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Origins of Jury Trial

and

other institutes of common law


Thomas Jefferson to the Abbé Arnoux

Were I called upon to decide whether the people had


best be omitted in the Legislative or Judiciary
department, I would say it is better to leave them out
of the Legislative. The execution of the laws is more
important than the making them.
Thomas Jefferson to Thomas Paine

I consider trial by jury as the only anchor ever yet


imagined by man, by which a government can be
held to the principles of its constitution
Alexis de Tocqueville, Democracy in America

• jury trials educate citizens about self-government.


• institution of the jury not only help to improve the law, it helps improve the jurors
too. It educates them about law and legal process and helps them understand their
duties as citizens.
• It may be regarded as a gratuitous public school ever open, in which every juror
learns to exercise his rights, enters into daily communication with the most learned
and enlightened members of the upper classes, and becomes practically acquainted
with the laws of his country, which are brought within the reach of his capacity by
the efforts of the bar, the advice of the judge, and even by the passions of the parties.
• I think that the main reason for the practical intelligence and the political good
sense of the Americans is their long experience with juries in civil cases.
 To regard the jury simply as a judicial institution would be taking a very
narrow view of the matter, for great though its influence on the
outcome of lawsuits is, its influence on the fate of society itself is much
greater still. The jury is therefore above all a political institution, and it
is from that point of view that it must always be judged. . . .
 The jury system as understood in America seems to me as direct and
extreme a consequence of the dogma of the sovereignty of the people as
universal suffrage. They are both equally powerful means of making the
majority prevail.
 I do not know whether a jury is useful to the litigants, but I am sure it is
very good for those who have to decide the case. I regard it as one of the
most effective means of popular education at society’s disposal.
 The jury contributes most powerfully to form the judgement and to
increase the natural intelligence of a people
 Juries, especially civil juries, instill some of the habits of the judicial mind into every citizen,
and just those habits are the very best way of preparing people to be free.
 Laws are always unstable unless they are founded upon the manners of a nation; manners
are the only durable and resisting power in a people. When the jury is reserved for criminal
offences, the people only witnesses its occasional action in certain particular cases; the
ordinary course of life goes on without its interference, and it is considered as an instrument,
but not as the only instrument, of obtaining justice. This is true a fortiori when the jury is
only applied to certain criminal causes. When, on the contrary, the influence of the jury is
extended to civil causes, its application is constantly palpable; it affects all the interests of the
community; everyone co-operates in its work: it thus penetrates into all the usages of life, it
fashions the human mind to its peculiar forms, and is gradually associated with the idea of
justice itself.
The institution of the jury, if confined to criminal causes, is always in danger, but when once
it is introduced into civil proceedings it defies the aggressions of time and of man.
 In criminal causes, when society is armed against a single
individual, the jury is apt to look upon the judge as the
passive instrument of social power, and to mistrust his
advice. Moreover, criminal causes are entirely founded
upon the evidence of facts which common sense can readily
appreciate; upon this ground the judge and the jury are
equal. Such, however, is not the case in civil causes; then
the judge appears as a disinterested arbiter between the
conflicting passions of the parties. The jurors look up to
him with confidence and listen to him with respect, for in
this instance their intelligence is completely under the
control of his learning.
 “The jury . . . serves to communicate the spirit of the judges to the
minds of all the citizens; and this spirit, with the habits which attend it,
is the soundest preparation for free institutions. “
 Juries teach men equity in practice. Each man, when judging his
neighbor, thinks that he may be judged himself. That is especially true
of juries in civil suits; hardly anyone is afraid that he will have to face a
criminal trial, but anybody may have a lawsuit.
 Juries teach each individual not to shirk responsibility for his own acts,
and without that manly characteristic no political virtue is possible
 Juries invest each citizen with a sort of magisterial office; they make all
men feel that they have duties toward society and that they take a share
in its government. By making men pay attention to things other than
their own affairs, they combat that individual selfishness which is like
rust in society.
• English judges are more ‘technically oriented’ whereas ‘[t]he American professional judiciary is
notoriously politicized and expected to consider ‘the equities’ of cases so that the door remains open to
the consideration of various extralegal factors’. American jury assists in this equitable functioning and
helps to buffer judges against criticism.
• In England and in America the judges exercise an influence upon criminal trials which the French
judges have never possessed. The reason of this difference may easily be discovered; the English and
American magistrates establish their authority in civil causes, and only transfer it afterwards to
tribunals of another kind, where that authority was not acquired.
• Upon these occasions they are accidentally placed in the position which the French judges habitually
occupy, but they are invested with far more power than the latter; they are still surrounded by the
reminiscence of the jury, and their judgment has almost as much authority as the voice of the
community at large, represented by that institution. Their influence extends beyond the limits of the
courts; in the recreations of private life as well as in the turmoil of public business, abroad and in the
legislative assemblies, the American judge is constantly surrounded by men who are accustomed to
regard his intelligence as superior to their own, and after having exercised his power in the decision of
causes, he continues to influence the habits of thought and the characters of the individuals who took
a part in his judgment.
• The jury, then, which seems to restrict the rights of magistracy, does in reality consolidate its power,
and in no country are the judges so powerful as there, where the people partakes their privileges.
• jury, which is the most energetic means of making the people rule, is also the most efficacious means
of teaching it to rule well.
William Blackstone,
COMMENTARIES ON THE LAWS OF ENGLAND

 Jury is "the glory of English law", "a strong … barrier between the
liberties of the people and prerogatives of the Crown“
 " The impartial administration of justice, which secures both our
persons and our properties, is the great end of civil society. But if
that be entirely entrusted to the magistracy, a select body of men,
and those generally selected by the prince or such as enjoy the
highest offices in the state, their decisions, in spite of their own
natural integrity, will have frequently an involuntary bias toward
those of their own rank and dignity; it is not to be expected from
human nature that the few should always be attentive to the
interests and good of the many."
Adam Smith, Lectures on Jurisprudence

Another thing which curbs the power of the


judge is that all causes must be tried with
regard to the fact by a jury. The matter of the
fact is left entirely to their determination.
 Smith seems more specific than Blackstone: for him, trial by jury is primarily
a means to curb the power of the judge – and not the state at large.
 Yet, both have something similar in mind: judge is representative of powerful
state against which people who appear in court are ill-protected.
 Professional judges who are independent from other branches of government
as well as from conflicting parties might misuse their factual independence by
remaining uninformed, following their own ideologies, becoming lazy or even
corrupt.
 Juries are a potential means to make professional judges more accountable: if
juries force judges to explain central content of the law to them in a
comprehensible manner, possibility that judges can shield themselves behind
complicated language is reduced.
Learned Hand, Spirit of Liberty

I often wonder whether we do not rest our hopes too


much upon constitutions, upon laws and upon
courts. These are false hopes; believe me, these are
false hopes. Liberty lies in the hearts of men and
women; when it dies there, no constitution, no law,
no court can save it; no constitution, no law, no court
can even do much to help it. While it lies there it
needs no constitution, no law, no court to save it.
Charles de Montesquieu, De I'esprit des Lois

compared European jurisdictions, expressed his


preference for the English judicial system and stated
that "the judiciary power ought not to be given to a
standing senate; it should be exercised by persons
taken from the body of the people at certain times of
the year, and consistently with a form and manner
prescribed by law, in order to erect a tribunal that
should last only so long as necessity requires."
Jean Jacques Rousseau,
Du Contrat Social ou Principes du Droit Politique

"When choice and lot are combined, positions that


require special talents, such as military posts, should
be filled by the former; the latter does for cases, such
as judicial offices, in which good sense, justice, and
integrity are enough, because in a state that is well
constituted, these qualities are common to all the
citizens."
Lord PATRICK Devlin, TRIAL BY JURY

 “Each jury is a little parliament. The jury sense is the


parliamentary sense. I cannot see the one dying and the
and the other surviving. The first object of any tyrant in
Whitehall would be to make Parliament utterly subservient
to his will; and the next to overthrow or diminish trial by
jury, for no tyrant could afford to leave a subject’s freedom
in the hands of twelve of his countrymen. So that trial by
jury is more than an instrument of justice and more than
one wheel of the Constitution: it is the lamp that shows that
freedom lives.”
Jury as a bastion of civil liberties

• It was associated with the "Anglo-Saxon liberty" that distinguished


England from the Continental absolutist Roman-law regimes.
• In countries with trial by jury, individual freedom is protected better
than in countries without trial by jury.
• The origin of the jury was located in the courts of Anglo-Saxon England,
whose judges were (like jurors) laymen, rather than professionals
• In the early Middle Ages, all courts were characteristically composed of
groups of laymen, who decided both factual and normative questions, or
at least decided the form of proof (testimony, documents, compurgation,
ordeal, or battle) that would settle the dispute.
 jury and lay assessor courts are not the only institutions of lay
participation in the judiciary: justices of the peace and lay magistrates
that adjudicate minor offenses are 2 other institutions.
Jury as fiscal instrument

• Alternative view of jury’s origin sees it as a piece of fiscal


machinery for the compulsory interrogation of the
inhabitants of a locality in the interests of the Crown,
which was later extended to private litigants
• Jury was introduced by the Norman kings following the
fiscal practices of the Carolingian Empire
• This view sees the origins of the jury as testimonial,
rather than judicial
• Instead of the palladium of liberty descending from
Anglo-Saxon liberty the jury is in origin the creation of
the fiscal interests of an aggressive centralizing monarchy
Countries with lay participation in judicial
decision-making
 Enjoy factually more independent judiciaries
 Experience higher levels of judicial accountability

 Has less frequent mistakes in judicial fact-finding

 population will be more knowledgeable


concerning its legal order
than countries without lay participation
 Juries would be better in finding facts than a professional judge because jurors
come from many walks of life and are thus people who have a lot of first-hand
experience in the real world
 higher the number of jurors participating in a specific case, the lower the probability
of mistakes in judicial decision-making
 A factually independent judiciary reduces uncertainty – and increases predictability
– if it increases the likelihood that formal legislation gets factually implemented.
 Citizens will develop a longer time horizon which will lead to more investment in
physical capital but also to a higher degree of specialization, i.e., to a different
structure of human capital.
 Jury induces legitimacy in law and public institutions. High degree of legitimacy is
correlated with lower degrees of tax resistance. This means that less resources need
to be spent for monitoring the tax paying behavior of citizens.
 All this means that jury is conducive to economic growth.
 jurors have fewer incentives than professional judges to care about the outcome of
a case, precisely because it is a one-shot game
 jurors do not strive for a career within the judiciary and have, hence, no incentives
to build up a reputation as informed, law-abiding, fair decision-makers.
 This might lead them to pay less attention than professional judges to the outcome
of a case.
 opposite also appears plausible: precisely because being part of a court is no
routine for jurors, they are more interested, pay more attention and so forth.
 jurors and lay judges are less dependent on government than professional judges:
 they do not have an interest in a judicial career, which means that they do not have to behave
cautiously out of reasons unrelated to the current trial
 threat of firing juror is not credible which is also true for many other of the often-used
instruments vis-à-vis professional judges, such as reducing their salary and the like
Conditions that favor proper functioning of jury

society must be racially, culturally, linguistically, and


religiously homogeneous
members of society must be sufficiently educated to
understand their responsibilities as jurors
members of juries must generally agree with the laws
which they are supposed to enforce
very high degrees of inequality could inhibit the
beneficial use of a jury, as some jurors might be
motivated by aspirations of redistribution
Criticism of jury

 people who act contrary to established conventions might be less secure


in the hands of jurors who might represent well-established
conventions.
 Taking the argument one step further, one might even argue that trial
by jury is an institution which could be a hindrance to innovation.
 Trial by jury could thus also lead to exploitation of minorities by
majorities.
 jury inheres the danger of transforming itself into an instrument for
redistribution.
 A jury representing median income earner might decide to put a hefty
fine on someone simply because of his being more wealthy.
Evolution of the jury, from its ancient origins to its
role in justice system, reflects the historical
movement toward popular self-governance and
illustrates the gradual expansion of individual rights
to all members of society
Ancient Athens - dikastai

• There existed a mechanism through which it was assured


that no one could elect jurors, called dikaste, for their
own trial.
• For normal cases, the courts were made up of dikastai of
500 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 1,000 to 1,500
dikastai.
• These voted by secret ballot and were eventually granted
the power to annul unconstitutional laws, thus
introducing judicial review.
Ancient 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.
 Criminal justice was administered by
 presiding judge, who was either the prætor or a judex quæstionis specially appointed by him, and
 a body of judices taken from a particular class, at one time the equestrian, and at another the
senatorial, whose duty it was to determine the fact of the guilt or innocence of the accused
 At the close of the evidence judices were said to be missi in consilium by
the judge, that is, told “to consider their verdict,”
 to each of judices were given 3 tablets marked respectively with the
letters
 A. for Absolvo
 C. for Condemno, and
 N. L. for Non Liquet
 one of these tablets judice threw into an urn, and result of the trial was
determined by the majority of the letters that appeared.
 If the fatal C. prevailed, the prætor pronounced the sentence, with which
the judices did not interfere.
 Roman judices might, without any breach of legal duty,
acquit in spite of the most conclusive evidence of guilt
 judices were entitled as representing the sovereign people
to exercise the prerogative of mercy, and their verdict in
that case implied and was equivalent to a pardon
 when the prætor announced the verdict of the majority, if it
was condemno he used the words
 Videtur Fecisse or Non Jure Videtur Fecisse;
 if it was absolvo, the words Non Videtur Fecisse, or Jure Videtur Fecisse
 principal and characteristic circumstance in which the trial by a Roman
differed from that of a modern jury, consisted in this, that in the former
case, neither the prætor, nor any other officer distinct from the jury,
presided over the trial to determine as
 to the competency of witnesses,
 admissibility of evidence,
 to expound the law as connecting the facts with the allegations to be proved
on the record;
 in order to remedy the deficiency, Romans resorted to this expedient -
jury generally consisted of one or more lawyers, and thus they derived
that knowledge of law from their own members which was necessary to
enable them to reject inadmissible evidence, and to give a correct
verdict as compounded both of law and fact
Islamic Lafif - likely precursor to the English jury

