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https://www.google.com/search?q=justice&source=lnms&tbm=isch&sa=X&ei=SsmpU9uoHYqgyAT98YCQBA&ved=0CAcQ_AUoAg&biw=1707&bih=956#facrc=_&imgdii=Pidz7KuGdcqShM%3A%3BeeExachyaUnosM%3BPidz7KuGdcqShM%3A&imgrc=Pidz7KuGdcqShM%253A%3B4wvkIAaMs-CzRM%3Bhttp%253A%252F%252Fconstitutionallyspeaking.co.za%252Fwp-content%252Fuploads%252F2013%252F02%252Fblind-justice.gif%3Bhttp%253A%252F%252Fconstitutionallyspeaking.co.za%252Fwhy-justice-is-not-always-blind%252F%3B834%3B1500https://www.google.com/search?q=justice&source=lnms&tbm=isch&sa=X&ei=SsmpU9uoHYqgyAT98YCQBA&ved=0CAcQ_AUoAg&biw=1707&bih=956#facrc=_&imgdii=Pidz7KuGdcqShM%3A%3BeeExachyaUnosM%3BPidz7KuGdcqShM%3A&imgrc=Pidz7KuGdcqShM%253A%3B4wvkIAaMs-CzRM%3Bhttp%253A%252F%252Fconstitutionallyspeaking.co.za%252Fwp-content%252Fuploads%252F2013%252F02%252Fblind-justice.gif%3Bhttp%253A%252F%252Fconstitutionallyspeaking.co.za%252Fwhy-justice-is-not-always-blind%252F%3B834%3B1500 Identifying The Functions and the Structure of the U.S. Judicial System
Structure • United States of America Constitution • Federal Roles In Education • State Legislation • State Administrative • School Board • Local School Boards
Federal Control Over Education • Tenth Amendment of the US Constitution • “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” • ''Interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States. • The Federal government has no jurisdiction over certain specified issues. • http://constitution.findlaw.com/amendment10/annotation01.html#2
The Feds are Limited • Therefore ,Congress does not possess the legal authority over the area of education. This is entirely a sovereign state issue. https://www.google.com/search?q=justice&source=lnms&tbm=isch&sa=X&ei=SsmpU9uoHYqgyAT98YCQBA&ved=0CAcQ_AUoAg&biw=1707&bih=956#facrc=_&imgdii=Pidz7KuGdcqShM%3A%3BeeExachyaUnosM%3BPidz7KuGdcqShM%3A&imgrc=Pidz7KuGdcqShM%253A%3B4wvkIAaMs-CzRM%3Bhttp%253A%252F%252Fconstitutionallyspeaking.co.za%252Fwp-content%252Fuploads%252F2013%252F02%252Fblind-justice.gif%3Bhttp%253A%252F%252Fconstitutionallyspeaking.co.za%252Fwhy-justice-is-not-always-blind%252F%3B834%3B1500
Court Recognizes State Legislative Authority • Raise revenue and distribute educational funds • Control teacher licensure • Prescribe curricular offerings • Establish pupil performance standards • Specified regulatory powers • Mandate school attendance or ensure equal education for all citizens (usually ages 6-16)
Authorize other school governance arrangements • State-funded charter schools https://www.google.com/search?q=justice&source=lnms&tbm=isch&sa=X&ei=SsmpU9uoHYqgyAT98YCQBA&ved=0CAcQ_AUoAg&biw=1707&bih=956#facrc=_&imgdii=Pidz7KuGdcqShM%3A%3BeeExachyaUnosM%3BPidz7KuGdcqShM%3A&imgrc=Pidz7KuGdcqShM%253A%3B4wvkIAaMs-CzRM%3Bhttp%253A%252F%252Fconstitutionallyspeaking.co.za%252Fwp-content%252Fuploads%252F2013%252F02%252Fblind-justice.gif%3Bhttp%253A%252F%252Fconstitutionallyspeaking.co.za%252Fwhy-justice-is-not-always-blind%252F%3B834%3B1500
Legal Battleground • Courts clarify the legislative intent of state laws when multiple interpretations are presented. • Legislatures can amend laws for clarity • Invalidated laws, abridging state or federal constitutional provisions or federal civil rights laws, the legislature is subject to judicial directives. (When the legislature falters)
Delegate authority to subordinate agencies to make rules and regulations necessary to implement laws. • Legislature establishes guidelines • Courts reiterate that public authority is not local but is a state legislative centralized.
