Trần Mỹ Thi

Đặng Thị Ngọc

Linh
Ngô Thị Phúc An
Phạm Thị Yến
Nguyễn Thị Hồng
 Trần Mỹ  Phạm Thị
Thi
• Legal history •Yến
Legal history
• The sources of US • Sources of British law
law • The court system in England
•Đặng
The court
Thịsystem
Ngọc and Wales
• Civil and criminal
Linh
• Federal and state
court proceedings  proceedings
Nguyễn Thị
• The legal profession •Hồng
Law and order
 Ngô Thị Phúc • The legal profession
• Attitudes to law and order
An
• Crime and punishment
• Attitudes to the legal
system
BROUGHT
 State and
federal Judicial
governmen review
t
 The British
parts of
COLONIZE
17 CENTURY North
D
America

Some colonies
The English
common law, statue Left their homelands
law and judges
The other British
and European Created a code system
settlers of simple rules - started
in the Massachusetts
Bay Colony in1634.
 English
A more legal
Such codes complex structures
society became
acceptable
 The thirteen
original states
The common law
Non-British The common law
settlers (Dutch, had to
Germans and accommodate
Swedes) other legal
customs.
 USA

Califoni
a
(1850)

USA

Louisian
a The common law Louisiana
(1803)
 50 states Louisiana

The common
law

Most
Police forces lawyers are
Legal
Legislatures and law qualified to
systems
courts practice –
Although anti-British feeling after independence led to
criticism of the common law, lawyers and judges, this was
reduced by new political factors.

1787 Framed a
Delegates Constitutio 1788
from the 13 n for the became law
states USA

This stipulated that, while states remained sovereign in many

areas, a new federal union of the states was also sovereign in its
own sphere of competence.
 Article III of
the
Constitution

The independent
federal judiciary

Weakest
One Such Developed
branch of
Supreme inferior a central
Court governmen
courts importance
t
 The
Judiciary
Act (1789)

New
federal
courts

Interpret the
Examine laws and
meaning of laws
administrative
and administrative
action
acts

Initially
Finally conceded
contested by
and was an
states’ rights
important factor
 Front row from left to right:
Back row from left to right:
Anthony Kennedy (1988)
Stephen Breyer (1994)
John Paul Stevens (1975)
Clarence Thomas (1991)
Chief Justice John Roberts
Ruth Bader Ginsburg
(2005)
(1993)
Antonin Scalia (1986)
 A legal organization for the
These developments whole country
Authority was divided between
state and federal courts

The states

Statutes and
Common Constitution jurisdiction
Courts
law s over state
law
 The US
Federal laws Supreme
A state-court
Court could
decision Involved a ultimately
federal review and
question overturn it
 Essential safeguard -
potential abuse - executive
Independent judiciary - and legislative branches
gradually strengthened. Fits into the US system of
separation of powers and
checks and balances.
Serve until
retirement
846 federal
judges Be removed -
gross
misconduct
 Bill of
Rights in the
form of ten
Amendment
s

Protects
citizens
against The courts -
Applied at imprisonme interpret the
Voted by Ratified by
the federal nt without Bill and
Congress in the states in
level until just cause, amendments
1789 1791
the 1920s. excessive in individual
fines or court cases.
other
oppression.
 Increases in
federal and
Congress
state
legislation.
Business people, consumers
Regulated American life
and other individuals - more
through inter-state commerce
concerned with and directly
Acts.
affected by the law
Very cautious about their
legal transactions, contracts
Create laws ‘necessary and and court appearances and
proper’ to carry out its powers frequently need the assistance
of professional lawyers.
 Courts and judges
in the USA,
especially at the
federal level

They function
Make policy to Judges do not indirectly in the
varying degrees as make law or policy process of
they interpret and in the explicit way resolving disputes
apply the law that politicians do. brought to their
courts.
 The common
(or case) law
The two most
important
sources
Statutory law
The common
Statutory law
(or case) law
Were accepted in all American states
(except Louisiana)
Much state law is now common law.
Is administered and interpreted by the
courts
Declined in the late - nineteenth and
early - twentieth centuries.
Laws which have been passed by state
or federal legislatures
Very important
Expanded from the nineteenth century
as state and federal government
intruded increasingly into everyday
affairs.
The meaning and application of
legislation are interpreted and
determined by the courts.
 The
courts
Social and
personal
Directly Their struggles
Play a affect the decisions are
central role daily lives are widely reflected in
of citizens debated civil and
criminal
court battles
 US courts

