Jury trial

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Trial by jury is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge. It is to be distinguished from a bench trial where a judge or panel of judges make all decisions.They make decisions based on morality, which is a benefit for the society.Judges give verdict based on the law.

English common law and the United States Constitution recognize the right to a jury trial to be a fundamental civil liberty or civil right(she/he can choose whether to be judged by judges or jury)use jury trials evolved within common law systems rather than civil law systems. Jury trials are of far less importance (or of no importance) in countries that do not have a common law system.

Juries weigh the evidence and testimony to determine questions of fact and of law. Jury determination of questions of law, sometimes called jury nullification, may lead to the overturning of a verdict by the judge.

A jury trial should not be confused with grand jury proceedings. In the United States, where grand juries are still used, the jury used for a trial can be referred to as a "petit jury" (or, simply, a "trial jury") to distinguish it from a grand jury, used for indictments.

History of jury trialsEdit

An early example of a jury trial system 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, specifically in North Africa, Islamic Spain and the Emirate of Sicily, and shares a number of similarities with the later jury trials in English common law. 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." The only characteristic of the English jury which the Islamic Lafif lacked was the "judicial writ directing the jury to be summoned and directing the bailiff to hear its recognition." According to John Makdisi, "no other institution in any legal institution studied to date shares all of these characteristics with the English jury." It is thus possible that the concept of the Lafif may have been introduced to England after the Norman conquest of England by the Normans, who conquered and inherited the Islamic legal administration of the Emirate of Sicily (see Arab-Norman culture), and "through the close connection between the Norman kingdoms of Roger II in Sicily — ruling over a conquered Islamic administration — and Henry II in England."[1][2]

According to George Macaulay Trevelyan in A Shortened History of England, during the Viking occupation: “The Scandinavians, when not on the Viking warpath, were a litigious people and loved to get together in the ‘ thing’ to hear legal argument. They had no professional lawyers, but many of their farmer-warriors, like Njal, the truth-teller, were learned in folk custom and in its intricate judicial procedure. A Danish town in England often had, as it principal officers, twelve hereditary ‘law men.’ The Danes introduced the habit of making committees among the free men in court, which perhaps made England favorable ground for the future growth of the jury system out of a Frankish custom later introduced by the Normans.” The English king Ethelred the Unready set up an early legal system through the Wantage Code of Ethelred, one provision of which stated that the twelve leading thegns (minor nobles) of each wapentake (a small district) were required to swear that they would investigate crimes without a bias. These juries differed from the modern sort by being self-informing; instead of getting information through a trial, the jurors were required to investigate the case themselves.[3]

In the 12th century, King Henry II took a major step in developing the jury system. Henry II set up a system to resolve land disputes using juries. A jury of twelve free men were assigned to arbitrate in these disputes. Unlike the modern jury, these men were charged with uncovering the facts of the case on their own rather than listening to arguments in court. Henry II also introduced what is now known as the "grand jury" through his Assize of Clarendon. Under the assize, a jury of free men was charged with reporting any crimes that they knew of in their hundred to a "justice in eyre," a judge who moved between hundreds on a circuit. A criminal accused by this jury was given a trial by ordeal.

The Church banned participation of clergy in trial by ordeal in 1215. Without the legitimacy of religion, trial by ordeal collapsed. The juries under the assizes began deciding guilt as well as providing accusations. The same year, trial by jury became a pretty explicit right in one of the most influential clauses of Magna Carta, signed by King John. Article 39 of the Magna Carta read:

Nullus liber homo capiatur, vel imprisonetur, aut desseisetur de libero tenemento, vel libertatibus, vel liberis consuetudinibus suis, sut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae. It is translated thus by Lysander Spooner in his Essay on the Trial by Jury: "No free man shall be captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers, and or by the law of the land." Although it says and or by the law of the land, this in no manner can be interpreted as if it were enough to have a positive law, made by the king, to be able to proceed legally against a citizen. The law of the land was the consuetudinary law, based on the customs and consent of John’s subjects, and since they did not have Parliament in those times, this meant that neither the king nor the barons could make a law without the consent of the people. According to some sources, in the time of Edward III, by the law of the land had been substituted by due process of law, which in those times was a trial by twelve peers.

