Jury trial
Encyclopedia
A jury trial 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.
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.
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.
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 thegn
s (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.
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 further secured trial by jury by stating that
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. 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:
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:
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 Amendment
s 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.
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, 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.
Some commentators contend that the guilty-plea system unfairly coerces defendants into relinquishing their right to a jury trial. 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.
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, 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 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.
The first trial by jury in the colony of New South Wales
was held in April 1841 in the town of Berrima
.
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 hunch
es 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).
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).
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.
state of emergency and its enabling act caused by events surrounding the occupation of the Ruhr
. The decree abolished the jury in the and replaced it with a mixed system of 3 professional judges and 6 lay judges, but kept the original name.
, the exception being that juries consist of nine lay people, rather than twelve.
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.
, a common law
jurisdiction, jury trials are available for criminal
before the Circuit Court
, Central Criminal Court and defamation cases. Consisting of twelve persons, juries are selected from a jury panel which is picked at random by the county registrar
from the electoral register
. Juries only decide questions of fact. They have no role in criminal sentencing 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".
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
. Instead of a jury the Special Criminal Court consists of three judges, one from the District Court
, Circuit Court
and High Court.
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.
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.
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.
, the jury system was abolished in 1969. 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."
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.
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.
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 three-judge panels.
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.
(which have the same legal system), minor criminal cases are heard without a jury in the Magistrate
s' 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. 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 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
before passing its second Commons reading in November 2006, but was defeated in the Lords
in March 2007.
The first serious offence to be tried without a jury for 350 years was allowed to go ahead in 2009. 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:
The trial started in 2010, with the four defendants convicted on the 31st of March 2010 by Mr Justice Treacy
at the Old Bailey.
, 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
". This was because of alleged widespread jury intimidation during the Troubles. Lord Gardiner’s review, in 1974, unconvincingly attempts to bolster Lord Diplock’s findings as follows that any jury tampering or intimidation had ever occurred;"We are convinced on the evidence that we have received, that if juries were to be reintroduced for scheduled offences, their verdicts would still be subject to the influences of intimidation, or the fear of it. We have no evidence of this or of perversity in juries...
With the improving security situation in the Northern Ireland, Diplock Courts
were due to be phased out in 2007 to be replaced with non-jury trials.
, 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. 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.
In the cases Apprendi v. New Jersey
, , and Blakely v. Washington
, , 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.
It has been speculated that jury trials encourage harsh punishment in the United States.
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 of 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
. 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.
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 judicial 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.
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. The jury has been described as "an exciting and gallant experiment in the conduct of serious human affairs." As fact-finders, juries are expected to fulfill the role of lie detector
.
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. 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). 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. But those who charged with a criminal offense, breach of contract or federal offence have a Constitutional right to a trial by jury.
; 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 7th 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." 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 7th 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 at the time. 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" in 1791. 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, , 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 7th 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 7th Amendment in federal court.
The court determines the right to jury based on all claims by all parties involved. If the plaintiff brings all claims 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.
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.
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.
cases are not concluded with a jury verdict, but rather by plea bargain
. Both prosecutor
s and defendant
s 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 have a waiver of jury trial. However, most states give the defendant the absolute right to waive a jury trial.
Legal process
Legal process , are the proceedings in any civil lawsuit or criminal prosecution and, particularly, describes the formal notice or writ used by a court to exercise jurisdiction over a person or property...
in which a jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
either makes a decision or makes findings of fact which are then applied by a judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
. It is distinguished from a bench trial
Bench trial
A bench trial is a trial held before a judge sitting without a jury. The term is chiefly used in common law jurisdictions to describe exceptions from jury trial, as most other legal systems do not use juries to any great extent....
, 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
American Revolutionary War
The American Revolutionary War , the American War of Independence, or simply the Revolutionary War, began as a war between the Kingdom of Great Britain and thirteen British colonies in North America, and ended in a global war between several European great powers.The war was the result of the...
(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
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
systems rather than civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
systems, and have a profound impact on the nature of American civil procedure
Civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits...
and criminal procedure
Criminal procedure
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...
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
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
system.
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. 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
Aeschylus
Aeschylus was the first of the three ancient Greek tragedians whose work has survived, the others being Sophocles and Euripides, and is often described as the father of tragedy. His name derives from the Greek word aiskhos , meaning "shame"...
in the Eumenides, the third and final play of his Oresteia trilogy. In this play the innovation is brought about by the goddess Athena
Athena
In Greek mythology, Athena, Athenê, or Athene , also referred to as Pallas Athena/Athene , is the goddess of wisdom, courage, inspiration, civilization, warfare, strength, strategy, the arts, crafts, justice, and skill. Minerva, Athena's Roman incarnation, embodies similar attributes. Athena is...
