Professional Documents
Culture Documents
and
Jury is "the glory of English law", "a strong … barrier between the
liberties of the people and prerogatives of the Crown“
" The impartial administration of justice, which secures both our
persons and our properties, is the great end of civil society. But if
that be entirely entrusted to the magistracy, a select body of men,
and those generally selected by the prince or such as enjoy the
highest offices in the state, their decisions, in spite of their own
natural integrity, will have frequently an involuntary bias toward
those of their own rank and dignity; it is not to be expected from
human nature that the few should always be attentive to the
interests and good of the many."
Adam Smith, Lectures on Jurisprudence
• The likely precursor to the English jury trial was the Lafif in
the Maliki school of classical Islamic law and jurisprudence,
which was developed between the 8th and 11th centuries in the
medieval Islamic world.
• Like the English jury, the Islamic Lafif was a body of twelve
members drawn from the neighbourhood and sworn to tell
the truth, who were bound to give a unanimous verdict, about
matters "which they had personally seen or heard, binding on
the judge, to settle the truth concerning facts in a case,
between ordinary people, and obtained as of right by the
plaintiff.“
• It is likely that the concept of the Lafif may have been
introduced to England by the Normans after their conquest of
England and the Emirate of Sicily, and then evolved into the
modern English jury.
Proto juries
• The late Roman law of land transfer and, with it, the use
of vicini to determine boundary issues, evidently
survived in southern European normative materials,
which is unsurprising as this was the area of greatest
Roman legal influence in this period;
• Use of vicini in boundary cases passed into the canon
law, which is equally unsurprising as the church was said
to live by Roman law.
• Same concept is applied in case of derivation of the
damages and status rules: local reputation is an
appropriate source of evidence for both local values and
family relationships
Corporalis traditio
• The period between the late 11th and the early 13th century saw the
rediscovery of the Digest of Justinian
• Corpus Iuris Civilis, Gratian's Decretum, and the papal decretals
stimulated the development of systematic thought about law considered
as an intellectually coherent field
• transition from lay judgment to professional law involved defining the
roles of judge and witness by mutual exclusion. These rules began to
develop in the early 12th century, but reached its full development only
later
• the judge is to decide only on the basis of facts alleged and proved, not on
the basis of personal knowledge
• witness, in contrast, is to speak only to personal knowledge on the basis of
immediate sense-perception, not to draw conclusions
Judge’s function
Judge began to be required to act only on the basis of knowledge
gained judicially through the lawsuit (secundum allegata et probata,
according to what was alleged and proved), not on the basis of his
private knowledge (conscientiam).
In 12th century Bulgarus, most celebrated of the famous Four Doctors of
the law school of the University of Bologna, and was regarded as the
Chrysostom of the Glossators, started to teach that a judge is not a
competent witness in a cause in which he is judge
The presence of the jury as fact-finder and the absence of any effective
modes of controlling the juries, the judge’s role was limited to
o maintaining courtroom order,
o framing the questions that the juries must answer,
o ensuring compliance with the ground rules of the various forms of
action.
Witnesses’ function
ancient courts of Teutonic nations were nothing more than assemblies of freemen, met
together for the purpose of deliberating on whatever affected the interests of their gau
or district, including punishment of offenses and settlement of civil claims
president, or perhaps in some instances parties themselves, chose beforehand certain
freemen, who were required to form a court for the hearing of the particular case. Their
number varied, but was generally 7, and never less than 3.
name by which those who were thus nominated to act in a judicial capacity were known
amongst the old Franks was Rachinburgen. Amongst the Lombards the corresponding
name was Arimannen.
before giving judgment, members of court retired from the presence of the presiding
officer in order to consider their decision
every one of markgenossen who possessed a certain amount of property might give
evidence, although he had not actually seen what had occurred
Norwegian Laugrettomen
causes were determined and offenses tried by a body of sworn jurymen in the
most ancient times
Code of Gulathing, published by King Magnus, in the year 1274, introduced
some changes in constitution of this tribunal which had existed long before
solemn meeting or THINGS held periodically — one in the North, called
FROSTA-THING, and the other in the South, called GULA-THING
3 persons holding different offices under the crown were authorized by law to
nominate a certain number of deputies (called Nefndarmen, or “named-men”)
from each district, who attended the Things
From amongst the deputies were chosen 36 men to act as jurors
They took their seats within the sacred inclosure, in a space marked off by
staves and ropes, called Laugretta
jurors themselves were called LAUGRETTOMEN, which literally means, “Law-
amendment-men.”
King Magnus Lagabøte’s code, 1274
“The Thing shall last so long as the Lawman chooses, and during such time as he, with the consent of the
jury, deems necessary for adjudging the causes which then are to be heard. Their number is three times
twelve; their nomination must be so managed that some fit men be chosen from every district. Those who
are chosen to be jurors shall, before they enter the court, swear an oath after the following form:
“‘I protest before God that I will give such a vote in every cause, as well on the side of plaintiff as
defendant, as I consider most just in the sight of God, according to law and my conscience; and I shall
always do the same whenever I shall be chosen as juror.’
“This oath every man is to swear before he enters the court, the first time he serves on a jury, but not a
second time, though he should be chosen. Every man must go fasting into court, and make his appearance
there while the sun is in the east, and remain in the court till noon. No man must bring any drink into
court, neither for sale nor in any other way. If those who are outside the sacred cords make there such
noise and disturbance that the jurors are prevented from hearing cases, or those from pleading who have
obtained leave from the lawman and
the jurors, they shall pay a fine of an ore silver, when detected and convicted, having been previously
admonished.
“Those who are chosen to serve as jurors shall judge according to law, in all causes that in a lawful manner
and course are hither (that is to Gula-thing) appealed. But in all cases that the code does not decide, that is
to be considered law which all the jurors agree upon. But if they disagree, the lawman prevails with those
who agree with him; unless the king with the advice of the most prudent men shall otherwise decide.”
Laugrettomen were in all respects judges, and not merely jurymen. They decided
both law and fact, and awarded the sentence which the law prescribed.
Thing was presided over by a Lögmann or Law-man, one of whose qualifications
for the office in old times was, that he could recite by heart the laws of the land;
Previously to the promulgation of code of King Magnus Lagabøte (Magnus the
law-mender) Lögmann had merely presided and acted as the legal adviser of the
jurors, they being the judges to all intents and purposes.
Lögmann were not, however, bound to consult jurors, as they were fully entitled
to decide cases according to their own view of the law.
King Magnus’s code invested Lögmann with a most important judicial power
in the event of any disagreement in opinion among the jurors, Lögmann could,
by giving his vote on that side, make the judgment of the minority prevail
During the season of the year also when the Thing was not sitting, Lögmann was
empowered to act as supreme judge, and hear and decide causes alone.
Swedish Nämbd
“Now offenses may happen to be committed against the king and the law
laid down in the king’s BALK; therefore there shall be twelve men ordered
in every Lawman’s jurisdiction, agreed upon, chosen, and nominated by the
king and the natives of this country. They shall attentively and diligently
seek out and discover, each in that district in which he is ordered to
maintain justice, all those that, contrary to this law, disturb or molest the
people. And they have to swear the following oath.”
“Whomsoever these twelve, or seven of their number, convicted before the
king himself, or those who judge under his commission in a court of
inquisition, or in a Landsthing, let him be cast and lose his hand, head, life,
and goods or money, to the king or the prosecutor and the district,
according to the nature of the offense. Whomsoever they discharge, let him
be discharged. Against this jury (or court) there is no appeal.”
Danish Tingmænd, Nævninger, and Sandemænd
causes were decided by persons who were called either Tingmænd, Nævninger, or Sandemænd, according to the nature of
the court they attended
Tingmænd were the members who constituted the Thing, of whom, according to the law of King Waldemar, 7 made a
quorum
they did not originally adjudicate upon cases, except when no other jurors had been appointed — their proper business being
to form the Thing at which the public affairs of the district were transacted — and they were therefore more like a municipal
council than a court of justice.
At a later period, however, by the law of King Erik, a special jurisdiction was given to them.
Nævninger were the proper jurors or sworn judges of Denmark, being so called from nævn, “to name.”
Number of Nævninger was originally 12. In Jutland they were appointed annually by the inhabitants for trying all causes
within the year. In Scania fifteen were nominated at first, as the accused or defendant was entitled to challenge three.
Nævninger were chosen by inhabitants of district; although in some criminal cases the prosecutor, and in others the
magistrates, might nominate them
Sandemænd were peculiar to Jutland. They were sworn judges, 8 in number, 2 being nominated by the king for each division
of the country
Sandemænd took an oath to judge on the spot where the deed had been committed, or, if a right of land was in dispute, then
where the property is situated.
Sandemænd received half a mark of silver for horse-hire from the party who employed them, whatever the result of their
judgment might be, and their verdict was determined by a majority; but subject, as in the case of the nævn, to be annulled by
the bishop and his eight coadjutors.
The oath Sandemænd took was to the effect that they would state nothing but what they knew to be most right and true
(SANDESTE), and they had cognizances of all personal injuries and disputes respecting land and church- property.
Icelandic Tólftar-quidr
Its positive history may be said to begin with a trial between Gundolph, bishop
of Rochester, and Pichot, one of king's sheriffs, of the title to certain lands in
Kent, of which ownership was in dispute between king and St. Andrew.
This is first case of which we have any record, in which decision was rendered
by a limited number of suitors, or pares curiœ, upon oath.
King commanded that all the men of that county, Kent, should be convened, in
order to decide which had the better title.
But they, being intimidated by sheriff, affirmed it to be land of the king rather
than that of St. Andrew.
Bishop of Baieux, the king's justiciary, however, did not trust to their decision,
and commanded, that if they knew what they said to be true, they should select
12 of their number, who should confirm by their oath that which all had said
but 12, after they had retired to consult and had been alarmed by a message
from sheriff, swore on returning, that what they had already said was true.
And so the land remained in the king's hands.
same year, a monk by the name of Grim came to the bishop, and, having heard
what the 12 had sworn, with wonder and detestation asserted that they were all
of them perjured.
For Grim himself had been the overlooker of the lord of Fracheham, and had
taken services and customs for that manor, and had had one of those who had so
sworn under him in the same manor.
This was communicated by the bishop of Rochester to the bishop of Baieux, to
whom Grim gave the same account.
The justiciary then caused one of those who had so sworn to come before him,
who, when he had come, falling at the bishop's feet, confessed his guilt.
Another, who had sworn the first, made the like confession.
The rest of the jurors were then, by the order of the bishop as justiciary, sent to
London.
All being assembled at London, it was adjudged both by French and English that
all the 12 were perjured.
On this condemnation the bishop of Rochester had his land again.
It appears also, from this account, that 12 others de
melioribus comitatus were called to account for
having confirmed what the others had sworn,
when these affirmed that they had not agreed with
those who had so sworn, bishop said they should
prove their assertion by the ordeal of iron
this they promised to do, but being unable to
perform their promise, were by judgment of the
county fined in penalty of £300 to king.
Treatise of Glanvil, 1187
Glanvil speaks of trial by ordinary assize and jurata patriœas forms of trial
already in existence, and thus describes the grand assize which has been
recently established as a method of trying the title to land, rights of
advowson, and claims of vassalage.
"This," he says, "is a certain royal benefit bestowed upon the people and
emanating from the clemency of the prince, with the advice of his nobles—
regale beneficium clementia principis populis indultum. So effectually does
this proceeding preserve the lives and civil condition of men, that every one
may now possess his right in safety at the same time that he avoids the
doubtful event of a duel. This legal institution flows from the most
profound equity * * *; by so much as the testimony of many credible
witnesses in judicial proceedings preponderates over that of one only, by so
much greater equity is this institution regulated than that of the duel; for,
since the duel proceeds upon the testimony of one juror, this constitution
requires the oaths of twelve lawful men at least."
"When the assize proceeds to make the recognition, the right will be well known
either to all the jurors, or some may know it and some may not, or all may be alike
ignorant concerning it. If none of them are acquainted with the truth of the matter,
and this be testified upon their oaths in court, recourse must be had to others until
such can be found who do know the truth of it. Should it, however, happen that some
of them know the truth of the matter and some not, the latter are to be rejected, and
others summoned to court, until twelve at least can be found who are unanimous.
But if some of the jurors should decide for one party, and some of them for the other,
then others must be added until twelve at least can be obtained who agree in favor of
one side. Each of the knights summoned for this purpose ought to swear that he will
neither utter that which is false nor knowingly conceal the truth. With respect to the
knowledge requisite on the part of those sworn, they should be acquainted with the
merits of the cause, either from what they have personally seen and heard or from
the declaration of their fathers, and from other sources equally entitled to credit as if
falling within their own immediate knowledge."
at this time jurors of grand assize were mere recognitors,
they were to deliver their verdict upon their own knowledge
of the facts in question.
In order to obtain required unanimous verdict of the
twelve, resort was had to the practice of afforcing, by which
was meant, dropping jurors who were ignorant of the facts
in cases of disagreement, and adding others in their stead,
until 12 were obtained who were unanimous.