During the mid-14th Century, it was forbidden that persons who had sat on the Presenting Jury (i.e., in modern parlance, the Grand Jury) to sit on the trial jury for that crime. 25 Edward III stat 5., c3 (1353). Over time, English juries became less self-informing and relied more on the trial itself for information on the case. Jurors remained free to investigate cases on their own until the 17th century. The Magna Carta being forgotten after a succession of benevolent reigns (or, more probably, reigns limited by the jury and the barons, and only under the rule of laws that the juries and barons found acceptable), the kings, through the royal judges, began to extend their control over the jury and the kingdom. In David Hume's History of England, he tells something of the powers that the kings had accumulated in the times after the Magna Carta, the prerogatives of the crown and the sources of great power with which these monarchs counted:

One of the most ancient and most established instruments of power was the court of Star Chamber, which possessed an unlimited discretionary authority of fining, imprisoning, and inflicting corporal punishment, and whose jurisdiction extended to all sorts of offenses, contempts, and disorders, that lay not within reach of the common law. The members of this court consisted of the privy council and the judges; men who all of them enjoyed their offices during pleasure: And when the prince himself was present, he was the sole judge, and all the others could only interpose with their advice. There needed but this one court in any government, to put an end to all regular, legal, and exact plans of liberty. For who durst set himself in opposition to the crown and ministry, or aspire to the character of being a patron of freedom, while exposed to so arbitrary a jurisdiction? I much question, whether any of the absolute monarchies in Europe contain, at present, so illegal and despotic a tribunal. While so many terrors hung over the people, no jury durst have acquitted a man, when the court was resolved to have him condemned. The practice also, of not confronting witnesses to the prisoner, gave the crown lawyers all imaginable advantage against him. And, indeed, there scarcely occurs an instance, during all these reigns, that the sovereign, or the ministers, were ever disappointed in the issue of a prosecution. Timid juries, and judges who held their offices during pleasure, never failed to second all the views of the crown. And as the practice was anciently common of fining, imprisoning, or otherwise punishing the jurors, merely at the discretion of the court, for finding a verdict contrary to the direction of these dependent judges; it is obvious, that juries were then no manner of security to the liberty of the subject.

The first paragraph of the Act that abolished the Star Chamber repeats the clause on the right of a citizen to be judged by his peers: Abolition of the Star Chamber July 5, 1641 An act for the regulating of the privy council, and for taking away the court commonly called the star-chamber.

WHEREAS by the great charter many times confirmed in parliament, it is enacted, That no freeman shall be taken or imprisoned, or disseised of his freehold or liberties, or free customs, or be outlawed or exiled or otherwise destroyed, and that the King will not pass upon him, or condemn him; but by lawful judgment of his peers, or by the law of the land…

Many English colonies adopted the jury trial system including the United States. Jury trials in criminal cases were a protected right in the original Constitution and the Fifth, Sixth, and Seventh Amendments of the U.S. Constitution extend the rights to trial by jury to include the right to jury trial for both criminal and civil matters and a grand jury for serious cases.

The role of jury trialsEdit

  • In most common law jurisdictions, the jury is responsible for finding the facts of the case, while the judge determines the law. These "peers of the accused" are responsible for listening to a dispute, evaluating the evidence presented, deciding on the facts, and making a decision in accordance with the rules of law and their jury instructions. Typically, the jury only judges guilt or a verdict of not guilty, but the actual penalty is set by the judge. An interesting innovation was introduced in Russia in the judicial reform of Alexander II: unlike in modern jury trials, jurors decided not only whether the defendant was guilty or not guilty, but they had the third choice: "Guilty, but not to be punished", since Alexander II believed that justice without morality is wrong.
  • In France and some countries organized in the same fashion, the jury and several professional judges sit together to determine guilt first. Then, if guilt is determined, they decide the appropriate penalty.[4]

Some jurisdictions with jury trials allow the defendant to waive their right to a jury trial, this leading to a bench trial. Jury trials tend to occur only when a crime is considered serious. In some jurisdictions, such as France and Brazil, jury trials are reserved, and compulsory, for the most severe crimes and are not available for civil cases. In Brazil, for example, trials by jury are applied in cases of First and Second-degree murders, even if only attempted. In others, such as the United Kingdom, jury trials are only available for criminal cases and very specific civil cases (defamation, malicious prosecution, civil fraud and false imprisonment). In the United States, jury trials are available in both civil and criminal cases. In Canada, jury trials are compulsory for crimes which the maximum sentence exceeds 5 years, and optional for crimes of which the maximum sentence exceeds 2 years, but less than 5 years. However, the right to a jury trial may be waived if both the prosecution and defense agree.

In the United States, because jury trials tend to be high profile, the general public tends to overestimate the frequency of jury trials. Approximately 150,000 jury trials are conducted in state courts in the U.S., and an additional 5,000 jury trials are conducted in federal courts. Two-thirds of jury trials are criminal trials, while one-third are civil and "other" (e.g., family, municipal ordinance, traffic). Nevertheless, the vast majority of cases are in fact settled by plea bargain, which removes the need for a jury trial.