Operate at Have their

federal and own areas of State and The federal
state/local authority or local courts courts only
levels jurisdiction

Account for
Are the most
Handle most some 2
immediate
of the legal percent of
for
work cases tried
Americans
annually.
 Federal
State system
system
US Supreme State Supreme
Court Court
Intermediate
US Courts
al
Courts of
Appeals crim
i n
o me Appeals
(s s)
case Trial courts
US District Court
Local courts
Appeal
This is a US District Court which has been
located in New York City.
Scene in a local court, presided over
by a judge.
 The legal language and emphasis on correct procedure in
court are supposed to safeguard the rights
of citizens and to ensure equal protection under the law. In
practice, most civil disputes and some
criminal cases are not resolved through court trials and
many legal problems do not result in lawsuits.
Criminal
proceedings
Trial by jury is a basic tradition in America and is
guaranteed in indictable (serious) criminal cases.
It may also be employed in other criminal trials
 Pre-trial
procedure
Trial procedure in court
The
judiciary
The authority of judges is generally supported by the public. The justices of the
Supreme Court, for example, can be very influential (if not always trusted) and
their decisions affect ordinary people's lives.
Judges may, however, vary in their political inclinations from ‘liberal’ to
‘conservative’, and this may be reflected in their decisions.
 Lawyer
s
Lawyers may work for federal and state government or in industry and
commerce, but the majority are in private practice and cater for individual and
corporate clients. Some work on their own and serve a range of clients.
Crim
e

 A decrease of l.8% number of

violent crimes (murder, forcible
rape, robbery and aggravated
assault).
 The number of property crimes
(burglary, larceny-theft and
The USA has a high crime rate. motor vehicle theft) decreased
by 2.6% and arson by 9.7%.
 Persistent overall offenses are property crimes and a smaller proportion is a
violent crime against individuals.
 Firearms are used in three-quarters of all these cases.
 Murders had dropped dramatically in New York City by the late 1990s under
a policy of ‘zero tolerance’ for crime.
 The national American murder rate is the highest among industrialized
nations.
 The incidence of all crime is much higher in some cities and in certain city
areas, rather than in rural locations.
 Many offenses are unreported, only 20% of reported crimes are solved.
Young people aged between 15 and 19 are Prosperity and tough police policies in
the most criminally inclined age group. the 1990s reduced the crime statistics.

 Murder is the main cause of death among non-white males

between the ages of 24 and 45.
 African Americans:
+ 35% of arrests for drug possession
+ 55% of convictions
+ 74% of prison sentences
The reasons for crime:
+ The police and courts are too lenient in their treatment of criminal suspects and
sentencing patterns
+ The police criticize the courts and defense lawyers
+ Urban slums, social deprivation, poverty, bad schools, lack of opportunities,
unemployment, lack of discipline, unstable or dysfunctional families, inadequate
or non-existent parenting skills, drugs, organized crime, teenage gangs and the
availability of guns and other weapons
Law enforcement
State law is implemented by the police and detectives in the cities and by
sheriffs or marshals and constables (deputies) in rural areas. Federal crimes
are the responsibility of the Federal Bureau of Investigation (FBI).

Public demands for stronger punishment for criminals and increased rights and
compensation for crime victims and their families create pressure and are
expensive.
 Overcrowded prisons, accessibility of guns, uncertain civil rights and the
Rights of criminal
suspects

The Constitution ideally

guarantees equal justice
under the law for all The Fourth Amendment protects citizens
citizens and the against unreasonable search and seizure. It is
individual's right to generally illegal for the police to search
freedom and security. people's homes, persons or papers unless they
have a warrant.
 The Supreme Court in Miranda v. Arizona (1966) extended the protection
of criminal suspects.