State Owned • School Buildings • Local School Board Members • Teachers • Public School Funds
US Judicial Court Visual Summary You Allow me to retort. Say “What” again. Say “What?”
US Judicial Court Structure I https://www.google.com/search?q=structure+of+the+united+states+court+system&tbm=isch&imgil=s6-2PWP75_-AlM%253A%253Bhttps%253A%252F%252Fencrypted-tbn2.gstatic.com%252Fimages%253Fq%253Dtbn%253AANd9GcTNDK02eXgqN69nKOdQMXjdWY-cTDgSkVEDKdCMCq_TrLvmjrzR%253B720%253B540%253BYqiu6x-rUjOA2M%253Bhttp%25253A%25252F%25252Fwww.catea.gatech.edu%25252Fgrade%25252Flegal%25252Fstructure.html&source=iu&usg=__8qlSwyfMLjizGUhOKY7H3BzouMk%3D&sa=X&ei=0rqkU-HzDbSwsASqvYGADA&ved=0CD0Q9QEwAw&biw=1707&bih=956#facrc=_&imgdii=_&imgrc=lVljuwL2jNR5wM%253A%3BrTc8tHJ1l0J1tM%3Bhttp%253A%252F%252Fwww.nyulawglobal.org%252Fglobalex%252FSaudi_Arabia_files%252Fimage003.jpg%3Bhttp%253A%252F%252Fwww.nyulawglobal.org%252Fglobalex%252Fsaudi_arabia.htm%3B541%3B270
District Court Areas https://www.google.com/search?q=structure+of+the+united+states+court+system&tbm=isch&imgil=s6-2PWP75_-AlM%253A%253Bhttps%253A%252F%252Fencrypted-tbn2.gstatic.com%252Fimages%253Fq%253Dtbn%253AANd9GcTNDK02eXgqN69nKOdQMXjdWY-cTDgSkVEDKdCMCq_TrLvmjrzR%253B720%253B540%253BYqiu6x-rUjOA2M%253Bhttp%25253A%25252F%25252Fwww.catea.gatech.edu%25252Fgrade%25252Flegal%25252Fstructure.html&source=iu&usg=__8qlSwyfMLjizGUhOKY7H3BzouMk%3D&sa=X&ei=0rqkU-HzDbSwsASqvYGADA&ved=0CD0Q9QEwAw&biw=1707&bih=956#facrc=_&imgdii=_&imgrc=NV1XD31pWddH7M%253A%3BplV2SOa6kJ-nOM%3Bhttp%253A%252F%252Fwww.bushellappellatelaw.com%252Ffiles%252F2011%252F06%252FDCA-Map-e1309544803428-300x255.jpg%3Bhttp%253A%252F%252Fwww.bushellappellatelaw.com%252Finfo%252F%3B300%3B255
State Administrative Agencies • Adopt regulations to fill in gaps in state laws. • Administrative Law providing guidance to the laws passed. Legislature State Board of Education
Courts are reluctant to interfere with the school board, but they will invalidate futile, arbitrary, over reaching authority or capricious decisions.