, who summons twelve citizens to sit as jury. The god Apollo
Apollo
Apollo is one of the most important and complex of the Olympian deities in Greek and Roman mythology...
takes part in the trial as the advocate for the defendant Orestes
Orestes
Orestes was the son of Agamemnon in Greek mythology; Orestes may also refer to:Drama*Orestes , by Euripides*Orestes, the character in Sophocles' tragedy Electra*Orestes, the character in Aeschylus' trilogy of tragedies, Oresteia...
, and the Furies as prosecutors for the slain Clytaemnestra. In the event the jury is split six to six
Hung jury
A hung jury or deadlocked jury is a jury that cannot, by the required voting threshold, agree upon a verdict after an extended period of deliberation and is unable to change its votes due to severe differences of opinion.- England and Wales :...
, 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.
England and Wales
According to George Macaulay Trevelyan in A Shortened History of England, during the VikingViking
The term Viking is customarily used to refer to the Norse explorers, warriors, merchants, and pirates who raided, traded, explored and settled in wide areas of Europe, Asia and the North Atlantic islands from the late 8th to the mid-11th century.These Norsemen used their famed longships to...
occupation: “The Scandinavians, when not on the Viking warpath, were a litigious people and loved to get together in the ‘thing
Thing (assembly)
A thing was the governing assembly in Germanic and introduced into some Celtic societies, made up of the free people of the community and presided by lawspeakers, meeting in a place called a thingstead...
’ 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 thegn
Thegn
The term thegn , from OE þegn, ðegn "servant, attendant, retainer", is commonly used to describe either an aristocratic retainer of a king or nobleman in Anglo-Saxon England, or as a class term, the majority of the aristocracy below the ranks of ealdormen and high-reeves...
s (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.
In the 12th century, Henry II
Henry II of England
Henry II ruled as King of England , Count of Anjou, Count of Maine, Duke of Normandy, Duke of Aquitaine, Duke of Gascony, Count of Nantes, Lord of Ireland and, at various times, controlled parts of Wales, Scotland and western France. Henry, the great-grandson of William the Conqueror, was the...
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
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
" through his Assize of Clarendon
Assize of Clarendon
The Assize of Clarendon was an 1166 act of Henry II of England that began the transformation of English law from such systems for deciding the prevailing party in a case as trial by ordeal or trial by battle to an evidentiary model, in which evidence and inspection was made by laymen...
. Under the assize, a jury of free men was charged with reporting any crimes that they knew of in their hundred
Hundred (division)
A hundred is a geographic division formerly used in England, Wales, Denmark, South Australia, some parts of the United States, Germany , Sweden, Finland and Norway, which historically was used to divide a larger region into smaller administrative divisions...
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
Trial by ordeal
Trial by ordeal is a judicial practice by which the guilt or innocence of the accused is determined by subjecting them to an unpleasant, usually dangerous experience...
.
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
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
, signed by King John
John of England
John , also known as John Lackland , was King of England from 6 April 1199 until his death...
. 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
Lysander Spooner
Lysander Spooner was an American individualist anarchist, political philosopher, Deist, abolitionist, supporter of the labor movement, legal theorist, and entrepreneur of the nineteenth century. He is also known for competing with the U.S...
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 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
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
) 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. 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
David Hume
David Hume was a Scottish philosopher, historian, economist, and essayist, known especially for his philosophical empiricism and skepticism. He was one of the most important figures in the history of Western philosophy and the Scottish Enlightenment...
'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
Star ChamberThe Star Chamber was an English court of law that sat at the royal Palace of Westminster until 1641. It was made up of Privy Counsellors, as well as common-law judges and supplemented the activities of the common-law and equity courts in both civil and criminal matters...
, 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
British Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...
colonies, including the United States
Trial by jury in the United States
Trial by jury in the United States of America is a fundamental part of the American justice system. It has been speculated that jury trials encourage harsh punishment in the United States.-History:...
, adopted the English
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
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
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
and the Fifth
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
, Sixth
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
, and Seventh Amendment
Seventh Amendment to the United States Constitution
The Seventh Amendment to the United States Constitution, which was ratified as part of the Bill of Rights, codifies the right to a jury trial in certain civil cases. However, in some civil cases, the Supreme Court has not incorporated the right to a jury trial to the states in the fashion which...
s 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 lawLawLaw is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
and their jury instructionsJury instructionsJury instructions are the set of legal rules that jurors should follow when the jury is deciding a civil or criminal case. Jury instructions are given to the jury by the jury instructor, who usually reads them aloud to the jury...
