Criminal Courts

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Criminal Courts

Federal and state governments each consist of three sections: the legislative branch to make laws, the executive branch to carry out the laws, and the judicial branch or court system to resolve legal disputes and administer justice. The U.S. Constitution developed a delicate balance of power between the three branches so one cannot hold sway over either of the other two.

The three branches, however, did not develop equally after the U.S. Constitution was adopted in 1787. The court systems, including criminal courts, were the slowest part of the U.S. government to take form. This lag in development can be traced back to the colonial period prior to the American Revolution (1775–83).

Over the next two centuries, the federal government changed a great deal. By the twenty-first century, criminal courts were the centerpiece of a complex U.S. justice system. With federal courts limited to matters involving federal law, including federal crimes and constitutional issues, state courts enjoyed broader jurisdiction and were the location of most criminal trials. State court decisions could be appealed to federal courts only if they involved questions concerning the U.S. Constitution or federal law.

Criminal courts not only serve to determine guilt or innocence, but also often provide rehabilitation programs and other social services for offenders as well as victims.

Early American courts

During the earliest period of European settlement in North America, the colonial legislative and judicial bodies were not separate. Legislative bodies often judged major cases; as a result, the same assembly that made laws also heard cases challenging those laws. No separation of power existed between these two governmental functions.

Local magistrates (officers of the court) heard lesser or minor cases. Magistrates were usually prominent people from within the community, though not legally trained judges. This judicial arrangement was quite different from England and Europe where criminal courts were well established.

Throughout the eighteenth century the colonial legal system, including the courts, developed more completely though were still not politically independent from other parts of government. Sometimes the colonial legislatures would overrule court decisions. Appeals of colonial court decisions also often went back to England for review. Improvement of the court system was not a major issue with colonists.

The Articles of Confederation, written in 1781 to form a temporary government until the U.S. Constitution could be adopted, did not even mention a national court system. Similarly, most of the thirteen newly forming state governments focused more on the duties of the executive and legislative branches of government. State courts seemed less important, and some even argued against creating independent courts.

The Constitution and the courts

Following independence from Great Britain in 1783, the U.S. Constitution finally established a national court system. It called for a U.S. Supreme Court and gave Congress the power to establish lower courts as it saw fit. Federal judges served the courts for life and could only be removed if impeached (put on trial for specific crimes against the government) and convicted by Congress. The U.S. president had the responsibility to make selections for federal judge positions and send the nominations to the Senate for approval. The Senate Judiciary Committee carried out an investigation of the nominees and heard arguments for and against each selection.

The Constitution also determined what cases federal courts would have authority to hear. These included all cases raising issues over constitutional or federal law, federal treaties, or cases between people in different states, between a state and a person in another state, or between two states. Courts did not serve in an advisory role to the legislature as courts do in other countries. Some foreign courts review proposed laws before they are enacted to determine their constitutionality. In addition, if a U.S. federal court determines a court issue is primarily political, known as a political question, then the court refers the case to the other two branches to resolve the case if they choose.

Creating a national court system

After the American Revolution, the new U.S. Congress adopted the Constitution and immediately passed the Judiciary Act of 1789. The act defined the role of the Supreme Court and its six justices. It also created three federal circuit courts and fourteen federal district courts. Each state had at least one federal district court with one district court judge. The circuit courts did not have their own judges; instead, two Supreme Court justices "rode the circuit," or covered the area along with a local district court judge. Major cases went straight to the circuit courts while district courts heard the lesser cases.

The act gave state courts jurisdiction to hear cases involving federal law issues. If a state court ruled a federal law unconstitutional, then the case could be appealed to a federal court. The act also created the positions of U.S. Attorney, Attorney General, and U.S. Marshals. Marshals were charged with providing security in federal courts and carrying out court orders.

Developments in the court system were limited for the next century. With new states joining the union, the number of federal circuit courts increased to ten by the American Civil War (1861–65). After the war the U.S. court system began changing more substantially. The Removal Act of 1871 expanded federal court jurisdiction over all cases involving federal issues. What had become the controversial requirement that Supreme Court justices sit on circuit courts finally ended in 1891.