Federal Role In Education • United States Constitution • General Welfare Clause • Commerce Clause • Obligation of Contracts Clause
Related Constitutional Amendments for School Law • First Amendment • Fourth Amendment • Fifth Amendment • Eighth Amendment • Ninth Amendment • Thirteenth Amendment • Fourteenth Amendment
Legal Practice Mentality Rational Basis: Intermediate Scrutiny: Strict Scrutiny: Suspect Classification: Special Treatment: Sameness:
History Common Law: Statutory Law: Constitutional Law:
Dual Court Structure State Courts: Federal Courts:
Civil Court Proceedings Pre-trial Procedures in Civil Cases Suits begin with the filing of a complaintin the proper court. The person filing the suit is often referred to as the plaintiff; the person or entity against whom the case is filed is often referred to as the defendant. In some areas of law, such as domestic relations, the person filing the complaint is the petitioner, and the person against whom the case is filed is the respondent. The complaint states the plaintiff's version of the facts, the legal theory under which the case is brought (negligence, for example), and asks for certain damages or other relief. The plaintiff also files with the court clerk a request that a summons(or notice) be issued to the defendant. In many jurisdictions, the summons will be served by a deputy sheriff or special process server. In other jurisdictions, it may be served by mail. It notifies the defendant that a lawsuit has been filed against him or her. After being notified, the defendant has a certain period of time to file an answeradmitting or denying the allegations made in the complaint. http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/cases_pretrial.html
Settlements Steps in a Trial Settling Cases Relatively few lawsuits ever go through the full range of procedures and all the way to trial. Most civil cases are settled by mutual agreement between the parties. A dispute can be settled even before a suit is filed. Once a suit is filed, it can be settled before the trial begins, during the trial, while the jury is deliberating, or even after a verdict is rendered. A settlement doesn’t usually state that anyone was right or wrong in the case, nor does it have to settle the whole case. Part of a dispute can be settled, with the remaining issues left to be resolved by the judge or jury. Criminal cases are not settled by the parties in quite the same way civil cases are. However, not every case goes to trial. The government may decide to dismiss a case, or be ordered to do so by a court. The defendant may decide to plead guilty, perhaps as a result of negotiations with the government that result in dismissing some of the charges or recommending leniency in sentencing. Plea bargains are a very important and efficient way to resolve criminal cases. http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/cases_settling.html
Steps in a Trial Jurisdiction and Venue The plaintiff's lawyer must decide where to file the case. A court has no authority to decide a case unless it has jurisdiction over the person or property involved.To have jurisdiction, a court must have authority over the subject matter of the case and the court must be able to exercise control over the defendant, or the property involved must be located in the area under the court's control. The extent of the court's control over persons and property is set by law. Certain actions are transitory. They can be brought wherever the defendant may be found and served with a summons, and where the jurisdiction has sufficient contact with one of the parties and the incident that gave rise to the suit. An example would be a lawsuit against a business--it would probably be sufficient to file suit in any county in which the business has an operation, and not necessary to file suit in the county where it its headquartered. Other actions - such as foreclosing on a piece of property - are local. They can be brought only in the county where the subject of the suit is located. Venuerefers to the county or district within a state or the U.S. where the lawsuit is to be tried. The venue of a lawsuit is set by statute, but it can sometimes be changed to another county or district. For example, if a case has received widespread pre-trial publicity, one of the parties may make a motion (request to the judge) for change of venue in an effort to secure jurors who haven’t already formed an opinion about the case. Venue also may be changed for the convenience of witnesses. http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/jurisdiction.html
Steps in a Trial Pleadings A lawsuit begins when the person bringing the suit files a complaint. This first step begins what is known as the pleadingsstage of the suit. Pleadings are certain formal documents filed with the court that state the parties' basic positions. Common pre-trial pleadings include: Complaint (or petition or bill). Probably the most important pleading in a civil case, since by setting out the plaintiff's version of the facts and specifying the damages, it frames the issues of the case. It includes various counts - that is, distinct statements of the plaintiff’s cause of action - highlighting the factual and legal basis of the suit. Answer. This statement by the defendant usually explains why the plaintiff should not prevail. It may also offer additional facts, or plead an excuse. Reply. Any party in the case may have to file a reply, which is an answer to new allegations raised in pleadings. Counterclaim. The defendant may file a counterclaim, which asserts that the plaintiff has injured the defendant in some way, and should pay damages. ("You're suing me? Well then, I'm suing you.") It may be filed separately or as part of the answer. If a counterclaim is filed, the plaintiff must be given the opportunity to respond by filing a reply. http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/pleadings.html
