Jury

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For "jury" meaning "makeshift", see jury rig.

A jury is a sworn body of persons convened to render a rational, impartial verdict and a finding of fact on a legal question officially submitted to them, or to set a penalty or judgment in a jury trial of a court of law. The word "jury" originates in Latin, from "juris"-law. In French it became "juri", a law body.

The petit jury or trial jury hears the evidence in a case and decides the disputed facts and usually consists of 12 jurors, although Scotland uses 15 jurors in criminal trials.

A grand jury, a type of jury now confined almost exclusively to the U.S., conducts investigations of public problems and may approve an application to prosecute someone for a crime, called a bill of indictment, thereby appointing the applicant to serve as the prosecutor. A report on its investigative findings is called a presentment, which may include authorization to prosecute a criminal offense revealed by that investigation.

In most criminal justice systems and some civil cases which need a jury, panels are initially allotted at random from the adult population of the district served by the court concerned. A person who is serving on (is a member of) a jury is known as a juror, and the head juror is called the foreman or presiding juror. The foreman is often chosen before the trial begins. The role of the foreman is to ask questions on behalf of the jury, facilitate jury discussions, and read the verdict of the jury^[1].

The number of jurors must be specified, usually twelve, though there are fifteen in Scottish juries and in some legal systems smaller cases may require only six. Since there is always the possibility of jurors not completing the trial for health or other reasons, often some alternate jurors are nominated, who will also follow the trial (but do not take part in deciding the verdict), as a precaution in case a new juror is needed part way through the trial (most often used when the trial will be lengthy or high-profile).

Serving on a jury is normally compulsory for those individuals who are qualified for jury service. Since a jury is intended to be an impartial panel capable of reaching a verdict, there are often procedures and requirements, for instance, fluent understanding of the language, or the ability to test jurors or otherwise exclude jurors who might be perceived as less than neutral or more partial to hear one side or the other.

The jurors hear the cases presented by both the defense and prosecution, and in some jurisdictions a summary^{[citation needed]} from the judge. They then retire as a group to consider a verdict. The majority required for a verdict varies. In some countries their decision making process is private and may not be disclosed, in others it may be discussed but only after the trial has ended.

Contents 1 Historical roots 2 Possible Islamic roots 3 Trial jury size 4 Secrecy and independence 5 Role 6 Jury nullification 7 Jury equity 8 Non-trial juries 9 Trial procedures 9.1 Brazil 9.2 Canada 9.3 England and Wales 9.4 France 9.5 Germany 9.6 India - Abolition of formal jury trials 9.7 Scotland 9.8 Spain 9.9 United States 9.9.1 Jury Selection 10 Notes

[edit] Historical roots

The modern jury trial as it is now understood was later developed in England during the Assize of Clarendon in 1166, a document issued by Henry II of England in 1166. This established juries of the hundreds and boroughs. These juries of presentment were required to declare on oath before visiting justices and sheriffs, who were accused or suspected of serious felonies. The function of a presentment jury was to bring cases, which had before only been possible by private appeal. Henry 's assize may well have only formalized a system in operation and first referred to in a decree issued by Aethelred at Wantage, which enacted that in every wapentake "the twelve leading thegns together with the reeve shall go out and swear on the relics which are given into their hands, that they will not accuse any innocent man nor shield a guilty one". ^[2]. The concept can also be traced to Normandy before 1066, when a jury of nobles was established to decide land disputes^{[citation needed]}. In this manner, the Duke, being the largest land owner, could not act as a judge in his own case. Many ancient cultures had similar concepts, notably ancient Judea whose panel of judges called the Sanhedrin served a similar purpose. The Athenians by 500 BCE had also invented the jury court, with votes by secret ballot. These courts were eventually granted the power to annul unconstitutional laws, thus introducing judicial review.

[edit] Possible Islamic roots

Another possible precurssor to the Enlish 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 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 neighborhood and sworn to tel 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 Laff laked 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 sares all of these characteristics with the English jury." It is possible 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.^[3]

[edit] Trial jury size

The average jury is made up of 12 randomly-selected people. Historical analysis indicates twelve was not just a "magic number", but a number arrived at through experience trying other sizes. The use of the number 15 for Scottish juries appears to be a legacy of that experimentation. The ancient Athenians tried juries of 201 and sometimes 401.^{[citation needed]}

Twentieth century "law office history" seems to hold that the size of the jury is to provide a "cross-section" of the public. In Williams v. Florida, 399 U.S. 78 (1970), the U.S. Supreme Court sustained a state jury of less than twelve persons, finding that six was sufficient to provide a "cross-section". But from the experience of lawyers in jurisdictions where they have a choice of jury size, defendants usually choose twelve, which suggests a different dynamic, and that a jury of twelve provides a higher level of protection of rights, not just representation of diverse views.