Pros and consEdit

In countries where jury trials are common, juries are often seen as an important check against state power. Other common assertions about the benefits of trial by jury is that it provides a means of interjecting community norms and values into judicial proceedings and that it legitimizes the law by providing opportunities for citizens to validate criminal statutes in their application to specific trials. Alexis de Tocqueville also claimed that jury trials educate citizens about self-government. Many also believe that a jury is likely to provide a more sympathetic hearing, or a fairer one, to a party who is not part of the governmentTemplate:Ndash or other establishment interestTemplate:Ndash than would representatives of the state.

This last point may be disputed. For example, in highly emotional cases, such as child rape, the jury may be tempted to convict based on personal feelings rather than on conviction beyond reasonable doubt. Former attorney, then later minister of Justice Robert Badinter, remarked about jury trials in France that they were like "riding a ship into a storm," because they are much less predictable than bench trials.

Another issue with jury trials is the potential for jurors to be swayed by prejudice, including racial considerations. An infamous case was the 1992 trial in the Rodney King case in California, in which white police officers were acquitted of excessive force in the violent beating of a black man by a jury consisting mostly of whites without any black jurors, despite an incriminating videotape of the action. This led to widespread questioning about the case and riots ensued.

The positive belief about jury trials in the UK and the U.S. contrasts with popular belief in many other nations, in which it is considered bizarre and risky for a person's fate to be put into the hands of untrained laymen. Consider Japan, for instance, which used to have optional jury trials for capital or other serious crimes between 1928 and 1943. The defendant could freely choose whether to have a jury or trial by judges, and the decisions of the jury were non-binding. During the Tōjō-regime this was suspended, arguably stemming from the popular belief that any defendant who risks his fate on the opinions of untrained laymen is almost certainly guilty. Similarly, jury trials were abolished by the government of India in 1960 (this was followed by Pakistan soon afterwards) on the grounds they would be susceptible to media and public influence. One Pakistani Judge called a trial by jury "amateur justice".

Jury trials in multi-cultural countries with a history of ethnic tensions may be problematic, and lead to juries being unduly biased and partial. This is one of the reasons why both India and Pakistan abolished jury trials soon after independence. Indeed in these countries; a jury trial is seen as a failing of some foreign legal system rather than an advantage. This despite both nations being common law countries.

A major issue in jury trials is the secretive nature of the process. While proponents may say that it aids in the protection of liberty by protecting the jury from undue (although what exactly constitutes "liberty", of course is a subjective issue), opponents contend this prevents there from being a transparent trial. The fact that juries do not often have to give a reason for their verdict is also criticized, since opponents argue it is unfair for a person to be deprived of life, liberty or property without being told why it is being done so. In contrast where there is a decision by a judge or a bench, they are required to give often detailed reason of both fact and law as to why such a decision is given.

One issue that has been raised is the ability of a jury to fully understand statistical or scientific evidence. It has been said that the expectation of jury members as to the explanatory power of scientific evidence has been raised by television in what is known as the CSI effect. In at least one English trial the misuse or misunderstanding of statistics has led to wrongful conviction.[5]

Recently, in England and Wales, Lord Goldsmith, the government's Attorney General, has been actively pressing forward[6] with the Fraud (Trials Without a Jury) Bill in Parliament, which seeks to abolish jury trials in major criminal fraud trials. The Bill was subject to sharp criticism from both sides of the House of Commons,[7] , but passed its second Commons reading in November 2006.[8] The Bill follows the Government's earlier, unsuccessful attempt to pass measures allowing trials without jury in the Criminal Justice Act 2003.

See alsoEdit


  1. Makdisi, John A. (June 1999), "The Islamic Origins of the Common Law", North Carolina Law Review 77 (5): 1635-1739
  2. Hussain, Jamila (2001), "Book Review: The Justice of Islam by Lawrence Rosen", Melbourne University Law Review 30
  3. "Narrative History of England". Retrieved on 2008-09-06.
  4. * The Protection of the Accused in French Criminal Procedure * Robert Vouin * The International and Comparative Law Quarterly, Vol. 5, No. 2 (Apr., 1956), pp. 157-173 * Published by: Cambridge University Press on behalf of the British Institute of International and Comparative Law
  5. "Cot deaths; Munchausen by Proxy, Sir Roy Meadow". Retrieved on 2008-09-06.
  6. "No-jury trial plan 'presses on'". BBC News.
  7. "Non-jury trial plans under fire". BBC News.
  8. "Commons passes jury-less trials". BBC News.
  • Sadakat Kadri, The Trial: A History from Socrates to O.J. Simpson, HarperCollins 2005. ISBN 0-00-711121-5
  • Brill, Steven. Trial by Jury. (New York: American Lawyer Books/TOUCHSTONE, 1989).
  • Lehman, Godfrey D. We the jury… (New York: Prometheus Books, 1997).

History of the juryEdit

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