Steps in a Trial Motions Motions are not pleadings but are requests for the judge to make a legal ruling. Some of the most common pre-trial motions include: Motion to Discover. A motion by which one party seeks to gain information from the adverse party. Motion to Dismiss. This motion asks the court to dismiss the suit because the suit doesn’t have a legally sound basis, even if all the facts alleged are proven true. Motion for Summary Judgment(sometimes called motion for summary disposition). This motion asks the court for a judgment on the merits of the case before the trial. It is properly made where there is no dispute about the facts and only a question of law needs to be decided. http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/motions.html
Steps in a Trial Discovery To begin preparing for trial, both sides engage in discovery. This is the formal process of exchanging information between the parties about the witnesses and evidence they’ll present at trial. Discovery enables the parties to know before the trial begins what evidence may be presented. It’s designed to prevent "trial by ambush," where one side doesn’t learn of the other side’s evidence or witnesses until the trial, when there’s no time to obtain answering evidence. One of the most common methods of discovery is to take depositions. A depositionis an out-of-court statement given under oath by any person involved in the case. It is to be used at trial or in preparation for trial. It may be in the form of a written transcript, a videotape, or both. In most states, either of the parties may take the deposition of the other party, or of any other witness. Both sides have the right to be present during oral depositions. Depositions enable a party to know in advance what a witness will say at the trial. Depositions can also be taken to obtain the testimony of important witnesses who can’t appear during the trial. In that case, they’re read into evidence at the trial. Often a witness's deposition will be taken by the opposing side and used to discredit the witness's testimony at trial if the trial testimony varies from the testimony taken during the deposition. (A lawyer might ask a witness at trial, “Are you lying now or were you lying then?”) Usually depositions consist of an oral examination, followed by cross-examination by the opposing side. In addition to taking depositions, either party may submit written questions, called interrogatories, to the other party and require that they be answered in writing under oath. If one party chooses to use an interrogatory, written questions are sent to the lawyer representing the other side, and that party has a period of time in which to answer. Other methods of discovery include subpoenaing or requiring the other side to produce books, records or other documents for inspection (a subpoena is a written order issued by a court compelling a person to testify or produce certain physical evidence such as records); having the other side submit to a physical examination; or asking that a document be submitted for examination to determine if it is genuine. http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/discovery.html
Steps in a Trial Bringing the Charge Criminal charges are brought against a person in one of three ways: Through an indictmentvoted by a grand jury. Through the filing of an informationby the prosecuting attorney (also called the county, district, or state's attorney) alleging that a crime was committed. Sometimes charges are pressed through the filing of a criminal complaint by another individual, which is essentially a petition to the district attorney asking him/her to initiate charges. Through a citationby a police officer for minor traffic offenses and the like. This procedure is usually used for certain petty misdemeanors and other minor criminal matters. The charge must tell the time, date and place that the criminal act allegedly took place, the alleged involvement of the accused, and the details of the crime itself. http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/bringingcharge.html
Steps in a Trial Evidence The heart of the case is the presentation of evidence. There are two types of evidence -- direct and circumstantial. Direct evidenceusually is that which speaks for itself: eyewitness accounts, a confession, or a weapon. Circumstantial evidenceusually is that which suggests a fact by implication or inference: the appearance of the scene of a crime, testimony that suggests a connection or link with a crime, physical evidence that suggests criminal activity. Both kinds of evidence are a part of most trials, with circumstantial evidence probably being used more often than direct. Either kind of evidence can be offered in oral testimony of witnesses or physical exhibits, including fingerprints, test results, and documents. Neither kind of evidence is more valuable than the other. Strict rules govern the kinds of evidence that may be admitted into a trial, and the presentation of evidence is governed by formal rules. http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/evidence.html