• The likely precursor to the English jury trial was the Lafif in
the Maliki school of classical Islamic law and jurisprudence,
which was developed between the 8th and 11th centuries in the
medieval Islamic world.
• Like the English jury, the Islamic Lafif was a body of twelve
members drawn from the neighbourhood and sworn to tell
the truth, who were bound to give a unanimous verdict, about
matters "which they had personally seen or heard, binding on
the judge, to settle the truth concerning facts in a case,
between ordinary people, and obtained as of right by the
plaintiff.“
• It is likely that the concept of the Lafif may have been
introduced to England by the Normans after their conquest of
England and the Emirate of Sicily, and then evolved into the
modern English jury.
Proto juries

• Proto juries - both, trial (petit) and presenting (grand) jury,


differed from the modern sort by being self-informing
• There was nothing equivalent to a modern police charged
with investigating crimes and collecting evidence.
• Little or no evidence was presented in court. Jurors were
expected to gather information themselves informally before
they came to court and to present their conclusions to the
judges.
• Breakdown of medieval society and the growth of the towns
changed this; the jury was called upon to determine the facts
of the case, based upon the evidence presented in court.
 jury has been derived from institutions of Greeks and Romans, as
well as from the earliest tribunals of the Teutonic peoples and
ancient Scandinavian assemblies.
 Blackstone thinks it was in use "among the earliest Saxon
colonies"
 jury was long popularly supposed to have been established as a
completed institution by Alfred the Great, king of the Anglo-
Saxon kingdom of Wessex from 871 to 899
 In the late 880s or early 890s Alfred issued a long domboc or law
code consisting of his "own" laws followed by a code issued by his
late seventh-century predecessor King Ine of Wessex. Together
these laws are arranged into 120 chapters.
Jurors as witnesses

• Originally jurors were mostly seen as witnesses, not lay


judges
• Jury was a body of neighbors summoned by some public
officer to give upon oath a true answer to some question
• Juries were not required to speak of their own knowledge
but could report what was reputed to be the case in their
districts
• there are several instances of "testimonial" lay fact finding
of panels of locals, restricted to specific types of disputed
issue, from elsewhere in Europe in the 12th century and
later Middle Ages
• So long as jurors acted on their own knowledge their verdicts could continue to
be given a kind of oracular authority entitled to as much certainty as the trial
by ordeal which had brought to bear the knowledge and justice of God.
• it was required that jurors should come from the locality of the alleged facts,
identified by vill (village or township).
• By the later 13th century, this requirement was causing difficulty in impaneling
juries, and it was progressively diluted and finally abolished by statutory
intervention.
 Recent research has modified the view that the medieval jury was entirely self-
informing as it now appears that jurors lived too far from the scene of many
crimes to have firsthand knowledge of events.
 It seems therefore that these early trial jurors both gathered and weighed
evidence.
The verdict as a proof

jury was responsible for providing vere dicta (true


statements) and not actually given control over the
outcome of the case
jury verdict was just proof of a specific kind available for
facts of a specific type
Initially jury verdict was one among a range of possible
proofs that could be tendered to support a pleading
Rational modes of proof, the jury, gradually substituted
the judgment of God
Vicini

• Specially convened groups of vicini, panels locals or


neighbors, as distinct from party witnesses, were
quite widely used as a mode of proof for "local" facts
in early medieval normative sources, following late
Roman antecedents.
• The gist of the idea is not that locals will necessarily
have direct knowledge of the facts, but that local
reputation about them—including hearsay—is itself
probative.
Use of vicini

• The late Roman law of land transfer and, with it, the use
of vicini to determine boundary issues, evidently
survived in southern European normative materials,
which is unsurprising as this was the area of greatest
Roman legal influence in this period;
• Use of vicini in boundary cases passed into the canon
law, which is equally unsurprising as the church was said
to live by Roman law.
• Same concept is applied in case of derivation of the
damages and status rules: local reputation is an
appropriate source of evidence for both local values and
family relationships
Corporalis traditio

• concept of vicini as a special type of witnesses emerged from 2 laws


of Constantine the Great,
• These laws established corporalis traditio required a ceremonious
transfer of the land executed on the property itself and in the
presence of vicini
• This was a change to the previous law, which allowed conveyance
in the case of Italic land by ceremony of mancipatio, or generally
by documents, executed away from the land itself
• There are a number of references in the Corpus Iuris Civilis to
reputation or the knowledge of neighbors as a means of proof
corporalis traditio
after fall of western Roman Empire

• A variant of Roman corporalis traditio was included in the Edictum


Theoderici (which has been attributed either to the Visigoth Theoderic II
[453-66] or to the Ostrogoth Theodoric the Great [489-526])
• Burgundian Code of Gundobad (roughly 524-532) contains a similar
requirement that sales of land must be in writing and attested by seven or five
witnesses "loci illius consistentibus" (dwelling in that place) or at least three
witnesses "loci illius consistentibus" who are of good reputation.
• The late 5th century Visigothic Code of Euric requires either a document, or
witnesses to the price,
• This approach is followed in the 7th century Spanish Visigothic code.
• In late 11th or early 12th century Expositio ad Libram Papiensem (Commentary
on the Book of Pavia) says that a traditio must be on the land and in the
presence of witnesses "sicut in lege Romanorum precipitur" (as is required in
the law of the Romans)
Vicini & boundary disputes
• Use of vicini before the Laws of Constantine was related to
boundary issues as well.
• Visigothic Code of Euric provides for use of vicini if
boundaries have been wrongfully altered or where there are
no clear boundaries.
• The use of local "seniores" to establish boundaries is also
found in canon law sources - Irish collection of canons
Hibernensis, Synod of Toul, Synods of Aachen.
• The use of vicini to assess damage to land in cases of cattle
trespass can be found in the Visigothic laws and, following
them, the Bavarian laws, and in the mid 7th century Lombard
Edictus Rothari.
Vicini & personal status

Early canon law sources make passing


reference to the use of vicini or similar
phrases in relation to 2 questions of
personal status:
o proof that an individual was baptized
o proof of family relationship for the purposes of
the prohibition of marriage within the
prohibited degrees.
Concept of fama
• Fama - reputation or rumour
• "vicinorum facta praesumimur scire" (we are presumed to know of the acts of
neighbors) - Decretum Gratiani or Concordia discordantium canonum
• Early medieval uses of local reputation as a form of evidence were
incorporated into the Roman-canon law of proof, and the perceived value of
this sort of evidence was at a high point in the later 12th century, when the use
of jury-like bodies began to be generalized and systematized in the English
royal courts.
• Local reputation was an acceptable canonical mode of proof (unlike trial by
battle), which had already been practiced in England for more limited
purposes and met the objections of the king and lay landowners to the
procedural claims of the church.
• fama was a sufficient basis to put a person to compurgation on a criminal
charge, even though there was no accuser or witnesses
• fama was not full and sufficient proof - local reputation was creating a
presumption
Roots of Anglo-Saxon Exceptionality

• General European transition from lay to professional


adjudication 12th century
• Jury trial appears as an early medieval survival, as opposed
to the professionalized model of the learned laws.
• The presence of proto-juries in land matters and in
grounding public prosecutions on the basis of fama is not
in itself and in its time a major divergence
• Such bodies continued to be used elsewhere in Europe
through the later Middle Ages.
• The real divergences are to be sought elsewhere,
particularly (among other differences) in the absence of the
separate and secret examination of witnesses (including
jurors, but also other witnesses) in the later common law.
Jury as a product of mixture and compromises

• Jury developed as a form of synthesis between lay and


professional adjudication emerged in the context compromise
between centrally and locally controlled administration of
justice
• Modern jury is the product of a confrontation and fusion
between the more rational Romano-canonic system of proof
and older methods of proof, that made some use of collective
testimony or collective oath and "judgment of God.“
• Modern jury is not a direct descendant of lay collective
judgment. The relationship was mediated by the uses of vicini
in early medieval, and particularly canon, law and by the uses
of local reputation
Ordeal
• Compromises were made between
o the royal courts, committed to the “judgment of God” in the form of trial by
battle and by ordeal
o ecclesiastical courts, which rejected trial by battle and sought to use documents,
witnesses, and procedure per notorium on the basis of the personal knowledge
of the ecclesiastical judge.
 A criminal, accused by presentment jury, was given a trial by ordeal.
 The accused would then be put to trial by the ordeal of water. A clergyman
would bless the water and the accused would be thrown in.
 It was assumed that God intervened to protect the innocent
 An accused who floated had been rejected by the blessed water and was
declared guilty
New systematic procedural thought

• The period between the late 11th and the early 13th century saw the
rediscovery of the Digest of Justinian
• Corpus Iuris Civilis, Gratian's Decretum, and the papal decretals
stimulated the development of systematic thought about law considered
as an intellectually coherent field
• transition from lay judgment to professional law involved defining the
roles of judge and witness by mutual exclusion. These rules began to
develop in the early 12th century, but reached its full development only
later
• the judge is to decide only on the basis of facts alleged and proved, not on
the basis of personal knowledge
• witness, in contrast, is to speak only to personal knowledge on the basis of
immediate sense-perception, not to draw conclusions
Judge’s function
 Judge began to be required to act only on the basis of knowledge
gained judicially through the lawsuit (secundum allegata et probata,
according to what was alleged and proved), not on the basis of his
private knowledge (conscientiam).
 In 12th century Bulgarus, most celebrated of the famous Four Doctors of
the law school of the University of Bologna, and was regarded as the
Chrysostom of the Glossators, started to teach that a judge is not a
competent witness in a cause in which he is judge
 The presence of the jury as fact-finder and the absence of any effective
modes of controlling the juries, the judge’s role was limited to
o maintaining courtroom order,
o framing the questions that the juries must answer,
o ensuring compliance with the ground rules of the various forms of
action.
Witnesses’ function

• Witnesses, in contrast, were required to speak to


personal knowledge of facts in issue.
• they were required to testify only to things done in
their presence, which they had themselves seen and
heard (de visu et auditu), not to hearsay (ab alio
auditu).
• growth of the requirement that witnesses should be
separately and secretly examined by the judge in
order to establish the grounds of their knowledge
Church's role

• ecclesiastics were in this period aggressive claimants to land


• ecclesiastical bodies had a built-in advantage in litigation
because they kept archives and could produce documents, which
were highly valued in early medieval judicial procedure,
including in 12th -century England
• Equally, however, they could "produce" documents in another
sense - in England in the century after the Norman Conquest
forgery of charters was the rule rather than the exception
• Most of people were illiterate
• Fore these reasons there was general preference for witnesses
over documents
• Roman-canon proceduralists were, in this context, to develop
elaborate authentication rules for documents, but these rules
were not settled until the early 13th century
Church, State and Law –
variations across English Channel

imperative of using clerics in a civil law system was


a further factor that moved the English kings during
this period toward juries
Both Henry II and King John were
excommunicated. Throughout history English Kings
were battling church for control of land
Using clerics must have been much more attractive
to the French kings, who were closely allied with the
Church and usually canonized.
Wantage Code

The English king Ethelred the Unready (c. 968 –


1016) set up an early legal system through the
Wantage Code of Ethelred.
One provision of Wantage Code stated that the 12
leading thegns (minor nobles) of each wapentake (a
small district) were required to swear that they
would investigate crimes without a bias.
 Law of Ethelred, which is still extant, was the source both presentment
and trial jury and of our whole system of jury trial.
 That law reads as follows:
 "Et habeantur placita in singulis Wapentachiis; et exeant seniores xii. tayni et prepositus
cum eis, et jurent super sanctuarium quod eis dabitur in manus quod neminem innocentem
velint accusare vel noxium concelare et omnis infamatus homo vadat ad triplex ordalium,
vel reddat quadruplum."
 But while the whole jury system can not be traced to this statute, as
some writers seem to have supposed, the jury provided for by it may
certainly be considered the foundation of the subsequent grand jury.
 The criminal jury has also been traced to this statute, but not definitely,
and while its origin may not be determined, its history from the year
1166 is clear
Roots

institution closest to the English jury is that found in


Normandy more or less contemporaneously which
gradually decayed after the destruction of the
Angevin empire
Institutions of lay fact finding also existed far more
widely in France, Norman Sicily, Spain, parts of
Germany, Scandinavia, the Low Countries, Hungary,
and Serbia
Some see archetype of the jury in Teutonic and
Saxon compurgators, who were generally 12 in
number, and whose oaths were conclusive of matter
in dispute.
Others derive jury from the Rachinburgen or Scabini
of the continental nations
Teutonic courts

 ancient courts of Teutonic nations were nothing more than assemblies of freemen, met
together for the purpose of deliberating on whatever affected the interests of their gau
or district, including punishment of offenses and settlement of civil claims
 president, or perhaps in some instances parties themselves, chose beforehand certain
freemen, who were required to form a court for the hearing of the particular case. Their
number varied, but was generally 7, and never less than 3.
 name by which those who were thus nominated to act in a judicial capacity were known
amongst the old Franks was Rachinburgen. Amongst the Lombards the corresponding
name was Arimannen.
 before giving judgment, members of court retired from the presence of the presiding
officer in order to consider their decision
 every one of markgenossen who possessed a certain amount of property might give
evidence, although he had not actually seen what had occurred
Norwegian Laugrettomen

 causes were determined and offenses tried by a body of sworn jurymen in the
most ancient times
 Code of Gulathing, published by King Magnus, in the year 1274, introduced
some changes in constitution of this tribunal which had existed long before
 solemn meeting or THINGS held periodically — one in the North, called
FROSTA-THING, and the other in the South, called GULA-THING
 3 persons holding different offices under the crown were authorized by law to
nominate a certain number of deputies (called Nefndarmen, or “named-men”)
from each district, who attended the Things
 From amongst the deputies were chosen 36 men to act as jurors
 They took their seats within the sacred inclosure, in a space marked off by
staves and ropes, called Laugretta
 jurors themselves were called LAUGRETTOMEN, which literally means, “Law-
amendment-men.”
King Magnus Lagabøte’s code, 1274

