Judicial Systems

Although the core of judicial systems is the trial, pretrial practices dispose of most potential litigation. Social, economic, or political pressures or lack of knowledge or resources will inhibit most aggrieved parties from bringing suits. Even among those suits seriously contemplated or filed, most will be resolved by voluntary settlement, plea bargaining, mediation, arbitration, consent decrees, administrative hearings, or decision by clan, guild, village, market, business, or religious “courts” that either operate parallel to or are embedded in the official judicial system.

Access to trial is also typically narrowed by “standing” (only those who can show that they have been directly and seriously injured may sue the alleged wrongdoer) and other rules, such as a requirement that those in dispute with the government exhaust their administrative remedies before resorting to the judiciary or that suits be filed within a certain time after the injury or offense (statutes of limitations). In some legal systems, under certain circumstances, however, standing rules may be relaxed or not applied at all, for instance, when a party alleges that a particular statute violates constitutionally protected individual rights or some action harms the environment.

The economic, social, and psychological costs to persons brought to criminal trials is so severe, even if they are not convicted, that many criminal justice systems provide for some kind of “trial before the trial” to determine whether actual prosecution is justified, such as grand jury indictment, arraignment, or preliminary investigation by a judge.

Trial courts may consist of a moot or whole community sitting as judge, a single professional or lay judge, a panel of professional or lay judges, a mixture of professionals and lay persons, or a judge and jury. Practices may be designed to bring all factual and legal issues together at a single time and place to be resolved in an oral proceeding, or a trial may be a file of papers developed over an extended time period as written records of witness statements, investigative reports, and relevant documents such as deeds and contracts until final disposition occurs through the delivery of a judicial verdict in court.

Proceedings are typically governed by rules specifying who may participate in what order, rules of decorum, rules of evidence defining what testimony and documents will be admitted as sufficiently reliable, and relevant standards of proof such as the “beyond reasonable doubt” rule or the Islamic rule that conviction requires testimony of guilt by two witnesses. Confessions, either voluntary or induced by coercive practices, are a major feature of most criminal justice systems. Such systems are often classified as adversarial or inquisitorial depending on the degree to which the case is developed by the prosecutor and defense counsel or by the judges themselves. Both civil and criminal justice systems have historically varied enormously in the degree to which judges actively intervene in case development. In Imperial China, lawyers did not exist, and the magistrate was solely responsible for case development with even the parties playing little role except as severely coerced witnesses. In the United States, judges are expected to remain largely passive recipients of the lawyers’ presentations. In other systems such as the English, lawyers present the cases for each side, but judges intervene fairly actively.

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