Significations et usages de Jury_trial

A jury trial (or 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 distinguished from a bench trial, in which a judge or panel of judges make all decisions.

Jury trials are used in a significant share of serious criminal cases in all Anglo-American (aka "common law") legal systems, and juries or lay judges have been incorporated into the legal systems of many civil law countries for criminal cases. Only the United States and Canada make routine use of jury trials in a wide variety of non-criminal cases. Other Anglo-American legal jurisdictions use jury trials only in a very select class of cases that make up a tiny share of the overall civil docket, while true civil jury trials are almost entirely absent elsewhere in the world. Some civil law jurisdictions do, however, have arbitration panels with non-legally trained members decide cases in select subject-matter areas relevant to the arbitration panel members' areas of expertise.

Availability of a trial by jury in American jurisdiction usually depends on the availability of a jury trial in a particular type of case under the common law of England at the time of the American Revolutionary War (which allowed jury trials in its "courts of law" but not in its "courts of equity"), despite the fact that jury trials are no longer available in the vast majority of such cases under modern English law. In practice, this means that jury trials are available in American civil cases in most cases seeking money damages on a tort law or contract law theory, but are rarely available when non-monetary damages, such as an injunction or declaratory relief are sought.

The use of jury trials evolved within common law systems rather than civil law systems, and have a profound impact on the nature of American civil procedure and criminal procedure rules even in cases where a bench trial is actually contemplated in a particular case. In general, the availability of a jury trial if properly demanded has given rise to a system where fact finding is concentrated in a single trial rather than multiple hearings, and where appellate review of trial court decisions is greatly limited. Jury trials are of far less importance (or of no importance) in countries that do not have a common law system.

  History

  Greece

There existed in Ancient Athens a mechanism through which it was assured that no one could select jurors, called dikastaí, for their own trial. For normal cases, the courts were made up of dikastai of 501 citizens.^[1] For capital cases, those which involved death, the loss of liberty, exile, the loss of civil rights, or the seizure of property, the trial was before a jury of 1,001 to 1,501 dikastai. In such large juries the unanimity rule would be unrealistic and verdicts were reached by majority. Juries were appointed by lot. Jurists cast a ceramic disk with an axle in its middle: the axle was either hollow or solid. Thus the way they voted was kept secret because the jurists would hold their disk by the axle by thumb and forefinger, thus hiding whether its axle was hollow or solid. Since Periclean times, jurists were compensated for their sitting in court, with the amount of one day's wages.

The institution of trial by jury was ritually depicted by Aeschylus in the Eumenides, the third and final play of his Oresteia trilogy. In this play the innovation is brought about by the goddess Athena, who summons twelve citizens to sit as jury. The god Apollo takes part in the trial as the advocate for the defendant Orestes, and the Furies as prosecutors for the slain Clytaemnestra. In the event the jury is split six to six, and Athena dicates that in such a case the verdict should henceforth be for acquittal.

  Rome

From the beginning of the republic and in the majority of civil cases towards the end of the empire, there were tribunals with the characteristics of the jury, the Roman judges being civilian, lay and not professional. Capital trials were held in front of juries composed of hundreds or thousands of people in the commitias or centuries, the same as in Roman trials. Roman law provided for the yearly selection of judices, who would be responsible for resolving disputes by acting as jurors, with a praetor performing many of the duties of a judge. High government officials and their relatives were barred from acting as judices, due to conflicts of interest. Those previously found guilty of serious crimes (felonies) were also barred as were gladiator for hire, who likely were hired to resolve disputes through trial by combat.

The Selection of the 450 Men for This Year. The peregrine praetor (literally - the traveling judge) within the next ten days after this law is passed by the people or plebs shall provide for the selection of 450 persons in this State who have or have had a knight's census ... provided that he does not select a person who is or has been plebeian tribune, quaestor, triumvir capitalis, military tribune in any of the first four legions, or triumvir for granting and assigning lands, or who is or has been in the Senate, or who has fought or shall fight as a gladiator for hire ... or who has been condemned by the judicial process and a public trial whereby he cannot be enrolled in the Senate, or who is less than thirty or more than sixty years of age, or who does not have his residence in the city of Rome or within one mile of it, or who is the father, brother, or son of any above-described magistrate, or who is the father, brother, or son of a person who is or has been a member of the Senate, or who is overseas.^[2]

  England and Wales

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 Æthelred 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, 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. As with the Saxon system, 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.