Steps in a Trial Direct Examination Lawyers for the plaintiff or the government begin the presentation of evidence by calling witnesses. The questions they ask of the witnesses are direct examination. Direct examination may elicit both direct and circumstantial evidence. Witnesses may testify to matters of fact, and in some instances provide opinions. They also may be called to identify documents, pictures or other items introduced into evidence. Generally witnesses cannot state opinions or give conclusions unless they are experts or are especially qualified to do so. Witnesses qualified in a particular field as expert witnesses may give their opinion based on the facts in evidence and may give the reason for that opinion. Lawyers generally may not ask leading questions of their own witnesses. Leading questions are questions that suggest the answers desired, in effect prompting the witness. An example is, "Isn't it true that you saw John waiting across the street before his wife came home?" Objections may be made by the opposing counsel for many reasons under the rules of evidence, such as to leading questions, questions that call for an opinion or conclusion by a witness, or questions that require an answer based on hearsay. Most courts require a specific legal reason be given for an objection. Usually, the judge will immediately either sustain or overrule the objection. If the objection is sustained, the lawyer must re-phrase the question in a proper form or ask another question. If the objection is overruled and the witness answers the question, the lawyer who raised the objection may appeal the judge's ruling after the trial is over. As a handbook for federal jurors points out, AA ruling by the judge does not indicate that the judge is taking sides. He or she is merely saying, in effect, that the law does, or else does not, permit that question to be asked.@ Even if the judge decides every objection against a certain party, he or she is not taking sides or indicating to jurors how they should decide the case. http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/directexam.html
Steps in a Trial Cross-Examination When the lawyer for the plaintiff or the government has finished questioning a witness, the lawyer for the defendant may then cross-examine the witness. Cross-examination is generally limited to questioning only on matters that were raised during direct examination. Leading questions may be asked during cross-examination, since the purpose of cross-examination is to test the credibility of statements made during direct examination. Another reason for allowing leading questions is that the witness is usually being questioned by the lawyer who did not originally call him or her, so it is likely that the witness will resist any suggestion that is not true. When a lawyer calls an adverse or hostile witness (a witness whose relationship to the lawyer’s client is such that his testimony is likely to be prejudicial) on direct examination, the lawyer can ask leading questions as on cross-examination. On cross-examination, the attorney might try to question the witness's ability to identify or recollect or try to impeach the witness or the evidence. Impeach in this sense means to question or reduce the credibility of the witness or evidence. The attorney might do this by trying to show prejudice or bias in the witness, such as his or her relationship or friendship with one of the parties, or his or her interest in the outcome of the case. Witnesses may be asked if they have been convicted of a felony or a crime involving moral turpitude (dishonesty), since this is relevant to their credibility. Opposing counsel may object to certain questions asked on cross-examination if the questions violate the state's laws on evidence or if they relate to matters not discussed during direct examination. http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/crossexam.html
Steps in a Trial Instructions to the Jury The judge instructs the jury about the relevant laws that should guide its deliberations. (In some jurisdictions, the court may instruct the jury at any time after the close of evidence. This sometimes occurs before closing arguments.) The judge reads the instructions to the jury. This is commonly referred to as the judge's charge to the jury. In giving the instructions, the judge will state the issues in the case and define any terms or words that may not be familiar to the jurors. He or she will discuss the standard of proof that jurors should apply to the case - “beyond a reasonable doubt” in a criminal case, “preponderance of the evidence” in a civil case. The judge may read sections of applicable laws. The judge will advise the jury that it is the sole judge of the facts and of the credibility (believability) of witnesses. He or she will note that the jurors are to base their conclusions on the evidence as presented in the trial, and that the opening and closing arguments of the lawyers are not evidence. Sometimes judges will explain what basic facts are in dispute, and what facts do not matter to the case. The judge will point out that his or her instructions contain the interpretation of the relevant laws that govern the case, and that jurors are required to adhere to these laws in making their decision, regardless of what the jurors believe the law is or ought to be. In short, the jurors determine the facts and reach a verdict, within the guidelines of the law as determined by the judge. Many states allow the lawyers to request that certain instructions be given, but the judge makes the final decisions about them. Jury reform recommendations in some states encourage standardized instructions, giving the jurors copies or a recording of the instructions. http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/juryinstruct.html
Steps in a Trial Mistrials Mistrials are trials that are not successfully completed. They’re terminated and declared void before the jury returns a verdict or the judge renders his or her decision in a nonjury trial. Mistrials can occur for many reasons: death of a juror or attorney an impropriety in the drawing of the jury discovered during the trial a fundamental error prejudicial (unfair) to the defendant that cannot be cured by appropriate instructions to the jury (such as the inclusion of highly improper remarks in the prosecutor's summation) juror misconduct (e.g., having contacts with one of the parties, considering evidence not presented in the trial, conducting an independent investigation of the matter) the jury's inability to reach a verdict because it is hopelessly deadlocked. Either side may make a motion for a mistrial. The judge will either grant the motion and declare a mistrial, or he or she will not grant the motion and the trial will go on. http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/mistrials.html