Congress replaced the original circuit courts with nine circuit courts of appeal with their own judges. In 1925 Congress reduced the number of appeals the Supreme Court was required to hear in a year. Establishing a formal screening process, it required petitioners (those wishing to be heard by the courts on some issue) to obtain a writ certiorari, or court order, from the Supreme Court to have their case accepted.

By the late twentieth century federal and state court systems were much more complex including highly specialized courts. Courts held an important position in the criminal justice system. Much of this distinction came following a series of Supreme Court decisions in the 1960s protecting the civil liberties of defendants (persons accused of a crime). Federal and state courts became much more active in supervising procedures used in other parts of the criminal justice system. These included how law enforcement agencies searched properties, seized evidence, conducted interrogations, and even how inmates were treated in correctional facilities. Criminals could be tried in state or federal courts, or both since they could appeal state court decisions to federal courts if federal laws or constitutional issues were involved.

Federal courts

The modern federal court system consists of: (1) the U.S. Supreme Court with one chief justice and eight associate justices; (2) twelve regional circuit courts of appeals and a court of appeals in the District of Columbia that reviews rulings of the district courts; and, (3) ninety-four federal district courts where original criminal cases involving federal law or other jurisdictions established by the Constitution are heard.

In 2004 there were 679 district judges and 179 circuit judges. Federal judges are often former state judges, legal scholars, or state and federal prosecutors. U.S. presidents select federal judges based on political party membership or for gender or race considerations. In addition, Congress used its constitutional authority to establish a series of lower federal courts such as the U.S. Court of Claims, the U.S. Tax Court, and the U.S. Court of Military Appeals.

District courts

District courts are trial courts for both criminal and original civil suits. Each state has at least one district court, and some—including New York, Texas, and California—have as many as four. No state boundary divides a district court jurisdiction, since they hear both jury trials and bench (where the judge determines guilt) trials. Jury trials make use of a jury formed from members of the public who determine guilt or innocence. Judges make rulings on legal questions that arise during the trial, but otherwise they remain impartial unless it is a bench trial.

Structure of Federal Courts

Ninety-six federal district courts exist throughout the United States. Twenty-six states have one district court, twelve states have two, nine states have three, and three states have four.

For the federal courts of appeal, the First Circuit Court of Appeals includes Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico; the Second Circuit Court includes Connecticut, New York, and Vermont; the Third Circuit Court covers Delaware, New Jersey, Pennsylvania, and the Virgin Islands; the Fourth Circuit Court covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia; the Fifth Circuit Court covers Louisiana, Mississippi, and Texas; the Sixth Circuit Court covers Kentucky, Michigan, Ohio, and Tennessee; the Seventh Circuit Court covers Illinois, Indiana, and Wisconsin; the Eighth Circuit Court covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota; the Ninth Circuit Court covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Marianas; the Tenth Circuit Court covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming; and the Eleventh Circuit Court covers Alabama, Florida, and Georgia.

During the 1960s crime rates including violent offenses greatly increased. To help with the growing caseload, Congress created magistrate judges to assist district court judges. Magistrates were appointed by district judges for eight-year terms. Each district judge determined the responsibilities of its magistrates. In general, magistrates have issued arrest and search warrants, set bail, conducted pretrial hearings, and heard misdemeanor cases. By the late 1990s, federal district courts were hearing from 295,000 to 320,000 cases per year. About 20 percent, or 62,000 cases, were criminal, which included some 50,000 felony cases and 12,000 misdemeanor cases.

To assist judges, federal district courts have law clerks, attorneys, marshals, secretaries, and probation officers. Each federal district has a U.S. attorney and a number of assistant U.S. attorneys. The U.S. president nominates the U.S. attorneys and the Senate confirms them. Each U.S. attorney then selects assistant attorneys, and they usually change every time a new president is elected and comes into office. The U.S. attorney is the top federal law enforcement officer in the district and is directly involved in any court cases of which the United States is a party.