 The police must read suspects their legal rights before they are arrested or
questioned: remain silent, to have an attorney present during questioning, and
to consult a lawyer before making a statement.
Liberal Supreme Court decisions in the 1960s which arguably overprotect
The death penalty
1972 the Supreme Court ruled in
Furman v. Georgia that the death 1976 the death penalty
penalty for convicted murderers was was not unconstitutional if
‘cruel and unusual punishment’ it was applied in a fair and
(Eighth Amendment) and impartial manner
unconstitutional
Thirty-seven states, the Federal Government and the US Military retain
the death penalty.
 A 2001 Gallup poll:
+ 52% of respondents would support the death penalty
+ 43% would opt for life-imprisonment instead
+ 51% thought that the death penalty is applied fairly
+ 41% thought that the death penalty did not apply
fairly
 A decrease in support for the death penalty
 PollingReport.com polls since 2004:
+ Half of the respondents chose the
death penalty as an appropriate
punishment
+ Under half opted for life-imprisonment
without the possibility of parole
In 2007-08, the Supreme Court applied capital punishment lethal-injection
by a triple mixture of drugs.

On April 16, 2008, the Supreme Court rejected lethal-injection appeals from
Kentucky, Alabama and Texas.
 The Court decided that the execution method had to present a ‘substantial’
or ‘objectively intolerable’ risk of serious harm for it to constitute cruel and
unusual punishment.
Prisons

The USA has a higher percentage of its population behind bars.

American administrations have followed tough policies:
+ the death penalty
+ putting more police on the streets
+ building more prisons
+ allowing some prisons to be run by private firms
+ stressing punishment above rehabilitation
+ reducing parole
+ giving longer and tougher sentences for serious crimes
+ imposing immediate custodial sentences on criminals who repeat serious
crimes
A relatively healthy economy, demographic changes, community policing and a
policy of zero toleration of crime
The biggest reason for the expanding prison population is the tough policies
brought in to tackle high crime rates.
 Critics say the prison policies that: better education and drug-treatment
programs, with the prevention, rather than punishment and detention, being
the goals.

 The Commission on Safety and Abuse in America's Prisons(CSAAP) :

+ Heard testimony in 2006 on the violence, abuse and overcrowding in US
prisons.
+ Sees prison as a place of opportunity which can have a positive impact on
people's lives and, as preparation for inmates to return to their communities
as productive citizens.
Gun The US Supreme Court ruled by a
control majority of 5-4 that a ban on the private
possession of handguns in Washington
DC was unconstitutional.

‘It is not a right to keep and carry any weapon whatsoever

in any manner whatsoever and for whatever purpose.’
  There were 12,352 gun-related murders in 2005.
 A Gallup poll in February 2008 found that: 34% of the US adult
population owns a gun.
Gun-control laws were in fact passed by Congress in 1993 and 1994. These
included:
+ The imposition of a five-day waiting period for the purchase of handguns to allow
checks into the buyer's background
+ Registration of all handguns
+ A ban on the sale of semi-automatic assault weapons and machine guns
+ Stronger penalties for gun offenses
+ Tighter licensing rules for gun-dealers.
Many people feel the need to protect
themselves. For example, in 2007 there
was a 73% increase in concealed-handgun
permit applications in Virginia.
Self-defense
 People's right to defend themselves, their
families and their property against crime has
been a basic tradition in American life.
 A lack of public confidence in the ability of
the courts and legislators to cope with crime
or to adequately.
 People consequently feel that they must
safeguard themselves in the face of criminals
determined to commit violent acts.
 Some individuals, known as vigilantes, may
deliberately break the law in order to defend
themselves, and receive public support and
sympathy in many cases.
Americans feel that the criminal-justice system is not tough enough.
Harris poll in 2004 found that:

10% amount of great In the criminal-justice

29% in the US
confidence/trust in system 10 percent support
Supreme Court
law firms in a 2003 CNN/USA
Today/Gallup poll.
Attitudes to the criminal-justice system vary between liberals and conservatives.
Liberals tend to be Conservatives are strong
suspicious of the police on law and order, feel
and law-enforcement that the rights of criminal
agencies, are against what suspects and defendants
they see as tough criminal should be restricted,
legislation and penalties favor strong criminal
and favor extended civil penalties, harsh
rights for individuals. punishment and the
death penalty and seek to
 Critics argue that: Americans often haveoverturn liberal
irrational or contradictory
attitudes to crime and violence the USA is a crime-ridden society.
 Many professionals and academics in the USA indeed agree that
America's fundamental problem is the cult of violence itself, and to
reduce this is to restrict access to guns.
The legal system is among the oldest and most traditional of
British insti- tutions.
It is supposed to serve citizens; control unlawful activities
against them and the state; protect civil liberties; and
support legitimate government.
English (and gradually British) legal history has been condi-
tioned by two basic concerns: first that the law should be
administered by the state in national courts and second that
judges should be independent of royal and political control.
The two periods of major reform to correct this situation
were in 1873-75, when there was a complete court revision,
and in 1970-71, when further changes produced the present
court system in England and Wales.
The second concern was that the judiciary should be
independent of the executive and legislative branches of
government.
The three main sources of English/Welsh law are the
common law, statute law and European Union law.
The oldest is the common law, based on the customs of
early settlers and invaders.
Normally today, the creation of new precedents in
England and Wales lies with the House of Lords, as the
supreme court of appeal.
Its rulings state the current law to be applied by all
courts.
Statute law was originally made by the monarch.
But the Westminster Parliament gradually became
the legislating authority because of its growing power
against the monarch.
Statutes (Acts of Parliament which create new law)
multiplied in the nineteenth and twentieth centuries because
rules were needed for a changing society.
Much British law today is in statute form and shows the
influence of the state in citizens' lives.
Acts of the Westminster Parliament are applicable to
England, Wales and often the UK as a whole and are
supreme over most other forms of law (except for some EU
law).
European Union law became part of English (British) law
following Britain's entry into the European Economic
Community in 1973. EU law takes precedence over British
domestic law in certain areas and judges must apply EU law
when there is a conflict with Acts of Parliament. EU law and
British domestic law now coexist and Britain plays its part in
creating EU law.
Scottish law derives from legal principles and rules modelled
on both Roman and English law. The sources of Scots law are
judge-made law, authoritative legal treatises, EU law and
legislation. The first two are the common law of Scotland and
are similar to the English common law. Legislation consists of
relevant Westminster Acts of Parliament and Scottish
Parliament Acts on devolved matters in Scotland.
Northern Ireland has a similar common tradition to
England and Wales. In addition to UK statutes affecting
Northern Ireland, the Northern Ireland Assembly from
2000 has legislative and executive authority for all
devolved matters and can thus make laws in Northern
Ireland.
The principal court system is divided into criminal and civil
courts at various levels.
1. Criminal courts:
There are two levels of criminal courts. The lower and busiest
is the magis- trates' court, which deals with summary (less
serious) cases and handles over 95 per cent of all criminal
matters.
Two types of magistrates sit in the courts: Justices of the
Peace (JPs) and stipendiary magistrates.
Most magistrates' courts are presided over by thirty
thousand lay magistrates (JPs).
Stipendiary magistrates are qualified lawyers and full-time
officials, are paid by the state, usually sit alone to hear and
decide cases and work mainly in the large cities.
They are part-time judicial officials chosen from the general
public; hear cases without a jury.
The higher crown courts, such as the Central Criminal Court
in London (popularly known as the Old Bailey), are situated
in about ninety cities in England and Wales and are
administered by the Lord Chancellor's Department in
London.
In Scotland, minor criminal cases are tried summarily by lay
Justices of the Peace in district courts (equivalent to English
magistrates' courts).
2. Criminal appeal courts:
The appeal structure is supposed to be a safeguard against
mistakes and miscarriages of justice.
Appeal courts are criticized for their handling of some
appeals, and an independent authority (the Criminal Cases
Review Commission) was created (1995).
It reviews alleged miscarriages of justice and now receives
many applications.
Appeals to a higher court can be expensive and difficult and
permis- sion must usually have been granted by a lower
court.
Appeals may be made against conviction or sentence and can
be brought on grounds of fact and law. If successful, the
higher court may quash the conviction, reduce the sentence
or order a new trial.
The prosecution also appeal against a lenient punishment and
a heavier sentence may be substituted.
The crown courts hear appeals from the magistrates' courts
and both may appeal on matters of law to a divisional court
of the Queen's Bench Division.
In Scotland, the High Court of Justiciary in Edinburgh
criminal cases and is the supreme court for criminal appeals.
Northern Ireland has its own appeal courts, but the House of
Lords in London may also be used.
3. Civil courts:
Civil courts Civil law proceedings are brought either in the
county court (which deals with 90 per cent of civil cases) or in
the High Court (see figure).
England and Wales are divided into 250 districts with a
county court for each district.
The county court handles a range of money, property,
contract, divorce and family matters and a district judge
usually sits alone when hearing cases.
The High Court of Justice has its main centre in London,
with branches throughout England and Wales.
The Queen's Bench Division has a wide jurisdiction,
including contract and negligence cases; the Chancery Court