. 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 RussiaRussiaRussia or , officially known as both Russia and the Russian Federation , is a country in northern Eurasia. It is a federal semi-presidential republic, comprising 83 federal subjects...
in the judicial reform of Alexander IIJudicial reform of Alexander IIThe judicial reform of Alexander II is generally considered one of the most successful and the most consistent of all the reforms of Alexander II. During the reform a completely new court system and a completely new order of legal proceedings were established...
: 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 IIAlexander II of RussiaAlexander II , also known as Alexander the Liberator was the Emperor of the Russian Empire from 3 March 1855 until his assassination in 1881...
believed that justiceJusticeJustice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
without moralityMoralityMorality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...
is wrong. - In FranceFranceThe French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan 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.
Some jurisdictions with jury trials allow the defendant to waive their right to a jury trial, this leading to a bench trial
Bench trial
A bench trial is a trial held before a judge sitting without a jury. The term is chiefly used in common law jurisdictions to describe exceptions from jury trial, as most other legal systems do not use juries to any great extent....
. Jury trials tend to occur only when a crime is considered serious. In some jurisdictions, such as France and Brazil
Brazil
Brazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...
, 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
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, jury trials are only available for criminal cases and very specific civil cases (defamation, malicious prosecution
Malicious prosecution
Malicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include intentionally instituting and pursuing a legal action that is brought without probable cause and dismissed in favor of the victim of the malicious prosecution...
, civil fraud
Fraud
In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
and false imprisonment
False imprisonment
False imprisonment is a restraint of a person in a bounded area without justification or consent. False imprisonment is a common-law felony and a tort. It applies to private as well as governmental detention...
). In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, jury trials are available in both civil and criminal cases. In Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, 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
Frequency
Frequency is the number of occurrences of a repeating event per unit time. It is also referred to as temporal frequency.The period is the duration of one cycle in a repeating event, so the period is the reciprocal of the frequency...
of jury trials. Approximately 150,000 jury trials are conducted in state courts annually, 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
Plea bargain
A plea bargain is an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence.A plea bargain allows criminal defendants to...
, 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. 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.
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 TocquevilleAlexis de Tocqueville
Alexis-Charles-Henri Clérel de Tocqueville was a French political thinker and historian best known for his Democracy in America and The Old Regime and the Revolution . In both of these works, he explored the effects of the rising equality of social conditions on the individual and the state in...
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
Minister of Justice (France)
The Ministry of Justice is controlled by the French Minister of Justice , a top-level cabinet position in the French government. The current Minister of Justice is Michel Mercier...
Robert Badinter
Robert Badinter
Robert Badinter is a high-profile French criminal lawyer, university professor and politician mainly known for his struggle against the death penalty, the abolition of which he successfully sponsored in Parliament in 1981...
, 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
Rodney King
Rodney Glen King is an American best known for his involvement in a police brutality case involving the Los Angeles Police Department on March 3, 1991...
case in California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
, 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
1992 Los Angeles riots
The 1992 Los Angeles Riots or South Central Riots, also known as the 1992 Los Angeles Civil Unrest were sparked on April 29, 1992, when a jury acquitted three white and one hispanic Los Angeles Police Department officers accused in the videotaped beating of black motorist Rodney King following a...
.
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
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
, 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
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
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
Mona Fandey
Maznah Ismail , better known as Mona Fandey, was a pop singer, witch doctor, and a murderess from Malaysia. She was executed on November 2, 2001 at the age of 45, after being convicted of the murder of a politician, Mazlan Idris, in 1993.-Music career:Mona's stint as a pop singer was short-lived...
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
CSI Effect
The CSI effect, also known as the CSI syndrome and the CSI infection, is any of several ways in which the exaggerated portrayal of forensic science on crime television shows such as CSI: Crime Scene Investigation influences public perception...
. In at least one English trial the misuse or misunderstanding or mis-presentation by the Crown prosecution of statistics has led to wrongful conviction.
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."The first trial by jury in the colony of New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
was held in April 1841 in the town of Berrima
Berrima, New South Wales
Berrima is an historic village in the Southern Highlands of New South Wales, Australia, in Wingecarribee Shire. The village, once a major town, is located on the Old Hume Highway between Canberra and Sydney. It was previously known officially as the Town of Berrima...