 “The Thing shall last so long as the Lawman chooses, and during such time as he, with the consent of the
jury, deems necessary for adjudging the causes which then are to be heard. Their number is three times
twelve; their nomination must be so managed that some fit men be chosen from every district. Those who
are chosen to be jurors shall, before they enter the court, swear an oath after the following form:
 “‘I protest before God that I will give such a vote in every cause, as well on the side of plaintiff as
defendant, as I consider most just in the sight of God, according to law and my conscience; and I shall
always do the same whenever I shall be chosen as juror.’
 “This oath every man is to swear before he enters the court, the first time he serves on a jury, but not a
second time, though he should be chosen. Every man must go fasting into court, and make his appearance
there while the sun is in the east, and remain in the court till noon. No man must bring any drink into
court, neither for sale nor in any other way. If those who are outside the sacred cords make there such
noise and disturbance that the jurors are prevented from hearing cases, or those from pleading who have
obtained leave from the lawman and
 the jurors, they shall pay a fine of an ore silver, when detected and convicted, having been previously
admonished.
 “Those who are chosen to serve as jurors shall judge according to law, in all causes that in a lawful manner
and course are hither (that is to Gula-thing) appealed. But in all cases that the code does not decide, that is
to be considered law which all the jurors agree upon. But if they disagree, the lawman prevails with those
who agree with him; unless the king with the advice of the most prudent men shall otherwise decide.”
 Laugrettomen were in all respects judges, and not merely jurymen. They decided
both law and fact, and awarded the sentence which the law prescribed.
 Thing was presided over by a Lögmann or Law-man, one of whose qualifications
for the office in old times was, that he could recite by heart the laws of the land;
 Previously to the promulgation of code of King Magnus Lagabøte (Magnus the
law-mender) Lögmann had merely presided and acted as the legal adviser of the
jurors, they being the judges to all intents and purposes.
 Lögmann were not, however, bound to consult jurors, as they were fully entitled
to decide cases according to their own view of the law.
 King Magnus’s code invested Lögmann with a most important judicial power
 in the event of any disagreement in opinion among the jurors, Lögmann could,
by giving his vote on that side, make the judgment of the minority prevail
 During the season of the year also when the Thing was not sitting, Lögmann was
empowered to act as supreme judge, and hear and decide causes alone.
Swedish Nämbd

 there were several kinds of Nämbd


 Konungz Nämbd, or King’s Jury,
 Lawman’s, the Bishop’s,
 the Hundred’s jury
 whenever any case of importance occurred, which required
judicial investigation, it was the duty of magistrate to summon
an extraordinary Thing or meeting, and nominate a Nämbd to
take cognizance of it
 OestgothaLagh Code – “Sanninda män (Icelandic for truth-
speaking men) are to sit on the Nämbd, and not parties in the
cause, nor their friends or relatives”
Swedish law

 “Now offenses may happen to be committed against the king and the law
laid down in the king’s BALK; therefore there shall be twelve men ordered
in every Lawman’s jurisdiction, agreed upon, chosen, and nominated by the
king and the natives of this country. They shall attentively and diligently
seek out and discover, each in that district in which he is ordered to
maintain justice, all those that, contrary to this law, disturb or molest the
people. And they have to swear the following oath.”
 “Whomsoever these twelve, or seven of their number, convicted before the
king himself, or those who judge under his commission in a court of
inquisition, or in a Landsthing, let him be cast and lose his hand, head, life,
and goods or money, to the king or the prosecutor and the district,
according to the nature of the offense. Whomsoever they discharge, let him
be discharged. Against this jury (or court) there is no appeal.”
Danish Tingmænd, Nævninger, and Sandemænd

 causes were decided by persons who were called either Tingmænd, Nævninger, or Sandemænd, according to the nature of
the court they attended
 Tingmænd were the members who constituted the Thing, of whom, according to the law of King Waldemar, 7 made a
quorum
 they did not originally adjudicate upon cases, except when no other jurors had been appointed — their proper business being
to form the Thing at which the public affairs of the district were transacted — and they were therefore more like a municipal
council than a court of justice.
 At a later period, however, by the law of King Erik, a special jurisdiction was given to them.
 Nævninger were the proper jurors or sworn judges of Denmark, being so called from nævn, “to name.”
 Number of Nævninger was originally 12. In Jutland they were appointed annually by the inhabitants for trying all causes
within the year. In Scania fifteen were nominated at first, as the accused or defendant was entitled to challenge three.
 Nævninger were chosen by inhabitants of district; although in some criminal cases the prosecutor, and in others the
magistrates, might nominate them
 Sandemænd were peculiar to Jutland. They were sworn judges, 8 in number, 2 being nominated by the king for each division
of the country
 Sandemænd took an oath to judge on the spot where the deed had been committed, or, if a right of land was in dispute, then
where the property is situated.
 Sandemænd received half a mark of silver for horse-hire from the party who employed them, whatever the result of their
judgment might be, and their verdict was determined by a majority; but subject, as in the case of the nævn, to be annulled by
the bishop and his eight coadjutors.
 The oath Sandemænd took was to the effect that they would state nothing but what they knew to be most right and true
(SANDESTE), and they had cognizances of all personal injuries and disputes respecting land and church- property.
Icelandic Tólftar-quidr

 Iceland was anciently divided into 39 provinces, or shires, called a Godord,


 3 of Godord made a Thing, or judicial district, in which the Varthing, or court for that district, was annually
held. There were 13 of these Things
 Over each shire presided a magistrate called Godi
 three of Godi nominated for each Varthing 12 judges, who tried causes in the first instance
 From these lay an appeal to the Fiordungs-dom, a court held about Midsummer at the Althing, and composed
of 36 judges nominated by 9 Godar for each quarter of Iceland
 From Fiordungs-dom a case might be appealed to the Fimtar-dom, the 5th court, so called because it was the 5th
in number of the courts held at the Althing.
 Fiordungs-dom was the tribunal of last resort, and the judges were nominated by the Godar, 12 for each quarter
of the island, so that they nominally amounted to 48
 Law required that the plaintiff should reject 6 of these, and the defendant another 6; so that number who
actually sat to try a cause was reduced to 36, or three times twelve, which was considered a doubly sacred
number
 besides these regular courts, civil and criminal cases were tried by jurors in sets of 5, 9, or 12, according to the
nature of the case. Last was called Tólftar-quidr (a nomination of 12),
 Tólftar-quidr was much employed in cases of dispute between the Godars and their Thingrnen. In such
instances the Godi nominated 11, and the other party the 12th , who, however, was obliged to be one of the other
two Godar who bore office in that Thing
 In other cases, 11 of the jurors were always nominated by the Godi, and he himself was the 12th
 jury has been traced to the assises de Jerusalem of Godfrey de Bouillon, 1099
 Godfrey de Bouillon established 2 seculiar courts of justice in his new kingdom
 La Haute Cour (High Court) of which he himself as suzerain was the chief
justiciary
 La Cour des Bourgeois (Court of the Burgesses), called also the Viscount’s Court,
presided over by one of his feudal lords
 There were also burgess courts in the different towns, corresponding to the Cour
de Bourgeois at Jerusalem
 Vesconte (vice-comes) presided over burgess courts , and court was composed of
him and 12 jurés
 it was not necessary that the whole 12 should sit, for 3 or even 2 were sufficient to
form a quorum
 nature of juror’s duties is shortly summed up in a passage of the Assizes
 Les jurés puisque ils sont asis en la cort, deivent oyr et escouter la clamor et le repons et
bien entendre; et sur ce que ils oront et connoistront, doivent faire droit jugement à lor
essient sans faucer
Reforms of Henry II

• In the 12th century, English King Henry II took a major step in


developing the jury system.
• He initiated systematization of the use of local reputation as a form of
proof, both in the canon law and in English law
• The king and his advisers and justices were not simply copying the
developing canon law of proof, but rather stretching both canonical
concepts and local practices to gain political advantage in the middle
ground
• A jury of 12 free men were assigned to arbitrate in land disputes
• Use of proto-juries in Henry II's reforms builds on early medieval
practices, predates the development of the learned law of proof, and thus
sets the English common law on a path divergent from the rest of
Europe, that of the ultimate dominance of trial by jury
• In the reforms of Henry II the use of panels of locals replaced the
judgment-testimony of local lay courts, and it involved thinking about
the jurors as witnesses
Gundolph vs. Pichot

 Its positive history may be said to begin with a trial between Gundolph, bishop
of Rochester, and Pichot, one of king's sheriffs, of the title to certain lands in
Kent, of which ownership was in dispute between king and St. Andrew.
 This is first case of which we have any record, in which decision was rendered
by a limited number of suitors, or pares curiœ, upon oath.
 King commanded that all the men of that county, Kent, should be convened, in
order to decide which had the better title.
 But they, being intimidated by sheriff, affirmed it to be land of the king rather
than that of St. Andrew.
 Bishop of Baieux, the king's justiciary, however, did not trust to their decision,
and commanded, that if they knew what they said to be true, they should select
12 of their number, who should confirm by their oath that which all had said
 but 12, after they had retired to consult and had been alarmed by a message
from sheriff, swore on returning, that what they had already said was true.
 And so the land remained in the king's hands.
 same year, a monk by the name of Grim came to the bishop, and, having heard
what the 12 had sworn, with wonder and detestation asserted that they were all
of them perjured.
 For Grim himself had been the overlooker of the lord of Fracheham, and had
taken services and customs for that manor, and had had one of those who had so
sworn under him in the same manor.
 This was communicated by the bishop of Rochester to the bishop of Baieux, to
whom Grim gave the same account.
 The justiciary then caused one of those who had so sworn to come before him,
who, when he had come, falling at the bishop's feet, confessed his guilt.
 Another, who had sworn the first, made the like confession.
 The rest of the jurors were then, by the order of the bishop as justiciary, sent to
London.
 All being assembled at London, it was adjudged both by French and English that
all the 12 were perjured.
 On this condemnation the bishop of Rochester had his land again.
It appears also, from this account, that 12 others de
melioribus comitatus were called to account for
having confirmed what the others had sworn,
when these affirmed that they had not agreed with
those who had so sworn, bishop said they should
prove their assertion by the ordeal of iron
this they promised to do, but being unable to
perform their promise, were by judgment of the
county fined in penalty of £300 to king.
Treatise of Glanvil, 1187

 Glanvil speaks of trial by ordinary assize and jurata patriœas forms of trial
already in existence, and thus describes the grand assize which has been
recently established as a method of trying the title to land, rights of
advowson, and claims of vassalage.
 "This," he says, "is a certain royal benefit bestowed upon the people and
emanating from the clemency of the prince, with the advice of his nobles—
regale beneficium clementia principis populis indultum. So effectually does
this proceeding preserve the lives and civil condition of men, that every one
may now possess his right in safety at the same time that he avoids the
doubtful event of a duel. This legal institution flows from the most
profound equity * * *; by so much as the testimony of many credible
witnesses in judicial proceedings preponderates over that of one only, by so
much greater equity is this institution regulated than that of the duel; for,
since the duel proceeds upon the testimony of one juror, this constitution
requires the oaths of twelve lawful men at least."
 "When the assize proceeds to make the recognition, the right will be well known
either to all the jurors, or some may know it and some may not, or all may be alike
ignorant concerning it. If none of them are acquainted with the truth of the matter,
and this be testified upon their oaths in court, recourse must be had to others until
such can be found who do know the truth of it. Should it, however, happen that some
of them know the truth of the matter and some not, the latter are to be rejected, and
others summoned to court, until twelve at least can be found who are unanimous.
But if some of the jurors should decide for one party, and some of them for the other,
then others must be added until twelve at least can be obtained who agree in favor of
one side. Each of the knights summoned for this purpose ought to swear that he will
neither utter that which is false nor knowingly conceal the truth. With respect to the
knowledge requisite on the part of those sworn, they should be acquainted with the
merits of the cause, either from what they have personally seen and heard or from
the declaration of their fathers, and from other sources equally entitled to credit as if
falling within their own immediate knowledge."
 at this time jurors of grand assize were mere recognitors,
 they were to deliver their verdict upon their own knowledge
of the facts in question.
 In order to obtain required unanimous verdict of the
twelve, resort was had to the practice of afforcing, by which
was meant, dropping jurors who were ignorant of the facts
in cases of disagreement, and adding others in their stead,
until 12 were obtained who were unanimous.
 Afforcement have very early fallen into disuse, and there
was some doubt whether thereafter the verdict should be
rendered by a majority of the original jurors
Henry II had been responsible for turning the jury
into an essential instrument of English law, first, in
1166, when jury trials were extended to all criminal
cases by the Assize of Clarendon, and second, with
enactment of the Grand Assize in 1179, which
provided that in disputes involving title to land,
litigants had a choice between a wager of battle or
trial before a jury.
Henry II stands out as the central figure in the history of
English royal law.
Through measures such as the Assize of Clarendon he
established a permanent court of professional judges, the
use of inquisitional juries, regular circuits for itinerant
judges, and a system of standardized forms of action via
writs.
The system of itinerant justices, in particular, reveals
Henry's motivations; these justices also served as tax
collectors.
Constitutions of Clarendon, 1164