Steps in a Trial Verdict After reaching a decision, the jury notifies the bailiff, who notifies the judge. All of the participants reconvene in the courtroom and the decision is announced. The announcement may be made by either the foreperson or the court clerk. Possible verdicts in criminal cases are “guilty” or “not guilty.” In a civil suit, the jury will find for the plaintiff or the defendant. If the jury finds for the plaintiff, it will also usually set out the amount the defendant should pay the plaintiff for damages, often after a separate hearing concerning damages. The jury will also make a decision on any counterclaims that may be part of the case. The lawyer for either party may ask that the jury be polled, although the request usually comes from the losing party. This means each juror will be asked if he or she agrees with the decision, as announced. This is to make sure that the verdict announced is the actual verdict of the jury. After the decision is read and accepted by the court, the jury is dismissed, and the trial is over. http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/verdict.html
Steps in a Trial Motions after Verdict Motions permitted after a verdict is announced differ from state to state. A motion in arrest of judgmentquestions the sufficiency of the indictment or information in a criminal case and asks that the judgment not be enforced. A motion for judgment notwithstanding the verdictis the equivalent in civil cases to the motion in arrest of judgment. It may be made after the jury's decision is announced but before a judgment is entered. This motion asks the judge to enter a judgment for the losing party despite the decision of the jury. A motion for a new trial asks for a new trial to be granted, based on errors committed by the judge during the trial. In some states, the losing party must make a motion for a new trial before filing an appeal. http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/motionsverdict.html
Steps in a Trial Judgment The decision of the jury doesn’t take effect until the judge enters a judgment on the decision - that is, an order that it be filed in public records. In a civil suit, the judge may have the authority to increase or decrease the amount of damages awarded by the jury, or to make some other modifications before entering judgment. In criminal cases, the judge generally has no authority to modify the verdict. In most jurisdictions, he or she must accept it or reject it (e.g., by granting a motion in arrest of judgment). If the defendant doesn’t pay the damages awarded to the plaintiff in a civil case, the plaintiff may ask for an executionof the judgment. The clerk of the court in such a case will deliver the execution to the sheriff, commanding him to take and sell the property of the defendant and apply that money to the amount of the judgment. http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/judgment.html
Steps in a Trial Sentencing If the defendant is convicted in a criminal case, the judge will set a date for sentencing. Before that time, a pre-sentence investigation will take place to help the judge determine the appropriate sentence from the range of possible sentences set out in the statutes. The pre-sentence investigation may consider the defendant's prior criminal record, family situation, health, work record, and any other relevant factor. In most states and in the federal courts, only the judge determines the sentence to be imposed. (The main exception is that in most states juries impose sentence in cases where the death penalty is a possibility.) The federal courts and some states have sentencing guidelines to guide judges in determining appropriate sentences and to encourage uniformity. http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/sentencing.html
Steps in a Trial Appeals A popular misconception is that cases are always appealed. Not often does a losing party have an automatic right of appeal. There usually must be a legal basis for the appeal—an alleged material error in the trial—not just the fact that the losing party didn’t like the verdict. In a civil case, either party may appeal to a higher court. In a criminal case, only the defendant has a right to an appeal in most states. (Some states give the prosecution a limited right to appeal to determine certain points of law. These appeals usually occur before the actual trial begins. Appeals by the prosecution after a verdict are not normally allowed because of the prohibition in the U. S. Constitution against double jeopardy, or being tried twice for the same crime.) Criminal defendants convicted in state courts have a further safeguard. After using all of their rights of appeal on the state level, they may file a writ of habeas corpusin the federal courts in an attempt to show that their federal constitutional rights were violated. The right of a federal review imposes the check of the federal courts on abuses that may occur in the state courts. An appeal is not a retrial or a new trial of the case. The appeals courts do not usually consider new witnesses or new evidence. Appeals in either civil or criminal cases are usually based on arguments that there were errors in the trial’s procedure or errors in the judge's interpretation of the law. http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/appeals.html