.
Challenging potential jurors
The voir direVoir dire
Voir dire is a phrase in law which comes from the Anglo-Norman language. In origin it refers to an oath to tell the truth , i.e., to say what is true, what is objectively accurate or subjectively honest, or both....
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 hunch
Intuition (knowledge)
Intuition is the ability to acquire knowledge without inference or the use of reason. "The word 'intuition' comes from the Latin word 'intueri', which is often roughly translated as meaning 'to look inside'’ or 'to contemplate'." Intuition provides us with beliefs that we cannot necessarily justify...
es of the counsels and no reason is needed to use them. All Australian states allow for peremptory challenges in jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
selection, however, the number of challenges granted to the counsels in each state are not all the same. Until 1987 New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
had twenty peremptory challenges for each side where the offence was murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
, and eight for all other cases. In 1987 this was lowered to three peremptory challenges per side, the same amount allowed in South Australia
South Australia
South Australia is a state of Australia in the southern central part of the country. It covers some of the most arid parts of the continent; with a total land area of , it is the fourth largest of Australia's six states and two territories.South Australia shares borders with all of the mainland...
. Eight peremptory challenges are allowed for both counsels for all offences in Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
. Victoria
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....
, Tasmania
Tasmania
Tasmania is an Australian island and state. It is south of the continent, separated by Bass Strait. The state includes the island of Tasmania—the 26th largest island in the world—and the surrounding islands. The state has a population of 507,626 , of whom almost half reside in the greater Hobart...
and the Northern Territory
Northern Territory
The Northern Territory is a federal territory of Australia, occupying much of the centre of the mainland continent, as well as the central northern regions...
allow for six. Western Australia
Western Australia
Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east...
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 majorityMajority
A majority is a subset of a group consisting of more than half of its members. This can be compared to a plurality, which is a subset larger than any other subset; i.e. a plurality is not necessarily a majority as the largest subset may consist of less than half the group's population...
verdicts are allowed in South Australia
South Australia
South Australia is a state of Australia in the southern central part of the country. It covers some of the most arid parts of the continent; with a total land area of , it is the fourth largest of Australia's six states and two territories.South Australia shares borders with all of the mainland...
, Victoria
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....
, Western Australia
Western Australia
Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east...
, Tasmania
Tasmania
Tasmania is an Australian island and state. It is south of the continent, separated by Bass Strait. The state includes the island of Tasmania—the 26th largest island in the world—and the surrounding islands. The state has a population of 507,626 , of whom almost half reside in the greater Hobart...
, the Northern Territory
Northern Territory
The Northern Territory is a federal territory of Australia, occupying much of the centre of the mainland continent, as well as the central northern regions...
, New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
and Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
, while the ACT
Australian Capital Territory
The Australian Capital Territory, often abbreviated ACT, is the capital territory of the Commonwealth of Australia and is the smallest self-governing internal territory...
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
Guilt (law)
In criminal law, guilt is entirely externally defined by the state, or more generally a “court of law.” Being “guilty” of a criminal offense means that one has committed a violation of criminal law, or performed all the elements of the offense set out by a criminal statute...
" verdicts where the defendant is on trial for murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
or treason
Treason
In law, treason is the crime that covers some of the more extreme acts against one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife. Treason against the king was known as high treason and treason against a...
. 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 juristic persons).The only court that tries by jury is the cour d'assises
Cour d'assises
A French cour d'assises or Assize Court is a criminal trial court with original and appellate limited jurisdiction to hear cases involving defendants accused of major felonies or indictable offences, or crimes in French, and one of the few to be decided by jury trialUnder French law, a crime is any...
. 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 system had been introduced in Germany by the Gerichtsverfassungsgesetz (GVG) of 27 January 1877 with the (jury court) consisting of three judges and twelve jurymen, but was abolished by the Emminger Reform of 4 January 1924, ostensibly as an emergency, money-saving measure in a period of acute financial stringency, during an Article 48Article 48 (Weimar Constitution)
Article 48 of the constitution of the Weimar Republic of Germany allowed the President, under certain circumstances, to take emergency measures without the prior consent of the Reichstag...
state of emergency and its enabling act caused by events surrounding the occupation of the Ruhr
Occupation of the Ruhr
The Occupation of the Ruhr between 1923 and 1925, by troops from France and Belgium, was a response to the failure of the German Weimar Republic under Chancellor Cuno to pay reparations in the aftermath of World War I.-Background:...
. The decree abolished the jury in the and replaced it with a mixed system of 3 professional judges and 6 lay judges, but kept the original name.