Requires the bishop or archdeacon to entertain


prosecutions only by accusation by lawful accusers,
or on the basis of legales homines de visneto
produced by the sheriff, that is, of fama established
by an enquiry from vicini. (C. 6)
Role of the sheriff is merely to assist the bishop
Assize of Clarendon, 1166

• Assisa means statute or enactment


• established juries of the hundreds and boroughs.
• 12 knights or other freemen of every hundred, and 4
men of every township, were required to declare on
oath accusations of murder, robbery, larceny and
harboring of criminals to a "justice in eyre," a judge
who moved between hundreds on a circuit.
• The function of a presentment jury was to bring
cases, which had before only been possible by private
appeal.
 A writ was addressed to the sheriff commanding him to summon 4
knights of the neighborhood where the disputed property lay,
 These 4 knights were, after being duly sworn, to choose 12 lawful
knights, who were most cognizant of the facts (qui melius veritatem
sciant);
 defendant was to be summoned to hear election of 12 jurors made by 4
knights, and he might except to any of them for same reasons and in
the same way as witnesses might be objected to in court
 if the jurors when chosen were not unanimous, others were to be added
to the number until twelve at least agreed in favor of the one side or
other — This was called afforcing the assize
 These 12 knights were upon their oaths to determine which of the
litigant parties was entitled to the land
As the names of the jurors who were to form the
assize were known beforehand, the temptation
became great to endeavor to secure a favorable
verdict by bribes
no less than 3 statutes were passed in the reign of
Edward III (1312 –1377), which prohibited the
offense under severe penalties
constitutions of Clarendon, 1164 governed
disputes as to the title of lands between a
layman and a clerk
statute of Northampton, 1176, provides for
recognition of the claims of heirs before
itinerant justices.
The grand assize

In 1176 Henry conceded to the pope that "clerici non


cogantur facere duellum" (clerks shall not be forced
to wage battle)
This alternative mode of proof was made generally
available to all tenants defendants, rather than
merely to clerks.
Bracton, (1210 - 1268)

According to Bracton it was the duty of the judge to


satisfy himself of the truth of the verdict of the assize
 Sed cum ad Judicem pertineat justum proferre judicium et
reddere, oportebit eum diligenter deliberare et examinare si
dicta juratorum in se veritatem contineant, et si eorura justum
sit judicium vel fatuum, ne si continyat eum judicem eorum
dicta sequi et eorum judicium, ita falsum faciat judicium vel
fatuum. iv. c. 19 § 6
 grand assize was only technical form of the jurata patriœ, which was a form of
trying title to lands by swearing as to same by whole community, and afterward by
a number selected from the community.
 Certainly the distinction between the jurata patriœ and the grand assize seems to
have been very early lost, and both became known as jury.
 With establishment of justices in Eyre and the increasing number of suitors who
resorted to the king's courts, grand assize superseded ordinary assize referred to by
Glanvil, and recognition of facts in manner described by him became part of its
regular business.
 last recorded instance of grand assize occurred in 1834, which led to 2 trials, the
second of which took place in 1838, when 4 knights girt with swords and 12 other
recognitors acted as the jury in a trial at bar in the Court of Common Pleas, and
were addressed by Chief Justice Tindal in summing up, as “Gentlemen of the grand
inquest,” and “Recognitors of the grand assize.”
 By the assize of Clarendon, inquest is to be made through each county and
through each hundred, by 12 lawful men of the hundred and by 4 lawful
men of each township, by their oath, that they will speak the truth.
 By these, all persons of evil fame are to be presented to the justices and
then to proceed to the ordeal.
 If they fail in the ordeal, they undergo the legal punishment
 if they sustain the ordeal, yet as presentment against them is based on
evidence of neighborhood on score of bad character, they are to abjure the
kingdom.
 The jury of presentment is reduced to a still more definite form and
receives a more distinct representative character in the assizes of
Northampton, and in the articles of visitation of 1194.
 In latter capitulary plan used for nominating the recognitors of
grand assize is applied to grand jury, for so the body now
constituted may be termed.
 In first place, 4 knights are to be chosen for whole county, who by
their oath shall choose 2 lawful knights of each hundred or
wapentake, or, if knights be wanting, legal and free men, so that
these 12 may answer under all heads concerning whole hundred or
wapentake.
 Heads on which they answer include not only assizes which have
been already referred to in connection with jury, but all pleas of
crown, trial of malefactors and their receivers, as well as a vast
amount of fiscal business.
 writers succeeding Glanvil are Bracton, Britton, and author of Fleta
 Bracton, stating grounds for exemption from service on the jury, says, that same
causes which disqualified a man from testifying were good grounds of objection to
his serving on assize
 he enumerates as such: conviction for perjury, serfdom, consanguinity, affinity, and enmity or close friendship with
other party
 objections having been disposed of, jury were sworn and retired to consult upon
verdict, and until they had agreed no one was allowed access to them.
 If they could not agree, new recognitors, equal in number to minority, were added,
and the verdict was then rendered by the twelve who were found to agree.
 If, however, any of the jurors were ignorant of the facts of the case, others who
knew the truth, were added in their stead, and the truth was then declared.
 Down to the time of the writers last mentioned the jurors were, as we have seen,
mere recognitors deciding upon their own knowledge.
 Next step forward consisted in adding to their own knowledge that of others, thus
making the jurors judges of evidence
Lord Somers, Guide to English Juries, 1682

"In analogy, of late the jury is reduced to the number


of twelve; like as the prophets were twelve to foretell
the truth; the apostles twelve, to preach the truth;
the discoverers twelve, sent into Canaan to seek and
report the truth; and the stones twelve, that the
Hierusalem is built on; and as the judges were
anciently twelve to try and determine matters of law;
and always when there is any waging law, there must
be twelve to swear in it.“
no more scientific explanation than this is available
Jury as a risk aversion mechanism
• In theory grand assize was preferred to battle, among
other reasons, because in proportion as the testimony
of several suitable witnesses in judicial proceedings
outweighs that of one man, so jury relies more on
equity than does battle; for whereas battle is fought
on the testimony of one witness, jury implies the
oaths of at least twelve men.
• In practice accusation lead to personal trial by battle
between accuser and accused.
• Presentment, in contrast, like canonical fama, leads
to the defendant being put to purge himself; the
members of the panel are free of the risks involved in
personal accusation.
Private Prosecution
(7th -10th Centuries )

• Historically, till 19th century, criminal prosecutions in


England were almost entirely private.
• UK preserved a right of private prosecution till now
• Prosecution by the late 11th century were called "appeals“-
they were formally brought in the name of the Crown,
victim had to appeal to King to initiate proceedings.
• Prosecuting an appeal involved a long and complicated
process that often took several years.
Royal law enforcement officials

Nevertheless, royal officials did provide investigative


assistance.
From the late 12th century, the coroner had been
gathering evidence in homicide cases.
Justices of the peace performed a similar function
for other crimes from, at latest, the 16th century, and
possibly as early as the 14th .
Partly in response to the growing problem of urban
crime, pressure began to mount for public
prosecution.
• Until at least the late 10th century, those convicted of crime were
not ordinarily hanged, incarcerated, or otherwise punished
• Criminals owed the victim compensation (bot) or, in homicide
cases, owed the victim's family the deceased's wergild, a
monetary payment that varied with the deceased's social status.
• The nature of criminal penalties began to change as early as the
late 10th century.
• Bot seems to have been payable to church, king, or community at
large rather than to the injured kin.
• Hanging and fines payable to the king were the only criminal
penalties regularly imposed in royal courts.
Wergild

 instead of this lex talonis, so destructive of peace and well-being of the community,
injured party if he survived, or his relations if he died, should be content with a
money-payment as a compensation, or damages for the wrong done to him
 by a law of Alfred, if any man attempted private redress by vengeance before he had
shown his readiness to accept the wergild if offered to him, he was to be severely
punished
 For amongst the Saxons, and indeed all the nations of the Teutonic family, every
freeman was deemed to possess a certain pecuniary value, which varied according to
his rank; and this determined the amount of compensation which he was entitled to
receive for a wound or a blow
 regular tariff of penalties was thus established, which, as will be hereafter noticed,
gave rise to appellations by which different classes were distinguished. The king had
his wergild as well as the lowest ceorl
 Every bodily injury, from the loss of a nail to the destruction of life, had its
appropriate price, which must be paid by the offender; and it was only on failure of
this payment that he could be punished for his wrongful act, he was exposed to the
vengeance of the injured party and his friends
 Anglo-Saxon law had no category for crimes against the state or against
society -- it recognized only crimes against individuals.
 As in other customary legal systems, the moots typically demanded that
criminals pay restitution or composition to their victims -- or else face the
hazards of outlawry and blood-feud.
 Murderers owed wergeld (literally, " man-money" ) to their victims' kin.
 Lesser criminals owed their victims lesser fines, elaborately graded according
to the victim's status and the importance of the limb, hand, digit, fingertip,
etc., that had been lost.
 In recognition of importance of private property, heavier penalties were also
imposed for crimes occurring in or about home, most serious being
hamesucken, i.e. smashing up someone's house.
 This emphasis on the home reflected Anglo-Saxon law's concern with
protecting property rights, including notion of a protected private space.
Frithborh

 frithborh - system of mutual bail for the preservation of the public peace
 In the absence of anything like an organized police for prevention and punishment of crime,
Anglo-Saxons, in common with all the Teutonic nations, endeavored to secure some of
blessings of a more settled state of society through the medium of the system known in later
times by name of Frithborh (pledge of peace )- mutual guarantee by which every member of a
tithing as well as of a mæg, or family, became a pledge or surety (borh) to the other members,
as well as to the state, for the maintenance of the public peace
 Throughout kingdom all men are bound to be in a guarantee by 10s
 if one of the 10 men offend, other 9may hold him to do right
 if a crime were committed by any of their body, were to arrest him and bring him to justice.
 If they thought him innocent, they were to clear him by their oaths — or if he were convicted
and sentenced, they were to pay the wergild and wite
 if he fled from justice they were to make oath that they had no guilty participation in his
escape; which if they failed to prove, they had to pay a penalty proportioned to the offense.
 on the other hand, they were entitled to receive a part of the compensation paid by a
wrongdoer, for any injury inflicted on a member of their gild or tithing
 smallest subdivision for purpose of frithborh was the tithing (teothing), consisting of 10
families
 this society was sometimes called wer-borhe or sureties for payment of the “wer.”
 head-man of this community was named teothings-ealdor, or tienheofod; and he seems to
have acted as a kind of arbitrator in settling disputes about matters of a trifling nature
 Next in order came Hundred (hundrede), which in its original constitution consisted of 10
tithings, or a 100 families, associated together by a similar bond of mutual responsibility
 head-man was called the hundredesealdor, or simply gerefa, who acted as presiding officer of
the hundred-court, which met once at least every month
 Bishop, however, of diocese had co-ordinate authority with him, and court had cognizance of
ecclesiastical causes
 Scir-gemot, or court of the shire, which was held twice every year, or oftener, if occasion
required. Here causes were decided and business transacted which affected the inhabitants of
several of the hundreds
 highest court of all was that of the king, in which he himself was present attended by his
councilors, or witan. It was held as occasion required, and wherever the king happened to be.
It was in general only a court of appeal
Reciprocal voluntary agreements