Each federal district also has a U.S. marshal, who like U.S. attorneys are nominated by the president and confirmed by the Senate. The marshals provide court security, deliver court papers, transport federal prisoners, operate the federal witness protection program, and enforce federal court orders.

Appeals courts

The appellate courts do not hear original cases, they only review lower court decisions. Appeals court judges determine which cases they will accept and how they will proceed, either as full trials or through a more limited review process. Normally a panel of three appellate judges hears a case, and then, after discussion, makes a ruling. There are no juries. Each federal appellate court includes several states. No state is divided between appellate circuits.

The Supreme Court

The Supreme Court is the last resort in the appeals process. It often makes case decisions, known as landmark rulings, directly affecting how federal and state courts conduct their proceedings. The Supreme Court receives around eight thousand cases a year for review but actually hears full oral arguments for less than one hundred.

State courts

State courts systems operate independently of federal courts, but are structured much like the federal system with the multiple levels of trial courts, appellate courts, and a high court, usually called a state supreme court. States also have more specialized courts than found in the federal system.

Most cases in the United States, including criminal cases, go to state courts. State courts hear almost one hundred million cases annually. They decide disputes between individuals, between an individual and the state or local government, and between different governmental agencies. State court decisions cannot be reviewed by federal courts unless some federal or constitutional question is involved.

Each state court system is different, influenced by each state's unique history and society. The state's constitution and laws establish the structure and operation of its courts, all within general limits set by federal law and the U.S. Constitution. The court systems of forty-nine states are based on English common law like the federal government, however Louisiana is not. Due to its French history, Louisiana's criminal justice system is based on civil laws that operate quite differently including a more active role of judges during trials. Despite their independence, some common features do exist among the court systems of all U.S. states.

Lower courts

Most state courts are lower courts with limited jurisdiction. They deal with both criminal and civil matters that are neither serious nor complex. These courts are less formal, normally do not record their proceedings, rarely have juries, and do not have attorneys involved.

Lower courts hear a high volume of cases including minor criminal cases. These are usually misdemeanors for shoplifting, traffic violations, vandalism (damaging property), and writing bad checks. Lower court judges do not have to be licensed lawyers. Decisions from the lower courts can be appealed to district courts, and in some cases, a new trial will be ordered.

Trial courts

Trial courts frequently have general jurisdiction and hear all cases not reserved for other special state courts with limited jurisdiction. The general trial courts, known as superior courts in many states, hear the more serious criminal and civil cases including most felony criminal cases. In these courts, the judge must be a licensed attorney, court records are kept, the proceedings are formal, and most trials use juries.

As in federal district courts, many people assist the judges. Court reporters produce transcripts (a written record) of court proceedings. Court clerks perform such tasks as issuing marriage licenses and automobile registrations. Law clerks work for state court judges and staff attorneys work at larger courts. Bailiffs and court officers maintain order as well as custody of the jury and the prisoners.

Appellate courts

All states have at least one high court or supreme court to hear appeals. Texas and Oklahoma both have separate high courts for criminal and civil cases. State supreme courts have from five to nine members on the bench, with most having seven.

Most states also have appellate courts, though eleven states do not. Like the federal appeals courts, the state appeals courts usually have three judges sit as a panel to hear and decide cases. The number of appellate court judges varies from three in a few states to eighty-eight in California.

Selecting state judges

The process for selecting state trial and appellate court judges varies greatly among the states. Some are elected by political party and others are appointed by a state's legislature. The same is true for selecting state high court judges. The terms of office can also be quite different among states and between court levels. Appellate court judges usually enjoy longer terms than trial court judges.

State trial court judges generally serve from four- to six-year terms though in some states they can serve until seventy years of age. Some states have life-long terms for high court judges like the federal government. Because of the elected and political appointment processes used for selecting state court judges, these court systems often play a major role in state politics.

Special state courts

In addition to the basic system of lower, superior, appellate, and high courts, states have added special jurisdiction courts through the years. These include juvenile courts, drug courts, and domestic violence courts.