Afforcement have very early fallen into disuse, and there
was some doubt whether thereafter the verdict should be
rendered by a majority of the original jurors
Henry II had been responsible for turning the jury
into an essential instrument of English law, first, in
1166, when jury trials were extended to all criminal
cases by the Assize of Clarendon, and second, with
enactment of the Grand Assize in 1179, which
provided that in disputes involving title to land,
litigants had a choice between a wager of battle or
trial before a jury.
Henry II stands out as the central figure in the history of
English royal law.
Through measures such as the Assize of Clarendon he
established a permanent court of professional judges, the
use of inquisitional juries, regular circuits for itinerant
judges, and a system of standardized forms of action via
writs.
The system of itinerant justices, in particular, reveals
Henry's motivations; these justices also served as tax
collectors.
Constitutions of Clarendon, 1164
instead of this lex talonis, so destructive of peace and well-being of the community,
injured party if he survived, or his relations if he died, should be content with a
money-payment as a compensation, or damages for the wrong done to him
by a law of Alfred, if any man attempted private redress by vengeance before he had
shown his readiness to accept the wergild if offered to him, he was to be severely
punished
For amongst the Saxons, and indeed all the nations of the Teutonic family, every
freeman was deemed to possess a certain pecuniary value, which varied according to
his rank; and this determined the amount of compensation which he was entitled to
receive for a wound or a blow
regular tariff of penalties was thus established, which, as will be hereafter noticed,
gave rise to appellations by which different classes were distinguished. The king had
his wergild as well as the lowest ceorl
Every bodily injury, from the loss of a nail to the destruction of life, had its
appropriate price, which must be paid by the offender; and it was only on failure of
this payment that he could be punished for his wrongful act, he was exposed to the
vengeance of the injured party and his friends
Anglo-Saxon law had no category for crimes against the state or against
society -- it recognized only crimes against individuals.
As in other customary legal systems, the moots typically demanded that
criminals pay restitution or composition to their victims -- or else face the
hazards of outlawry and blood-feud.
Murderers owed wergeld (literally, " man-money" ) to their victims' kin.
Lesser criminals owed their victims lesser fines, elaborately graded according
to the victim's status and the importance of the limb, hand, digit, fingertip,
etc., that had been lost.
In recognition of importance of private property, heavier penalties were also
imposed for crimes occurring in or about home, most serious being
hamesucken, i.e. smashing up someone's house.
This emphasis on the home reflected Anglo-Saxon law's concern with
protecting property rights, including notion of a protected private space.
Frithborh
frithborh - system of mutual bail for the preservation of the public peace
In the absence of anything like an organized police for prevention and punishment of crime,
Anglo-Saxons, in common with all the Teutonic nations, endeavored to secure some of
blessings of a more settled state of society through the medium of the system known in later
times by name of Frithborh (pledge of peace )- mutual guarantee by which every member of a
tithing as well as of a mæg, or family, became a pledge or surety (borh) to the other members,
as well as to the state, for the maintenance of the public peace
Throughout kingdom all men are bound to be in a guarantee by 10s
if one of the 10 men offend, other 9may hold him to do right
if a crime were committed by any of their body, were to arrest him and bring him to justice.
If they thought him innocent, they were to clear him by their oaths — or if he were convicted
and sentenced, they were to pay the wergild and wite
if he fled from justice they were to make oath that they had no guilty participation in his
escape; which if they failed to prove, they had to pay a penalty proportioned to the offense.
on the other hand, they were entitled to receive a part of the compensation paid by a
wrongdoer, for any injury inflicted on a member of their gild or tithing
smallest subdivision for purpose of frithborh was the tithing (teothing), consisting of 10
families
this society was sometimes called wer-borhe or sureties for payment of the “wer.”
head-man of this community was named teothings-ealdor, or tienheofod; and he seems to
have acted as a kind of arbitrator in settling disputes about matters of a trifling nature
Next in order came Hundred (hundrede), which in its original constitution consisted of 10
tithings, or a 100 families, associated together by a similar bond of mutual responsibility
head-man was called the hundredesealdor, or simply gerefa, who acted as presiding officer of
the hundred-court, which met once at least every month
Bishop, however, of diocese had co-ordinate authority with him, and court had cognizance of
ecclesiastical causes
Scir-gemot, or court of the shire, which was held twice every year, or oftener, if occasion
required. Here causes were decided and business transacted which affected the inhabitants of
several of the hundreds
highest court of all was that of the king, in which he himself was present attended by his
councilors, or witan. It was held as occasion required, and wherever the king happened to be.
It was in general only a court of appeal
Reciprocal voluntary agreements
theking
Sameperson,indifferentcapacities(merchant,cleric,vassal,townsman,etc.),enjoyedasignificant
degreeofchoiceamonglegalsystems, forcingthemtocompete.
Thiscompetitionfor"customers"andtheinteractionamongrivalrouslegalsystemsresultedinmanyof
thelegalinnovationsthatwetakeforgrantedtoday.
For the most part, royal law won this competition among jurisdictions.
It had important advantage over its rivals - power to tax allowed it to
subsidize its legal services.
Royal courts absorbed the local functions of the law merchant by adopting
its precedents and offering to enforce them at bargain rates.
Royal law also wielded far greater coercive power than competing legal
systems, which depended on reciprocity and trust for their operation.
The overarching or paramount power of monarchs enabled them to
restrict competition to their jurisdiction, with force the ultimate support
for royal action.
Thus in England Edward I was able to restrict the growth of private
jurisdictions through the Quo Warranto procedure created by the Statute
of Gloucester in 1278.
royalists' original motives for establishing a monopoly in law and secret key to
their success: restructuring property rights.
Customary legal systems viewed crimes as violations of individuals' property
rights, including rights to " personal peace" ; hence the emphasis on restitution for
victims, with the accompanying incentive for individuals to enforce the law.
New royal law classified murder, rape, theft, and so on as crimes against the state,
rather than as crimes against individuals. Fines went to the king.
Victims got only the satisfaction of seeing criminals suffer corporal punishment.
Dissatisfied individuals continued to seek restitution out of court, so state officials
forbade them to take justice into their own hands.
This sharply reduced victims' incentives to pursue criminals, and statutes
demanding the victims' cooperation had little effect.
State therefore developed the police powers necessary to enforce its laws on
criminals and victims alike.
Persistence of Polycentric Law
if a man were accused of robbery and bailed to appear and answer the
charge, and in the meantime fled from justice, his bail was to swear
with eleven compurgators (si jurra sei duzime main) that at the time he
offered himself as bail he did not know that the man had committed the
robbery, and that he had not been privy to his escape
if a man were charged with theft who had hitherto borne a good
character, he might clear himself by his own single oath; but if he had
been previously convicted or accused (e hi blasme unt este), he was to
make oath “with the 12th hand;” and for this purpose 14 persons were to
be named, out of whom he was to choose 11, making himself the 12th. If,
however, they refused to swear, he had to undergo the ordeal
The oath taken by friends thus rallying round him at his call, was known by the name of
ungecorene-ath, or rim-ath, “the unchosen oath;” because the witnesses were not chosen or
nominated by the opposite party.
But afterwards the accused was allowed to name persons of the proper class (i.e., kinsmen or
fellow-gildsmen of the accused), and out of these the accused or defendant was obliged to
choose his compurgators. This was called the eyre ath, or “chosen oath,” because the oath of
the accused was supported by the oaths of persons chosen by his adversary
in some cases a certain number of compurgators were named by the reeve of the district
(shire reeve, predecessor to the sheriff), consisting of relatives and neighbors of the accused,
and out of these he was obliged to choose the number required for his compurgation. This
form of procedure was equally called the eyre ath. Here, too, the number out of which the
compurgators were to be chosen was generally 12, or some multiple of 12, and they were
called the equals or peers (gelican) of the accused
If he was a man of bad character, a triple number of persons were named, out of whom he was
to choose a triple number of compurgators, or if they were not named, and he was unable to
procure the required number to vouch for him, he was obliged to undergo the triple ordeal
If a party was unable to vouch a sufficient number of
compurgators, he was deemed to have taken a false oath, and
lost his suit in a civil case, or was convicted in a criminal.
But even if he did produce the requisite number, his opponent
might overpower the force of their testimony by calling
compurgators on his side, whose oaths were of
preponderating legal value.
These, again, might be met by the accused in the same
manner, and so on, until either party prevailed in the amount
of legal value of the witnesses who supported him with their
oaths
law of Ethelred
“And let every one (accused) buy himself law with XII ores,
half to the lord (landrica), and half to the wapentake; and
let every man of previous bad character (tiht-bysig) go to
the threefold ordeal, or pay fourfold.”
Legally appointed witnesses
“This then is what I will; that every man be under surety within the towns (burgs)
and without; and let witness be appointed to every town and to every hundred.
“To every town let there be chosen XXXIII. as witnesses (gecorene to gewitnesse).3
“To small towns and in every hundred XL, unless ye desire more.
“And let every man with these witnesses buy and sell every of the chattels he may
buy or sell, either in a town or in a wapentake; and let every of them when he is
first chosen as witness give the oath that he never, neither for love nor for fear, will
deny any of those things of which he was witness, nor declare any other thing in
witness save that alone which he saw or heard; and of such sworn men let there be
at every bargain two or three as witness.
“And he who rides in quest of cattle, let him declare to his neighbors about what he
rides; and when he comes home, let him also declare with whose witness he bought
the cattle.”
courts
presided over by a reeve, who had no voice in the decision,
number of persons who sat as judges was frequently 12, or some multiple of that number
assertions of parties in their own favor were admitted as conclusive, provided they
were supported by the oaths of a certain number of compurgators; and in
important cases the number was 12, or, at all events, when added to the oath of the
party himself, made up that number
testimony of the neighborhood was appealed to, for the purpose of deciding
questions which related to matters of general concern
Sworn witnesses were appointed in each district, whose duty it was to attest all
private bargains and transactions, in order that they might be ready to give
evidence in case of dispute
care was taken that all dealings between man and man should be as open and
public as possible; and concealment or secrecy was regarded as fraud, and in some
cases punished as guilt
Ordeal
ordeal was also to be undergone in the following cases:
Where a person accused was unable to adduce a sufficient number of compurgators
Where he had been notoriously guilty of perjury on a previous occasion
Where he was not a freeman; unless his hlaford, or lord, swore to his belief in his innocence,
or bought him off by paying the wergild.
even when the ordeal was requisite, the accused was obliged previously to take an oath
that he was innocent in the sight of the law (mid folcrihte unscyldig)
ordeal was of 3 kinds:
ordeal of hot iron, in which the accused had to take up and carry for a certain distance a mass
of hot iron of a pound weight
ordeal of hot water, in which he had to take out of a pitcher of boiling water a stone hanging
by a string, at a depth equal to the length of his own hand. In some cases he had to undergo
the triple ordeal (pryfeald lada), in which the iron was increased to three pounds weight, or
the stone was sunk in the water to the depth of his elbow.
Corsnæd, or ordeal of the accursed morsel. This consisted in making the accused person
swallow a piece of bread, accompanied with a prayer that it might choke him if he were guilty
End of ordeals
June 15, 1215 at Runnymede, England when King John Lackland (French Sans
Terre) signed the Magna Carta
Magna Carta introduced jury as a veto-player to limit absolute royal power
In exchange for cash and peace, King John agreed that he and his subjects were
to be governed by rule of law and that “no person may be amerced without the
judgment of his peers”
Fundamental strength of English property rights and the common law that had
evolved from the Magna Carta and which would have circumscribed royal
behavior and ultimately forced responsible government.
In the 14th century Parliament interpreted the phrase ‘lawful judgment of peers’
to include trial by peers and therefore trial by jury, a process which existed
only in embryo in 1215
Article 39 of the Magna Carta
The truth seems to be, that this tribunal was universally established
among all the northern nations, and so interwoven in their very
constitution, that the earliest accounts of the one give us also some
traces of the other. Its establishment, however, and use in this island, of
what date soever it be, though for a time greatly impaired and shaken
by the introduction of the Norman trial by battle, was always so highly
esteemed and valued by the people, that no conquest, no change of
government, could ever prevail to abolish it. In Magna Charta it is more
than once insisted on as the principal bulwark of our liberties; but
especially by chap. 29, that no freeman shall be hurt in either his
person or property, nisi per legale judicium parium suorum vel per
legem terræ.”
judicium parium is not reference to modern
jury
trial per pares in the 29th Chapter of Magna
Charta, was meant chiefly to relate to the
trial of the barons by their peers, though it
has, fortunately, been expounded to extend
to the trial of all persons by a jury
Rise of presentment
(10th -14th Centuries)
• Starting in the late tenth century, Anglo-Saxon kings began to change the
nature of criminal prosecution. Aethelred's third code, promulgated around
1000, required the 12 leading thanes (nobles) of a wapentake (district) to
accuse and arrest those suspected of crime in their locality.