[edit] Secrecy and independence

For juries to fulfill their role to analyze the facts of the case, there are strict rules about their use of information during the trial. They are not allowed to learn about the case from any source other than the trial, nor can they conduct their own investigations such as independently visiting the crime scene. Parties, lawyers, and witnesses are not allowed to speak with a member of the jury, and jurors are not allowed to read news or other accounts of the trial. In high-profile cases, some juries are sequestered for the deliberation phase, or for the entire trial.

Conversely, jurors are generally required to keep their deliberations in strict confidence. Whether this non-disclosure requirement extends after the verdict has been rendered depends on the jurisdiction. In English law, the jury's deliberations must never be disclosed outside the jury, even years after the case; to repeat parts of the trial or verdict, is considered to be contempt of court, a criminal offense and can result in imprisonment. In the United States, this rule does not apply, and sometimes jurors have made remarks that called into question whether a verdict was properly arrived at.

Because of the desire to prevent undue influence on a jury, jury tampering is a serious crime, whether attempted through bribery, threat of violence, or other means. Jurors themselves can also be held liable if they deliberately compromise their impartiality.

[edit] Role

In common law countries such as England and the United States, the role of the jury is often described as a finder of fact, while the judge is seen as having the sole responsibility of interpreting the appropriate law and instructing the jury accordingly. The jury will render a verdict on the defendant's guilt, or civil liability.

Occasionally, if jurors find the law to be invalid or unfair, they may acquit the defendant, regardless of the evidence that the defendant violated the law. This is commonly referred to as jury nullification. When there is no jury ("bench trial"), the judge makes factual rulings in addition to legal ones. In most continental European jurisdictions, the judges have more power in a trial and the role and powers of a jury are often restricted. Actual jury law and trial procedures differ between countries.

In the United States, some juries are also entitled to make factual findings on particular aggravating circumstances which will be used to elevate the defendant's sentence, if the defendant is convicted. This practice is now required in all death penalty cases as a result of Blakely v. Washington, where the Supreme Court ruled that allowing judges to make such findings unilaterally violates the Sixth Amendment right to a jury trial.

In Canada, juries are also allowed to make suggestions for sentencing periods and at the time of sentencing, the suggestions of the jury are presented before the judge by the Crown prosecutor(s) before the sentence is handed down.

However, this is not the practice in most other legal systems based on the English tradition, in which judges retain sole responsibility for deciding sentences according to law. The exception is the award of damages in English law libel cases, although a judge is now obliged to make a recommendation to the jury as to the appropriate amount.

[edit] Jury nullification

Main article: Jury nullification

In the 17th and 18th centuries there were a series of cases starting in 1670 with the trial of the Quaker William Penn which asserted the (de facto) right of a jury to pass a verdict contrary to the facts or law. A good example is the case of one Carnegie of Finhaven who in 1728 accidentally killed the Scottish Earl of Strathmore. As the defendant had undoubtedly killed the Earl, the law (as it stood) required the jury to pass the verdict that the case had been "proven" and cause Carnegie of Finhaven to die for an accidental killing. Instead the jury asserted what it believed to be their "ancient right" to judge the whole case and not just the facts and brought in the verdict of "not guilty". This led to the development of the not proven verdict in Scots law.

Today in the United States, juries are instructed by the judge to follow his instructions concerning what is the "law", in his opinion, and to render a verdict solely on the evidence presented in court. If it reaches a conclusion contrary to those instructions, but based on its own beliefs as to what the law is, whether it has been properly applied, or whether it should be the law, this is known as jury nullification. It finds its most common expression when verdicts are rendered based on passion, prejudice, sympathy or bias. It has been asserted that the jury has the power to "nullify" a law it believes is unjust, by, for example, refusing to find the defendant guilty, in spite of the evidence, if it believes that a guilty verdict would be unjust. Important past exercises of this de facto power include cases involving Slavery (see Fugitive Slave Act of 1850), Freedom of the Press (see John Peter Zenger), and Freedom of Religion (see William Penn).