Like insurance agencies, the surety groups helped


members to spread risks by pooling assets;
like credit bureaus, they vouched for the good standing
of their own members and denied access to outsiders
who had demonstrated their untrustworthiness;
like credit card companies, they stood behind the claims
and acts of their members.
Whether ancient or modern, these common solutions to
common problems all arose out of the free and
spontaneous cooperation of self-interested agents.
 Anglo-Saxon courts, called moots, were public assemblies of common
men and neighbors.
 Moots did not expend their efforts on creating or codifying the law; they
left that to custom and to the essentially declaratory law codes of kings.
 Outcome of a dispute turned entirely on the facts of the case, which were
usually established through ritual oath-giving.
 Disputants first swore to their accusations and denials.
 Each party then called on oath helpers (including members of their
surety groups) to back up these claims with oaths of their own.
 For the court to accept any one of these oaths, it would have to be given
flawlessly -- though the poetic form of the oaths made it easier to meet
this requirement.
 The law codes of early medieval Europe consisted largely of lists of
offenses and the corresponding schedules of payments.
 In issuing these, Kings were not legislating in the modern sense: they were
rather codifying and declaring already existing custom and practice.
 Like the surety groups, the moot courts depended on voluntary
cooperation.
 Jurisdiction in most types of cases depended on the consent of the parties.
 Even if they consented to appear, they might not remain throughout, and
even if they remained, the moot generally could not compel them to
submit to its decision.
 Thus the procedure of the moot had to assume, and to help create, a
sufficient degree of trust between the parties to permit the system to
operate
Rise of Royal Law
 In many societies, state law has advanced rapidly on the heels
of military conquest.
 It entered England, however, with almost imperceptible
subtlety.
 2 factors prepared the stage.
 1st , constant threat of foreign invaders, particularly the Danes,
had concentrated power in hands of England's defenders.
 2nd , influence of Christianity imbued throne with a godly
quality, allowing kings to claim a divine mandate.
 Onto this stage strode Alfred, king of Wessex, during the last
quarter of the ninth century.
 Alfred volunteered to champion the cause of the weak -- for a fee.
 Weak victims sometimes found it difficult to convince their much stronger offenders
to appear before the court.
 Kings balanced the scales by backing claims of such plaintiffs.
 This forced brazen defendants to face court, where they faced the usual fines plus a
surcharge that went to the king as payment for his services.
 This surcharge, called wite, made enforcing law a profitable business.
 King Alfred, strengthened by threat of invasion and emboldened by his holy title,
assumed duty of preventing all fighting within his kingdom.
 He did this by extending special jurisdiction which king had always exercised over
his own household to cover old Roman highways and eventually entire kingdom.
 In effect, boundaries of royal household expanded to encompass entire realm, and
protection of peace and safety of private households was subsumed into that of king.
 Alfred declared that anyone found guilty of assault owed him wite for violating the
king's peace.
 He lacked the ability to back up this claim, however, and it went largely ignored.
But he had set a trend in motion.
 Over the next few centuries royal law would grow stronger, with later monarchs
such as Athelstan and Knut creating the skeleton of a royal legal system.
 This reflected reality that almost half of England under later Saxon kings was
conquered territory (Danelaw, the Five Boroughs, and York) which had been
overrun by the Vikings after great invasion of 853 and then regained by Alfred's
successors as kings of Wessex.
 Faced with the problem of governing territory where old Saxon institutions had
disappeared, they were driven to create a governmental and legal system which
was, for the time, unusually uniform and centralized (e.g. in its use of a
standardized unit of law and administration, the hundred ).
 This centralization received a major boost with the Norman conquest of 1066,
when an alien minority of rulers found the system they inherited highly congenial
From Polycentric Law to State Law
 Legal revolution swept through Europe in the years between 1050 and 1200
 While power of Church rose to rival that of kings, law of the church -- inspired by
newly rediscovered Justinian codification of Roman law -- rose to new levels of
sophistication
 Key events in this process were Gregorian reforms and Investiture Crisis of 12th
century - whether kings could invest bishops with the symbols of their office and so
" make bishops"
 These events transformed the church into an independent institution, distinct
from monarchies and staffed by a clergy who formed an independent order in
society, marked off by their vow of celibacy
 In marked contrast, church in Byzantium remained creature of the emperor and
never gained independence
 Following its achievement of independence, the church created the great system of
canon law, with commentators from Gratian onwards turning a haphazard
collection of edicts into a massive, sophisticated intellectual system.
 Other legal systems entered the fray.
 Thousands of cities and towns sprang up, leading to new
centers of power and the development of urban law.
 Support of church and a labor shortage brought an element of
reciprocity to the relations between peasants and lords,
triggering the emergence of manorial law.
 Vassals likewise won standing in the separate jurisdiction of
feudal law.
 Rise of a populous, mobile merchant class promoted evolution
of another form of privately produced law, law merchant.
Competitionbetweenjurisdictionshelpedtoprotectindividualliberty
Aserfmightruntothetowncourtforprotectionagainsthismaster.Avassalmightruntotheking's
courtforprotectionagainsthislord. Aclericmightruntotheecclesiasticalcourtforprotectionagainst

theking

Sameperson,indifferentcapacities(merchant,cleric,vassal,townsman,etc.),enjoyedasignificant
degreeofchoiceamonglegalsystems, forcingthemtocompete.

Thiscompetitionfor"customers"andtheinteractionamongrivalrouslegalsystemsresultedinmanyof
thelegalinnovationsthatwetakeforgrantedtoday.
 For the most part, royal law won this competition among jurisdictions.
 It had important advantage over its rivals - power to tax allowed it to
subsidize its legal services.
 Royal courts absorbed the local functions of the law merchant by adopting
its precedents and offering to enforce them at bargain rates.
 Royal law also wielded far greater coercive power than competing legal
systems, which depended on reciprocity and trust for their operation.
 The overarching or paramount power of monarchs enabled them to
restrict competition to their jurisdiction, with force the ultimate support
for royal action.
 Thus in England Edward I was able to restrict the growth of private
jurisdictions through the Quo Warranto procedure created by the Statute
of Gloucester in 1278.
 royalists' original motives for establishing a monopoly in law and secret key to
their success: restructuring property rights.
 Customary legal systems viewed crimes as violations of individuals' property
rights, including rights to " personal peace" ; hence the emphasis on restitution for
victims, with the accompanying incentive for individuals to enforce the law.
 New royal law classified murder, rape, theft, and so on as crimes against the state,
rather than as crimes against individuals. Fines went to the king.
 Victims got only the satisfaction of seeing criminals suffer corporal punishment.
 Dissatisfied individuals continued to seek restitution out of court, so state officials
forbade them to take justice into their own hands.
 This sharply reduced victims' incentives to pursue criminals, and statutes
demanding the victims' cooperation had little effect.
 State therefore developed the police powers necessary to enforce its laws on
criminals and victims alike.
Persistence of Polycentric Law

 Although state legal systems have amassed immense monopolistic


powers, they have never entirely quashed competition among legal
systems.
 States themselves compete to attract human and financial capital.
 Law merchant has continued to survive in a realm safely beyond the
reach of any one state's laws: international trade.
 Even within state boundaries polycentricity has survived into modern
times - revival of polycentric law in England in the 18th and 19th centuries
 growth of private arbitration services in Victorian England and revival
of old jurisdictions as ways of circumventing the state system
 Parliament later terminated this process through the Judicature Acts
 It’s hardly correct to call compurgators witnesses, for they did
not make their appearance in court to testify that they had
witnessed anything relating to facts in dispute, but merely to
vouch for trustworthiness of party on behalf of whom they
came forward
Laws of William the Conqueror

 if a man were accused of robbery and bailed to appear and answer the
charge, and in the meantime fled from justice, his bail was to swear
with eleven compurgators (si jurra sei duzime main) that at the time he
offered himself as bail he did not know that the man had committed the
robbery, and that he had not been privy to his escape
 if a man were charged with theft who had hitherto borne a good
character, he might clear himself by his own single oath; but if he had
been previously convicted or accused (e hi blasme unt este), he was to
make oath “with the 12th hand;” and for this purpose 14 persons were to
be named, out of whom he was to choose 11, making himself the 12th. If,
however, they refused to swear, he had to undergo the ordeal
 The oath taken by friends thus rallying round him at his call, was known by the name of
ungecorene-ath, or rim-ath, “the unchosen oath;” because the witnesses were not chosen or
nominated by the opposite party.
 But afterwards the accused was allowed to name persons of the proper class (i.e., kinsmen or
fellow-gildsmen of the accused), and out of these the accused or defendant was obliged to
choose his compurgators. This was called the eyre ath, or “chosen oath,” because the oath of
the accused was supported by the oaths of persons chosen by his adversary
 in some cases a certain number of compurgators were named by the reeve of the district
(shire reeve, predecessor to the sheriff), consisting of relatives and neighbors of the accused,
and out of these he was obliged to choose the number required for his compurgation. This
form of procedure was equally called the eyre ath. Here, too, the number out of which the
compurgators were to be chosen was generally 12, or some multiple of 12, and they were
called the equals or peers (gelican) of the accused
 If he was a man of bad character, a triple number of persons were named, out of whom he was
to choose a triple number of compurgators, or if they were not named, and he was unable to
procure the required number to vouch for him, he was obliged to undergo the triple ordeal
 If a party was unable to vouch a sufficient number of
compurgators, he was deemed to have taken a false oath, and
lost his suit in a civil case, or was convicted in a criminal.
 But even if he did produce the requisite number, his opponent
might overpower the force of their testimony by calling
compurgators on his side, whose oaths were of
preponderating legal value.
 These, again, might be met by the accused in the same
manner, and so on, until either party prevailed in the amount
of legal value of the witnesses who supported him with their
oaths
law of Ethelred

 “And let every one (accused) buy himself law with XII ores,
half to the lord (landrica), and half to the wapentake; and
let every man of previous bad character (tiht-bysig) go to
the threefold ordeal, or pay fourfold.”
Legally appointed witnesses

 Legally appointed witnesses have stood in the place of modern


public notaries, for the purpose of supplying evidence of
transactions, and so preventing perjury and fraud
 Laws of Athelstan (A. D. 924-940)
 there should be named in every reeve’s jurisdiction as many men as
were known to be unlying, that they might be for witness in every suit.
 And be the oaths of these unlying men according to the worth of the
property without dispute
 But if it be found that any of these (the appointed witnesses) have given
wrongful witness, let his witness never again stand for aught, and let
him also give XXX shillings as wite (or penalty)
Laws of Edgar

 “This then is what I will; that every man be under surety within the towns (burgs)
and without; and let witness be appointed to every town and to every hundred.
 “To every town let there be chosen XXXIII. as witnesses (gecorene to gewitnesse).3
 “To small towns and in every hundred XL, unless ye desire more.
 “And let every man with these witnesses buy and sell every of the chattels he may
buy or sell, either in a town or in a wapentake; and let every of them when he is
first chosen as witness give the oath that he never, neither for love nor for fear, will
deny any of those things of which he was witness, nor declare any other thing in
witness save that alone which he saw or heard; and of such sworn men let there be
at every bargain two or three as witness.
 “And he who rides in quest of cattle, let him declare to his neighbors about what he
rides; and when he comes home, let him also declare with whose witness he bought
the cattle.”
 courts
 presided over by a reeve, who had no voice in the decision,
 number of persons who sat as judges was frequently 12, or some multiple of that number
 assertions of parties in their own favor were admitted as conclusive, provided they
were supported by the oaths of a certain number of compurgators; and in
important cases the number was 12, or, at all events, when added to the oath of the
party himself, made up that number
 testimony of the neighborhood was appealed to, for the purpose of deciding
questions which related to matters of general concern
 Sworn witnesses were appointed in each district, whose duty it was to attest all
private bargains and transactions, in order that they might be ready to give
evidence in case of dispute
 care was taken that all dealings between man and man should be as open and
public as possible; and concealment or secrecy was regarded as fraud, and in some
cases punished as guilt
Ordeal
 ordeal was also to be undergone in the following cases:
 Where a person accused was unable to adduce a sufficient number of compurgators
 Where he had been notoriously guilty of perjury on a previous occasion
 Where he was not a freeman; unless his hlaford, or lord, swore to his belief in his innocence,
or bought him off by paying the wergild.
 even when the ordeal was requisite, the accused was obliged previously to take an oath
that he was innocent in the sight of the law (mid folcrihte unscyldig)
 ordeal was of 3 kinds:
 ordeal of hot iron, in which the accused had to take up and carry for a certain distance a mass
of hot iron of a pound weight
 ordeal of hot water, in which he had to take out of a pitcher of boiling water a stone hanging
by a string, at a depth equal to the length of his own hand. In some cases he had to undergo
the triple ordeal (pryfeald lada), in which the iron was increased to three pounds weight, or
the stone was sunk in the water to the depth of his elbow.
 Corsnæd, or ordeal of the accursed morsel. This consisted in making the accused person
swallow a piece of bread, accompanied with a prayer that it might choke him if he were guilty
End of ordeals

 At an early period, even before the abolition of ordeal by the


Lateran council of 1215, a petty jury was allowed to disprove
truth of presentment
 In 1215, at 4th Lateran Council Pope Innocent III forbade clergy
from participating in the ordeal.
 Without the legitimacy of religion, trial by ordeal collapsed.
 The juries under the assizes began deciding guilt as well as
providing accusations.
 Trial by battle and wager of law were not formally abolished until
1819 and 1833
 There is no evidence that any battle was fought after 1485.
Road to Magna Carta
 By the 14th century, it was common to have 12 persons on
the criminal jury and to require their verdict to be
unanimous.
 English kings did not surrender ultimate control to juries.
 Manipulated with justice to ensure that judgments
inclined favorably towards the king’s friends and ministers
was common
 In subsequent years there was a gradual movement to
ensure that judges could not convict without the consent of
a jury.
 Finally King accepted juries as a check on royal judges and
royal power.
Magna Carta

 June 15, 1215 at Runnymede, England when King John Lackland (French Sans
Terre) signed the Magna Carta
 Magna Carta introduced jury as a veto-player to limit absolute royal power
 In exchange for cash and peace, King John agreed that he and his subjects were
to be governed by rule of law and that “no person may be amerced without the
judgment of his peers”
 Fundamental strength of English property rights and the common law that had
evolved from the Magna Carta and which would have circumscribed royal
behavior and ultimately forced responsible government.
 In the 14th century Parliament interpreted the phrase ‘lawful judgment of peers’
to include trial by peers and therefore trial by jury, a process which existed
only in embryo in 1215
Article 39 of the Magna Carta