Appeal Procedure The party appealing is called the appellant, or sometimes the petitioner. The other party is the appellee or the respondent. The appeal is instituted with the filing of a notice of appeal. This filing marks the beginning of the time period within which the appellant must file a brief, a written argument containing that side's view of the facts and the legal arguments upon which they rely in seeking a reversal of the trial court. The appellee then has a specified time to file an answering brief. The appellant may then file a second brief answering the appellee's brief. Sometimes, appeals courts make their decision only on the basis of the written briefs. Sometimes, they hear oral arguments before deciding a case. Often the court will ask that the case be set for oral argument, or one of the parties will request oral argument. At oral argument, each side's attorney is given a relatively brief opportunity to argue the case to the court, and to answer questions posed by the judges. In the U.S. Supreme Court, for example, an hour is set for oral argument of most cases, which gives each side's lawyers about half an hour to make their oral argument and answer questions. In the federal courts of appeals, the attorneys are often allotted less time than that - 10- or 15-minute arguments are common. The appellate court determines whether errors occurred in applying the law at the lower court level. It generally will reverse a trial court only for an error of law. Not every error of law, however, is cause for a reversal. Some are harmless errors that did not prejudice the rights of the parties to a fair trial. For example, in a criminal case a higher court may conclude that the trial judge gave a legally improper instruction to the jury, but if the mistake were minor and in the opinion of the appellate court had no bearing on the jury's finding, the appellate court may hold it a harmless error and let a guilty verdict stand. However, an error of law, such as admitting improper evidence, may be determined to be harmful and therefore reversible error.
After a case is orally argued or otherwise presented for judgment, the appeals court judges will meet in conference to discuss the case. Appellate courts often issue written decisions, particularly when the decision deals with a new interpretation of the law, establishes a new precedent, etc. At the conference, one judge will be designated to write an opinion. The opinion may go through several drafts before a majority of the court agrees with it. Judges disagreeing with the majority opinion may issue a dissenting opinion. Judges agreeing with the result of a majority decision but disagreeing with the majority's reasoning may file a concurring opinion. Occasionally the appeals court will simply issue an unsigned opinion. These are called per curiam (by the court). If the appeals court affirms the lower court's judgment, the case ends, unless the losing party appeals to a higher court. The lower court decision also stands if the appeals court simply dismisses the appeal (usually for reasons of jurisdiction). If the judgment is reversed, the appellate court will usually send the case back to a lower court ( remand it) and order the trial court to take further action. It may order that a new trial be held, the trial court's judgment be modified or corrected, the trial court reconsider the facts, take additional evidence, or consider the case in light of a recent decision by the appellate court. In a civil case, an appeal doesn’t ordinarily prevent the enforcement of the trial court's judgment. The winning party in the trial court may order the judgment executed. However, the appealing party can file an appeal or supersedeas bond. The filing of this bond will prevent, or stay, further action on the judgment until the appeal is over by guaranteeing that the appealing party will pay or perform the judgment if it is not reversed on appeal.
“String Theory” & The Rules of The “Game” http://www.uscourts.gov/educational-resources/get-informed/supreme-court/landmark-supreme-court-cases.aspx • McCulloch v. Maryland (1819)Holding:The Constitution gives the federal government certain implied powers.Maryland imposed a tax on the Bank of the United States and questioned the federal government's ability to grant charters without explicit constitutional sanction. The Supreme Court held that the tax unconstitutionally interfered with federal supremacy and ruled that the Constitution gives the federal government certain implied powers. • Marbury v. Madison (1803)Holding:Established the doctrine of judicial review.In the Judiciary Act of 1789, Congress gave the Supreme Court the authority to issue certain judicial writs. The Constitution did not give the Court this power. Because the Constitution is the Supreme Law of the Land, the Court held that any contradictory congressional Act is without force. The ability of federal courts to declare legislative and executive actions unconstitutional is known as judicial review. • Cooper v. Aaron (1958)Holding:States cannot nullify decisions of the federal courts.Several government officials in southern states, including the governor and legislature of Alabama, refused to follow the Supreme Court's Brown v. Board of Education decision. They argued that the states could nullify federal court decisions if they felt that the federal courts were violating the Constitution. The Court unanimously rejected this argument and held that only the federal courts can decide when the Constitution is violated. • Gideon v. Wainwright (1963)Holding:Indigent defendants must be provided representation without charge.Gideon was accused of committing a felony. Being indigent, he petitioned the judge to provide him with an attorney free of charge. The judge denied his request. The Supreme Court ruled for Gideon, saying that the Sixth Amendment requires indigent criminal defendants to be provided an attorney free of charge.