Division is concerned with commercial, financial and
succession matters; and the Family Division deals with
domestic issues such as marriage, divorce, property and the
In Scotland,
custody the sheriff court deals with most civil actions,
of children.
because its jurisdiction is not financially limited, although the
higher Court of Session may also be used for some cases.
The Northern Irish High Court handles most civil.
4. Civil appeal courts in England and Wales.
The High Court hears appeals from magistrates' courts and
county courts.
But the main avenue of appeal is to the Court of Appeal
(Civil Division), which deals with appeals from all lower civil
courts on questions of law and fact.
Appeals from the Court of Appeal may be made to the House
of Lords.
The appellant must normally have obtained permission
either from the Court of Appeal or the House of Lords.
Appeals are usually restricted to points of law where an
important legal issue is at stake.
In Scotland at present, civil appeals are made first to a
sheriff-principal, then to the Court of Session and finally to
the House of Lords in London.
The Northern Irish Court of Appeal hears appeal cases.
Civil procedure:
A civil action in the county court or the High Court begins
when the plain- tiff serves documents with details of a claim
on the defendant.
A decision in civil the balance of probabilities.
Much of the High Court's work has been transferred to the
county court, procedural rules between the two courts have
been unified, active court management is now in place and
cheaper, quicker alternative forms of settlement in other
courts have been implemented, particularly those dealing
with smaller matters.
Criminal procedure:
Prior to 1985, the police in England and Wales were
responsible for prosecuting criminal cases.
The CPS and its head (the Director of Public Prosecutions -
DPP) have the final word in deciding whether to proceed
with difficult cases.
In Scotland, prosecution duties rest with the Crown Office
and Procurator-Fiscal Service and in Northern Ireland with
the police and the DPP.
Arrests for most criminal offences are made by the
police, although any citizen can make a 'citizen's
arrest'.
Once a person has been arrested and charged with an
offence, he or she must be brought before a
magistrates' court, normally within twenty-four hours.
This period can be extended up to ninety-six hours without
charge in serious cases. After ninety-six hours, the suspect
must be released if no charges are brought.
When a person appears before a magistrates' court prior to a
trial, the magistrates can grant or refuse bail (freedom from
custody).
Application for bail is a legal right, since the accused has not
yet been found guilty of a crime, and there should be strong
reasons for refusing it.
The accused enters the dock, the charge is read and he or she
pleads "guilty' or 'not guilty'. On a 'guilty' plea, the person is
often sentenced after a short presentation of the facts by the
prosecution.
British trials are adver- sarial contests between defence and
prosecution.
The rules of evidence and procedure in this contest are
complicated and must be strictly observed.
The accused may remain silent when arrested and charged
and at the trial and need not give evidence.
The judge in the crown court and the magistrates in the
magistrates' court are controlling influences in the battle
between defence and prosecu- tion.
But they should not interfere too actively, nor show bias.
After the prosecution and the defence have concluded their
cases, the magis- trates decide both the verdict and sentence.
The jury:
Most British residents are obliged to undertake jury service
when summoned and there has been a clampdown on those
seeking to avoid the duty.
Before the start of a criminal trial in the crown court, twelve
jurors are chosen from a list of thirty names randomly
selected from local elec- toral registers.
They listen to the evidence at the trial and give their verdict
on the facts, after having been isolated in a room for their
deliberations.
The judge accepts a majority (rather than a unanimous)
verdict after the jury has deliberated for more than two
hours, if there are no more than two dissentients (ten to two).
It is supposed to safeguard individual liberty and justice
because 47 foon- sense decision on the facts either to punish
or acquit is taken by fellow citizens.
Legal aid:
Legal aid (created in 1949) enables persons who cannot
afford legal repre- sentation and advice in criminal and civil
matters to have their bills paid by the state.
Applicants must prove that they have a suitable case and that
their income falls below certain financial limits. Only those
with very low incomes or who are receiving welfare benefits
qualify. There are demands to raise the income limits to
include more people.
 Crime and punishment
• The overall cost of crime to Britain is considerable,
amounting to 5% of government spending
• Central problems here are the reliability of official statistics
and the non-reporting of offences such as burglary and rape.
- 3.8% increase in overall reported crime
in 2000 in England and Wales
- 24% of unsolved crimes
- 23% of all crimes are recorded
• Contrasting crime figures are found in victim-based statistics
such as the British Crime Survey, which covers people who
actually experience crime
• Figures for 2000 suggest a decrease of 12%
- Violent crimes fell by 19%
- The proportion of people who were
victims of some type of crime once or
more during 2001 fell to 27%
• Disturbing
aspects:
- The greater use of firearms in criminal
acts
- The increased amount of drug- and alchohol-related
crime
- The number of offences committed by young people
• Law and order in Britain are serious issues, which are of great concern to
people and on which political parties base their claims for public support
- A person found guilty of a first criminal offence may receive no
punishment, or be placed on probation for a period
- Other punishments for adults: fines, imprisonment
- Alternatives to prison are community service and prison
sentences which are suspended
- Young people may be punished by fines , taken into local authority care,
confined in a young offenders’ institution, or undergo supervision in the
community.
- The death penalty by hanging for murder was abolished in 1965
• Many British people feel that the penalties for criminal
offences are inadequate as deterrents to prevent crime
• Many prisons have deteriorated
• The main concern of the criminal system should be
punishment and not rehabilitation
 Law enforcement and the
• The armedpolice
forces in Britain are subordinate to the civilian
government and are used only for defence or civil emergency purposes