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 WalesEngland and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, the exception being that juries consist of nine lay people, rather than twelve.
India
Jury trials were abolished by the government of IndiaGovernment of India
The Government of India, officially known as the Union Government, and also known as the Central Government, was established by the Constitution of India, and is the governing authority of the union of 28 states and seven union territories, collectively called the Republic 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
K. M. Nanavati vs. State of Maharashtra
K. M. Nanavati vs. State of Maharashtra was a 1959 Indian court case where Kawas Manekshaw Nanavati, a Naval Commander, was tried for the murder of Prem Ahuja, his wife's lover. The incident received unprecedented media coverage and inspired several books and movies...
, which was overturned by higher courts, on the grounds that the jury was misled by the presiding judge.
Ireland
In the Republic of IrelandRepublic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
, a common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdiction, jury trials are available for criminal
Criminal procedure
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...
before the Circuit Court
Circuit Court (Ireland)
The Circuit Court is an intermediate level court of local and limited jurisdiction in the Republic of Ireland which hears both civil and criminal matters. On the criminal side the Circuit Court hears criminal matters tried on indictment with a judge and jury, except for certain serious crimes...
, Central Criminal Court and defamation cases. Consisting of twelve persons, juries are selected from a jury panel which is picked at random by the county registrar
County Registrar
A County Registrar is a official attached to the Irish Circuit Court who carries out a number of quasi-judicial and administrative functions regarding the functioning of the court within the county or counties to which he or she is assigned. The quasi-judicial functions of a County Registrar in the...
from the electoral register
Electoral register
The electoral roll is a listing of all those registered to vote in a particular area. The register facilitates the process of voting, helps to prevent fraud and may also be used to select people for jury duty...
. Juries only decide questions of fact. They have no role in criminal sentencing 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".
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
Special Criminal Court
The Special Criminal Court is a juryless criminal court in the Republic of Ireland which tries terrorist and organized crime cases. Article 38 of the Constitution of Ireland empowers the Dáil to establish "special courts" with wide-ranging powers when "the ordinary courts are inadequate to secure...
. Instead of a jury the Special Criminal Court consists of three judges, one from the District Court
District Court (Ireland)
The District Court is the main court of summary jurisdiction in Ireland. It has responsibility for hearing minor criminal matters, small civil claims, liquor licensing, and certain family law applications...
, Circuit Court
Circuit Court (Ireland)
The Circuit Court is an intermediate level court of local and limited jurisdiction in the Republic of Ireland which hears both civil and criminal matters. On the criminal side the Circuit Court hears criminal matters tried on indictment with a judge and jury, except for certain serious crimes...
and High Court.
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.
Italy
The Corte d'AssiseCorte d'Assise
The Corte d'Assise is an Italian court composed of two professional judges, Giudici Togati, and six lay judges, Giudici Popolari, selected from the people. The court has jurisdiction to judge the most serious crimes, such as terrorism, murder. Penalties imposed by the court can include life...
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 which requires selected citizens to take part in criminal court trials of certain severe crimes and 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 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 EmpireRussian Empire
The Russian Empire was a state that existed from 1721 until the Russian Revolution of 1917. It was the successor to the Tsardom of Russia and the predecessor of the Soviet Union...
as a result of the Judicial reform of Alexander II
Judicial reform of Alexander II
The judicial reform of Alexander II is generally considered one of the most successful and the most consistent of all the reforms of Alexander II. During the reform a completely new court system and a completely new order of legal proceedings were established...
in 1864. After the October Revolution
October Revolution
The October Revolution , also known as the Great October Socialist Revolution , Red October, the October Uprising or the Bolshevik Revolution, was a political revolution and a part of the Russian Revolution of 1917...
they were abolished and introduced again in the Russian Federation
Russia
Russia or , officially known as both Russia and the Russian Federation , is a country in northern Eurasia. It is a federal semi-presidential republic, comprising 83 federal subjects...
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.
Singapore
In SingaporeSingapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
, the jury system was abolished in 1969. Jury trials for all had been earlier abolished in 1959, except for capital offenses with death penalty. As Prime Minister Lee Kuan Yew
Lee Kuan Yew
Lee Kuan Yew, GCMG, CH is a Singaporean statesman. He was the first Prime Minister of the Republic of Singapore, governing for three decades...
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."