Rules of The “Game” • Brown v. Board of Education (1954)Holding:Separate schools are not equal.In Plessy v. Ferguson (1896), the Supreme Court sanctioned segregation by upholding the doctrine of "separate but equal." The National Association for the Advancement of Colored People disagreed with this ruling, challenging the constitutionality of segregation in the Topeka, Kansas, school system. In 1954, the Court reversed its Plessy decision, declaring that "separate schools are inherently unequal.“ • Texas v. Johnson (1989)Holding:Even offensive speech such as flag burning is protected by the First Amendment.To protest the policies of the Reagan administration, Gregory Lee Johnson burned an American flag outside of the Dallas City Hall. He was arrested for this act, but argued that it was symbolic speech. The Supreme Court agreed, ruling that symbolic speech is constitutionally protected even when it is offensive. http://www.uscourts.gov/educational-resources/get-informed/supreme-court/landmark-supreme-court-cases.aspx
Rules of The “Game” U.S. v. Nixon (1974)Holding:The President is not above the law.The special prosecutor in the Watergate affair subpoenaed audio tapes of Oval Office conversations. President Nixon refused to turn over the tapes, asserting executive privilege. The Supreme Court ruled that the defendants' right to potentially exculpating evidence outweighed the President's right to executive privilege if national security was not compromised. https://www.google.com/search?q=King+Obama&source=lnms&tbm=isch&sa=X&ei=SdKoU9a9FI20yATY74LwDw&ved=0CAYQ_AUoAQ&biw=1707&bih=956#facrc=_&imgdii=_&imgrc=pQCx6O_WE-bp2M%253A%3Bi_1tFFFk4mRU6M%3Bhttp%253A%252F%252Fseeingredaz.files.wordpress.com%252F2010%252F02%252Fking_obama1.jpg%3Bhttp%253A%252F%252Fseeingredaz.wordpress.com%252F2010%252F02%252F02%252Fobama-king-of-government-expansion-stealth-tax-hikes%252F%3B218%3B305 http://www.uscourts.gov/educational-resources/get-informed/supreme-court/landmark-supreme-court-cases.aspx
Civil Rights Laws • http://www.annenbergclassroom.org/files/documents/roleofcourts.pdf
Situations: Can A Child… More significantly, Burger wrote that "the marked distinction between the political ‘message' of the arm-bands in Tinker and the sexual content of respondent's speech in this case seems to have been given little weight by the Court of Appeals. . . . [T]he undoubted freedom to advocate unpopular and controversial views in schools and classrooms," the Chief Justice continued, "must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior." Lower courts also disagree over what types of speech are subject to censorship under the Fraser standard. For example, the 11th U.S. Circuit Court of Appeals has ruled that school districts can ban the Confederate flag because it is plainly offensive to students. And another court confronted this issue when a junior high school student wore a T-shirt to class bearing the words, "Drugs Suck!" The student in the case argued that the shirt conveyed an important "anti-drug message" and did not disrupt the school environment. The school countered that the shirt was inappropriate because the word ‘suck' has a vulgar connotation. The federal district court in Virginia sided with the school, and based its decision on a broad application of the Fraser standard: • Despite the ruling, David Hudson, an attorney with the First Amendment Center in Nashville, says many courts are still divided in how they apply the Fraser standard. "Some courts apply Fraser to all vulgar or lewd student speech even if the speech is student-initiated," says Hudson. "Other courts only apply Fraser to vulgar student speech that is in some way school-sponsored." The distinction is significant, Hudson argues, because it gives school officials the ability to characterize some student speech as offensive or vulgar even if the expression contains a political message. http://www.bizpacreview.com/2014/03/16/democrats-nazi-salute-at-planning-meeting-causes-outrage-in-fla-media-omits-party-affiliation-106692 http://www.fivefreedoms.org/5freedoms/assembly/legal_faqs