In England & Wales and the USA judges often consider, among other sources of law, previous judgments or precedents in order to make the correct determination. With regards to the hierarchy of sources in the USA, the federal Constitution is the highest followed by federal statutes, treaties and court rules; federal administrative agency rules; federal common law; state constitutions; state statutes and court rules; state agency rules; and lastly state common law.
Regarding the hierarchy of courts, the highest court here and in the USA is the Supreme Court. In the USA each state essentially has its own system as well as the country’s federal court system. In October 2009, our Supreme Court replaced the Appellate Committee of the House of Lords as the highest court in the United Kingdom.
In relation to documentation, in England & Wales trial bundles must be prepared and pleading boards are produced for trials in the USA. However, in the USA skeleton arguments are not submitted before a trial.
Both here and in the USA witnesses can be forced to attend court by serving them with a summons or a subpoena. In addition, in the USA a subpoena duces tecum can be used to direct a witness to produce evidence.
Turning to juries, America’s 7th Amendment of the Bill of Rights states:
“Rights in civil cases
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
In England & Wales juries are only used in very few civil cases, for example some libel trials.
Another significant difference is that jurors can be selected in the USA. There are voter registration lists available and often driver’s licence lists, which can be utilised to form a pool. Jurors are randomly selected from these lists. Jurors provide details about their qualifications to ensure a neutral jury. However, lawyers can make challenges to prevent jurors being selected.
The Legal Profession and Judiciary
In the USA the legal profession is not divided. There is one national professional organisation, the American Bar Association, and each state has its own association.
McKenzie Friends appear in our courts and this service has also been adopted in the USA. In courts in America no legal dress is worn and so everyone appears the same. Moreover, clients in civil and criminal cases in the USA sit next to those representing them.
In the USA, a judge’s connection to a political party, religion and so on does not prevent them from sitting. They are simply expected to be entirely neutral. Nevertheless, if there is a major conflict of interest a judge may be replaced. Judges in the USA can be elected by the general population and many judges have previously been involved in politics. In England and Wales there are much stricter rules regarding bias.
Whilst the trial of Ted Bundy in June 1979 was the first trial in America to be televised nationally, the filming of courts is a much more recent and less widespread development in England & Wales. Filming in our Supreme Court began in 2009 and the Court of Appeal was televised for the first time in October 2013.
However, both here and in the USA, privacy is essential in some matters including those that fall under the Prevention of Terrorism Act 2005 and the Patriot Act respectively. In America, these matters would be dealt with directly through Homeland Security/the Attorney General for the United States.
© 2014 Chambers of Lawrence Power, 4 King’s Bench Walk, Temple, London, EC4Y 7DL. Tel: 020 7822 8822. www.4kbw.net