In 1969 the Fourth Circuit Court of Appeal unanimously ruled: "If the jury feels that the law under which the defendant is accused is unjust, or exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the right to acquit, and the courts must abide that decision." The Fully Informed Jury Association is a non-profit educational organization dedicated to informing jurors of their rights and seeks laws to force judges to inform jurors that they can and should judge the law. In a still standing decision (Sparf v. United States, 1895) the Supreme Court, in a 5-4 decision, held that a trial judge has no responsibility to inform the jury of the right to nullify laws.

Modern American jurisprudence is generally intolerant of the practice, and a juror can be removed from a case if the judge believes that the juror is aware of the power of nullification^[4].

[edit] Jury equity

In the United Kingdom, a similar power exists, often called "jury equity". This enables a jury to reach a decision in direct contradiction with the law if they feel the law is unjust. This can create a persuasive precedent for future cases, or render prosecutors reluctant to bring a charge – thus a jury has the power to influence the law.

Perhaps the best example of modern-day jury equity in England and Wales was the acquittal of Clive Ponting, on a charge of revealing secret information, under s.2 of the Official Secrets Act, 1911 in 1985. Mr Ponting's defense was that the revelation was in the public interest. The trial judge directed the jury that "the public interest is what the government of the day says it is" – effectively a direction to the jury to convict. Nevertheless, the jury returned a verdict of not guilty.

Another example is the acquittal in 1989 of Michael Randle and Pat Pottle, who confessed in open court to charges of springing the Soviet spy George Blake from Wormwood Scrubs Prison and smuggling him to East Germany in 1966. Pottle successfully appealed to the jury to disregard the judge's instruction that they consider only whether the defendants were guilty in law, and assert a jury's ancient right to throw out a politically-motivated prosecution, in this case compounded by its cynical untimeliness.^[5]

In Scotland (with a separate legal system from that of England and Wales) although technically the "not guilty" verdict was originally a form of jury nullification, over time the interpretation has changed so that now the "not guilty" verdict has become the normal one when a jury is not persuaded of guilt and the "not proven" verdict is only used when the jury is not certain of innocence or guilt. It is absolutely central to Scottish/UK law that there is a presumption of innocence. It is not a trivial distinction since any shift in the burden of proof is a significant change which undermines the safeguard for the citizen.

[edit] Non-trial juries

Besides petit juries for jury trials and grand juries for issuing indictments, juries are sometimes used in non-legal or quasi-legal contexts. Blue ribbon juries attend to civic matters as an ad-hoc body in the executive branch of a government. Outside government, a jury or panel of judges may make determinations in competition, such as at a wine tasting, art exhibition, or talent contest.

Blue ribbon juries are juries selected from prominent, well-educated citizens, sometimes to investigate a particular problem such as civic corruption. Blue ribbon juries cannot be used in real trials, which require constitutional safeguards to produce a jury of one's peers. The blue-ribbon jury is intended to overcome the problems of ordinary juries in interpreting complex technical or commercial questions. In the United States blue-ribbon juries were provided for by statutes, the terms varying by jurisdiction.

[edit] Trial procedures

[edit] Brazil

In Brazil, the Constitution demands that all cases of first degree murder be judged by juries, but there are authorities that are judged by judges even in cases of first degree murder. This is the only crime judged by juries in Brazil. Jurors vote in secret to decide whether the defendant is guilty or not, and decisions are taken by majority.

[edit] Canada

In Canada, juries are used for some criminal trials but not others. For less serious offences that come to trial, a judge alone makes the ruling. In some more serious offences, the accused person can choose to be judged by either a judge or a judge and jury. In the most serious offences, such as murder or treason, a judge and a jury are always used.

In Canada, a jury does not make a recommendation as to the length of sentence.

In Canada, juries are selected according to a specific selection of criteria. Prospective jurors may only be asked certain questions, selected for direct pertinence to impartiality or other relevant matters; any other questions must be approved by the judge.

Juries are only rarely used in civil trials in Canada. Juries have no power to award damages, as they do in the United States, making the incentive to call for a trial with a jury to be less attractive.

[edit] England and Wales

All trials are under common law. Jury trials are used for serious criminal cases and some civil cases.