The Magna Carta of 1215^[4] further secured trial by jury by stating that

For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a husbandman the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood.

Earls and barons shall be fined only by their equals, and in proportion to the gravity of their offence.

To any man whom we have deprived or dispossessed of lands, castles, liberties, or rights, without the lawful judgement of his equals, we will at once restore these.

If we have deprived or dispossessed any Welshmen of lands, liberties, or anything else in England or in Wales, without the lawful judgement of their equals, these are at once to be returned to them. A dispute on this point shall be determined in the Marches by the judgement of equals. English law shall apply to holdings of land in England, Welsh law to those in Wales, and the law of the Marches to those in the Marches. The Welsh shall treat us and ours in the same way.

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). Medieval juries were self-informing, in that individuals were chosen as jurors because they either knew the parties and the facts, or they had the duty to discover them. This spared the government the cost of fact-finding.^[5] 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 British colonies, including the United States, adopted the English common law system in which trial by jury is an important part. Jury trials in criminal cases were a protected right in the original United States Constitution and the Fifth, Sixth, and Seventh Amendments of the US 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 trials

• 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.^[6]

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 voluntary crimes against life, such as First and Second-degree murders, forced abortion and instigation of suicide, 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, an individual charged with an indictable offence may elect to be tried by a judge alone in a provincial court, by judge alone in a superior court, or by judge and jury in a superior court; summary offences cannot be tried by jury.

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 annually,^[7] 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 criminal cases are in fact settled by plea bargain,^[8][9] which removes the need for a jury trial.

Some commentators contend that the guilty-plea system unfairly coerces defendants into relinquishing their right to a jury trial.^[10] Others contend that there never was a golden age of jury trials, but rather that juries in the early nineteenth century (before the rise of plea bargaining) were "unwitting and reflexive, generally wasteful of public resources and, because of the absence of trained professionals, little more than slow guilty pleas themselves," and that the guilty-plea system that emerged in the latter half of the nineteenth century was a superior, more cost-effective method of achieving fair outcomes.^[11]

  Pros and cons

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 government – or other establishment interest – 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. In France, 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, with a video tape showing King continuing to try to get up despite the beating. There was racist questioning about the case and riots ensued. Contrary to the legal principle of "no double jeopardy," after the officers were acquitted, the government renamed the crime and tried the officers a second time for the same event and got a conviction from a jury with black jurors.

The positive belief about jury trials in the UK and the US 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". Malaysia abolished its jury system from 1 January 1995, citing inter alia the danger of jurors untrained in the legal profession delivering verdicts coloured by emotions or popular perception. One of the last trials-by-jury in Malaysia was the notorious Mona Fandey case in 1994.

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 is despite the fact that both nations are common law countries.

A major issue in jury trials is the secretive nature of the process. While proponents may say that secrecy allows the jury to remain impartial by protecting it from undue pressure or attention, opponents contend that 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 or mis-presentation by the Crown prosecution of statistics has led to wrongful conviction.^[12]

  Australia

The Australian Constitution provides that: "80. The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes." ^[13][14]

The first trial by jury in the colony of New South Wales was held in April 1841 in the town of Berrima.^[15]

  Challenging potential jurors

The voir dire system of examining the jury pool before selection is not permitted in Australia as it violates the privacy of jurors. Therefore, though it exists, the right to challenge for cause during jury selection cannot be employed much. Peremptory challenges are usually based on the hunches of the counsels and no reason is needed to use them. All Australian states allow for peremptory challenges in jury selection, however, the number of challenges granted to the counsels in each state are not all the same. Until 1987 New South Wales had twenty peremptory challenges for each side where the offence was murder, and eight for all other cases. In 1987 this was lowered to three peremptory challenges per side, the same amount allowed in South Australia. Eight peremptory challenges are allowed for both counsels for all offences in Queensland. Victoria, Tasmania and the Northern Territory allow for six. Western Australia allows five peremptory challenges per side, according to section 104 of the Criminal Procedure Act 2004 (WA).