South Africa
The last jury trial to be heard in South AfricaSouth Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
was in the District of Kimberley. Under the apartheid era, the Afrikaner
Afrikaner
Afrikaners are an ethnic group in Southern Africa descended from almost equal numbers of Dutch, French and German settlers whose native tongue is Afrikaans: a Germanic language which derives primarily from 17th century Dutch, and a variety of other languages.-Related ethno-linguistic groups:The...
National Party moved to weaken the judiciary in favor of Dutch-inherited civil law
Civil law
Civil law may refer to:* Civil law , a branch of continental law which is the general part of private law* Civil law , a branch of common law dealing with relations between individuals or organizations...
, 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 GenevaCanton of Geneva
The Republic and Canton of Geneva is the French speaking westernmost canton or state of Switzerland, surrounded on almost all sides by France. As is the case in several other Swiss cantons The Republic and Canton of Geneva is the French speaking westernmost canton or state of Switzerland,...
provides for genuine jury trials. Several other cantons – Vaud
Vaud
Vaud is one of the 26 cantons of Switzerland and is located in Romandy, the French-speaking southwestern part of the country. The capital is Lausanne. The name of the Canton in Switzerland's other languages are Vaud in Italian , Waadt in German , and Vad in Romansh.-History:Along the lakes,...
, Neuchâtel, Zürich
Canton of Zürich
The Canton of Zurich has a population of . The canton is located in the northeast of Switzerland and the city of Zurich is its capital. The official language is German, but people speak the local Swiss German dialect called Züritüütsch...
and Ticino
Ticino
Canton Ticino or Ticino is the southernmost canton of Switzerland. Named after the Ticino river, it is the only canton in which Italian is the sole official language...
– 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.
Absence of juries in Israel
The Israeli judicial systemIsraeli judicial system
The Israeli judicial system consists of secular courts and religious courts. The law courts constitute a separate and independent unit of Israel's Ministry of Justice...
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
Supreme Court of Israel
The Supreme Court is at the head of the court system and highest judicial instance in Israel. The Supreme Court sits in Jerusalem.The area of its jurisdiction is all of Israel and the Israeli-occupied territories. A ruling of the Supreme Court is binding upon every court, other than the Supreme...
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 three-judge panels.
United Kingdom
The United KingdomUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
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
Voir dire
Voir dire is a phrase in law which comes from the Anglo-Norman language. In origin it refers to an oath to tell the truth , i.e., to say what is true, what is objectively accurate or subjectively honest, or both....
system; jurors are usually just accepted without question. Controversially, in England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
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 WalesEngland and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
(which have the same legal system), minor criminal cases are heard without a jury in the Magistrate
Magistrate
A magistrate is an officer of the state; in modern usage the term usually refers to a judge or prosecutor. This was not always the case; in ancient Rome, a magistratus was one of the highest government officers and possessed both judicial and executive powers. Today, in common law systems, a...
s' Courts. Middle ranking ("triable either way") offences may be tried by magistrates or the defendant may elect trial by jury in the Crown Court
Crown Court
The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales...
. 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
Coroner
A coroner is a government official who* Investigates human deaths* Determines cause of death* Issues death certificates* Maintains death records* Responds to deaths in mass disasters* Identifies unknown dead* Other functions depending on local laws...
'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
Jury tampering
Jury tampering is the crime of unduly attempting to influence the composition and/or decisions of a jury during the course of a trial.The means by which this crime could be perpetrated can include attempting to discredit potential jurors to ensure they will not be selected for duty. Once selected,...
to succeed.
In 1999 the then Home Secretary
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
Jack Straw
Jack Straw
Jack Straw , British politician.Jack Straw may also refer to:* Jack Straw , English* "Jack Straw" , 1971 song by the Grateful Dead* Jack Straw by W...
introduced a controversial bill to limit the right to trial by jury. This became the Criminal Justice Act 2003
Criminal Justice Act 2003
The Criminal Justice Act 2003 is an Act of the Parliament of the United Kingdom. It is a wide ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland....
, 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
Peter Goldsmith, Baron Goldsmith
Peter Henry Goldsmith, Baron Goldsmith, PC, QC , is a former Attorney General for England and Wales and Northern Ireland. On 22 June 2007, Goldsmith announced his resignation which took effect on 27 June 2007, the same day that prime minister, Tony Blair, stepped down. Goldsmith was the longest...
, the then Attorney General
Attorney General for England and Wales
Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...
, then pressed forward with the Fraud (Trials Without a Jury) Bill
Fraud (Trials Without a Jury) Bill
The Fraud Bill 2007 was a proposed Act of Parliament introduced by the United Kingdom government. Its intention was to abolish trials by jury in complex fraud cases in England, Wales and Northern Ireland by amending section 43 of the Criminal Justice Act 2003. The Bill was given its First Reading...