• 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.
• "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."
same words with that of the Emperor
Conrad 200 years before:
 nemo beneficiurn suum perdat, nisi
secundum consuetudinem antecessorum
nostrorum et per judicium parium suorum.
Blackstone

 The truth seems to be, that this tribunal was universally established
among all the northern nations, and so interwoven in their very
constitution, that the earliest accounts of the one give us also some
traces of the other. Its establishment, however, and use in this island, of
what date soever it be, though for a time greatly impaired and shaken
by the introduction of the Norman trial by battle, was always so highly
esteemed and valued by the people, that no conquest, no change of
government, could ever prevail to abolish it. In Magna Charta it is more
than once insisted on as the principal bulwark of our liberties; but
especially by chap. 29, that no freeman shall be hurt in either his
person or property, nisi per legale judicium parium suorum vel per
legem terræ.”
judicium parium is not reference to modern
jury
trial per pares in the 29th Chapter of Magna
Charta, was meant chiefly to relate to the
trial of the barons by their peers, though it
has, fortunately, been expounded to extend
to the trial of all persons by a jury
Rise of presentment
(10th -14th Centuries)

• Starting in the late tenth century, Anglo-Saxon kings began to change the
nature of criminal prosecution. Aethelred's third code, promulgated around
1000, required the 12 leading thanes (nobles) of a wapentake (district) to
accuse and arrest those suspected of crime in their locality.
• Under the presentment procedure, leading men were chosen from each
locality and were required to present (that is, report) on oath crimes
committed in their neighborhoods.
• A dual system of presentment took place whereby the accusing jury which
had hitherto considered who should be tried by ordeal now presented the
accused before new convicting juries.
• These new juries were self-informing in the sense that they were assumed
to know the facts because they lived in the local neighborhood.
In the reign of Edward I bailiffs of each bailiwick, in order
to be ready for periodical circuits of justices in eyre, were
required to choose 4 knights, who again were to choose 12 of
the better men (duodecim de melioribus) of the bailiwick,
and it was the duty of the latter to present all those who
were suspected of having committed crimes
Each of them took the following oath:
 Hear this, ye Justices! that I will speak the truth of that which ye shall
ask of me on the part of the king, and I will do faithfully to the best of
my endeavor. So help me God, and these holy Apostles.
Presentment

• Until the 14th century, presentments were confined


almost exclusively to homicide and theft.
• Nearly all accusations of rape, mayhem, wounding,
false imprisonment, assault and battery were
brought by way of appeal, as were large numbers of
homicide and theft cases.
• By the end of the 13th century the appeal was
becoming much less common, and presentment had
become the way nearly all crimes were prosecuted.
Victim

 Immediately after the crime, the victim (or the first finder in the
case of homicide) was required to "raise the hue and cry" - to
notify his neighbors of the crime by yelling out.
 The hue and cry brought people to the crime scene while the
evidence was fresh and could lead to hot pursuit of the criminal.
 The victim (called “appellor”) was then required to make "fresh
suit" by publicizing the alleged crime in the neighboring villages
and notifying the coroner.
 The victim (or family member in homicide and some other cases)
was required to initiate suit at the next county court, which met
every four weeks.
 Suit had to be in person.
 No attorneys were allowed unless the victim was incapacitated.
Respondent

 The respondent (called “appellee”) was then summoned to


appear at the next county court.
 If he did not appear, he was given three more chances.
 If he still did not show up, he was outlawed.
 An outlaw forfeited all his property, and it was a crime to
feed, shelter, or communicate with him.
 If he resisted arrest, he could be killed without further legal
process.
 18 percent of all appeals ended in outlawry.
Initial proceedings

 The appellor was expected to appear and affirm her prior accusation.
 If s/he no longer believed the accusation was true, if s/he had settled with
the appellee, if the appellee had intimidated him/her into dropping the
accusation, or if s/he simply had lost interest in the case, s/he might not
show up or, upon showing up, might retract her accusation.
 If the appellor remained steadfast in her accusation and if the appellee
appeared in county court before outlawry was pronounced, the appellee
would be "attached," that is, he would be required to find sureties that he
would appear at trial.
 If he could not find sureties, he could be jailed pending trial.
 In cases of homicide, all appellees were supposed to be jailed pending trial,
although this harsh rule was not always enforced.
 All procedural steps in county court were recorded by the coroners, the royal
officials charged with preserving the king's fiscal rights and supervising the
local administration of criminal justice.
Circuit Judges

• Trial was postponed until royal justices arrived to


handle criminal cases awaiting trial in the
countryside.
• The organization of royal justice under the
Norman and Plantagenet kings required judges to
leave the royal capitol at fixed times of the year
and travel around the country, thus the term
traveling the circuit.
• Most of the cases heard while on circuit were
criminal charges brought by private citizens.
Many of them were utterly baseless.
Indictment

 Eyres occurred approximately every 4 years at the turn of the 13th century.
• Grand jury primarily screened accusations made by others, declaring
"true bill" of accusations ("indictments") it approved.
 An indictment is a written accusation of one or more persons of high
treason, felony, or a misdemeanor, preferred before and presented upon
oath by 12 or more, not exceeding 23 good and lawful men of the county
duly sworn, who are called the Grand Jury.
 They are, therefore, the accusing jury, as distinguished from the petit or
trying jury.
• Presentment was an excellent filtering device to reduce the number of
charges.
• Grand jury was disposing of complaints and suspicions that were not
widely believed by reliable persons
 At the eyre, presenting jury reported all appeals to itinerant justices.
 Their presentments were compared with the coroners' written records of
county court proceedings to ensure that jury was not concealing appeals.
Functions of grand jury

• Besides acting as a screening device to reduce the workload


of the royal judges, the grand jury evolved into an institution
which allowed a degree of local control of criminal
prosecutions.
• Royal judges had no right to hear cases unless approval had
been granted by the grand jury in the locality where the
crime had occurred.
• The grand jury has become both a sword and a shield of
justice: a sword, because it can investigate crime and indict
criminals; a shield, because by its secret and nonpublic
nature, it can protect the innocent against unfair publicity.
If the justices had any doubt or suspicion as to the
source from which the 12 jurors obtained
information on which they founded their verdict, it
was his duty to interrogate them on the subject.
Perhaps one or more of them might say that they
learnt it from one of their fellow-jurors, and he on
being questioned might say that he had heard it from
such a one, and so the inquiry might be pursued,
until perchance the report was traced to some
worthless person of no credit - says Bracton.
on the trial of Reading in the reign of Charles II,
where the prisoner objected to a juror on the ground
that he was on terms of friendship and intimacy with
the prosecutor, the Lord Chief Justice of the
Common Pleas, Sir Francis North, said,
 “And do you challenge a juryman because he is supposed to
know something of the matter? For that reason the juries are
called from the neighborhood, because they should not be
wholly strangers to the fact.”
 Over time, English juries became less self-informing and relied more on the
trial itself for information on the case
 This change in character of jurors by which they became judges of fact
instead of witnesses, is common to the civil and criminal jury alike.
 juries role changed from one of active fact finding to the more passive role
familiar today whereby jurors evaluated evidence on the basis of information
and testimony introduced in court by private accusers and government
appointed justices of the peace
 When they became evaluators of evidence presented to them in court
problems arose as to how verdicts could be given the same authority, as
evaluation of evidence could not command the same certainty as personal
knowledge of the evidence
 For some time therefore writers and judges latched on to the fiction that
juries could continue to be self-informing about the facts
 Anyone who voluntarily testified to the jury when he had no
interest in the case or where he was not a relative of one of
the parties was guilty of the crime of maintenance.
 Indeed, in criminal cases before the reign of Elizabeth, even
when court rules were relaxed sufficiently to permit juries
to hear testimony, only the Crown could adduce witnesses.
 Even when the de-fendant was finally permitted to call
witnesses in his defense, they had to remain unsworn,
sworn inquisition being a prerogative of the Crown.
 in the 11th year of Henry IV (1367 –1413) we find judges
declaring,
 “que le jury apres ceo que ils furent jurés, ne devient veier, ne porter
ovesque eux nul auter evidence, sinon ceo que a eux fuit livrere par le
court, et per le party mis en court sur l’evidence monstre,”
 that is, that the jury, after they were sworn, ought not to see or take
with them any other evidence than that which was offered in open
court.
 In time of Henry VI, with the exception of requirement of
personal knowledge in jurors derived from near
neighborhood of residence, jury system had become in all
its essential features similar to what now exists
 adjoining of witnesses to jury started from 23rd year of Edward III for the purpose of
assisting the jury by means of the knowledge of the witnesses so adjoined
 The latter, however, had no voice in verdict, which was to be accepted even though it
was opposed to evidence of these witnesses.
 Very early, great care had been found necessary to exclude from consideration of jury
all improper or corrupted evidence.
 This was done by requiring the evidence to be given in the presence of court
 subsequently this became foundation for law of evidence and rules respecting its
production.
 Although jurors still spoke with witnesses in the early 16th century, by the middle of
the century witnesses appeared to be testifying in court with greater regularity.
 A turning point seemed to take place in 1563 when legislation compelled witnesses to
appear and perjury was made a crime.
This gradual process took place throughout the 16th
century.
Jurors remained free to investigate cases on their
own until the 17th century.
Sir Edward Coke proclaimed in 1620
 Ad quaestionem facti non respondent judices; ad
quaestionem juris non respondent juratores
 If the appellor was present and wanted to continue her prosecution, she would repeat
her accusation.
 In a majority of cases (57 percent), appellors dropped their prosecution before the
case reached the eyre.
 By the 1250s judges routinely put appellees to trial when appellors did not prosecute.
 When a nonprosecuted appellee was put to trial, he was sometimes said to have been
tried "at the king's suit.“
 Trial without the cooperation of the victim-prosecutor was possible because the jurors
were self-informing and did not need the victim's testimony in order to convict.
 Conviction rate at the king's suit was roughly the same as the conviction rate of those
prosecuted by the appellor
 The appellor simply stopped prosecuting the case if the appellee offered
some compensation.
 Anywhere between 17 and 67 percent of cases were settled. The true
figure is probably close to 40 percent.
 Guilty appellees settled 80 percent of the time, and innocent appellees
settled only 26 percent.
 Sometimes settlements were explicitly endorsed by the judges in
exchange for a monetary payment.
 In the late 12th and early 13th centuries, parties might come to court and
ask for a "license to concord," that is, for judicial approval.
 This practice became much less common after 1218, probably because
judges became more hostile to settlement.
 The appellor's ability to extract a settlement from the appellee rested on the
credibility of her threat to prosecute if no settlement was agreed upon and on
the credibility of her promise not to prosecute if settlement was successfully
negotiated.
 Fear of hanging or fines, however, gave appellees powerful reasons to negotiate
with their accusers, and money or other consideration might induce an appellor
to drop the case.
 Failure to prosecute after initiation of the case in county court resulted in the
imposition of fines on the appellor.
 The appellor thus had a monetary incentive to go forward with the prosecution,
if no settlement was negotiated.
 The credibility of the appellor's promise not to prosecute (or, more precisely,
not to continue to prosecute) if settlement were agreed upon is more
problematic.
 While judges tolerated settlements, they may not have enforced them.
 In the late 12th and early 13th centuries, judges facing a tough choice between
respecting settlements and putting appellees to ordeals, they almost always
respected settlement.
 Crimes prosecuted by appeal were considered serious - they were offenses
not only against the victim but also against the king's peace, out-of-court
settlement was not officially condoned.
 Yet the judges had no good way of determining guilt or innocence if the
appellor refused to prosecute.
 Jury trial was not yet an accepted mode of proof in criminal cases
 If judges wanted to try criminals in spite of settlement, they would have had
to send appellees to the ordeal.
 Ordeals were controversial, so this option was not very attractive - some
were skeptical about the accuracy of ordeals; others doubted whether there
was adequate justification in the Bible and patristic sources for their use.
Decline of the appeal, 1210s-1250s