  Majority and unanimous verdicts in criminal trials

In Australia majority verdicts are allowed in South Australia, Victoria, Western Australia, Tasmania, the Northern Territory, New South Wales and Queensland, while the ACT require unanimous verdicts. Since 1927 South Australia has permitted majority verdicts of 11:1, and 10:1 or 9:1 where the jury has been reduced, in criminal trials if a unanimous verdict cannot be reached in four hours. They are accepted in all cases except for "guilty" verdicts where the defendant is on trial for murder or treason. Victoria has accepted majority verdicts with the same conditions since 1994, though deliberations must go on for six hours before a majority verdict can be made. Western Australia accepted majority verdicts in 1957 for all trials except where the crime is murder or has a life sentence. A 10:2 verdict is accepted. Majority verdicts of 10:2 have been allowed in Tasmania since 1936 for all cases except murder and treason if a unanimous decision has not been made within two hours. Since 1943 verdicts of “not guilty” for murder and treason have also been included, but must be discussed for six hours. The Northern Territory has allowed majority verdicts of 10:2, 10:1 and 9:1 since 1963 and does not discriminate between cases whether the charge is murder or not. Deliberation must go for at least six hours before delivering a majority verdict. Majority verdicts were introduced in New South Wales in 2005 (see Jury Act 1977 (NSW), s 55F).

  Austria

Austria, in common with a number of European civil law jurisdictions, retains elements of trial by jury in serious criminal cases.

  Canada

Under Canadian law, a person has the right to a jury trial for all crimes punishable by five years of imprisonment or more.

  France

In France one can only have a jury trial when prosecuted for a crime, that is an offence for which one is liable to at least 10 years imprisonment (for natural persons) or a fine of 75000 € (for legal persons).

The only court that tries by jury is the cour d'assises. 3 professional judges sits together with 9 or 12 jurors. A two third majority (8 or 10 votes) is needed for a conviction.

  Germany

The jury was abolished by the Emminger Reform of 4 January 1924.^[16] The jury has not been used in Germany since, except that between 1948 and 1950 (during and after the American occupation but prior to the foundation of the Federal Republic of Germany) Bavaria returned to jury trial as it had existed before the Emminger Decrees.^[17][18][19]

A Swabian ordinance of 1562 called for the summons of jurymen (urtheiler), and various methods were in use in Emmendingen, Oppenau, and Oberkirch.^[20] Hauenstein's charter of 1442 secured the right to be tried in all cases by 24 fellow equals, and in Friburg the jury was composed of 30 citizens and councilors.^[21] The modern jury trial was first introduced in the Rhenish provinces in 1798, with a court consisting most commonly of 12 citizens (Bürgers).^[20]

The system in Germany whereby citizens were tried by their peers chosen from the entire community in open court was gradually superseded by an "engine of tyranny and oppression" in which the "process of investigation is secret, and life and liberty depend on the sentence of a judge or judges appointed by the state".^[22] In Constance the jury trial was suppressed by decree of the Habsburg Monarchy in 1786.^[21]

The Gerichtsverfassungsgesetz (GVG) of 27 January 1877 provided that the Schwurgericht (jury court) would consist of three judges and twelve jurymen,^[23][24][25] alongside the mixed court, with the jury court reserved for serious crimes except political crimes.^[26] The Emminger Reform by Justice Minister Erich Emminger (BVP) abolished the jury in the German Schwurgericht and replaced it with a mixed system of 3 professional judges and 6 lay judges, but kept the original name.^[16][27]

  Greece

The country which gave birth to the concept of the jury trial retains it in an unusual form. Serious crimes in this country are tried by a panel of three professional judges and four lay jurors who decide the facts and appropriate penalty if convicted.

  Gibraltar

Being a Common Law jurisdiction, Gibraltar retains jury trial in a similar manner to that found in England and Wales, the exception being that juries consist of nine lay people, rather than twelve.

  Hong Kong

Jury trial is common for criminal cases, and juries consist usually of seven lay people. Jury trial is rare for civil cases, such as in Albert Cheng v Paul Tse.