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
British House of Commons
The House of Commons is the lower house of the Parliament of the United Kingdom, which also comprises the Sovereign and the House of Lords . Both Commons and Lords meet in the Palace of Westminster. The Commons is a democratically elected body, consisting of 650 members , who are known as Members...
before passing its second Commons reading in November 2006, but was defeated in the Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
in March 2007.
The first serious offence to be tried without a jury for 350 years was allowed to go ahead in 2009. 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
Liberty (pressure group)
Liberty is a pressure group based in the United Kingdom. Its formal name is the National Council for Civil Liberties . Founded in 1934 by Ronald Kidd and Sylvia Crowther-Smith , the group campaigns to protect civil liberties and promote human rights...
director of policy Isabella Sankey said:
The trial started in 2010, with the four defendants convicted on the 31st of March 2010 by Mr Justice Treacy
Colman Treacy
Sir Colman Maurice Treacy , styled The Hon. Mr Justice Treacy, is a British High Court Judge.He attended Stonyhurst College and Jesus College, Cambridge. In 1971 he was called to the Bar, Middle Temple, and appointed as QC in 1990....
at the Old Bailey.
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 IrelandNorthern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
, 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
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
offences by courts where the judge sits alone, known as "Diplock courts
Diplock courts
The Diplock courts were a type of court established by the Government of the United Kingdom in Northern Ireland on 8 August 1973, in an attempt to overcome widespread jury intimidation associated with the Troubles. The right to trial by jury was suspended for certain "scheduled offences" and the...
". This was because of alleged widespread jury intimidation during the Troubles. Lord Gardiner’s review, in 1974, unconvincingly attempts to bolster Lord Diplock’s findings as follows that any jury tampering or intimidation had ever occurred;"We are convinced on the evidence that we have received, that if juries were to be reintroduced for scheduled offences, their verdicts would still be subject to the influences of intimidation, or the fear of it. We have no evidence of this or of perversity in juries...
With the improving security situation in the Northern Ireland, Diplock Courts
Diplock courts
The Diplock courts were a type of court established by the Government of the United Kingdom in Northern Ireland on 8 August 1973, in an attempt to overcome widespread jury intimidation associated with the Troubles. The right to trial by jury was suspended for certain "scheduled offences" and the...
were due to be phased out in 2007 to be replaced with non-jury trials.
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 ConstitutionArticle Three of the United States Constitution
Article Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress.-Section 1: Federal courts:...
, 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
Sixth Amendment to the United States Constitution
The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions...
, which states in part, "In all criminal prosecutions, the accused shall enjoy the right to a speedy
Speedy trial
Speedy trial refers to one of the rights guaranteed by the United States Constitution to defendants in criminal proceedings. The right to a speedy trial, guaranteed by the Sixth Amendment, is intended to ensure that defendants are not subjected to unreasonably lengthy incarceration prior to a fair...
and public trial
Public trial
Public trial or open trial is a trial open to public, as opposed to the secret trial. The term should not be confused with show trial.-United States:...
, 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
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
. 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. 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.
In the cases Apprendi v. New Jersey
Apprendi v. New Jersey
Apprendi v. New Jersey , , was a United States Supreme Court decision. The Court ruled that the Sixth Amendment right to a jury trial, incorporated against the states through the Fourteenth Amendment, prohibited judges from enhancing criminal sentences beyond statutory maximums based on facts...
, , and Blakely v. Washington
Blakely v. Washington
Blakely v. Washington, 542 U.S. 296 , held that, in the context of mandatory sentencing guidelines under state law, the Sixth Amendment right to a jury trial prohibited judges from enhancing criminal sentences based on facts other than those decided by the jury or admitted by the defendant...
, , the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
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
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
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.
It has been speculated that jury trials encourage harsh punishment in the United States.
English common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
and the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
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 of 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
Jury nullification
Jury nullification occurs in a trial when a jury reaches a verdict contrary to the judge's instructions as to the law.A jury verdict contrary to the letter of the law pertains only to the particular case before it; however, if a pattern of acquittals develops in response to repeated attempts to...
, cannot be overturned by a judge if doing so would violate legal protections against double jeopardy
Double jeopardy
Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...
. 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.
It was established in Bushel's Case
Bushel's Case
Bushel’s Case 124 E.R. 1006 is a famous English decision on the role of juries. It also confirmed that the Court of Common Pleas could issue a writ of habeas corpus in ordinary criminal cases.-Background:...