• Under the presentment procedure, leading men were chosen from each
locality and were required to present (that is, report) on oath crimes
committed in their neighborhoods.
• A dual system of presentment took place whereby the accusing jury which
had hitherto considered who should be tried by ordeal now presented the
accused before new convicting juries.
• These new juries were self-informing in the sense that they were assumed
to know the facts because they lived in the local neighborhood.
In the reign of Edward I bailiffs of each bailiwick, in order
to be ready for periodical circuits of justices in eyre, were
required to choose 4 knights, who again were to choose 12 of
the better men (duodecim de melioribus) of the bailiwick,
and it was the duty of the latter to present all those who
were suspected of having committed crimes
Each of them took the following oath:
Hear this, ye Justices! that I will speak the truth of that which ye shall
ask of me on the part of the king, and I will do faithfully to the best of
my endeavor. So help me God, and these holy Apostles.
Presentment
Immediately after the crime, the victim (or the first finder in the
case of homicide) was required to "raise the hue and cry" - to
notify his neighbors of the crime by yelling out.
The hue and cry brought people to the crime scene while the
evidence was fresh and could lead to hot pursuit of the criminal.
The victim (called “appellor”) was then required to make "fresh
suit" by publicizing the alleged crime in the neighboring villages
and notifying the coroner.
The victim (or family member in homicide and some other cases)
was required to initiate suit at the next county court, which met
every four weeks.
Suit had to be in person.
No attorneys were allowed unless the victim was incapacitated.
Respondent
The appellor was expected to appear and affirm her prior accusation.
If s/he no longer believed the accusation was true, if s/he had settled with
the appellee, if the appellee had intimidated him/her into dropping the
accusation, or if s/he simply had lost interest in the case, s/he might not
show up or, upon showing up, might retract her accusation.
If the appellor remained steadfast in her accusation and if the appellee
appeared in county court before outlawry was pronounced, the appellee
would be "attached," that is, he would be required to find sureties that he
would appear at trial.
If he could not find sureties, he could be jailed pending trial.
In cases of homicide, all appellees were supposed to be jailed pending trial,
although this harsh rule was not always enforced.
All procedural steps in county court were recorded by the coroners, the royal
officials charged with preserving the king's fiscal rights and supervising the
local administration of criminal justice.
Circuit Judges
Eyres occurred approximately every 4 years at the turn of the 13th century.
• Grand jury primarily screened accusations made by others, declaring
"true bill" of accusations ("indictments") it approved.
An indictment is a written accusation of one or more persons of high
treason, felony, or a misdemeanor, preferred before and presented upon
oath by 12 or more, not exceeding 23 good and lawful men of the county
duly sworn, who are called the Grand Jury.
They are, therefore, the accusing jury, as distinguished from the petit or
trying jury.
• Presentment was an excellent filtering device to reduce the number of
charges.
• Grand jury was disposing of complaints and suspicions that were not
widely believed by reliable persons
At the eyre, presenting jury reported all appeals to itinerant justices.
Their presentments were compared with the coroners' written records of
county court proceedings to ensure that jury was not concealing appeals.
Functions of grand jury
The best explanation of the decline of the appeal lies in changing judicial policy
toward private settlement.
In 1215, the 4th Lateran Council forbade clerics to participate in ordeals, thus
effectively banning ordeals.
As a result, trial by jury became routine in criminal cases, and judges no longer
faced such a difficult choice.
Now they could ascertain guilt or innocence in the absence of a prosecuting
appellor by referring the question to the jury "at the king's suit."
They did so in a majority of cases (64 percent) in the 1218–22 eyres, the first
eyres after the abolition of the ordeal.
Disrespect for settlements, however, caused people to bring fewer appeals.
In the 1230s the royal courts began to develop an alternative to the appeal,
which would eventually be known as trespass.
Other reasons for decline of appeals
o the appeal's archaic nature, especially the use of trial by
battle
o judicial hostility, which manifested itself in the ease with
which appellees could exploit technical defects to quash
appeals
o the introduction of presentment, which meant that crimes
might be prosecuted even if the victim did not appeal;
o the introduction of trespass actions, which were more
attractive to victims because they provided money damages.
The appellee, if present, then pled. His options were to deny commission of the
crime or to put forward a technical defense, such as failure to raise the hue and
cry, failure to sue at the first county court, or a divergence between the
accusation in the county court (as recorded by the coroners) and the appellor's
repetition of the accusation in the eyre.
If the technical defense was accepted, the appeal was null. This happened in
about 10 percent of appeals.
If technical defense was rejected or if the appellee merely denied the
accusation, he would offer to prove his innocence by battle or, after jury trial
became routine around 1220, he could "put himself on the country."
Battle, however, was only an option if the appellor was a healthy, non-minor
male, and even then appellees almost always chose jury trial.
If accused by a woman or an aged or maimed male, the appellee was required
to accept trial by jury.
Appellees convicted of the most serious crimes (homicide
and sometimes theft) were hanged
Those convicted of other crimes were usually ordered to be
taken into custody until they offered to pay a fine or
"amercement" in an amount determined individually (but
probably loosely) according to the offender's wealth and the
severity of the offense.
Convicted offenders could also be castrated or blinded, but
such punishments were extremely uncommon.
• From the early Middle Ages to the 17th century, private prosecutions
were the main way to enforce the criminal law.
• Under the English common law, crimes were regarded originally as
being committed not against the state but against a particular person
or family.
• It followed that the victim or some relative would initiate and
conduct the prosecution against the offender
• It was not actually the privilege but the duty [by right] of the private
citizen to preserve the King's Peace and bring offenders to justice
• Because of the increase in courts and cases in the Middle Ages, the
King began to appoint King's Attorneys to intervene in matters of
particular interest to the King.
• The King could intervene in cases begun by a private prosecutor
where the matter was of special concern to the King. By intervening,
the King's Attorney could then conduct or stop the proceedings
not in all cases that compurgation was allowed.
In some crimes of open violence, or when a man was taken in the mainour with the
red hand, or other proofs of guilt upon him, he could not clear himself by adducing
persons to swear to their belief in his innocence
The process in this case was different. It was no longer a contest of oath against
oath — i.e., the oath of the accuser against the oaths of the accused and his
compurgators
former, indeed, swore to the truth of the charge, and in this he was supported by
the oaths of a competent number of friends, but the latter was obliged to submit to
the ordeal in order that by the judgment of God his guilt or innocence might be
made manifest
An accusation thus fortified by oath was called vorath, or forath
vorath was in fact taken as a primâ facie proof of guilt, and so might be regarded as
a judgment of a court condemning the suspected person to undergo the ordeal, in
order that the God of Truth might interpose and ultimately decide the question of
innocence or guilt
Age of public prosecution
(19th century to present)
• In 1804, Supreme Court Justice Samuel Chase - only Supreme Court ever impeached -
was impeached for denying a jury's right to judge law.
• During the 19th century, juries as far South as Georgia refused to convict whites who
assisted slaves escaping from bondage.
• Northern juries sometimes refused to enforce the Fugitive Slave Law and acquitted
persons who violated the law by helping runaway slaves escape.
• After the Civil War equal rights legislation in the former Confederacy was routinely
nullified by juries.
• White domination of the panels enabled the Klu Klux Klan and other white separatists to
conduct judicial lynching and enjoy immunity for racist murders.
• In Utah, Mormon jurors refused to convict defendants charged with bigamy or polygamy
• During Prohibition, juries often nullified alcohol control laws, possibly as often as 60% of
the time.
• Throughout the 20th century US juries used their power to acquit defendants who were
given mandatory death sentences.
• Nowadays 3–4% of all jury trials involve nullification
there are two broad reasons why a jury may wish to
refuse to follow law:
Jury may decide that it is unable to convict the accused because
although his or her acts constitute a crime they were justified in
the circumstances
Jury may decide to exercise clemency to offset harshness of
criminal justice system in respect of penalty for offence charged
or in respect of a prosecution which jury believe is inappropriate
By end of the 19th century right of juries to decide
questions of law had been repudiated virtually
everywhere
justice to be done in individual cases where the jury
considers that it would be unduly harsh to adhere
strictly to the letter of the law.
if laws appear to be inadequate or patently out-of-
step with the views of ‘society’, the jury could
interpret the law with flexibility thus making it
compatible with the values and norms of society.
Intrasystemic nullification
English common law, like much medieval law was not so much created as uncovered.
Common-law judges merely articulate the preexisting norms and expectations that underlie
society. Judges only “declare” the law rather than “make”.
In this “declaratory” model of the common law, rules are emergent properties from the larger
common law system in the same way that prices for individual goods are emergent properties
of a market system.
great early lawgivers, those semimythic figures of which early civilizations boasted, among
them Ur-Nammu, Hammurabi, Solon, Lykurgus, and authors of Roman 12 Tables, did not set
down new law but rather codified what the law was and had always been.
15th and 16th centuries for the first time European nation states sought to use legislation to
effect specific policies
reason why England, unlike the continental countries, did not develop a highly centralized
absolute monarchy in 16th and 17th centuries, was its distinctive system of legal rules and
procedures
Legal rules that emerged from common law courts, by virtue of relying on precedent, are
more efficient—where efficiency is understood as wealth-maximizing—than are enactments of
a legislative body and that they in turn promote social efficiency
Theories of Polycentric Law
Economists since Adam Smith have argued that competition in production
serves consumers' interests, while monopolies tend toward sloth and waste.
Gustave de Molinari, editor of the Journal des economistes, was probably the
first legal theorist who dared to ask why this should not be as true of the law
as it is of apples, cotton, and iron.
He argued that under the state's monopoly of law " Justice becomes slow and
costly, the police vexatious, individual liberty is no longer respected, [and] the
price of security is abusively inflated and inequitably apportioned. . . ."
He therefore advocated a non- monopolistic legal system and projected that
once " all artificial obstacles to the free action of the natural laws that govern
the economic world have disappeared, the situation of the various members of
society will become the best possible."
customary legal system has 6 basic features
the Common Law of England is nothing else but the Common Custome of the Realm: and a
Custome which hath obtained the force of a Law is always said to be jus non scriptum; for it cannot
be made or created either by Charter, or by Parliament, which are Acts reduced to writing, and are
alwaies matter of Record; but being onely matter of fact, and consisting in use and practice, it can
be recorded and registered no-where but in the memory of the people.
For a Custome taketh beginning and groweth to perfection in this matter: When a reasonable act
once done is found to be good and beneficiall to the people, and agreeable to their nature and dispo-
sition, then do they use it and practise it again and again, and so by often interation and
multiplication of the act it becometh a Custome; and being continued without interruption time out
of mind, it obtaineth the force of a Law.
And this Customary Law is the most perfect and most excellent, and without comparison the best,
to make and preserve a Com-monwealth. For the written Laws which are made either by the Edicts
of Princes, or by Councils of Estates, are imposed upon the Subject before any Triall or Probation
made, whether the same be fit and agreeable to the nature and disposition of the people, or whether
they will breed any inconvenience or no. But a Custome doth never become a Law to bind the
people, untill it hath been tried and approved time out of mind, during all which time there did
thereby arise no inconvenience: for if it had been found incon-venient at any time, it had been used
no longer, but had been interrupted, and consequently it had lost the virtue and force of a Law.
Until the discovery of Aristotle’s Politics in the 13th century and the
reception of Justinian’s code in the 15th Western Europe passed through
an epoch of nearly a thousand years when law was regarded as
something given independently of human will, something to be
discovered, not made, and when the conception that law could be
deliberately made or altered seemed almost sacrilegiousUntil the
discovery of Aristotle’s Politics in the thirteenth century and the
reception of Justinian’s code in the fifteenth... Western Europe passed
through... [an] epoch of nearly a thousand years when law was...
regarded as something given independently of human will, something
to be discovered, not made, and when the conception that law could be
deliberately made or altered seemed almost sacrilegious
Hayek thinks that virtually the only proper business of a legislature is to
direct and control government, for example by levying the taxes that are
necessary to defray the cost of government and monitoring government
officials
Historically that was primary function of English Parliament and not laying
down of rules of conduct for private citizens.
judges’ duty is to enforce the expectations created by custom. Only question
a judge is entitled to decide is whether the conduct under dispute conformed
to recognized rules, that is, to the established custom which they the parties
ought to have known.
Judges who step outside this boundary are stepping onto the slippery slope
to totalitarianism
judge is not performing his function if he disappoints reasonable
expectations created by earlier decisions.
new situations in which established rules are not adequate will con-stantly arise,
requiring the formulation of new rules by the judges. But they are to fill these gaps
with custom.
Their role remains a passive one. They are prohibited from engaging in a
balancing of particular interests affected by the rules in light of their importance or
from concerning themselves with the effects of the rules’ applications in particular
instances.
Neither the judges nor the parties involved need to know anything about the
nature of the resulting over-all order, or about any ‘interest of society’ which they
serve.