  India

Jury trials were abolished by the government of India in 1960 on the grounds they would be susceptible to media and public influence. This decision was based on an 8:1 acquittal of Kawas Nanavati in K. M. Nanavati vs. State of Maharashtra, which was overturned by higher courts, on the grounds that the jury was misled by the presiding judge.

  Ireland

In the Republic of Ireland, a common law jurisdiction, jury trials are available for criminal before the Circuit Court, Central Criminal Court and defamation cases, consisting of twelve jurors.

Juries only decide questions of fact; they have no role in criminal sentencing in criminal cases or awarding damages in libel cases. It is not necessary that a jury be unanimous in its verdict. In civil cases, a verdict may be reached by a majority of nine of the twelve members. In a criminal case, a verdict need not be unanimous where there are not fewer than eleven jurors if ten of them agree on a verdict after considering the case for a "reasonable time".

Juries are selected from a jury panel which is picked at random by the county registrar from the electoral register. The principal statute regulating the selection, obligations and conduct of juries is the Juries Act 1976 as amended by the Civil Law (Miscellaneous Provisions) Act 2008, which scrapped the upper age limit of 70. Juries are not paid, nor do they receive travel expenses. They do receive lunch for the days that they are serving; however, for jurors in employment, their employer is required to pay them as if they were present at work.

For certain terrorist and organised crime offences the Director of Public Prosecutions may issue a certificate that the accused be tried by the Special Criminal Court composed of three judges instead of a jury, one from the District Court, Circuit Court and High Court.

  Italy

The Corte d'Assise is composed of 2 judges and 6 laypersons chosen at random among Italian citizens 30 to 65 years old. Only serious crimes like murder can be tried by the Corte d'Assise.

  Japan

On May 28, 2004, the Diet of Japan enacted a law requiring selected citizens to take part in criminal court trials of certain severe crimes to make decisions together with professional judges, both on guilt and on the sentence. These citizens are called saiban-in (裁判員 "lay judge"). The saiban-in system was implemented in May 2009.

  New Zealand

New Zealand previously required jury verdicts to be passed unanimously, but since the passing of the Criminal Procedure Bill in 2009 the Juries Act 1981^[28] has permitted verdicts to be passed by a majority of one less than the full jury (that is an 11-1 or a 10-1 majority) under certain circumstances.

  Russia

Firstly, jury trials were introduced in the Russian Empire as a result of the Judicial reform of Alexander II in 1864. After the October Revolution they were abolished and introduced again in the Russian Federation for certain crimes in 1993. The Federal Constitution of that year also stipulates that, until the abolition of the death penalty, all defendants in a case that may result in a death sentence are entitled to a jury trial.^[29]

  Singapore

In Singapore, the jury system was abolished in 1969.^[30] Jury trials for all had been earlier abolished in 1959, except for capital offenses with death penalty. As Prime Minister Lee Kuan Yew described to the BBC and in his memoirs, due to his experiences as a trial lawyer, "I had no faith in a system that allowed the supersitition, ignorance, biases, and prejudices of seven jurymen to determine guilt or innocence."^[31]

  South Africa

The last jury trial to be heard in South Africa was in the District of Kimberley. Under the apartheid era, the Afrikaner National Party moved to weaken the judiciary in favor of Dutch-inherited civil law, a stronger legislature and juries of elected officials, all dominated by the National Party. The Abolition of Juries Act put paid to lay participation in 1969. Following the fall of apartheid, there have been moves to reintroduce the jury system.

  Switzerland

As of 2008, only the code of criminal procedure of the Canton of Geneva provides for genuine jury trials. Several other cantons – Vaud, Neuchâtel, Zürich and Ticino – provide for courts composed of both professional judges and laymen (Schöffengerichte / tribunaux d'échevins). Because the unified Swiss Code of Criminal Procedure (set to enter into force in 2011) does not provide for jury trials or lay judges, however, they are likely to be abolished in the near future.^[32]

  Absence of juries in Israel

The Israeli judicial system is conspicuous in having no juries of any kind - a feature especially interesting considering that very many other features of this system are derived from the British one - i.e. many Israeli laws are derived from British ones (including, in some cases, laws already repealed in Britain itself but which were in force when Israel became independent in 1948) and the Israeli Supreme Court makes frequent reference to British precedents. However, the authorities in British Mandatory Palestine had taken the conscious decision not to introduce any jury system, officially due to the consideration that it would not work in conditions where the population was divided into mutually-hostile communities of Jews and Arabs. Court cases in Israel are rather conducted before either a single judge or three-judge panels.