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 judicial 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
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...
and Justice Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
indicated their disapproval of special interrogatories even in civil cases.
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. The jury has been described as "an exciting and gallant experiment in the conduct of serious human affairs." As fact-finders, juries are expected to fulfill the role of lie detector
Lie Detector
"Lie Detector" is a CD single by The Reverend Horton Heat. It was released in October 1998 on Sub Pop.-Personnel:*Jim "Reverend Horton" Heath - lead vocals, guitar*Jimbo Wallace - upright bass, vocals*Scott Churilla - drums, vocals...
.
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. 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). 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. 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 lawsuitLawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
; civil law
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
is the branch of common law dealing with non-criminal actions. It should not be confused with legal system of civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
.
The right to trial by jury in a civil case in federal court is addressed by the 7th Amendment
Seventh Amendment to the United States Constitution
The Seventh Amendment to the United States Constitution, which was ratified as part of the Bill of Rights, codifies the right to a jury trial in certain civil cases. However, in some civil cases, the Supreme Court has not incorporated the right to a jury trial to the states in the fashion which...
. 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." In Joseph Story
Joseph Story
Joseph Story was an American lawyer and jurist who served on the Supreme Court of the United States from 1811 to 1845. He is most remembered today for his opinions in Martin v. Hunter's Lessee and The Amistad, along with his magisterial Commentaries on the Constitution of the United States, first...
'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 7th 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 at the time. 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
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
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" in 1791. 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
Rescission
In contract law, rescission has been defined as the unmaking of a contract between parties. Rescission is the unwinding of a transaction. This is done to bring the parties, as far as possible, back to the position in which they were before they entered into a contract .-In court:Rescission is an...
, and specific performance
Specific performance
Specific performance is an order of a court which requires a party to perform a specific act, usually what is stated in a contract. It is an alternative to award/ for awarding damages, and is classed as an equitable remedy commonly used in the form of injunctive relief concerning confidential...
were all equitable remedies, and thus up to the judge's discretion, not a jury. In Beacon Theaters v. Westover, , 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 7th 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 7th Amendment in federal court.
The court determines the right to jury based on all claims by all parties involved. If the plaintiff brings all claims 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.
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.
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.
Waiver of jury trial
The vast majority of US criminalCriminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
cases are not concluded with a jury verdict, but rather by plea bargain
Plea bargain
A plea bargain is an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence.A plea bargain allows criminal defendants to...
. Both prosecutor
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
s and defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
s often have a strong interest in resolving the criminal case by negotiation
Negotiation
Negotiation is a dialogue between two or more people or parties, intended to reach an understanding, resolve point of difference, or gain advantage in outcome of dialogue, to produce an agreement upon courses of action, to bargain for individual or collective advantage, to craft outcomes to satisfy...
resulting in a plea bargain. If the defendant waives a jury trial, a bench trial
Bench trial
A bench trial is a trial held before a judge sitting without a jury. The term is chiefly used in common law jurisdictions to describe exceptions from jury trial, as most other legal systems do not use juries to any great extent....
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 have a waiver of jury trial. However, most states give the defendant the absolute right to waive a jury trial.
See also
- Rights of EnglishmenRights of EnglishmenThe rights of Englishmen are the perceived traditional rights of British subjects. The notion refers to various constitutional documents that were created throughout various stages of English history, such as Magna Carta, the Declaration of Right , and others...
- Seventh Amendment to the United States ConstitutionSeventh Amendment to the United States ConstitutionThe Seventh Amendment to the United States Constitution, which was ratified as part of the Bill of Rights, codifies the right to a jury trial in certain civil cases. However, in some civil cases, the Supreme Court has not incorporated the right to a jury trial to the states in the fashion which...
- Sparf v. United StatesSparf v. United StatesSparf v. United States, 156 U.S. 51 , was a case in which the Supreme Court of the United States held that federal judges were not required to inform jurors of their inherent ability to judge the law in a case. The decision asserted that the court could mislead jurors and inform them that they...
- Summary jury trialSummary Jury TrialSummary jury trial is an alternative dispute resolution technique, increasingly being used in civil disputes in the United States.It is one of the new forms of dispute resolution being advanced by the regular courts in an effort to reduce docket congestion...
- History of trial by jury in England
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 9780226081267
- 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}} | quote= After the Second World War, that is, from 1948 to 1950, the State of Bavaria once again introduced trial by jury. Such courts were however abolished when in 1950 uniformity was once again applied to court procedure in the Federal Republic. | ref= harv}}