Juvenile courts

Illinois was the first state to establish a separate court system for juveniles in 1899, influenced by social worker Jane Addams (1860–1935). In the following decades other states followed. During this period, the courts and the public favored rehabilitation or treatment over punishment for young offenders. Juvenile state courts became increasingly involved in family issues. The main goal of juvenile courts has always been to do what is best for the child; for this reason the courts are less formal, judges have more flexibility, and the records of juvenile offenders are usually kept confidential or "sealed."

Most juvenile courts have jurisdiction over cases that would be crimes for adult offenders, as well as various other violations. Since most states set the age at which a person becomes an adult as eighteen, juvenile courts are for offenders seventeen and under in most states. An offender's age sometimes becomes a factor depending on the kind of crime committed.

In the 1960s the U.S. Supreme Court issued several rulings to further protect the rights of offenders in adult courts. Many feared juveniles were not receiving the same benefits because of the more informal nature of juvenile courts. By protecting juveniles from the harshness of the adult criminal justice system, young offenders were sometimes denied due process protections as well. As a result, adults had more constitutional safeguards than juveniles yet could endure much harsher sentences, including the death penalty in some states.

By the late 1960s the Supreme Court made three decisions to protect juveniles. The decision gave youthful offenders the right to be informed of charges against them, the right to a lawyer, the right not to incriminate themselves (to withhold information that indicates their guilt), and the right to cross examine witnesses.

The courts also increased the level of evidence needed to convict youths in criminal cases, from simply needing a preponderance (a large amount) of evidence to actually being able to prove guilt beyond a reasonable doubt, as in adult criminal courts. Jury trials, however, were still not required for juveniles. Despite the increased legal protections in juvenile courts, many judges still maintained a less formal process.

As the fear of youth crime increased through the 1980s, many people believed dangerous youngsters were too protected by the juvenile justice system. More and more youthful offenders started being transferred to adult criminal courts. The public was repeatedly exposed to the highly publicized occurrences of tragic school shootings across the country in the 1990s. As a result, the public perception of rising youth crime remained throughout the decade, even though youth crime actually decreased substantially during this period. The result was that juvenile courts were less distinct from adult criminal courts than earlier in the twentieth century.

Drug courts

During much of the 1970s the federal government fought rising drug use in the nation through treatment programs and discouraging drug use among youth. When Ronald Reagan (1911–; served 1981–89) entered the White House, however, the emphasis switched from treatment to prosecution. The number of arrests, prosecutions, and imprisonments rose dramatically and continued throughout the 1990s. The number of criminal arrests increased 168 percent from 1980 to 1998, while the number of prison inmates increased 300 percent. Drug cases swamped the criminal courts.

To relieve the high caseload, states created drug treatment courts for nonviolent offenders with no previous criminal record. The first drug court was established in Miami, Florida, in 1989, followed by another in Oakland, California, in 1991.

Drug courts operate with the belief that drug addiction is treatable. In criminal courts, judges cannot address defendants directly; yet in drug courts judges personally supervise their defendants and are involved in their treatment. Judges even check on their defendants during treatment.

Drug courts provide psychological support while helping individuals take responsibility for their own recovery. If an offender relapses back into use, drug courts increase punishment and require additional treatment programs. This can happen several times with a single case. If the offender successfully completes a treatment program, they will not have a criminal record. If an offender fails to complete a treatment program, however, a criminal conviction will go on his or her record. For cases that do end up in criminal court, if the offender pleads guilty and still successfully completes a drug treatment program, the sentence will be reduced.

By 2000 some five hundred jurisdictions had drug courts. Between 1989 and 2000 approximately two hundred thousand drug offenders participated in court sponsored treatment programs. The effectiveness of drug courts has been proven through several studies which found that participants had much lower relapse (falling back into bad habits) rates than those who went through standard criminal courts.

Domestic violence courts

By the late twentieth century domestic violence became one of the major issues facing criminal courts. Domestic violence, or abuse by one's partner, is one of the leading causes of injuries in women between the ages of fifteen and forty-four. By the early 2000s domestic violence courts were the fastest growing kind of specialized courts in the United States.