  United Kingdom

The United Kingdom consists of three separate legal jurisdictions, but there are some features common to all of them. In particular there is seldom anything like the US voir dire system; jurors are usually just accepted without question. Controversially, in England there has been some screening in sensitive security cases, but the Scottish courts have firmly set themselves against any form of jury vetting.

  England and Wales

In England and Wales (which have the same legal system), minor criminal cases are heard without a jury in the Magistrates' Courts. Middle ranking ("triable either way") offences may be tried by magistrates or the defendant may elect trial by jury in the Crown Court. Serious ("indictable") offences, however, must be tried before a jury in the Crown Court. Juries sit in a few civil cases, in particular, defamation and cases involving the state. Juries also sit in coroner's courts for more contentious inquests. All juries consist of 12 people between 18–70 years of age, selected at random from the register of voters. In the past a unanimous verdict was required. This has been changed so that, if the jury fails to agree after a given period, at the discretion of the judge they may reach a verdict by a 10-2 majority. This was designed to make it more difficult for jury tampering to succeed.

In 1999 the then Home Secretary Jack Straw introduced a controversial bill to limit the right to trial by jury.^[33] This became the Criminal Justice Act 2003, which sought to remove the right to trial by jury for cases involving jury tampering or complex fraud. The provision for trial without jury to circumvent jury tampering succeeded and came into force in 2007, the provision for complex fraud cases was defeated. Lord Goldsmith, the then Attorney General, then pressed forward^[34] with the Fraud (Trials Without a Jury) Bill in Parliament, which sought to abolish jury trials in major criminal fraud trials. The Bill was subject to sharp criticism from both sides of the House of Commons^[35] before passing its second Commons reading in November 2006,^[36] but was defeated in the Lords in March 2007.^[37]

The first serious offence to be tried without a jury for 350 years was allowed to go ahead in 2009.^[38] Three previous trials of the defendants had been halted because of jury tampering, and the Lord Chief Justice, Lord Judge, cited cost and the additional burden on the jurors as reasons to proceed without a jury. Previously in cases where jury tampering was a concern the jurors were sometimes closeted in a hotel for the duration of the trial. However, Liberty director of policy Isabella Sankey said:

Isabella Sankey^[38]:This is a dangerous precedent. The right to jury trial isn't just a hallowed principle but a practice that ensures that one class of people don't sit in judgement over another and the public have confidence in an open and representative justice system.

The trial started in 2010,^[39] with the four defendants convicted on the 31st of March 2010 by Mr Justice Treacy at the Old Bailey.^[40]

  Scotland

In Scots law the jury system has some similarities with England but some important differences, in particular there are juries of 15 in criminal trials, with verdicts by simple majority.

  Northern Ireland

In Northern Ireland, the role of the jury trial is roughly similar to England and Wales, except that jury trials have been replaced in cases of alleged terrorist offences by courts where the judge sits alone, known as "Diplock courts". Diplock courts are common in Northern Ireland for crimes connected to terrorism.^[41]

Diplock courts were created in the 1970s during The Troubles, in order to phase out Operation Demetrius internments and because of the argument that juries were intimidated, although this is disputed. The Diplock courts were put into disuse in 2007, but between 1 August 2008 and 31 July 2009, 13 non-jury trials were held, down from 29 in the previous year and 300 trials per year at their peak.^[42]