 The best explanation of the decline of the appeal lies in changing judicial policy
toward private settlement.
 In 1215, the 4th Lateran Council forbade clerics to participate in ordeals, thus
effectively banning ordeals.
 As a result, trial by jury became routine in criminal cases, and judges no longer
faced such a difficult choice.
 Now they could ascertain guilt or innocence in the absence of a prosecuting
appellor by referring the question to the jury "at the king's suit."
 They did so in a majority of cases (64 percent) in the 1218–22 eyres, the first
eyres after the abolition of the ordeal.
 Disrespect for settlements, however, caused people to bring fewer appeals.
 In the 1230s the royal courts began to develop an alternative to the appeal,
which would eventually be known as trespass.
Other reasons for decline of appeals
o the appeal's archaic nature, especially the use of trial by
battle
o judicial hostility, which manifested itself in the ease with
which appellees could exploit technical defects to quash
appeals
o the introduction of presentment, which meant that crimes
might be prosecuted even if the victim did not appeal;
o the introduction of trespass actions, which were more
attractive to victims because they provided money damages.
 The appellee, if present, then pled. His options were to deny commission of the
crime or to put forward a technical defense, such as failure to raise the hue and
cry, failure to sue at the first county court, or a divergence between the
accusation in the county court (as recorded by the coroners) and the appellor's
repetition of the accusation in the eyre.
 If the technical defense was accepted, the appeal was null. This happened in
about 10 percent of appeals.
 If technical defense was rejected or if the appellee merely denied the
accusation, he would offer to prove his innocence by battle or, after jury trial
became routine around 1220, he could "put himself on the country."
 Battle, however, was only an option if the appellor was a healthy, non-minor
male, and even then appellees almost always chose jury trial.
 If accused by a woman or an aged or maimed male, the appellee was required
to accept trial by jury.
 Appellees convicted of the most serious crimes (homicide
and sometimes theft) were hanged
 Those convicted of other crimes were usually ordered to be
taken into custody until they offered to pay a fine or
"amercement" in an amount determined individually (but
probably loosely) according to the offender's wealth and the
severity of the offense.
 Convicted offenders could also be castrated or blinded, but
such punishments were extremely uncommon.
• From the early Middle Ages to the 17th century, private prosecutions
were the main way to enforce the criminal law.
• Under the English common law, crimes were regarded originally as
being committed not against the state but against a particular person
or family.
• It followed that the victim or some relative would initiate and
conduct the prosecution against the offender
• It was not actually the privilege but the duty [by right] of the private
citizen to preserve the King's Peace and bring offenders to justice
• Because of the increase in courts and cases in the Middle Ages, the
King began to appoint King's Attorneys to intervene in matters of
particular interest to the King.
• The King could intervene in cases begun by a private prosecutor
where the matter was of special concern to the King. By intervening,
the King's Attorney could then conduct or stop the proceedings
 not in all cases that compurgation was allowed.
 In some crimes of open violence, or when a man was taken in the mainour with the
red hand, or other proofs of guilt upon him, he could not clear himself by adducing
persons to swear to their belief in his innocence
 The process in this case was different. It was no longer a contest of oath against
oath — i.e., the oath of the accuser against the oaths of the accused and his
compurgators
 former, indeed, swore to the truth of the charge, and in this he was supported by
the oaths of a competent number of friends, but the latter was obliged to submit to
the ordeal in order that by the judgment of God his guilt or innocence might be
made manifest
 An accusation thus fortified by oath was called vorath, or forath
 vorath was in fact taken as a primâ facie proof of guilt, and so might be regarded as
a judgment of a court condemning the suspected person to undergo the ordeal, in
order that the God of Truth might interpose and ultimately decide the question of
innocence or guilt
Age of public prosecution
(19th century to present)

• Public prosecution was perceived as a threat to liberty, and


Parliament did not pass legislation to set up a national
system of public prosecutors until 1879.
• Victims frequently did not prosecute because it was
expensive, time consuming, and
brought few benefits other than the satisfaction of revenge
or justice.
• By the mid 19th century, most prosecutions were private in
name only, as the "private" prosecutor was in most
instances a policeman.
• Public prosecutors had very limited authority till passage
of the 1985 Prosecution of Offenses Act that England
established an effective system of public prosecution.
• During the 14th and 15th centuries juries became more passive.
• Trial juries began to rely on evidence that parties presented in
court, and the presenting jury (now called the grand jury) less
frequently made accusations based on its own knowledge.
• Till 17th century jurors were still not required to be “neutral” in the
modern sense. They remained free to base their verdict on their
own personal knowledge of the alleged crime as well as the
evidence they heard in court.
• Although presentment and noncompensatory
punishments were becoming increasingly important,
no English king even attempted to abolish private
prosecutions.
• Although the legal sanction for crime was death or
fines payable to the king, victims (and their families)
could appeal and use the threat of legally imposed
hanging or fines to induce compensatory monetary
settlements.
• In the 13th and 14th centuries, all or some of the grand jury
members always sat in the petit jury which actually heard
the case at a trial.
• 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.
• Through the 17th century, English juries could be
punished for delivering an “untrue” verdict under the
action for a writ of attaint. When the members of a petit
jury, who had been on the grand jury that had indicted a
defendant, later acquitted him at trial, they were
frequently punished for this contradiction.
Attaint

• invented for novel disseisin in 1201 and extended to juries


in real actions generally in 1275
• Evolved to proceeding to convict the jury of perjury
• Jurors shared with witnesses, but not with judges, perjury
prosecution as a primary mode of attacking what they say
• Attainting the jury was the only means of obtaining a
new trial in cases of a mistaken or corrupt verdict.
• Grand jury of attaint - a panel of 24 jurors examined the
original jury’s suspect verdict.
 The party bringing attaint could introduce only the same
evidence that was originally given at trial while jury whose
verdict was questioned was allowed to present new matter.
 if grand jury of attaint found former jury to have rendered a
false verdict, all of its members were arrested and
imprisoned, their lands and chattels forfeited, they became
no longer "oathesworthe," says Bracton
 at one period it was provided that their wives and children
should be turned out of their homes, and their houses and
fields destroyed
 This punishment was subsequently commuted by a pecuniary
penalty.
Punishment in attaint cases

• If the original jury’s verdict was overturned, the jurors


could be imprisoned and lose their lands and goods.
• The punishment inflicted was quite severe:
o That they should lose their liberam legem, and become for ever
infamous.
o That they should forfeit all their goods and chattels.
o That their lands and tenements should be seised into the king's
hands.
o That their wives and children should be thrown down.
o That their trees should be rooted up.
o That their meadows should be ploughed.
o That their bodies should be cast into gaol (prison)
Abolition of Attaint
• In criminal cases attaint appears to have become obsolete by the end of the
15th century
• Procedure by attaint in civil cases had also been gradually giving place to
the practice of granting new trials
• After the decision in Bushell's Case in 1670 attaint became obsolete.
• Bushel’s case established the right of English juries to deliver a verdict free
from judicial coercion.
• It effectively ended the action for writ of attaint, but it was not formally
abolished until 1825.
 By the 17th century the jury system had emerged as an ally of liberty and
the accused's best protection against tyrannical government.
 Judges in England continued to exercise considerable powers of coercion
over juries in terms of producing a verdict until the late nineteenth
century.
Bushell’s Case

• Edward Bushel, one of the jurors, refused to pay the fine


• Judge threatened him that "[y]ou shall be locked up without
meat, drink, fire, and tobacco. You shall not think thus to abuse
the court; we will have a verdict, by the help of God, or you shall
starve for it."
• This was not unusual - well into the 19th century, jurors were
locked up without 'food or fire, water or candle' until they
reached a verdict.
• Bushel, the foreman of the jury, took a case to the Court of
Common Pleas, where it was established that a jury could not be
coerced into giving a particular verdict.
• Bushel brought a claim against the Court in the Court of
Common Pleas.
• The Court held that the judge was wrong to override the jury's
decision, affirming that the jury cannot be coerced.
 Sir John Vaughan C.J. wrote the opinion of the Court of
Common Pleas and rules that judges could not fine or jail
juries for contempt on the ground that judges could not
know the facts on which juries decided.
 Jurors were supposed to have sufficient knowledge to try a
case in which no evidence on either side was produced in
court.
 Vaughan C.J. said
 man cannot see by another's eye, not hear by another's ear, no
more than a man can conclude or infer the thing to be resolved
by another's understanding or reasoning
 Vaughan ruled that trial judges had to accept the verdict of juries and had no
power to coerce a jury into deciding in a particular way.
 Although this judgment is commonly hailed as the constitutional cornerstone
on which juries gained their independence.
 judges then began to require that juries deliver special "fact-based" verdicts in
seditious libel cases from which the judges themselves would apply the law
 This battle was not won for juries until 1792 when Fox's Libel Act was adopted
 Fox's Libel Act stated that in trials for seditious libel jury sworn to try issues
may give a general verdict of guilty or not guilty upon whole matter put in issue.
 It followed that juries could not be required or directed to find the defendant or
defendants guilty merely on the proof of publication.
Penn’s case

 In August, 1670, the two Quakers William Penn (founder of


Pennsylvania) and William Meade arrest with William Meade
for preaching before a Quaker gathering for violation of
Conventicle Act, which restricted certain religious practices.
• The judge had charged the jury that they "shall not be
dismissed until we have a verdict that the court will accept."
When the jury decided to acquit, the judge was not willing to
accept it and sent them back, fining them.
 Jury in London went for days without food or water rather
than convict the Quakers.
 When jury acquitted Quakers, judge not only had Penn sent to
jail again (on a charge of contempt of court), but also
condemned the juryman.
Jury Nullification

• Acquittal of Penn was example of jury nullification


• Juries may refuse to enforce the law in order to render a verdict that
reflects their conscience
• Officially, juries in most jurisdictions are told that they must apply the law
whether they agree with it or not.
• However, juries have been known to acquit factually guilty defendants as a
way of protesting an unjust law or unfair enforcement of the law.
• Reason why we are prepared as a community to license nullification is that
even in a liberal democracy where laws are enacted in a democratic fashion
we are hardly so confident in the ability of the substantive criminal law to
prevent every conceivable injustice in every individual case
Zenger’s case

 1735 in New York colonial jurors acquitted newspaper editor John


Peter Zenger
 Accused of seditious libel for printing truthful criticisms of the corrupt
royal governor of New York Cosby in the New York Weekly Journal
 truth was no defense at that time
 Zenger was defended by Andrew Hamilton
 Barred by the judge from presenting witnesses who could testify as to
the truth of what Zenger had published, Hamilton exhorted the jury, "it
is not the cause of a poor printer, nor of New York alone, which you are
now trying. No! It may in its consequence affect every freeman that
lives under a British government on the main of America. It is the best
cause. It is the cause of liberty."
 It took only 10 minutes for the jury to find Zenger NOT GUILTY
John Jay, the first U.S. Supreme Court Chief
in State Of Georgia v. Brailsford, 3 U.S. 1,4 (1794)

It is presumed, that juries are the best judges of


facts; it is, on the other hand, presumed that courts
are the best judges of law. But still both objects are
within your power of decision… you [juries] have a
right to take it upon yourselves to judge of both,
and to determine the law as well as the fact in
controversy
Hystory of Nullification

• In 1804, Supreme Court Justice Samuel Chase - only Supreme Court ever impeached -
was impeached for denying a jury's right to judge law.
• During the 19th century, juries as far South as Georgia refused to convict whites who
assisted slaves escaping from bondage.
• Northern juries sometimes refused to enforce the Fugitive Slave Law and acquitted
persons who violated the law by helping runaway slaves escape.
• After the Civil War equal rights legislation in the former Confederacy was routinely
nullified by juries.
• White domination of the panels enabled the Klu Klux Klan and other white separatists to
conduct judicial lynching and enjoy immunity for racist murders.
• In Utah, Mormon jurors refused to convict defendants charged with bigamy or polygamy
• During Prohibition, juries often nullified alcohol control laws, possibly as often as 60% of
the time.
• Throughout the 20th century US juries used their power to acquit defendants who were
given mandatory death sentences.
• Nowadays 3–4% of all jury trials involve nullification
there are two broad reasons why a jury may wish to
refuse to follow law:
 Jury may decide that it is unable to convict the accused because
although his or her acts constitute a crime they were justified in
the circumstances
 Jury may decide to exercise clemency to offset harshness of
criminal justice system in respect of penalty for offence charged
or in respect of a prosecution which jury believe is inappropriate
By end of the 19th century right of juries to decide
questions of law had been repudiated virtually
everywhere
justice to be done in individual cases where the jury
considers that it would be unduly harsh to adhere
strictly to the letter of the law.
if laws appear to be inadequate or patently out-of-
step with the views of ‘society’, the jury could
interpret the law with flexibility thus making it
compatible with the values and norms of society.
Intrasystemic nullification

 Intrasystemic nullification occurs when the jury appeals to the


principles of justice embedded in the law in order to justify the
accused's actions
 bicyclist who is prosecuted for breaking and entering a property in order to telephone for an
ambulance to help a car accident victim.
 According to ordinary criminal law principles the protection of life is valued more highly
than minor violations of property rights and the bicyclist does not therefore deserve to be
convicted.
 Intrasystemic nullification involves jury second-guessing
legislature and courts on what proper legal boundaries should
be and extra nullification involves the jury substituting its own
private morality or value system for that of the legislature and
courts.
 jury's exercise of nullification in these circumstances is best viewed as a private act of dissent
from legal norms.
Extrasystemic nullification