[edit] France

In France and other civil law jurisdictions, the jury sits on an equal footing with three professional judges. The jury and judges first consider the questions of guilt. Then, if applicable, they consider the penalty to apply. Juries are only used in felony cases.

[edit] Germany

Jury trials were abolished in Germany on January 4, 1924, because their verdicts were not perceived just anymore.^[6]

[edit] India - Abolition of formal jury trials

The Indian judicial system stopped using juries after the famous K. M. Nanavati vs. State of Maharashtra case. While no formal juries exist in India today, many minor issues are, in rural areas, still handled by the panchayat raj system of village assemblies.

K. M. Nanavati vs. State of Maharashtra was a 1959 Indian court case involving Kawas Manekshaw Nanavati, who was tried for shooting Prem Ahuja, his wife Sylvia's paramour. The incident shocked the nation, got unprecedented media coverage and inspired several books and movies. The case was the last jury trial held in India.

The crux of the case was whether the gun went off accidentally or whether it was a premeditated murder. In the former scenario, Nanavati would be charged under the Indian penal code, for culpable homicide, with a maximum punishment of 10 years and in the latter, he would be charged with murder, with the sentence being death or life imprisonment. Nanavati pleaded not guilty and his defence team argued it as case of culpable homicide not amounting to murder, while the prosecution argued it was premeditated murder.

The jury in the Greater Bombay sessions court pronounced Nanavati as not guilty, with an 8–1 verdict. The sessions judge considered the acquittal as perverse and referred the case to the high court. The prosecution argued that the jury had been misled by the presiding judge on four crucial points. One, the onus of proving that it was an accident and not premeditated murder was on Nanavati. Two, was Sylvia's confession of the grave provocation for Nanavati, or any specific incident in Ahuja's bedroom or both. Three, the judge wrongly told the jury that the provocation can also come from a third person. And four, the jury was not instructed that Nanavati's defence had to be proved, to the extent that there is no reasonable doubt in the mind of a reasonable person. The court accepted the arguments, dismissed the jury's verdict and the case was freshly heard in the high court. Since the jury had also been influenced by media and public support for Nanavati and was also open to being misled, the Indian government abolished jury trials after the case.

[edit] Scotland

Scottish trials are based on an adversarial approach. First the prosecution leads evidence from witnesses and after each witness the defence has an opportunity to cross examine. Following the Prosecution case, the defence may move a motion of 'No Case To Answer' if the worst the prosecution has been able to lead in evidence would be insufficient to convict of any crime. If there remains a case to answer, the defence leads evidence from witnesses in an attempt to refute previous evidence lead by the prosecution, with cross examination being permitted after each witness. Once both prosecution and defence have concluded leading evidence, the case goes to summing up where firstly the prosecution and then the defence get to sum up their case based on the evidence that has been heard. The jury is given guidance on points of law and then sent out to consider its verdict.

[edit] Spain

The Spanish judiciary system has no established tradition of using juries in trials but, after Franco's dictatorship, the Constitution of Spain of 1978 legislates the right to a trial by jury, called "popular jury" as opposed to a "magistrates jury". The wording is rather vague: "Section 125 - Citizens may engage in popular action and take part in the administration of justice through the institution of the jury, in the manner and with respect to those criminal trials as may be determined by law, as well as in customary and traditional courts."

Jury trials have been very slowly introduced in Spain and have often produced less than desirable results. One of the first cases was that of Mikel Otegi who was tried in 1997 for the murder of two policemen. After a confused trial, five jury members of a total of nine voted to acquit and the judge set the accused man free. This verdict shocked the nation^[7].

Another jury case which resulted in a miscarriage of justice was the Wanninkhof murder case.

[edit] United States

In the United States, if no verdict can be reached by the jury (a situation sometimes referred to as a hung jury), a mistrial is declared, and the case may be retried with a newly constituted jury. The practice generally was that the jury rules only on questions of facts on guilt; setting the penalty was reserved for the judge. This has been changed by rulings of the U.S. Supreme Court such as in Ring v. Arizona, 536 U.S. 584 (2002), which found Arizona's practice, having the judge (in a capital punishment trial by jury) decide between life or death sentences, to be unconstitutional, and reserved that decision for the jury. The judge can, however, overrule the jury and reduce the penalty from death to life if he or she chooses, although this has not yet occurred in an actual trial.