• The maintenance of law and

order rests mainly with the
civilian police

• There are fifty-two independent

forces, which undertake law
enforcement in local county or
regional areas
• The forces have lost officers, are understaffed and
recruitment is difficult
• The police are not allowed to join trade unions or strike
• Police Complaints Authority is largely composed of police
representatives and lacks independence
• The police are often regarded as a typical British
institution
• The police should control the community by consent rather
than force and that they should be visible in local areas
• The police become more difficult in their job
• The legal profession in England and Wales is divided
into two types of lawyer: barristers and solicitors

• Most are now organized by their self-regulating

professional body, the Law Society
• The solicitors’ branch is a middle-class profession,
but it is increasingly attracting members from a
relatively wide spectrum of society.
• The judges constitute the
judiciary, or independent third
branch of the constitutional
system
• Chancellor and the senior
judiciary hold much power and
patronage
• Other judgeships are
supposedly made on non-political
grounds
• The judiciary is gradually changing to admit more
women, ethnic minorities and people with lower-
class and educationally diverse backgrounds

• The judiciary tends to be old in years because

judgeships are normally awarded to senior
practising lawyers and there is no career
structure that people may join early in life
• There are promotional
steps within the
judiciary from recorder
to circuit judge to High
Court judge, and thence
to the Court of Appeal
and the House of Lords
• People avoid the difficulty and cost of legal actions if
possible and regard the law and lawyers as a last resort

• Polls reveal consistently that many British

people have little confidence in the legal system

• There is support for legal reforms and a desire to

see more government action on the law’s delays,
risks and costs
• Crime, vandalism and violence are a main
concern for many Britons

• Fear of crime is arguably greater than its

actuality, polls reveal that many people are afraid

- Feel unsafe walking alone after dark

- Worries about crime affect their everyday
life
- The police are handicapped in the fight
against crime by the criminal justice system