  United States

In the United States, every person accused of a crime punishable by incarceration for more than six months has a constitutional right to a trial by jury, which arises in federal court from Article Three of the United States Constitution, which states in part, "The Trial of all Crimes...shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed." The right was expanded with the Sixth Amendment to the United States Constitution, which states in part, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed." Both provisions were made applicable to the states through the Fourteenth Amendment. Most states' constitutions also grant the right of trial by jury in lesser criminal matters, though most have abrogated that right in offenses punishable by fine only. The Supreme Court has ruled that if imprisonment is for six months or less, trial by jury is not required, meaning a state may choose whether or not to permit trial by jury in such cases.^[43] Under the Federal Rules of Criminal Procedure, if the defendant is entitled to a jury trial, he may waive his right to have a jury, but both the government (prosecution) and court must consent to the waiver. Several states require jury trials for all crimes, "petty" or not.^[44]

In the cases Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), the Supreme Court of the United States held that a criminal defendant has a right to a jury trial not only on the question of guilt or innocence, but any fact used to increase the defendant's sentence beyond the maximum otherwise allowed by statutes or sentencing guidelines. This invalidated the procedure in many states and the federal courts that allowed sentencing enhancement based on "a preponderance of evidence", where enhancement could be based on the judge's findings alone. Depending upon the state, a jury must be unanimous for either a guilty or not guilty decision. A hung jury results in the defendants release, however charges against the defendant are not dropped and can be reinstated if the state so chooses.

Jurors in some states are selected through voter registration and drivers' license lists. A form is sent to prospective jurors to pre-qualify them by asking the recipient to answer questions about citizenship, disabilities, ability to understand the English language, and whether they have any conditions that would excuse them from being a juror. If they are deemed qualified, a summons is issued.

English common law and the United States Constitution recognize the right to a jury trial to be a fundamental civil liberty or civil right that allows the accused to choose whether to be judged by judges or a jury.

In America, it is understood that juries usually weigh the evidence and testimony to determine questions of fact, while judges usually rule on questions of law, although the dissenting justices in the Supreme Court case Sparf et al. v. U.S. 156 U.S. 51 (1895), generally considered the pivotal case concerning the rights and powers of the jury, declared: "It is our deep and settled conviction, confirmed by a re-examination of the authorities that the jury, upon the general issue of guilty or not guilty in a criminal case, have the right, as well as the power, to decide, according to their own judgment and consciences, all questions, whether of law or of fact, involved in that issue." Jury determination of questions of law, sometimes called jury nullification, cannot be overturned by a judge if doing so would violate legal protections against double jeopardy.^[45] Although a judge can throw out a guilty verdict if it was not supported by the evidence, a jurist has no authority to override a verdict that favors a defendant.^[46]

It was established in Bushel's Case that a judge cannot order the jury to convict, no matter how strong the evidence is. In civil cases a special verdict can be given, but in criminal cases a general verdict is rendered, because requiring a special verdict could apply pressure to the jury, and because of the jury's historic function of tempering rules of law by common sense brought to bear upon the facts of a specific case. For this reason, Justice Black and Justice Douglas indicated their disapproval of special interrogatories even in civil cases.^[47]

There has been much debate about the advantages and disadvantages of the jury system, the competence or lack thereof of jurors as fact-finders, and the uniformity or capriciousness of the justice they administer.^[48] The jury has been described as "an exciting and gallant experiment in the conduct of serious human affairs."^[49] As fact-finders, juries are expected to fulfill the role of lie detector.^[50]

However, not all cases are eligible for jury trials. In most US states, there is no right to a jury trial in family law actions not involving a termination of parental rights, such as divorce and custody modifications.^[51][52] Only eleven states allow juries in any aspect of divorce litigation (Colorado, Georgia, Illinois, Louisiana, Maine, Nevada, New York, North Carolina, Tennessee, Texas and Wisconsin).^[51] Most of these limit the right to a jury to try issues regarding grounds or entitlement for divorce only. Texas provides jury trial rights most broadly, including even the right to a jury trial on questions regarding child custody.^[51][52] But those who charged with a criminal offense, breach of contract or federal offence have a Constitutional right to a trial by jury.

  Civil trial procedure

In the United States, a civil action is a lawsuit; civil law is the branch of common law dealing with non-criminal actions. It should not be confused with legal system of civil law.