There is no set format for jury deliberations, and the jury will take a period of time to settle into discussing the evidence. Electing a foreman is usually the first step, although for a particularly short or straightforward case, this may not happen until the delivery of the verdict.

If a foreman is elected at the beginning, he or she will chair the discussions, and it is his or her job to try to steer the jury towards a conclusion. The first step will typically be to find out the initial feeling or reaction to the case, which may be by a show of hands. The jury will then attempt to arrive at a consensus verdict.

The exchanges of views caused by people whose opinions differ from the emerging consensus will air the issues involved in the case, and consequently points will often arise from the trial that were not specifically discussed during it. The result of these discussions is likely to be that one interpretation is shown to be the most reasonable, and a verdict is thus arrived at.

In the U.S., juries are used in both criminal law and civil law trials, though they are quite different.

In criminal law, a grand jury is convened to hear only testimony and evidence to determine whether there is a case to be answered and hence whether the accused should be indicted and sent for trial. A separate petit jury (formed of petit jurors) is then convened to hear the trial. In many areas, depending upon the law, a third jury will determine what the penalty should be or recommend what the penalty should be in the penalty phase. At a sentencing hearing, the burden of proof is now preponderance of the evidence, not proof beyond a reasonable doubt and hearsay is allowed. This practice gives the judge the power to change the finding of the jury when deciding on a sentence^[8]. When used alone the term jury usually refers to a petit jury.

In each court district, a group of 16–23 citizens holds an inquiry on criminal complaints brought by the prosecutor and decides if a trial is warranted, in which case an indictment is issued. In general, the size of juries tends to be larger if the crime alleged is more serious. If a Grand Jury rejects a proposed indictment it is known as a "no bill"; if they accept to endorse a proposed indictment it is known as a "true bill".

Art. III, Sect. 2, Cl. 3 mandates jury trial in federal criminal proceedings by a jury from the state where the crime occurred, and the Fourteenth Amendment applies this mandate to the states. The Sixth Amendment elaborates on the Article III mandate by stating that the jury convened shall be "by an impartial jury of the state and district wherein the crime shall have been committed." When framing the Sixth Amendment, the founders had in mind the common law vicinage. However, in practice most criminal actions in the U.S. are resolved by plea bargain. Juries are also used in many civil cases in the United States, and the Seventh Amendment explicitly preserves the right to a jury trial in civil cases tried in the United States district courts; however, it has been argued that this preservation of jury trial in civil matters is guided by state restrictions on civil jury trial as an absolute minimum and that the Federal Government is not required to provide a civil jury trial if the state in which the trial is being held does not also mandate civil jury trial in the same matter, since it is a preservation of a pre-existing right held in the states as opposed to unique rights held by the people against the Federal Government solely.^[9]

[edit] Jury Selection

Jury selection is a rather complicated process. A jury is made up from a list of citizens living in the jurisdiction of the court. They may be selected from a electoral roll (ie, a list of registered voters in the locale) or even by driver's licenses. When selected, being a juror is, in principle, compulsory. Prospective jurors are sent summons and are obligated to appear in court on the specified date.

However, jurors can be dismissed for several reasons and many people are released from serving on a jury. People can, for instance, claim hardship if they take care of their children, or claim to be biased. Attorneys are routinely dismissed from jury duty for a number of reasons, particularly because attorneys in a community are likely to know of or have some connection with the attorneys involved in the case. Many individuals are paid only the token amount issued by the court for jury duty, and must take time off from work to serve (although some work places will give paid days off for jury duty).

Especially for high profile trials, or long trials, it is unusual to compel one to serve because of the possibility that a juror would have other things on their mind, such as their finances, during the trial or deliberations.

The first person tried by an all female jury was Judith Catchpole in 1656 for witchcraft and murder. The jury acquitted Catchpole of all charges.

[edit] Notes

v • d • e Jury-related articles Primary articles Jury trial · Grand jury (Indictment) · Jury instructions · Specific finding · Deliberation · Hung jury · Jury nullification · Jury tampering · Jury research Jury selection Change of venue · Death-qualified jury · All-white jury · Peremptory challenge · Scientific jury selection · Struck jury Specific jurisdictions Canada · England and Wales · Japan · United States (U.S. military) Groups Fully Informed Jury Association · Capital Jury Project