The overall order which the judges are to serve is the market, but they needn’t even
know that. Hayekian judge is required to think only about the internal logic of the
law.
impartial justice is not concerned with the effects application of ‘end-independent
rules’
When impersonal processes generate rules that govern social interactions, such as
market prices, language, customs, or legal rules, being forced to follow those rules
does not improperly restrain individual freedom.
law is a purpose-independent mechanism that enables individuals to pursue their
own several ends, rather than forcing individuals to pursue ends favored by
authoritative decision makers
Just as we distinguish between a market economy and a centrally planned
economy, we can distinguish between a rule-of-law society and a society organized
to accomplish distinct end-state social goals
A society organized by abstract and impersonal law, as opposed to the particular
decisions of particular men, commands of authoritative decision makers, is in fact
a liberal society
Although rules are purpose-independent with respect to the individual members of
a society, the legal system is purposive with respect to the society as a whole, the
purpose being the maintenance of the spontaneous order of society and the
coordination and order it produces
Michael Oakeshott, The Rule of Law, in ON HISTORY: AND
OTHER ESSAYS 119, 121–25, 148 (1983)
The more likely it is that the sovereign will alter property rights for
his or her own benefit, the lower the expected returns from
investment and the lower in turn the incentive to invest.
For economic growth to occur the sovereign or government must
not merely establish the relevant set of rights, but must make a
credible commitment to them.
A ruler can establish credible commitment in two ways.
o One is by setting a precedent of "responsible behavior," appearing to be
committed to a set of rules that he or she will consistently enforce.
o The second is by being constrained to obey a set of rules that do not permit
leeway for violating commitments.
Because the state has a comparative advantage in coercion,
what prevents it from using violence to extract all the surplus?
By striking a bargain with constituents that provides them
some security, the state can often increase its revenue.
Absolutist states which faced no such constraint, such as early
modern France or Spain, created economic conditions that
retarded long-run economic growth.
Development of free markets must be accompanied by some
credible restrictions on the state's ability to manipulate
economic rules to the advantage of itself and its constituents
Successful economic performance, therefore, must be
accompanied by institutions that limit economic
intervention and allow private rights and markets to prevail
in large segments of the economy.
Institutions determine whether the state produces rules and
regulations that benefit a small elite and so provide little
prospect for long-run growth, or whether it produces rules
that foster long-term growth.
States in early modern Europe were frequently at war.
Since wars became increasingly expensive over the period,
putting increasingly larger fiscal demands on the sovereign.
When survival was at stake, the sovereign would heavily
discount the future, making the one-time gain of reneging
more attractive relative to the future opportunities forgone.
There is a long history of reneging under the fiscal strain
accompanying major wars.
Civil war
After the first few years of the Stuarts' reign, the Crown was not able
systematically to raise funds.
Crown resorted to a series of "forced loans“
A second revenue-raising method was the sale of monopolies.
Fiscal needs led to increased levels of "arbitrary" government and
expropriation of wealth through redefinition of rights in the sovereign‘s
favor.
Major source of power for the Crown was the royal prerogative, by
which the Crown issued proclamations or royal ordinances.
On issues concerning prerogative, the Star Chamber had come to have
final say and allowed the Crown to enforce its proclamations
Everything this led, ultimately, to civil war.
Glorious Revolution of 1688
Explicit limits was set on the Crown's ability unilaterally to alter the terms of its commitments
and produced a marked increase in the security of private rights.
Fundamental institutions of representative government emerged
o Parliament with a central role alongside the Crown
o a judiciary independent of the Crown
Several other ways for the Crown to renege on promises were eliminated, notably its ability to
legislate unilaterally (through the prerogative), to by-pass Parliament (because it had an
independent source of funds), or to fire judges who did not conform to Crown desires.
The new constitutional settlement endowed several actors with veto
power, and thus created the beginnings of a division or separation of
powers.
institutional structure that evolved after 1688 did not provide incentives
for Parliament to replace the Crown and itself engage in similar
"irresponsible" behavior.
Supplying private benefits at public expense now required the cooperation
of the Crown, Parliament, and the courts.
Only the Crown could propose an expenditure, but only Parliament could
authorize and appropriate funds for the proposal, and it could do so solely
for purposes proposed by the Crown.
The crown demands, the Commons grants, and the Lords assent to the
grant
Creation of a politically independent judiciary greatly expanded the
government's ability credibly to promise to honor its agreements, that is,
to bond itself.
By limiting the ability of the government to renege on its agreements, the
courts played a central role in assuring a commitment to secure rights.
The institutional and political changes accompanying the Glorious
Revolution significantly raised the predictability of the government.
By putting the government on a sound financial basis and regularizing
taxation, it removed the random component of expropriation associated
with royal attempts to garner revenue.
Following the Glorious Revolution, not only did the government become
financially solvent, but it gained access to an unprecedented level of funds.
The "long arm of the future" provides incentives to honor the loan agreement
today so as to retain the opportunity for funds tomorrow.
In many of the simple repeated games this incentive alone is sufficient to
prevent reneging.
The institutional innovations increased dramatically the control of wealth
holders over the government.
By requiring Parliament's assent to major changes in policies (such as
changing the terms of loans or taxes), the representatives of wealth holders
could veto such moves unless they were also in their interest.
After Glorious Revolution the government began as a regular
practice to earmark new taxes, authorized by statute for each
new loan issue, to pay the interest on all new long-term loans.
By earmarking taxes beforehand, parliamentary interests
limited the king‘s discretion each year over whether to pay
bondholders their interest.
Bank of England could not lend the Crown money or purchase
any Crown lands without the explicit consent of Parliament.
5 institutional changes
Glorious Revolution
o it removed the underlying source of the expediency, an archaic fiscal system and its
attendant fiscal crises.
o by limiting the Crown's legislative and judicial powers, it limited the Crown‘s ability to
alter rules after the fact without parliamentary consent.
o parliamentary interests reasserted their dominance of taxation issues, removing the
ability of the Crown to alter tax levels unilaterally.
o they assured their own role in allocating funds and monitoring their expenditure. The
Crown now had to deal with the Parliament on an equal footing-indeed, the latter clearly
had the advantage with its now credible threat of dethroning a sovereign who stepped
too far out of line.
o by creating a balance between Parliament and the monarchy rather than eliminating the
latter as occurred after the Civil War parliamentary interests insured limits on their own
tendencies toward arbitrary actions.
In combination, these changes greatly enhanced the predictability of
governmental decisions.
While in 1690 France was the major European power, it declined in
power and stature relative to England over the next century.
At the end of the 7Years War, in which France suffered a humiliating
defeat - it had lost its New World colonies (Canada and Louisiana) and
was in financial peril from which it did not recover until after the
revolution.
The contrast between the two economies in mid-century is striking: in
1765 France was on the verge of bankruptcy while England was on the
verge of the Industrial Revolution
Bill of Rights, 1689
East India Company Charter of 1661 envisaged jury trial only for European colonists
Native residents of the Bengal Presidency were subject to summary jurisdiction at the hands of the Collector, or
Zamindar, an English officer empowered to impose sentences including flogging and execution.
European judges, typically, had little understanding of local customs or languages and needed the authority of
local religious leaders, particularly the Moslem Imams, to validate their judgments by Fatwa.
Universal jury trial first appeared in India in 1774 but Bengal already enjoyed very developed forms of Islamic
and indigenous justice
Lord Bentinck’s Bengal Regulation VI of 1832 year abolished necessity of confirmation through Fatwa for the
decision of an East India Company court
in 1861 the Legislative Council established a general system of jury trial in Sessions Courts throughout Bengal
but exercisable only with the consent of the State Government, which was to specify the classes of offences
which would qualify. This enabled the courts to offer Europeans jury trial in the Calcutta Supreme Court for
serious offences, while denying it to Indians
In 1923 when Act XII placed all accused persons, of whatever race, on an equal footing, anyone charged with a
serious offence which raised a conflict between a European British subject and an Indian British subject, could
claim jury trial before a panel comprising a majority of their own race
Unsurprisingly therefore, jury trial was abolished shortly after independence. By 1960 it had been abrogated in
11 Indian states and the remainder would follow promptly
Australia
Australia was settled from 1788, not as a plantation in the usual sense, but as a penal colony and place
Very notion of former convicts (known as “Emancipists”) sitting on juries, horrified the Colonial
Secretary, Lord Bathurst
Emancipated convicts, after all, could not sit as jurors in England and there was no reason to depart
from this practice in the settlement
New South Wales Act of 1823 authorized the King to grant Charters of Justice for New South Wales and
Van Diemens Land, envisaged the reconstitution of the military tribunals as military “juries” of seven
officers.
Quarter Sessions court was established, sitting with or without a jury till 1828.
military law and military juries was abolished in 1839
It was not until 1832, with the colony prospering and attracting large influxes of free immigrants,
including lawyers and other professionals.
Juries Act contemplated an extremely high property qualification for jurors of £30 per annum income
or a personal estate of £300
Similar jury provisions were extended shortly to the new colony of Western Australia and subsequently
to the remaining states of the continent
Africa
Early British colonies such as Sierra Leone and the Gambia acquired right of jury
trial under the "plantation" principle
In others, including the Cape, Nigeria, Zanzibar, Kenya and Southern Rhodesia,
right of jury trial was provided for by statutory enactment , usually based on the
Indian Criminal Procedural Code of 1882 which had separate provisions for the
trial of Europeans and Americans
In colonies acquired after the 1890s, such as Uganda and Tanganyika, jury trial
was never available.
In west African settlements Africans were never barred from sitting on juries on
account of their race, although the language and property qualifications were a
major restriction. So scarce were qualified jurors that it was common here and in
many parts of Africa, to empanel juries of seven.
In Kenya, where juries were qualified strictly by European race without any
property or literacy requirements, Africans could not be tried by jury after 1906
In Southern Rhodesia trial by European jury was provided for the Europeans and
trial by judge and assessors for the Africans.
South Africa
Introduced jury in 1828 , following the annexation of Natal in 1844, trial by jury was introduced there as well,
but jury trial had been reduced to procedural insignificance.
Under Charter of Justice of 1827, Jury was consisting of 9 males aged between 21 and 60, owning or renting
property to a value of £1.17s per annum or having liability for taxes of 30s in CapeTown and 20s outside.
Although Black and Asian Africans, who comprised over 90% of the population, were not specifically excluded
until 1865, the property qualification again effectively prevented them participating in the jury lists. No non-
European was ever to sit on a jury in Natal. Black jurors sat occasionally in Cape Town and elsewhere.
Under Ordinance 14 of 1846, juries were to be composed of white male £10 property owners (rising by 1872 to
£100) who were to vote on a six to three majority
In the Transvaal, juries of 12 sat with unqualified judges (Landroost) to decide cases by unanimous verdict.
After 1858, jurors were required to be enfranchised burghers over 30 years old.
From 1854, juries in the Orange Free State were to consist of 6 or 9 men who decided cases on the basis of
unanimity.
Annexation of the Transvaal in 1877 led to a standardization of jury procedure, with a reduction to 9 jurymen
and the introduction of British-trained judges and English law
By the time of the promulgation of the Union Constitution in 1910, all the 4 provinces empanelled juries of 9
persons for trials of serious offences. Only in the Cape were non-Europeans permitted to sit on juries and only
in Natal were majority verdicts of seven to two permitted
In 1969 jury was replaced by a mixed bench of judge and assessors, still operates in trials of serious criminal
offences
Changes in European Jury System
till early 20th century
The judge is quite active. He controls and conducts, it is the lawyers who
have a more passive role.
Witnesses are called by the court, judges determine order of trial and
conduct most of the examinations.
If experts are needed, it is judge who designates and initially examines the
expert.
Fact-finding proceedings are less formal and less confrontational
This form of dispute resolution requires fewer rules and is much less
dependent on the establishment of procedural guidelines.
Legal education of lawyers is more theoretical than the case method
generally employed in countries with adversarial systems.
Adversarial system aims to resolve conflict
Decision maker in adversarial conflict-solving
process should have a “virgin mind” to be tutored
only through the bilateral process of evidentiary
presentation and argument
Careful balance that must be preserved between the
two sides of the contest for an independent and
impartial verdict to be reached may then be tilted
heavily towards the state.
Inquisitorial system serves to enforce state policy
When the courts become the tool for enforcing state
policy then the danger is that the judicial role is not
viewed as independent from the executive
Policy implementing tasks would seem best carried out
by professionals
Transfer of fact-finding responsibilities from lay triers to
professional triers inevitably dilutes the quality of the
adversarial struggle between prosecution and defence
and casts the trier of fact in a much more dominant
position
EVIDENTIARY RULES
Within the classic common law jury system, judge is given a pivotal
role in preventing the admission of evidence which lacks sufficient
probative value or is unduly prejudicial in nature.
Over time, exclusionary rules of evidence such as the hearsay rule
and the rule against the admission of an accused's bad character
were developed to guide judges on what evidence should be
admissible.
because lay persons have no legal training, certain rules of evidence
have been developed to filter what jurors may hear in order that
they not be influenced by illogical or extra-legal considerations.