The right to trial by jury in a civil case in federal court is addressed by the Seventh Amendment. Importantly, however, the Seventh Amendment does not guarantee a right to a civil jury trial in state courts (although most state constitutions guarantee such a right). The Seventh Amendment provides: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."^[53] In Joseph Story's 1833 treatise Commentaries on the Constitution of the United States, he wrote, "[I]t is a most important and valuable amendment; and places upon the high ground of constitutional right the inestimable privilege of a trial by jury in civil cases, a privilege scarcely inferior to that in criminal cases, which is conceded by all to be essential to political and civil liberty."

The Seventh Amendment does not guarantee or create any right to a jury trial; rather, it preserves the right to jury trial in the federal courts that existed in 1791 at common law. In this context, common law means the legal environment the United States inherited from England. In England in 1791, civil actions were divided into actions at law and actions in equity. Actions at law had a right to a jury, actions in equity did not. Federal Rules of Civil Procedure Rule 2 says "[t]here is one form of action - the civil action," which abolishes the legal/equity distinction. Today, in actions that would have been "at law" in 1791, there is a right to a jury; in actions that would have been "in equity" in 1791, there is no right to a jury. However, Federal Rule of Civil Procedure 39(c) allows a court to use one at its discretion. To determine whether the action would have been legal or equitable in 1791, one must first look at the type of action and whether such an action was considered "legal" or "equitable" at that time. Next, the relief being sought must be examined. Monetary damages alone were purely a legal remedy, and thus entitled to a jury. Non-monetary remedies such as injunctions, rescission, and specific performance were all equitable remedies, and thus up to the judge's discretion, not a jury. In Beacon Theaters v. Westover, 359 U.S. 500 (1959), the US Supreme Court discussed the right to a jury, holding that when both equitable and legal claims are brought, the right to a jury trial still exists for the legal claim, which would be decided by a jury before the judge ruled on the equitable claim.

There is not a United States constitutional right under the Seventh Amendment to a jury trial in state courts, but in practice, almost every state except Louisiana, which has a civil law legal tradition, permits jury trials in civil cases in state courts on substantially the same basis that they are allowed under the Seventh Amendment in federal court. The right to a jury trial in civil cases does not extend to the states, except when a state court is enforcing a federally created right, of which the right to trial by jury is a substantial part.^[54]

The court determines the right to jury based on all claims by all parties involved. If the plaintiff brings onlyclaims which are equitable, but the defendant asserts counterclaims which are of law, then the court will grant a trial by jury. In accordance with Beacon Theaters, the jury will first determine the facts and the judge will then enter judgment on the equitable claims.^[55]

Following the English tradition, US juries have usually been composed of 12 jurors, and the jury's verdict has usually been required to be unanimous. However, in many jurisdictions, the number of jurors is often reduced to a lesser number (such as five or six) by legislative enactment, or by agreement of both sides. Some jurisdictions also permit a verdict to be returned despite the dissent of one, two, or three jurors.^{[citation needed]}

  Waiver of jury trial

The vast majority of US criminal cases are not concluded with a jury verdict, but rather by plea bargain. Both prosecutors and defendants often have a strong interest in resolving the criminal case by negotiation resulting in a plea bargain. If the defendant waives a jury trial, a bench trial is held.

In United States Federal courts, there is no absolute right to waive a jury trial. Per Federal Rule of Criminal Procedure 23(a), only if the prosecution and the court consent may a defendant waive a jury trial. However, most states give the defendant the absolute right to waive a jury trial.

  See also

• Rights of Englishmen
• Seventh Amendment to the United States Constitution
• Bench trial
• Sparf v. United States
• Summary jury trial
• History of trial by jury in England

  References

  Further reading

• Brill, Steven. Trial by Jury. (New York: American Lawyer Books/TOUCHSTONE, 1989).
• Burns, Robert. The Death of the American Trial. University of Chicago Press, 2009. ISBN 978-0-226-08126-7
• Lehman, Godfrey D. We the jury… (New York: Prometheus Books, 1997).
• Sadakat Kadri, The Trial: A History from Socrates to O.J. Simpson. HarperCollins, 2005. ISBN 0-00-711121-5
• American Bar Association's History of the Jury
• Aristotle's Athenian Constitution

  References

  External links

• Canadian Criminal Procedure Information Pages