How does the American legal system work

American Law - That

The law in continental Europe follows the Roman tradition and is characterized by a coded law, i.e. a written law. In contrast, the law in the USA is based on Anglo-Saxon law common law (Common law), as in Canada and Australia, and is characterized by case-by-case decisions by precedents.

Table of Contents
Jury | Supervision in criminal litigation | Disclosure requirements in American civil proceedings

American law
death penalty

American law is therefore a so-called case law, i.e. court decisions are made with reference to previously similar decided cases. In particular, precedents are decisions made by higher courts. However, if the case to be judged deviates from the precedent in individual facts, the judging judge can make new interpretations. The American judge Oliver Wendell Homes summarized this in 1880 as follows: "Common law is not based on logic but on experience.“The differences become clearest in the criminal process.


Every American accused has the right to answer before a jury; on the other hand, every US citizen must expect his jury duty to meet, i.e. to be appointed as a member of a jury. In criminal proceedings, the jury consists of six, sometimes twelve, jurors who are supposed to be “impartial”. You must therefore have no prior knowledge of the case to be assessed. The selection of the jury can be very important for the outcome of the trial and is therefore taken very seriously by the prosecution and defense. Only people on whom both sides agree will be appointed to the jury.

The jury alone decides whether the accused is guilty or innocent. The result of your consultation after the taking of evidence is binding. The judge is usually silent during the hearing. He only decides on the admission of applications and explains their duties to the jury. If the jury declares the accused guilty, it will determine the sentence.

American criminal trials in the form described above are well known from cinema and television. The drama of the negotiation processes and the selection of the jury usually comes close to reality, especially when it comes to criminal trials prosecuted in public. A well-known example was the O.J. Simpson. It remains to be seen whether his acquittal from the murder charge was ultimately due to the fact that the majority of the jury belonged to the black population. It became clear, however, that the boundary between finding the right law and the exhibition fight can be very floating.

The majority of disputes - also in civil law - are decided by a judge and not by a jury with the consent of the parties. The negotiation is usually quite short. The judge often decides within a few minutes based on the files and witnesses present, so one case after the next is "processed" in a continuous sequence.

It is also common practice to negotiate guilt between the public prosecutor and the defense, the so-called plea bargaining. This kind of horse trading saves both sides work. About the occupation of the US Supreme Court - the Supreme Court - reports the time in January 2005 in the article "USA - Recht oder Rechts".

Supervision in criminal litigation

According to Article 36 of the Vienna Convention on Consular Law, you have the right to demand that the diplomatic mission responsible for you be informed of your arrest. You should insist on that. The respective diplomatic mission abroad can then take care of you on a consular basis. For this purpose, she has, for example, lists of trustworthy lawyers ready and can inform your relatives at home about your whereabouts.

However, she does not have executive powers over American authorities, so she cannot, for example, order your release. Neither can she defend you, but she can, if necessary, help you to find a suitable lawyer.

Disclosure requirements in American civil proceedings

In civil proceedings under German law (and under the law of numerous European countries), it is also possible, under certain conditions, to request the submission of documents from third parties not involved in the process (Section 142 ZPO).

American law is much more extensive with the so-called pre-trial discovery process. Researching the opponent and uninvolved third parties through sweeping requests for evidence is the basic principle of procedural fairness; civil proceedings are based on an objective concept of truth. Before the actual main hearing, there may be countless written interviews, oral interrogations and requests for documents to be presented. Even evidence that would not be usable in the main hearing as inadmissible can be requested if it could be useful for tracing further, admissible evidence.

Discovery restrictions are limited to a few exceptions, such as the disclosure of process-relevant documents by the lawyer (work product immunity). Even banking and business secrets are not protected in case of doubt. Not least because of the cost regulations, opponents with a good chance of success can still be forced to make comparisons.

By the way: in American usage the word "justice“Uniform for the terms justice, jurisprudence and justice.