant documents genealogists not only have to be aware of some of the current rules and regulations relating to court cases but also may need to know how individual courts may have operated historically. Although the basic structure of our court system has changed slowly over the years, the rules of the courts have changed considerably in the past and continue to change rather rapidly, and in some case dramatically.

The following discussion is intended to be an outline a full history of the courts in the United States could be a multi-volume series. As I continue to write, the basic point of these posts is to indicate the wealth of genealogical information that is presently locked up in legal documents of all kinds, some of which is seldom referred to or used by genealogists.

Also bear in mind, that individual court procedures and the terms used by the courts for different documents filed can and do change from time to time. For example, a specific criminal complaint in some jurisdictions historically or even presently may have been called a "bill of particulars" however this term is no longer used in some jurisdictions. There is a difference between "the law" which can be either based on written statutes passed by legislative bodies and the law of the court, which is based, in our court system, on previously decided cases. This principle is called stare decisis or rulings based on case law.

The first major division in types of cases heard by our courts, is between criminal law cases and civil law cases. All criminal cases are brought by some governmental entity. The criminal lawsuits always have a name that involves a governmental subdivision as the complaining party (plaintiff) and the accused criminal, the responding party or the defendant. All criminal cases involve a judgment that could be either a fine or incarceration (jail time). Civil cases involve claims by private parties although a governmental entity could be a defendant. As a genealogist, you may find ancestors involved in both civil and criminal law cases. Do not discount the possibility that even one of your more distinguished ancestors may have been involved in a criminal case, maybe not as the defendant but as the complaining witness.

Here is how a criminal case proceeds. A crime is committed. How do we know that a crime has been committed? Because some law, statute or regulation was violated. Criminal acts are all defined by law and for many hundreds of years, this law has been written in the U.S. and before that in the European criminal codes of the various countries. What is or what is not considered criminal activity is determined by laws enacted by the ruling entity. In the case of the U.S. both today and historically, these are the various legislative or parliamentary bodies, from the state legislatures, town councils, county supervisors, the U.S. legislature, English parliament or whatever. Also historically, kings and other rulers got into the act making their own laws.

After investigation (or at the scene of the crime) the suspect is apprehended. An arrest occurs whenever a person is detained by the law enforcement officer with or without a formal charge. A person may be arrested and then released or arrested and detained. Depending on the type of court and the charge and also depending on the historical time period involved, a person could be or could have been detained for a considerable period of time before formal charges were brought. There are two ways a criminal charge can be made, through an information or indictment. An information is a form of criminal complaint filed by a law agency, usually a county, state or federal district attorney. An indictment is a charge made by a grand jury. The decision to file a criminal complaint is not usually made by the law enforcement agency (sheriff, police, marshal etc.). The decision is made by the legal adviser to the jurisdictional entity, as I mentioned, the county attorney, state attorney general or federal district attorney (or one of the attorneys working for the office).

Once a person has been formally charged with a crime. In our present legal system there are all sorts of time limits on the steps that must occur. Historically, these time periods were either non-existent or much vaguer than they are today. At the beginning of these procedures the person is brought into court and has the charges made read at which time the person has make a plea of guilty or not guilty.

OK, now we need some time out. This is a very general outline of a criminal proceeding. From a genealogist's standpoint, at every step there is some kind of paper created reflecting that stage in the process. A huge number of these documents make their way into permanent court records. One of the things that has changed considerably over the long history of law are the legal procedures as compared to the laws. It is important, as you begin to do research in legal/governmental documents, that you take the time to find out the general nature of the procedures involved in the particular area you are researching. Your failure to understand what you are looking at may cause you to seriously misunderstand what happened. I cannot tell you how many times I have been in court with a client and sat through a hearing before a judge and when we walked out of the court room had the client ask me what happened. Sometimes when I was learning about the law, I could read a court case several times before I could figure out what the court had done and what effect the decision had on the parties.

It is also very difficult to follow the identity of the parties. Some people appear in court in the litigation, who are not parties to the lawsuit. For example, witnesses may give testimony but not be part of the action. Sometimes it is hard to tell the identity of the parties from what the court records of the action.

Not all criminal cases (and relatively few civil cases) ever proceed to a trial. Trials are the exception rather than the rule. In criminal cases, the defendant may change his or her plea, that is decided to plead guilty rather than not guilty. The case would then proceed to sentencing without a trial. In its most basic form the criminal case goes as follows:

Criminal complaint (information or indictment) > Arrest > Plea (presently called the initial appearance and plea of guilty or not guilty) > Pretrial discovery > Trial > Sentencing (or dismissal if the defendant is found not guilty) > Post-trial proceedings including appeals.

This is a really simplistic way at looking at the court procedures but remember at each level of the proceedings there are documents created. Next, more about criminal procedure and cases.

1 comment:

  1. Thanks for this info. I had a GGrandfather who was arrested in 1922 for "transporting intoxicating liquors". I found a newspaper article about it and would love to learn more. Any suggestions of how I would research this in the courts would be appreciated.