In adversarial system effect of the exclusionary rule has been
further expanded by the “fruit of poisonous tree” doctrine.
Principle of free proof
believed that
under the new German system of criminal
adjudication, the lay assessors could be
much more easily influenced by judges than
was possible under the old system
the system of people’s assessors was
necessary to defend the interests of the
Soviet people against opponents of socialism
Restoration of Jury
Law does not limit jury's access to the preliminary investigation file, nor to regulate
the use of prior statements of witnesses or defendants.
Many acquittals have been reversed by Supreme Court because the trial judge
excluded evidence which the Supreme Court deemed admissible.
In several cases Supreme Court has reversed acquittals because the defense had
unsuccessfully moved to exclude allegedly coerced confessions and then had, either
through the testimony of the defendant, other witnesses, or through the defense
lawyer's closing argument, alluded to the allegedly unlawful actions of the
interrogators
Legislation prohibits mention of a defendant's past criminal record before the jury.
To achieve parity Supreme Court ruled en banc that the defendant may not
introduce good character evidence before the jury
Supreme Court upheld the conviction of an arguably "battered" woman for the
aggravated murder of her husband even though she was prevented from introducing
evidence of his bad character. The court held that admission of such evidence would
turn the case into a trial of the victim
Taking of the Evidence in Spain
Before arguments and the defendant's last word, the Spanish judge prepares a
verdict form containing propositions, both in favor and against defendant.
The propositions are restricted to facts presented by parties during trial and
relate to the elements of the crimes charged, conditions which modify or
exclude guilt, and statutory factors that aggravate or mitigate the defendant's
criminal responsibility.
Document will then set out the extenuating circumstances and facts that may
determine the degree of participation of defendant in crime for which the
defendant will be found guilty or not guilty. This document will form the basis
of the jury's deliberations.
The judge's proposed verdict form must be discussed with the parties; the
parties' objections to the form's contents may form the basis for an appeal.
jury's verdict is made up of five distinct parts.
1st lists facts held to be established,
2nd lists facts held to be not established,
3rd contains jury's declaration as to whether accused is guilty or
not guilty
4th provides a succinct statement of reasons for verdict,
indicating the evidence on which it is based and reasons why
particular facts have been held to be established or not.
5th contains a record of all events that took place during
discussions, avoiding any identification that might infringe
secrecy of deliberations.
jury is asked to affirm or deny the proof of the defendant's guilt as
to the "criminal acts" contained in the parties' pleadings.
After voting on each of these issues, the jury has to draw up a
document under 5 headings of the facts declared proved, the facts
not proved, the declaration guilty or not guilty, the reasons for why
they consider the facts proved or not and, finally, the voting
incidents during deliberation.
If the jury believes that guilt has been proved as to one or more of
the allegations, it may nevertheless recommend a suspension of
sentence or ask that the government grant complete or partial
amnesty for the offense.
Russian "question list"
crime.
The Russian system separates the guilt question into 3
component parts, thereby permitting implicit jury
nullification by allowing an acquittal even though the jury
has determined that the corpus delicti.
Justice & Morality
Jury deliberations in both Russia and Spain are entirely secret. The presiding judge is
not allowed to participate and jurors may not reveal any information about the
deliberations.
In Spain, 7 of 9 votes are required to prove any propositions unfavorable to the
defendant, whereas only five votes are needed to prove any proposition favorable to
the accused.
Jurors are also allowed to alter the propositions submitted to them as long as they do
not substantially alter the subject of their deliberations and the alterations do not
result in an aggravation of the possible criminal responsibility of the defendant.
Similarly, "guilty" verdicts require 7 votes while "not guilty" verdicts or
recommendations of suspension of sentence and clemency require only 5.
Spanish jury can request more instructions or clarifications as to the verdict form, and
if the jury has not voted after 2 days of deliberations, the judge can call them into
court to determine whether they have had any problems understanding the verdict
form.
Detailed special verdicts used in Spanish and Russian cases
certainly enable the sentencing and appellate judges to divine
the reasoning process of the jury
Spain has gone one step further and required that the jury
give a succinct rationale for their verdict, indicating the
evidence upon which the verdict was based and the reasons
for finding a particular proposition proved or not proved.
Other than a nonbinding statement by the jury provided for
in the Austrian Code of Criminal Procedure, this is the
clearest attempt yet by a legislature to require that juries
justify their verdicts.
After receiving the verdict from the jury, the judge must review the
verdict for defects and ask the jury to make any necessary
corrections.
In a Spanish case, if the judge returns the jury three times to correct
defects in the verdict, and they fail to do so, he or she may dissolve
the jury and retry the case before a new jury.
If the new jury also fails to reach a verdict due to similar problems,
the judge must, on his or her own motion, enter a verdict of
acquittal.
The judge's ruling following a guilty verdict in both countries must
be based on the facts found to be true by the jury, which the judge
then juridically qualifies before imposing sentence.
Russian Jury Statistics
Denmark Norway
Finland Panama
France Russia
Ghana Senegal
Greece Spain
Countries with lay assessors
Algeria Madagasc
ar
Australia Mauritius
Austria Norway
Belgium Senegal
Denmark Sweden
France Ukraine
Ghana
Countries without any lay participation (including justices of
the peace and lay magistrates)
Basis nalty criminal modus ever jurors rule participation in given? possible?
Cases being determination
annually appointed of
sentence?
Belgium Art.150 Con In practice 0.01% of all Randomly 12 2/318 Yes No No jury trial as
limited to criminal from jury right of the
murder and cases pool public to
other for > participate
20y. (not right of
accused!)
Selection of lay judges is much less random than the selection of jurors in the Anglo-
American system.
Random selection from the community as a whole helps to maintain clear distinction between
the bench, represented by the professional judges, and the jurors, i.e. ordinary citizens.
Jurors are chosen from the community, and during their period of service, they remain
representatives of the public. Lay judges, by contrast, are appointed to represent the court,
and during their period of office, become members of the court.
Lay judges are usually selected for 4 year terms
Selection process of lay judges is divided into a nomination and a selection phase.
Some authorities compile random lists of residents, others delegate the task to the political
parties represented on the city counsel, and still others vigorously seek out volunteers. Some
authorities even allow the police to exercise a veto power over the provisional list.
End result is that lay judges often have educational and social back- grounds more similar to
professional judges, which may diminish the effectiveness of the lay role in the mixed court
system.
Dangers of Mixed Court
in society with hierarchical nature and respect for authority
Professional judge or judges would have more than simply their intended "guiding"
influence over the laypersons.
Respect for higher authority combined with a desire to maintain harmony and
avoid confrontation may result in listening and adopting for oneself what that
authority has to say.
Because of this, lay judges in mixed court system may have difficulty voicing any
personal beliefs about the case
In Germany lay judges affect the verdict in only 1.4% of cases they hear. Studies of
other nations with mixed tribunal systems – from Croatia, to South Africa, to
Sweden – yield similar results
Classical jury system would create the largest chance for full participation of all
jurors.
Although the cultural concepts of hierarchy and respect for authority would still
play a role in the jury's decision-making, there would be more leeway to work
around these concepts if no legal authority figures such as professional judges were
present.
German mixed courts showed that
in 70% of all cases, the lay judges surrender their position;
in the remaining 30%, they carry the dissent to the vote;
in roughly 2/3 of these cases, they outvote the judges.
Overall, in only 21% of all disagreement cases do the lay judges affect the verdict on guilt.
judges do not consider the lay persons as equal partners, they are not involved
in the passing of decisions, which is not expected by the majority of assessors
either.
Even those assessors who initially are active to a certain extent shortly take a
passive role, adapting themselves to the traditions, and become mere observers
of the events.
The influence of professional judges is illustrated by the contrast in the French
cour d'assises between acquittal rates before 1941, when the jury court was
transformed into a mixed tribunal, and after that date: 20% and about 9%,
correspondingly.
lay judges in the German collaborative model becoming more experienced in their
role.
On the one hand, it may be said that improving and enhancing the skills of lay judges
can assist them in gaining a better understanding of criminal proceedings and the
nature of crimes.
On the other hand, several years of service as a lay judge could turn civil duty into a
dull, routine practice and allow lay judges to cultivate "quasi-professional" stereotypes
concerning the personality of defendants, their background, and the supposed
circumstances in which offences are usually committed.
These stereotypes in turn can interfere with the right of defendants to be tried only on
the basis of evidence and thus prevent lay judges from taking a fresh and impartial
view of each case, which is an ability sometimes said to be lacking in professional
judges.
Apart from this danger, the development of 'quasi-professional' stereotypes may be
said to contradict the very purpose of lay adjudication, which is to bring community
values into formal legal adjudication.
Models of Continental Juries
9 members of the Council of Europe retain this jury model: Austria, Belgium,
Denmark, Malta, Norway, Russia, Spain, Sweden, and some Swiss cantons.
some jurisdictions, such as France and Portugal, kept the name of the jury or juror in
their legislation but completely changed the nature of the institution and adopted a
different mode of adjudication which involved professional judges deliberating
together with jurors—what we shall call the French collaborative court model.
Continental jury courts consist of 2 separate panels: a lay panel that varies according
to jurisdiction from 6 to 12 jurors and a professional panel of 1 or 3 judges
Continental juries are usually reserved for the most serious criminal cases: homicide,
aggravated rape, robbery, in some jurisdictions, political offences (Austria, Belgium,
Denmark, and Russia), and violations of press laws (Belgium and Sweden).
The main characteristic of this model of lay adjudication is that it follows the classic
English tradition of giving the lay tribunal the exclusive function of determining the
defendant's guilt without the input of professional judges.
In Switzerland, jurors sit in 2 different types of courts: cour
correctionnelle (1 professional and 6 jurors) and cour
d'assises (1 professional and 12 jurors).
There are 6 jurors in cour correctionnelle in Geneva, 8 in
Austria, 9 in Malta, Sweden and Spain, and 10 in Norway
professional panel consists of 3 judges in Belgium,
Denmark, and Norway.
As opposed to other systems, the Norwegian jury court is an
appellate instance.
German Collaborative Court Model
For more serious crimes, the mixed court consists of 5 "judges" - 2 lay and 3
professional ("2-3 court")
For less serious crimes, the court consists of 3 "judges" – 2 lay and 1
professional ("2-1 court")
Any decision that disadvantages the accused requires a 2/3 majority vote.
This means that in the 2-3 court, 4 of the 5 judges must agree on a verdict of
conviction, giving 2 laymen a veto power if they act together.
In the 2-1 court, the 2/3 voting rule allows the 2 laymen either to convict or
acquit over the opposition of the professional
Unlike the Anglo-American jury, when the trial is over presiding judge leads
these in camera deliberations and puts the questions and takes the votes. This
safeguards against the laymen making decisions based on ignorance or bias.
French Collaborative Court Model
France, as well as England, Wales and Scotland use pure lay bench to try minor
cases.
These lay judges sit on their own to determine cases and no professional judge is
present during the hearing.
in England and Wales, they sit on a bench of 3 with legally qualified clerks
present to guide them on the law. There, they exercise significant jurisdiction,
deciding cases that can carry as much as two years of imprisonment.
Elsewhere, they sit alone, or on a bench of 3, unguided by any legal official, but
with a very limited jurisdiction.
In Scotland, the maximum penalties available to the district court where the lay
judges sit are 60 days imprisonment or a fine of £2500.
In France, they sit alone and have jurisdiction over so-called petty offenses of the
fourth class (les contraventions de la 4e classe), punishable by no more than
€750.
Lay Judges in Appellate Courts
criminal courts often have a single professional judge presiding, but the judge
must deliberate and vote with 3 lay judges who have equal voting power to
decide guilt and punishment.
Simple majorities prevail (with 2-2 ties leading to verdicts in favor of the
defendant), so a judge can be outvoted by laypeople.
small size of these panels and the vetting process required to become a lay
judge characterize these jurisdictions
Finland changed its system of lay judges in the 1990s to give greater voting
rights to lay judges in collaborative courts.
The old collaborative courts were comprised of seven lay judges with a
collective vote which could overrule the presiding judge only in the case of
unanimity; otherwise, the decision of the professional judge prevailed.
The new Finnish collaborative court consists of one professional and three lay
judges with equal voting rights.
Poland
Re-introduction of the first quasi-jury trial also marks the start of another newly-
revised grand jury system, called “Kensatsu Shinsakai,” or the Prosecutorial Review
Commission (PRC). It’s resolutions from advisory become legally mandatory
PRC was originally created by the Allied Forces occupying Japan after World War II
PRC is composed solely of 11 randomly chosen citizens from the local community and is
appointed to a 6-month term
System is similar to that of the US’s civil grand jury in examining and inspecting the
proper functioning of local public offices, including the District Attorney’s office
similar to the criminal grand jury, the PRC has influence over decision to indict – it asks
randomly chosen citizens to examine appropriateness of prosecutors’ non-indictment
decisions
commission only begins the investigation process when a victim, proxy, or the
commission itself brings a complaint and applies for a commission hearing
South Korea
In Austria the jury-court's jurisdiction was limited for most serious crimes, including by
the law of June 5, 1920.