As domestic violence cases multiplied, Congress passed the Violence Against Women Act in 1994. The resulting Domestic Violence Task Force assisted state courts in addressing this complex issue and helped raise public awareness of the problem. From 1989 to 1998 domestic violence cases increased 178 percent. Using drug courts as a model, states created the specialized courts to handle the various dimensions of domestic violence cases in a coordinated manner, offering a range of services to both offenders and victims.

International Criminal Courts

Atrocities of World War II such as the death camps in Nazi Germany raised the issue of creating an international criminal system in the late 1940s. The United Nations created the Genocide Convention, which in turn established genocide as an international crime. It was illegal to destroy a group of people based on national, ethnic, religious, or racial criteria.

During the Cold War, however, interest in international war crimes declined until ethnic-based killings occurred in the former Yugoslavia in the early 1990s. The UN Security Council established a court or tribunal to try Yugoslavian war crimes. In 1994 it created another court to prosecute those involved in mass killings in Rwanda, Africa. These tribunals increased the debate once again about establishing a permanent world court, rather than creating new tribunals whenever a crisis occurred.

In 1998 over one hundred members of the United Nations approved the new International Criminal Court (ICC). The ICC was to be located in The Hague, Netherlands. The process to ratify or approve the ICC by a required number of nations ran into the early twenty-first century. The court was originally supposed to have criminal jurisdiction over genocide (the attempt to kill or wipe out an entire ethnic group), crimes against humanity, serious war crimes, and other undefined criminal aggression.

Courts monitor domestic violence cases to establish priorities. Social workers are involved to rehabilitate offenders, provide assistance to victims, and make sure children are not placed in dangerous situations. Other aspects such as divorce, child custody and support, drug dependency, juvenile delinquency, and criminal prosecutions are all addressed by the court. Various local organizations such as shelters for battered women and counseling agencies are brought into the legal proceedings.

Judges believed bringing all aspects of a domestic violence case into one court would prove more efficient and less painful for the victim. Offenders were more likely to obey court orders knowing they would face the same judge again if they failed to comply. In addition, judges set up monitoring programs to review offenders and their progress on a regular basis.

Prosecutors and defenders

Federal and state criminal courts follow precise rules of law to ensure the fairness of their proceedings regardless of a defendant's race, religious or political beliefs, or who they associate with. The courts do, however, have flexibility. Judges make decisions at every step on how a trial will proceed. Such decisions include how and where a defendant is held, jury selection, the trial itself—including what evidence may be allowed—and sentencing. Two defendants charged with similar crimes may have totally different experiences due to the details of their case and the judge presiding over their trial.

Criminal trials are based on an adversarial system, which means the prosecutor and defense attorney present their arguments and evidence concerning the guilt or innocence of the defendant within the framework of very precise rules. The adversarial process is designed to ensure fairness, giving both sides the opportunity to make their case.

Prosecutors, often known as district attorneys or prosecuting attorneys in federal courts, are public officials who represent the government in criminal cases. They are often elected or appointed to their positions. In state courts, prosecutors may be the state attorney general. Prosecutors are responsible for guiding a case from beginning to end; they start by filing charges against a defendant, attend the arraignment (a formal reading of the charges before a judge), participate in bail hearings, present the case at trial, and attend sentencing if the defendant is found guilty. Since the court system could not handle the caseload created if every case led to charges and a trial, prosecutors must decide what charges will be filed, if any, against whom. They usually select cases with the best chances of conviction.

The person charged with a crime, the defendant, is represented by a defense attorney. The defense attorney is responsible
for seeing that the constitutional rights of the defendant are protected and for presenting the best possible defense. The defense attorney represents the person from the time of arrest through sentencing (if found guilty) and may decide to appeal the case.

The Sixth Amendment to the Constitution provides anyone accused of a crime the right to a defense attorney in federal cases. If a person cannot afford to hire a defense attorney, then the federal government provides one. States also provide attorneys for the poor if the criminal charges lead to imprisonment. Public defenders are attorneys appointed by the court for offenders who cannot afford their own lawyers. Sometimes public defenders are well-known private defense attorneys who provide services for free, known as working "pro bono."