In 1933, the number of jurors was reduced to 6 later to 3, and the jurors were united to
the Court.
The procedure was changed in following respects:
judge presides over the deliberations and the votes of the jurors
If judge deems fit he may sum up the points of the evidence and arguments, pro and
con, without expressing his own opinion
judge must also explain the nature of the charge and its application to the evidence,
and also the penalties involved
jurors vote before the judges, in alphabetical order; they need not follow the precise
terms of the charge; and each may state the reasons for his vote
Decree of Aug. 28, 1934 transformed jurors into genuine assessors. They were drawn by
lot from a select list, and they serve for a year; they must be 40 years old or over, must
lack any criminal record (even of a political offense), and must have shown themselves to
be well-tried patriots.
Austria
randomly selected lay jurors in some contexts and lay judges in others administer
justice
Lay assessors sit for 5 days per year over the course of 2 years and are not empanelled
only for single cases.
offenses a single-judge court hears the trial and issues a verdict
offenses punishable with up to 10 years prison 2 professional judges sit with 2 lay
judges
offenses punishable with more than 10 years prison 3 professional judges sit with 8
randomly-selected jurors. The 8 jurors reach a verdict after deliberation isolated from
the judges.
simple majority controls, with ties resulting in acquittal
Jurors in tandem with the judges are often involved in discussions about sentencing
3 judge panel can refuse to enter judgment in certain cases if it concludes unanimously
that the jury verdict was erroneous. In such a case, the judges may send the case to a
higher court for further consideration, which may recommend a new trial. If a second
jury also reaches the original jury’s conclusion, the judges no longer have the power to
suspend the verdict
Austria
For lesser crimes, mixed courts were used in which 2 lay assessors sat with a professional
judge. When these cases were appealed, three lay assessors sat with 3 professional judges, all
of whom got one vote.
In both of these situations, judges and jurors deliberated together, simple majorities
controlled, and ties led to a judgment in favor of the defendant.
in cases where prosecutors asked for sentences of 4 years or more, in cases of political
offenses, and in cases where the prosecution was seeking confinement in a mental institution,
12 jurors would sit with a panel of 3 judges, and a majority vote of the judges and an 8-4 vote
of the jurors had been necessary to issue a verdict adverse to the defendant, though
deliberations among the judges and jurors were conducted separately.
Failure to reach either of the required majorities led to an acquittal
At the sentencing phase in cases when a jury was empanelled, judges and jurors deliberated
and voted on a sentence together: each juror had a single vote and each professional judge had
4 votes to create “parity” between judges and jurors. The weighted majority controlled and
ties were resolved by favoring the side recommending the less severe penalty.
Sentences were generally appealable to the highest court in the country.
Denmark after 2008
January 1, 2008 reform of the Administration of Justice Act became effective
lower level courts will now use 6 lay jurors with 3 judge panels and the mid-level courts (in
which 12 jurors were previously employed) will now use 9 lay jurors and 3 judges. In both
cases, a 2/3 majority of jurors (4 out of 6 and 6 out of 9, respectively) and a majority of judges
(2 out of 3) will be required to reach a guilty verdict.
Failure to reach these majorities will lead to acquittal.
Jury verdicts will, under the new regime, be subject to appeal on the question of guilt.
judges and jurors will ne required to deliberate together in a traditional mixed court setting in
both instances.
Unlike many other jury systems which employ randomly-selected citizens as jurors, lay
judges and jurors in Denmark are selected through an appointment process
potential lay judges and jurors are first nominated by special representative “Basic List”
committees, themselves appointed by city councils in accordance with proportional
representation. The committees try to pick consensus laypersons to add to the Basic List,
from which lay judges and jurors are drawn.
When it comes time to seat lay assessors for a specific case, however, selection is made by lot.
Lay judges and jurors must sit for a few days each year (usually about 3 cases) for four
consecutive years.
France, 19th – early 20th c
For serious crimes, Portugal uses mixed courts of three professional judges and
four jurors. Judges and jurors deliberate together and simple majorities
control the outcome with ties entered in favor of defendants. Jurors are
randomly selected and are seated for single cases.
influence of the English model is apparent; single judge sat with 9 jurors and
summed up the case for them. In 1926 the jury was discarded.
Following 1974 Carnation Revolution that had displaced ruling military regime, Portugal
passed a new Constitution with a provision guaranteeing trial by jury for certain crimes
Article 210 Juries, People's Participation, Assessors
(1) Juries are made up of the judges of the plenary court and the jurymen; a jury is
called to court, at the request of either the prosecution or the defence, for the trial of
serious crimes, except terrorism.
(2) The law may provide for social magistrates to be called to court for hearings on
industrial disputes, offences against public health, misdemeanors, and other matters
involving the assessment of infringed social values.
(3) The law may also provide for technically qualified assessors to be called to
participate in the hearings concerning specific matters.
Pre-war Bulgaria, Czechoslovakia, Hungary Yugoslavia
In Bulgaria, formerly, 3 jurors sat with the usual 3 judges, in the trial of serious crimes, on the issue of
guilt. But in 1922 the jury was discarded; there are now professional judges only.
In Czechoslovakia Act of 1923, on the safety of the republic, and that of 1924, on press offenses, removed
certain political offenses from the jury-courts. In 1923 serious political offenses were assigned to a new
branch of the Supreme Court, and press offenses to a special court composed of 3 professional judges and 2
lay-assessors. Draft revised Code of Criminal Procedure of 1929, unifying the national law, restricted the
jury-courts to offenses punishable with death or more than 10 years' imprisonment. Later, the government
on recommendation of the Supreme Court could suspend trial by jury
Jury was first adopted in Hungary in 1869 for press-offenses only, then extended in 1897 to include other
specific offenses—treason, rebellion, interference with personal liberty, murder, arson, robbery, etc. In
1914, just before the World War, the procedure was changed so as to allow judge to take part in the jurors'
deliberations, but without vote, and to allow 2 of the jurors to be delegated to take part with the Court in
determining the penalty (the jurors voting first). Decree of 1919 suspended the jury courts and temporarily
transferred to the usual judge-tribunals the jurisdiction over all kinds of offenses. Since that date, the jury-
system in Hungary has remained nominally in force, but is not used. Later it was abolished altogether.
New Yugoslav State retained temporarily the former judiciary sys-tem (including the diluted Serbian jury-
system), in which the jurisdiction was limited and the presiding judge took part as adviser in the jury's
deliberations. 1929 Code of Criminal Procedure, unifying the law of the consolidated regions, discarded the
jury for the whole country.
COUNTRIES WITH CRIMINAL JURIES
Australia
jury trials are relatively rare in Australia and are reserved for the most serious crimes
12 randomly-selected laypersons serve as jurors for single cases.
Most jurisdictions in Australia allow supermajority verdicts (11-1 and 10-2) for
conviction or acquittal but generally require juries to deliberate under a unanimity
constraint for three to 6 hours, depending on the jurisdiction.
Still, unanimity is generally required for extremely serious offenses, such as murder
or treason.
New South Wales, Queensland, and the Australian Capital Territory continue to
maintain symmetrical unanimity requirements for conviction and acquittal
Supermajority verdicts are generally accepted in Victoria, Tasmania, South Australia,
Western Australia, and the Northern Territory.
prosecution can appeal an acquittal for clarification of the law, but whatever decision
is rendered on the legal issue cannot affect the not guilty verdict in the appealed case.
jury may make a recommendation of mercy, though the judge is not bound by the
recommendation.
Belgium
Belgian jury is sometimes classed with the French jury, because of the
general identity of the 2 legal systems.
Belgium did not adopt the French changes of 1832, in letting the jury
consider extenuating circumstances
1831 abolish the judge's summing-up
Reform of 1867 limited the jury’s jurisdiction by allowing the criminal
branch of the Superior Court by unanimous vote or the Court of
indictment by majority vote to transfer a case to the Magistrate's
Correctional Court for misdemeanors because of legal defenses or
extenuating circumstances, instead of sending it automatically to the
jury court.
Nowadays juries of 12 randomly-selected citizens assist in the
adjudication of serious felonies through “Courts of Assizes.”
Jurors sit for single cases. Simple majorities produce verdicts
Belgium
accused has right to ask for an order banning publication of the content of
the proceedings until the charges are dropped or the trial is ended. The
motion must be granted; the judge has no discretion
It is proscribed to publish anything said in the absence of the jury until the
jury retires to consider its verdict, at which time sequestration is
mandatory. The ban does not apply if the jury is sequestered during the
whole trial, but that kind of sequestration is extremely rare
Injunctions involve delay, not permanent bans, on publication
Supreme Court of Canada has increasingly relied on existing procedural
safeguards against jury prejudice in the face of media reporting instead of
banning publication
Jurors are prohibited from ever disclosing anything about their
deliberations under threat of a summary conviction that could result in a
maximum sentence of six months imprisonment and a fine of up to $5,000.
English civil jury
Frequency of civil jury trials steadily declined in England and Wales from the middle of
the 19th century.
Today less than 1 percent of civil trials are jury trials.
Supreme Court Act gives a qualified right to jury trial in only 4 types of civil case:
libel and slander,
fraud,
malicious prosecution,
false imprisonment.
Even in these cases right can be denied where the court determines that trial requires
"prolonged examination of documents or accounts, or any scientific or local
investigation which cannot be conveniently made with a jury.
Currently civil juries are used most often in defamation cases. A major cause for
concern has been the usually large size of jury awards in such cases.
In 1975 Faulks Committee on Defamation recommended that the function of the jury in
defamation cases be limited to deciding issues of liability, leaving assessment of
damages to judge.
English criminal jury
Before 1972, jurors were drawn only from those who owned property of a prescribed value, which
ensured that juries were predominantly male, middle-aged, middle-minded and middle class.
Since 1972 profound changes took place in the composition of juries. They have become much younger
and less middle class. However, there still appears to be an under-representation of women and ethnic
minorities.
Results of the changes in juror qualification were not to everyone's liking - police, judges, and some
lawyers complained of a deterioration in the standard of jurors, who were now too stupid, too
irresponsible, too easily bribed or intimidated, or too much of a security risk.
Runciman Commission put forward a limited proposal for ensuring that a jury includes at least 3
members from the same ethnic group as the defendant in exceptional cases.
Court of Appeal held that jurors' names could be withheld if it was thought necessary to prevent a jury
being nobbled, provided that the defendant's right of challenge was preserved. Group of jurors was
called to the jury box only by numbers allocated to them by the court clerk.
Attorney General published guidelines, which provide for juror investigation in cases where strong
political motives are involved. If anything indicating "disloyalty" is found, the juror is to be stood by.
Prosecution may have access to information on jurors obtained by the police, CID, or Special Branch
for purposes of jury vetting. It is up to the Director of Public Prosecutions to authorize vetting.
Number of jurors in England
If jurors were faced with a straight choice between guilty and not guilty,
they might opt for guilty where otherwise they would have found the
case not proven. There would be an increased danger of wrongful
convictions.
Jury may well not be convinced of the accused's innocence. Of
particular significance here is the Scottish rule that the prosecution
case must be corroborated.
There are many cases where one witness is completely believed, but
there is insufficient corroborating evidence to allow the jury, or the
judge in a nonjury trial, to convict, although they may be fairly certain
that the accused is indeed guilty.
This might be particularly so with regard to the victim of a sexual assault.
Scottish jury statistics
In Tessin jury system has been simplified in 1895. 3 judges sat with 5
jurors, and the issues of guilt and of penalty were voted upon by all
members. The jurors (3 in the petty courts, 5 in the higher ones) were
elected by popular vote from the citizen-body.
In Berne the reform was enacted in the new Penal Code of 1928. Jurors
were selected as be-fore; but their membership was reduced to 8, and they
were united to the Court, for deliberating and voting on all the issues
involved.
In several other Swiss cantons only minor changes have been made. In
Zurich, Vaud, and Geneva, an accused pleading guilty may waive jury-
trial; in Zurich he goes before the criminal division of the Superior Court.
The presiding judge's function has been amended; in Lausanne, he
answers publicly the jury's request for comments; in Zurich, he gives them
instructions on the law; in Geneva, he is present in the jury-room to
answer questions.
Modern Switzerland
Jury trials continue to exist in some Swiss cantons, though they have been
abandoned by many others.
jurors can sit in 2 different types of courts: the cour cour corectionnelle, in which a
judge presides with 6 randomly-selected jurors, and the cour d’assises, in which a
judge presides with 12 randomly-selected jurors.
Simple majorities may return convictions and acquittals, with ties resulting in
acquittals and jurors sit only for single cases.
in Geneva, judge sits with the jury at the cour d'assises and the cour correctionnelle
during deliberations on question of guilt. He or she can answer questions from
jurors, but can neither give advice nor exercise any right to vote.
Juries are expected to give explanations for their verdicts and are involved in
assessing a sentence as well.