Bringing a case to trial

A criminal case normally proceeds through several stages. Following arrest, a defendant is held in custody and booked, meaning personal information is recorded about the individual including fingerprints and a photograph. The defendant is usually questioned or interrogated, probably with a lawyer present. The police then turn any evidence they have over to the prosecutor.

If the case involves a serious felony federal crime, the U.S. Constitution requires that a prosecutor presents the evidence to a grand jury. Grand juries are composed of citizens chosen from the community who determine in a closed (not open to the public) hearing if there is probable cause or enough evidence to have a trial. Only prosecutors present evidence in grand jury hearings; lawyers are not allowed nor do they try to defend their clients.

About half the U.S. states hold grand juries while the others hold preliminary hearings before lower court judges. In preliminary hearings, the defendant may be present and contest the prosecutor's charges. Grand juries and preliminary hearings are not held for lesser crimes or misdemeanors.

Court proceedings begin when a prosecutor files a complaint (if a misdemeanor) or submits a bill of indictment from a grand jury (for felonies) to the court with jurisdiction. The complaint or indictment formally asks the court to take the case. If the court accepts the case from the prosecutor, the defendant is brought in for an arraignment before the court that will try the case. The charges are read, the defendant is advised of his or her rights, a trial date is set, and bail is considered.

Bail is the money defendants pay to ensure their appearance for trial, allowing them freedom until then. If the defendant does not appear for trial, he or she loses the money (the court gets to keep it). If the defendant cannot afford bail or the judge refuses bail, then the defendant remains in custody or jail until trial. If the defendant is considered a respected member of the community, he or she is usually released on his or her "own recognizance," meaning the defendant is released from custody on the merits of his or her honor or good character and not forced to post bail.

Seeking a decision

After arraignment, the prosecutor usually meets with the defendant and defense attorney to discuss a possible plea bargain. In a plea bargain, the defendant pleads guilty in return for reduced charges, a smaller sentence, or some other consideration. Throughout the process the judge, prosecutor, and public defender or defense attorney work together to help the case move as quickly as possible. Plea bargains are reached in over 90 percent of criminal cases, few actually go to trial. This is one point in the system where fairness between wealthy and poor defendants is difficult to achieve. Wealthy defendants can afford more than one defense attorney, often putting together a team of attorneys who work aggressively on their behalf.

If a plea bargain cannot be reached, a case goes to court. The process of deciding a case in court is called adjudication. The defendant can be found guilty or innocent, or if no verdict can be reached, it is called a "hung jury." With a hung jury, the defendant may face a retrial. If the defendant is found guilty, the judge determines if the defendant will go to jail (if the sentence is less than one year), prison (if the sentence is over one year), pay a fine, or get court supervision known as probation (no jail or prison time). In the early 2000s less than 40 percent of all defendants convicted of a crime in state and federal courts were sent to jail or prison.

Once sentencing is complete, the defendant can appeal the case to an appellate court. The appeal must be based on trial procedures, such as improper use of evidence or some other point on which the presiding judge might have made an error. In general, if a defendant is found guilty, he or she is turned over to correctional authorities after the verdict is read. In some special courts, a judge may stay involved in the case even after the sentencing phase.

For More Information


Baum, Lawrence. American Courts. 5th ed. Boston, MA: Houghton Mifflin, 2001.

Buzawa, Eve, and Carl Buzawa. Domestic Violence: The Criminal Justice Response. Thousand Oaks, CA: Sage, 1996.

Carp, Robert A., and Ronald Stidham. The Federal Courts. Washington, DC: CQ Press, 1998.

Carp, Robert A., and Ronald Stidham. Judicial Process in America. 5th ed. Washington, DC: CQ Press, 2001.

Mays, G. Larry, and Peter R. Gregware. Courts and Justice. Prospect Heights, IL: Waveland Press, 2000.

Patrick, John J. The Young Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1998.

Web Sites

"Domestic Violence." U.S. Department of Justice. (accessed on August 19, 2004)

National Center for State Courts. (accessed on August 19, 2004).

U.S. Courts. (accessed on August 19, 2004).

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