Future of Swiss jury is not clear after 2010, when the federal government adopts a
new unified criminal procedure law.
Until 1991 Canton of Geneva considered that the jury satisfied the
requirement of a reasoned decision by answering “yes” or “no” to the
precise questions put to it.
17 December 1991 Federal Court found such replies to be insufficient and
required juries in canton to give reasons for their verdicts in future.
In 1992 Articles 298 and 308 of the Geneva Code of Criminal Procedure
were amended to require the jury to state reasons for its choices should it
consider that this was necessary for an understanding of its verdict or its
decision.
Article 327 of the Code of Criminal Procedure requires the jury to state “the
reasons for taking into account or disregarding the main items of
evidence and the legal reasons for the jury's verdict and the decision by
the court and the jury as to the sentence or the imposition of any
measure”.
LAY ADJUDICATION IN FSU
In 1997 President Heidar Aliev signed the Law on Court and Judges,
that introduced jury, but failed to specify a timeframe for the
introduction
trial by jury would be available only in matters involving especially
grave crimes, which are defined as serious felonies punishable by more
than 10 years imprisonment
both the prosecution and the defense will only have 2 preemptory
challenges each
Only prosecution but not defense counsel has right to make an opening
statement before the jury at the beginning of the trial
little protection is available to shield jurors from prejudicial evidence
Azeri Criminal Procedure Code
• Juries inject community values into the formal legal process, and thus they can
bring a sense of equity and fairness against the cold and mechanistic
application of legal rules.
• Jury opens up the justice system to independent scrutiny and in turn helps to
promote public understanding of the justice system
• jury trials lend legitimacy to court decisions because the general public sees
that people like themselves have handed down the verdicts
• popular participation in the judicial system helps to make court decisions more
acceptable to the community
• Juries legitimizes the law by providing opportunities for citizens to validate
general statutes in their application to specific trials
• verdicts should represent the conscience of the community and not just the
letter of the law
• Jury helps to promote the ends of adversary litigation,
opening up dialogue and participation between the parties
and curbing any judicial inquisitorial tendencies
• Juries are an important check against state power
• Juries are likely to provide a more sympathetic hearing to a
party, who is not part of the government or other
establishment interest, than would representatives of the state
criminal jury protects against tyranny and oppression because
the government may not imprison a defendant until it
convinces a jury of ordinary persons that the accused is guilty
beyond a reasonable doubt
• jurors are selected randomly from a representative cross
section of the community
• no citizen should be denied the right to serve on a jury on
account of race, religion, sex, or national origin
• jury is best surviving example of direct rather than
representative democracy
• Jury as an endurance of medieval liberty, in the sense of
communal, as opposed to official, judgment
• high frequency of jury trial with conscription of large
numbers of citizens to serve on these juries may have
the socializing and legitimizing functions.
• jury provides an important civic experience
• jury makes tolerable the stringency of certain decisions
• jury acts as a sort of lightning rod for animosity that
otherwise might centre on the judge
• jury is a guarantor of integrity since it is more difficult to
bribe 12 people than 1
• jury as a group has wisdom and strength beyond that of
its individual members
• jury is a remarkable device for ensuring that the rigidity
of the general rule can be shaped to justice in a particular
case
• Jury ensures that justice would be directed by the spirit
of the law and not by its letter
there is a natural temptation for jurors from one
particular background to be disposed to acquit those
from the same background and conversely to convict
those from a different background
checks and balances can be put in place to try to
prevent prejudice.
give more control to the judge
exercise control over the selection of juries
transfer trials to different venues
The jury is the most neutral and passive decision-maker available. At trial it
hears only evidence that has been screened for objectionable and prejudicial
material.
Juries are made up of people who come together to hear one case; they are,
therefore, unlikely to be tainted by the sorts of predispositions judges may
develop over the course of their careers either about certain sorts of claims or
certain lawyers or litigants. ‘
Because the jury comprises a group, no single juror's prejudices can destroy its
ability to reach a fair decision. Moreover, its members may be questioned before
trial in voir dire, which facilitates the removal of potentially biased individuals. ‘
All this is to be contrasted with the position of trial judges, who have to labor
unceasingly to manage litigation before them, who inescapably bring their legal
and political experiences into the courtroom with them, and who cannot be
questioned regarding their opinions or sympathies.
Juries’ selection
In 1986 Supreme Court in Batson v. Kentucky held that it was improper for
lawyers to use peremptory strikes to remove African-American juror candidates
simply because of their race.
The Court mandated a 3-step process beginning with the complaining party
making a "prima facie [showing] of purposeful discrimination" based on race.
Once the complainant has made such a showing, the burden shifts to the party
who exercised the peremptory strikes to articulate a "neutral explanation" for
his or her selections. Then it is up to the trial court to decide whether unlawful
discrimination has been proven
In 1994 J.E.B. v. Alabama Supreme Court has extended Batson rule to
peremptory challenges that discriminate on the basis of gender.
1st woman to serve on a jury anywhere in world took her place in a Wyoming
Territory panel in 1870
word “male” was not expunged from many qualification statutes until 1930s.
"Scientific selection" of jurors
In Scotland juries consist of 15 people for criminal trials and 12 people for civil trials.
Civil juries of US and Canada and rare civil juries in other countries show considerable
deviation from the number 12, though not ordinarily dropping below 6 persons, except in New
Zealand where 4 person juries were authorized for civil and minor criminal cases.
In 1970 Supreme Court, in Williams v. Florida, upheld a Florida statute mandating 6 person
juries in all state court criminal prosecutions except those involving the possible imposition of
the death penalty. In the Williams decision, the Supreme Court referred to reliance on 12
jurors as an "historical accident. Three years later, the Court extended the 6 person rule to
federal civil trials in Colgrove v. Battin.
Research would strongly suggest that smaller juries
are no more efficient than larger ones.
place added pressure on minority jurors who do serve to surrender to the majority point of
view.
In Ballew v. Georgia, the Supreme Court rejected 5 member juries as constitutionally
inadequate in criminal cases.
University of Chicago Study
HARRY KALVEN, JR., and HANS ZEISEL, in collaboration with THOMAS CALLAHAN and
PHILIP ENNIS. The American Jury. Boston: Little, Brown, 1966.
• Judicial exposure to inadmissible prejudicial materials concerning criminal defendants' prior records
clearly affected judges' judgments about guilt and innocence and led them to decide more cases against
defendants than untainted juries did.
• A study found that trial judges agreed with more than 3 out of every 4 jury verdicts in their courtrooms
• Survey of some 7,000 jury trials, conducted in 1966, the presiding judges were requested to reveal how
they would have decided without a jury
There was complete agreement between the judges and the juries in some 66.2 per cent of the cases.
Of the 33.8 percent on which there was disagreement, some 19.1 percent, or more than one half of the
total, was on the question of guilt.
As to the nature of the disagreement, some 34 percent was over the facts in the case; 45 percent over a
combination of facts and values, and 21 percent over values alone.
Juries tended to be more lenient than judges: in some 28.3 percent of the cases, as against 5.5 percent
for the judges.
Disparity in ability of the defense counsel does not produce more than a 1 percent difference in the
outcome of verdicts
University of Chicago Study
HARRY KALVEN, JR., and HANS ZEISEL, in collaboration with THOMAS CALLAHAN and
PHILIP ENNIS. The American Jury. Boston: Little, Brown, 1966.
US and England may be seen to occupy 2 ends of a continuum with respect to controls on the
media
In US 1st Amendment has been interpreted by Supreme Court as allowing media extensive
access to all major phases of trial.
Statutory and common law in England place severe restraints on what the media may report,
subjecting violators to sanctions involving heavy fines or even jail.
After charges have been laid against an accused, media in UK are constrained to reporting
only the barest information about proceedings before trial, such as the names of persons
involved and the place and date of a preliminary hearing or inquiry.
Reporting constitutes contempt if the reporting gives rise to a ‘substantial risk’ that the trial
will be ‘seriously impeded or prejudiced’.
All common law jury systems retain change of venue as a remedial measure when there is
concern that the jury pool may be tainted from media publicity or from interpersonal sources
of tainting when the crime is of particular concern to large segments of the community.
Jury confidentiality
Some courts have placed limitations on the press, what individual jurors may say to the
press, and even limitations on what jurors are permitted to disclose, but, in general,
there are few restraints on jurors.
In England, N Ireland, and Canada the law forbids jurors from disclosing the content of
jury deliberations, avoiding many of these problems.
Secrecy of deliberation not only prevents disclosure of what jurors are thinking, it also
prevents disclosure of how their decision is arrived at.
In England, Canada, Australia, and New Zealand the jury confidentiality constraints
have prevented legal and social science scholars from interviewing jurors even though
the information derived from the activity might shed light on contentious policy debates
about jury.
However, in both Australia and New Zealand those restraints have recently been
loosened to allow researchers access to jurors for purposes of studying jury policy
issues.
Today jurors in US are rarely sequestered
Law in many countries bars testimony or statements by jurors offered to prove virtually anything
about deliberation - any matter occurring or statement made, or effect of anything on mind or
emotions of any juror, or mental processes of the juror whose statement of testimony is offered
Jurisdictions also go to varying lengths to restrict communications between jurors and other parties
about what happened in the jury room.
Jurors can testify about the existence of improper influences but not about what effect this had on
the jury's deliberations.
Communications between the jury and persons outside the jury are invariably forbidden during the
trial and during deliberations and some jurisdictions go so far as to prohibit anyone from obtaining
particulars of any statements made by jurors during the course of jury deliberations.
Even jurisdictions which permit interviews with jurors after trial often take steps to protect jurors
from harassment and to ensure that jurors are made aware that they have an absolute right not to
discuss the deliberations or verdict in the case with any person.
Recent amendments to s. 206 of the Californian Code of Civil Procedure provide that attorneys who
seek post-verdict information from jurors must identify themselves and remind jurors of their
absolute right not to discuss the deliberations or verdict in the case with them.
Judicial comment on evidence
Following fairly closely the practices devel-oped in the 17th and 18th
centuries in England, in all countries except US and Scotland judges
have the positive duty to not only instruct the jury on the applicable
law but to also impartially review the trial evidence.
In Scotland the judge is not required to summarize but does have
the authority to do so.
Most US states outlawed judicial comment on the evidence (known
as "summing up") in the 1800s by constitutional provision, statute,
or judicial decision
Although such commentary would be permissible in federal courts
and some state courts in the United States, in practice it appears to
be obsolete.
Judicial comment on evidence
Judge must impartially, but substantially, review the theories of the prosecution and the defense and the evidence
presented by both sides
This review may include commenting on the strengths and weaknesses of witnesses and discussion of how the
totality of evidence fits with the theories of the opposing sides.
Judge is entitled to express an opinion to jury about importance of various pieces of evidence and may even offer an
opinion regarding the credibility of a witness
In undertaking this commentary, judge must make it clear that jury is not bound to accept her opinion regarding
facts
Judge also has obligation of raising any questions arising from the evidence that favor the accused even if they were
not raised by the accused's legal counsel
jurors are usually given instructions only once -- after all the evidence has been heard and the lawyers have made
their closing arguments. This arrangement keeps jurors in the dark about the law throughout the case and allows
them only a single chance to learn about its requirements.
If relevant instructions were given at the start of the case or before final arguments, jurors would be afforded extra
opportunities to consider the law's import and apply it to the facts.
Moreover, lawyers would have a clearer picture of the law being presented to the jury and could more effectively
tailor their proof and remarks to the legal principles laid down.
written copies (or, in some cases, tape recordings) of the instructions facilitates jury review during deliberations,
enhances the accuracy of recollection of legal requirements, and focuses jurors on the precise legal questions to be
resolved.
In some jurisdictions, such as Austria, Spain, and Swiss
canton of Geneva, judges should only explain questions of law
to the jurors.
In other countries, such as Russia, besides legal issues, judges
also summarize evidence heard in court without formally
expressing their personal opinions about the evidence.
In the third group of countries, which includes Belgium,
Denmark, Malta, and Norway, judges direct jurors on the law
and may also comment on the evidence.
Instead of the standard of proof of 'beyond a reasonable doubt'
applied in common law jury systems, judges in Austria, Belgium,
Russia, and Spain instruct jurors on such principles as intime
conviction, or "deep-seated" conviction, presumption of
innocence, and in dubio pro reo.
In these countries, freedom of jurors to evaluate evidence
according to their in time conviction is limited by two principles:
presumption of innocence and in dubio pro reo.
In dubio pro reo principle, which means "in doubt you must
decide for the defendant," was developed by continental jurists
in the 12th and early 13th centuries, based on works of Pope
Gregory the Great (c. 540 - 604)
Jurors’ questions and preliminary deliberation
Over time the role of the jury became even more passive in the sense that legal
theory and actual legal practice developed around the notion that the jury should
be seen and not heard.
By the middle of the 20th century juries were not ordinarily instructed of their right
to ask questions and in fact usually discouraged from asking them.
Juries also instructed that they should not discuss any of the evidence among
themselves until after the closing arguments and instructions from the judge
In Arizona, a state that leads in jury reforms, jurors are specifically instructed that
they may ask questions of witnesses through written submissions to the judge, and
they are encouraged to do so.
Judge reviews the questions to ensure they do not violate legal rules before they
are allowed and ordinarily the judge will read them.
Arizona juries are also instructed that they may discuss the evidence during the
trial whenever all jurors are together in the jury room during recesses and before
the court opens for the day.
Civil Jury
• Unanimous verdicts was specifically embraced by the Supreme Court in 1897 in American Publishing Co. v.
Fisher.
• American Publishing stood until 1972, when, in reviewing a pair of state criminal decisions, the Supreme Court
held that less than unanimous verdicts are constitutionally permissible in state court convictions.
• In Apodaca v. Oregon, the Court upheld an 11/1 verdict in an assault with a deadly weapon case, while in
Johnson v. Louisiana, a 9/3 conviction regarding a robbery charge was accepted.
• In 1972, when Johnson was decided, under both the Louisiana Constitution and the Code of Criminal
Procedure, criminal cases in which there was a mandatory punishment of hard labor were tried by a jury of 12,
and the vote of 9jurors was sufficient to return either a guilty or not guilty verdict.
• Only Louisiana and Oregon accept less than unanimous verdicts in felony criminal trials
• Juries that needed only to reach an 8/4 verdict in a particular mock case deliberated 75 minutes on average,
while their unanimous-jury counterparts needed 138 minutes, and 10/2juries needed 103 minutes.
• Majority rule juries felt significantly less certain about the correctness of their decisions.
• Critics believe that under a majority rule regime, minority viewpoints and contributions may be marginalized or
even disregarded altogether.
Unlike juries in many common law systems, continental jury systems do not require unanimity for
verdicts.
4 European jurisdictions: Austria, Belgium, Russia, and Switzerland, employ a simple majority
rule, and in another 4 jurisdictions, jurors can convict the defendant by a qualified majority.
simple majority rule contradicts the principle of the general presumption of innocence. very fact
that a substantial minority have voted against guilt in itself suggests that the defendant's guilt has
not been proven beyond a reasonable doubt.
In Denmark, the verdict is reached by 8-out-of-12 votes; in Malta, 6-out-of-9; in Norway, 7-out-of-
10; and in Spain, 7-out-of-9.
Finland and Sweden are the exceptions, since some of their courts consist of 1 professional and 3
lay judges.
Although the German courts use 2/3 majority, in fact, in the panel of 1 professional and 2 lay
judges, 2/3 majority and simple majority are the same.
Finnish and Swedish collaborative courts are the exceptions, since in order to convict, they require
at least 2-out-of-3 lay judges' votes.
8-of-12 votes of the whole panel are required for a conviction in France; this means that at least 5-
of-9 lay judges must vote for a guilty verdict.
Generally, in the German model a guilty verdict is satisfied by a simple
majority vote, which means that the court can convict the defendant if all
professionals and half, or in some cases, even a minority, of lay judges concur,
because number of lay judges cannot exceed the number of professionals by
more than one.
In contrast, French collaborative court model requires at least 55 percent of
the lay assessors' votes for a conviction.
2nd characteristic of the French model is the secret ballot rule. This rule
mandates that lay judges have freedom to express their final decision on the
defendant's guilt according to their intime conviction and anonymously from
the professionals, as well as from one another.
Thus, in the French collaborative court model lay assessors have greater
freedom and opportunity to influence the verdict than in the German model
General verdict
Although ECHR does not provide for right to a reasoned judgment, this right has been
established in several decisions of the European Court of Human Rights.
However, European Court does not oblige national tribunals to give a detailed answer to every
argument.
Since the European Court in these cases interprets the right to a reasoned judgment as a part of
the right to a fair trial guaranteed by Article 6 (1) of ECHR, only the defendant can require a
reasoned judgment from the court.
Article 2 of ECHR requires states to take appropriate steps to safeguard the lives - states must
not only provide for substantive criminal law provisions against unlawful killing but also must
take steps to protect individuals whose lives are known to be at risk from the criminal acts of a
third party
Where a judge learns that a jury is about to acquit a defendant who is charged with the
attempted murder of a victim and there is strong evidence against him and evidence also that he
is likely to remain a serious risk to the victim's life, it may be asked whether in these
circumstances the judge would be required to discharge the jury in order to ensure full
compatibility with the European Convention.
In the Zarouali v. Belgium (1994) and Papon v. France
(2001) cases the Commission and the Court found that
“although the jury could answer only 'yes' or 'no' to each of the
questions put by the President, those questions formed a
framework on which the jury's decision was based”, that “the
precision of those questions sufficiently offsets the fact that no
reasons are given for the jury's answers” and that “this appraisal is
reinforced by the fact that the Assize Court must state its reasons
for refusing to refer a question from the prosecution or the
defence to the jury”.
Taxquet V. Belgium (2009)
The requirement for reasons to be given must also accommodate any unusual procedural
features, particularly in assize courts, where the jurors are not required to give reasons for their
personal convictions.
In the instant case, the questions to the jury were formulated in such a way that the applicant
could legitimately complain that he did not know why each of them had been answered in the
affirmative when he had denied all personal involvement in the alleged offences. The Court
considers that such laconic answers to vague and general questions could have left the applicant
with an impression of arbitrary justice lacking in transparency. Not having been given so much
as a summary of the main reasons why the Assize Court was satisfied that he was guilty, he was
unable to understand – and therefore to accept – the court's decision. This is particularly
significant because the jury does not reach its verdict on the basis of the case file but on the basis
of the evidence it has heard at the trial. It is therefore important, for the purpose of explaining
the verdict both to the accused and to the public at large – the “people” in whose name the
decision is given – to highlight the considerations that have persuaded the jury of the accused's
guilt or innocence and to indicate the precise reasons why each of the questions has been
answered in the affirmative or the negative
In these circumstances, the Court of Cassation was prevented from carrying out an effective
review and from identifying, for example, any insufficiency or inconsistency in the reasoning.
Some argue that tribunal should give reasoned judgment in
order to demonstrate that they have not relied on improper
or prejudicial evidence to reach verdict. It can also be argued
that it enhances a defendant's right to appeal the judgment.
In Belgium, Denmark, Norway, Spain and Switzerland jury is
obliged to provide an explanation for their decisions
Compensating measure against an unreasoned judgment is
that legislation could provide the defendant with a right to be
re-tried by a court consisting of professional judges, or by a
special appellate lay tribunal, as is permitted in Greece, Italy,
France, and Norway.
US Court of Appeals has considered that asking juries questions based
on the verdict risks "catechizing jurors away from an acquittal towards
a seemingly more logical conviction. Yet the jury, as the conscience of
the community must be permitted to look at more than logic."
it may prove very difficult for 12 persons drawn from all sections of the
community to agree what reasons should be
requiring juries to give reasons for acquittal interferes unduly with their
power
If only guilty verdicts are required justification, danger is that juries
might be tempted to answer "yes" or "no" to the questions put in
perfunctory fashion, with little discussion of the evidence
Reviewing jury verdict
judges have the right to ask juries to reconsider their verdicts and sometimes
to send a case for trial before a different jury when they disagreed with the
juries' verdict, especially where the jury is disposed to convict the accused.
Primary sort of relief available for a fatally flawed jury decision is a new trial
of case before a new jury.
This may be ordered if the trial judge feels she or he has committed a serious
error with respect to such matters as jury instructions or the application of
the rules of evidence.
Alternatively, a judge may grant a new trial if jurors may be shown to have
seriously misbehaved, for example, by considering evidence not presented at
trial.
Finally, the trial court may grant a new trial if the verdict is against "the clear
weight of the evidence." This last ground is generally said to be available
only when the original decision is manifestly unjust.
A new trial may not be ordered simply because a judge disagrees with the jury's
assessment of the credibility of a witness or the weight of the evidence; instead, it
must be dictated by the overwhelming weight of all the proof taken together.
Reviewing judge may use several alternative procedures rather than requiring a
new trial.
Judge may grant judgment to the losing party (called a judgment
notwithstanding the verdict) if such a result is the only one rationally possible.
Alternatively, the judge may insist that a new trial be held unless the plaintiff
accepts a reduction in the damages award (remittitur) or, in rare cases, the
defendant agrees to an increase in the award (additur).
Rules regarding appellate court reversal are even more circumscribed. When an
appellate court reviews a jury's decision about the facts of a case, it is limited to
asking whether "the jury 'might reasonably' have found as it did." If there is
some basis for the jury's choice, it must be upheld.
judge has power to direct a not guilty verdict if he or she determines
that prosecution’s evidence is not sufficient to convict.
if the jury returns a verdict of guilty, but upon consideration the
judge concludes that evidence was not sufficient, verdict may be set
aside.
In England, Wales and N Ireland acquittal may be set aside where a
person has been convicted of an offence of interference with, or
intimidation of, witnesses or jurors at the first trial and the acquittal
appears to have resulted from that offense
Austria and Norway permit the professional panel to set aside a jury
acquittal by a unanimous decision, which clearly undermines the
independence of the jury
Right to Appeal
retrial after hang jury does not sit comfortably with the presumption of
innocence or with the associated principle of double jeopardy.
prosecution has had its chance to prove the accused's guilt and has failed;
surely the presumption of innocence means that the accused is entitled to
be acquitted.
presumption of innocence closes the logical space between proof of guilt
and proof of innocence, and thus where the verdict is not one of guilt, the
result must be acquittal rather than a retrial.
if the prosecution cannot prove its case beyond reasonable doubt, the only
possible verdict should be not guilty.
Sentencing
Juror informed trial judge that at least 1 juror was showing racial
prejudice.
In the customary manner, judge recalled jury and directed them to try case
according to the evidence.
Under Article 6 of European Convention on Human Rights a fair trial
requires tribunal to be independent and impartial.
European Court emphasized the importance of a tribunal being impartial
from a subjective as well as an objective point of view
European Court rules that judge had dealt with the matter adequately by
means of a firmly worded direction to the jury which was clear detailed
and forceful and which he had checked for understanding.
No more was required to dispel any objectively held fears about their
impartiality of the jury.
Sander v. UK, 2000
Juror informed trial judge that 2 of his fellow jurors had been making
openly racist remarks and jokes and he feared they would not convict
the defendants on evidence but because they were Asian
Judge recalled jury, read out the complaint to them in open court and
asked them to search their conscience overnight and if they felt they
were unable to try case solely on evidence they were to write a personal
note to judge following morning
The next morning he received 2letters from the jury, one signed by all
the jurors, including the juror who had sent the complaint, stating that
they utterly refuted the allegation and assuring the court that they
intended to reach a verdict on the evidence.
The 2nd letter was written by a juror who explained that he might have
made jokes, that he was sorry he had given offence and that he was in
no way racially biased
In response the judge decided he would not discharge the jury
Applicant's counsel who insisted throughout the proceedings that
dismissing the jury was the only viable course of action
European Court ruled that judge should have reacted in a more robust
manner than by merely seeking vague assurances from the jury.
As the judge did not provide sufficient guarantees to exclude any
objectively justified or legitimate doubts as to the impartiality of the
court, the court considered that there had been a violation of the
applicant's right to a fair trial by an impartial tribunal.
Sander suggests that there may be circumstances which compel judges
to make inquiries of what went on in the jury room, if they do not wish
to discharge jury altogether.
US judges have been more actively investigating complaints that jurors
are deliberately nullifying the law in breach of instructions given to
them to decide the case according to the evidence and the law
Steps are also being taken in certain jurisdictions to encourage jurors to
make complaints against fellow jurors who breach instructions given to
them to follow law and decide case solely upon evidence presented to
them
Californian Court of Appeal recently upheld a statute which obliges
jurors to advise court if any juror refuses to deliberate or expresses an
intention to disregard law or to decide case based upon penalty or
punishment or upon any other improper basis
Defense argued that this instruction tended to involve the court unduly
in deliberative process and would have a chilling effect on deliberations
because a juror might be unwilling to hold fast to an unpopular
decision if he or she knew that fellow jurors might report this to the
judge
Court rejected this argument on the ground that jurors are also
instructed not to change an opinion simply because a majority of jurors
favor that decision and they would not be coerced by the prospect of a
complaint made against them.
A number of other jurisdictions are considering less intrusive devices to
encourage jurors to act in accordance with the evidence and the law.
Apart from the oath which jurors still commonly swear to bring in a
verdict according to the evidence, judges are increasingly being
encouraged to give jurors more detailed directions on how to go about
their task of reaching a verdict.
When juries fail to agree on a verdict a number of jurisdictions provide for
further detailed guidance from judge
juries should be encouraged to identify for court issues or questions of law
or fact that they are having difficulty with.
Another way of discouraging improper conduct from influencing any final
verdicts is to give jurors themselves powers to out-vote "rogue" jurors
bent on improper conduct.
United States v. Thomas, 1997