 Extrasystemic nullification occurs when the jury justify the


accused's actions by an appeal to some extra-legal standards of
morality, not recognized by the legal system, to justify the
accused's actions
 When juries refuse to apply law they refuse to follow legal
instructions given to them but they may be said to be acting
compatibly with a wider community role, hence the special
freedom they are given to exercise their own consciences
accordingly.
 jury refuses to convict an accused of homicide where he has illegally
removed a respirator from his wife who has been ren- dered comatose
after a heart attack and who had requested him to do this should she ever
be placed in this position.
While we permit juries a nullification role in respect
acquittals, we do not permit them to ignore the law
in order to convict on the basis of some extra-legal
standard.
Convictions must be based on declared law and this
is why we permit defense to appeal against wrongful
convictions and permit the appeal courts to quash
convictions which are not based on law and evidence.
 Argument against nullification - citizens are better protected in a republic by
providing for democratic processes to change law rather than by leaving this
to juries
 As society has become more heterogeneous and more complex, legislatures
have to make difficult policy choices taking account of a range of
considerations including morality, political feasibility and social and economic
consequences. Juries are just not equipped to reevaluate these policy
judgments.
 Another problem with exercising nullification on grounds of mercy or on
grounds of governmental abuse is that it undermines the standing of the
victim.
 Supreme Court decision in Sparf v. US,1895 seemed to put the final nail in the
coffin of the idea that juries should decide the law
 Court feared that a "government of laws" would be reduced by this idea to the
mere "government of men"
During 17th century judges were developing standards of
proof for juries to conform to in their evaluation of the
evidence.
The old certainty of the self-informing jury had to be
replaced with a new certainty of proof and judges began
instructing juries on the degree of proof required (to a
moral certainty, or beyond a reasonable doubt) and also
on the kinds of evidence to accept - evidence of
witnesses and circumstantial evidence but not hearsay.
 If the 17th and 18th centuries were marked by cognitive
dominance of juries by judges, the 19th and 20th centuries were
more marked by cognitive dominance by lawyers.
 Lawyers were beginning to represent their clients in court in the
18th century
 by 1800 only 20 per cent of English trials involved lawyers for
the defense or prosecution
 it was not until 1836 that felony defendants were able to have
full counsel.
 As lawyers became gradually more involved in trials, however,
judicial proceedings became more formal.
The creation of the Court of Appeal in England in 1907
also gave the defense the right to appeal against judicial
directions given to juries.
In US most states prohibited judges from commenting on
the evidence in the 1800s
pattern instructions have now for the most part replaced
jury charges of the past.
Lawyers were permitted to make arguments to juries and
at the behest of lawyers exclusionary rules were activated
to prevent juries hearing evidence.
stare decisis vs precedent

 under a principle of stare decisis, a single case authored by an


authoritative court standing alone is binding in all subsequent cases;
whereas precedent, as traditionally applied, arose only through a pattern
of several cases decided in agreement with one another, thereby giving rise
to a presumption of the correctness of the legal principle.
 one case constitutes a precedent; several cases serve as evidence of a
custom .
 It is the custom which governs the decision, not the case or cases cited as
proof of the custom.
 Coke described precedent as “examples” of the “true rule” and not “in and
of themselves authoritative sources of those rules.”
 traditional common law judge was not bound by any past articulation of
that law, never absolutely bound to follow a previous decision, and always
free to test it against his tradition-shaped judgment of its reasonableness.
Friedrich Hayek, The Road to Serfdom

“Rule of Law means that government in all its


actions is bound by rules fixed and announced
beforehand - rules which make it possible to foresee
with fair certainty how the authority will use its
coercive powers in given circumstances and to plan
one's individual affairs on the basis of this
knowledge.”
 law is a spontaneous order - of which the best example is the common
law
 It contains and transmits knowledge that no one person or committee
could ever know and, thus, regulates society better than a person or
committee could.
 This limits the success of judges in consciously creating legal rules
because a judge is limited in the forethought necessary to connect a rule
to other legal and non-legal rules and in the knowledge of particular
circumstances of time and place.
legitimate expectations are best preserved by making
legal rules internally consistent within a given set of
rules.
judge’s task is to make any new rule cohere smoothly
within the set of existing rules.
judge should strive to preserve parties’ legitimate
expectations.
The objective is to increase social coordination such that
individuals will have maximum freedom to act on local
information as it arises.
Friedrich Hayek, Law, Legislation, And Liberty:
The Mirage Of Social Justice

 The distinctive attitude of the judge thus arises from the


circumstance that he is not concerned with what any
authority wants done in a particular instance, but with what
private persons have “legitimate” reasons to expect, where
“legitimate” refers to the kind of expectations on which
generally his actions in that society have been based. The
aim of the rules must be to facilitate that matching or
tallying of the expectations on which generally his actions
in that society have been based. The aim of the rules must
be to facilitate that matching or tallying of the expectations
on which the plans of the individuals depend for their
success.
Friedrich Hayek, Law, Legislation, And Liberty:
The Mirage Of Social Justice

“judicial decisions may in fact be more predictable if


the judge is also bound by generally held views of
what is just, even when they are not supported by the
letter of the law, than when he is restricted to
deriving his decisions only from those among
accepted beliefs which have found expression in the
written law.”
 before the 14th century the royal courts were by no means the
only courts to which Englishmen could have access. With the
exception of cases in which a freehold was at issue, plaintiffs
were free to have their cases heard in a variety of different
courts, each enforcing a distinct set of rules.
 Among them were
 local county courts, which dated back to the period before the Conquest and which
administered the customary rules of the region,
 borough courts, which administered commer-cial law and the rules that prevailed in
towns,
 manorial and other seignorial courts, which enforced feudal law
 ecclesiastical courts administered canon law, which included jurisdiction over issues of
marriage and divorce, wills and testaments, and contracts sealed by a pledge of faith.
 By the end of the 13th century, 3 great royal courts had emerged, all functioning in
much the same way and all administering the same rules
 Court of King’s Bench,
 whose authority originated in the royal right to preserve the peace and which, as a
result, had unlimited criminal jurisdiction, that is, authority to try all cases involving
appeals of felony and breaches of the peace. The court originally accompanied a
perambulating king in his circuit throughout the kingdom and the king himself would,
from time to time, participate in the operation of the court
 Common Bench or Court of Common Pleas
 Which sat as a permanent court in West-minster and which had exclusive jurisdiction
over suits in which the king had no interest
 Court of Exchequer
 whose juris-diction largely concerned issues touching the royal finances
 Although each of these courts originally tended to specialize in a specific area of the
law, by the reign of Edward III they all judged cases by common law and the Courts
of King’s Bench and Common Pleas exercised what amounted to concurrent
jurisdiction over civil actions
Given the more intimate relationship with the king
and his council, the King’s Bench originally had
appellate jurisdiction over appeals of error from the
Court of Common Pleas.
By the end of the 14th century the King’s Bench has
ceased to go on circuit and settled permanently in
Westminster.
 The king always held residual discretionary power to do jus-
tice among his subjects where, for some reason, it could not
be obtained in his courts.
 As a result, his Chancellor, the highest ranking official in the
king’s secretariat, and the Chancery clerks gradually began
to exercise independent jurisdiction as judges in legal
disputes heard in the Chancery courts
 However, unlike the common law courts—whose central
focus was the application of existing legal principle–courts of
equity concerned themselves with what ought to be the
results of their decisions, that is, with whether the remedies
handed down served the interests of justice
 In the 15th century the Chancery courts had assumed jurisdiction over
cases that fell outside the common law, including those concerning
foreign merchants and those based on maritime or ecclesiastical law.
 At about the same time authority of these courts was extended to
include appeals from litigants who had lost in a common law court
through fraud (for example, the use of perjured evidence) or as the
result of an excusable inadvertence or by the petitioner’s failure to
produce evidence that would have proved the verdict and judgment
wrong, provided the failure was not the fault of the losing party. In such
cases the Chancery court would enjoin enforcement of the common law
judgment, thus compelling the winning party to agree to a new trial.
 king’s courts and the common law gained steadily in popularity,
especially during the 12th and 13th centuries when those courts actively
expanded their authority. By the mid-13th century, the great English jurist
Henry Bracton noted that the king was the proper judge for all temporal
causes.
 This shift away from those courts competing with the courts of common
law was due in large measure to the fact that the royal courts offered far
more efficient protection.
By the 18th century, elements of equity had been
incorporated into the common law and, in
addition, during the second half of the century,
Lord Chief Justice William Manfield had made the
law merchant, which governed a substantial
portion of all commercial transactions, a part of the
common law
Judicature Act of 1873 formally amalgamated law
and equity in England.
superiority of common over statute law in framing a free society

 English common law, like much medieval law was not so much created as uncovered.
Common-law judges merely articulate the preexisting norms and expectations that underlie
society. Judges only “declare” the law rather than “make”.
 In this “declaratory” model of the common law, rules are emergent properties from the larger
common law system in the same way that prices for individual goods are emergent properties
of a market system.
 great early lawgivers, those semimythic figures of which early civilizations boasted, among
them Ur-Nammu, Hammurabi, Solon, Lykurgus, and authors of Roman 12 Tables, did not set
down new law but rather codified what the law was and had always been.
 15th and 16th centuries for the first time European nation states sought to use legislation to
effect specific policies
 reason why England, unlike the continental countries, did not develop a highly centralized
absolute monarchy in 16th and 17th centuries, was its distinctive system of legal rules and
procedures
 Legal rules that emerged from common law courts, by virtue of relying on precedent, are
more efficient—where efficiency is understood as wealth-maximizing—than are enactments of
a legislative body and that they in turn promote social efficiency
Theories of Polycentric Law
 Economists since Adam Smith have argued that competition in production
serves consumers' interests, while monopolies tend toward sloth and waste.
 Gustave de Molinari, editor of the Journal des economistes, was probably the
first legal theorist who dared to ask why this should not be as true of the law
as it is of apples, cotton, and iron.
 He argued that under the state's monopoly of law " Justice becomes slow and
costly, the police vexatious, individual liberty is no longer respected, [and] the
price of security is abusively inflated and inequitably apportioned. . . ."
 He therefore advocated a non- monopolistic legal system and projected that
once " all artificial obstacles to the free action of the natural laws that govern
the economic world have disappeared, the situation of the various members of
society will become the best possible."
customary legal system has 6 basic features

 a predominant concern for individual rights and private


property
 laws enforced by victims backed by reciprocal agreements;
standard adjudicative procedures established to avoid
violence
 offenses treated as torts punishable by economic restitution
 strong incentives for the guilty to yield to prescribed
punishment due to the threat of social ostracism
 legal change via an evolutionary process of developing
customs and norms.
Market in law - Market For Liberty

The polycentric legal systems share several features:


 protection of individual rights and private property;
 voluntary agreements for the provision of security; non-violent
dispute resolution;
 restitution (backed up by insurance against crime losses);
 compliance enforced primarily through the threat of ostracism;
 evolution of legal norms through entrepreneurial activity.
these are essentially modernized versions of the six
features that are common to all customary legal
systems
Question of common standards
Will a polycentric legal system tend to agree on a
common body of law that all of the various
jurisdictions recognize?
Counter-arguments to these claims, examples of
successful private legal systems like the law
merchant
 Emphasis on evolution of law doesn’t answer whether evolution, lacking teleology,
can lead to normatively attractive results
 decentralized law isn’t ideal, but question is: How ought we achieve any available
improvements?
 Hayek warned against a too-ready resort to legislation and counseled in-stead a
reliance upon the imperfect, often slow means of discover-ing law through
decentralized trial and error.
Banknotes represent claims to commodities. In a
free banking system, only those banks that
successfully back up their claims will be able to keep
currency in circulation.
Bruno Leoni explains the law in similar terms:
 Individuals make the law insofar as they make successful
claims.
By this, he means that legal norms arise out of the
sorts of claims that have a good probability of being
satisfied in a given society.
 polycentric legal systems tend to generate successful claims to restitution.
 Just as claim to a commodity can be transferred from one party to another (via the
exchange of banknotes), so too right to restitution could be transferred from one party
to another (via the exchange of " courtnotes," we might say).
 Individuals in a polycentric legal system would probably buy insurance to protect
themselves against losses due to others' illegal activity.
 When insurance companies had to cover their clients' losses they would assume right to
demand restitution from responsible parties.
 Claim to restitution would thus transfer from original victim to insurance company.
 Insurance companies would probably transfer claims to restitution among themselves
to settle their accounts, giving rise to features analogous to those that arose among
private banks: transferable courtnotes, clearinghouses, and client information bureaus.
 This transfer of claims to restitution was an important feature of stateless legal system
of Medieval Iceland, allowing relatively weaker victims to gain the support of stronger
champions in exchange for a share of restitution.
Law, Legislation and Liberty,
Rules and Order, 1973: 84–85

What prevented such development, was the deeply


entrenched tradition of a common law that was not
conceived as the product of anyone’s will but rather
as a barrier to all power, including that of the king—a
tradition which Sir Edward Coke was to defend
against King James I and his Chancellor, Sir Francis
Bacon, and which Sir Matthew Hale brilliantly
restated at the end of the seventeenth century in
opposition to Thomas Hobbes.
Edward Coke, Dr. Bonham’s Case, 1610

In many cases, the common law will control acts of


parliament, and sometimes adjudge them to be
utterly void: for when an act of parliament is against
common right and reason, or repugnant, or
impossible to be per-formed, the common law will
control it, and adjudge such act to be void
 Under the institutional structure of traditional common law, it was
difficult for judges to make new law and impose it on unwilling
individuals.
 This was because individuals could exit a particular legal system and
choose judges that would provide them with law and justice that was
grounded in expectations of parties to dispute rather than in serving as a
means for the achievement of larger social goals.
 During the formation of common law, in the several centuries before its
maturity in 18th and 19th centuries, common law—that is, law of courts of
King’s Bench—was only one of many legal systems in England.
 Through legal fictions concerning jurisdictional rules, parties could choose
which court system to submit to
 Judges were often paid from their courts’ user fees and, therefore, had
incentives to render impartial justice
 This plurality of judicial paths allowed litigants to compete between legal systems and
between judges for the rulings they most preferred
 Note that these were not the rulings most preferred by plaintiffs. This was because
litigants—unlike a modern interest group, often could not predict whether they would be
a plaintiff or defendant in the next case to come along.
 Therefore, parties would be predisposed to seek the most predictable ruling, not the
ruling that provided a precedent for increased rents in future litigation.
 Judges had little opportunity or power to impose their preferred policy goals on litigants
 simply were unable to engage in the social engineering to advance efficiency,
redistribution, or any other goals
 Had they sought to do so, they would have lost business to rival courts that were more
diligent about responding to the needs of the parties in the case at hand, rather than
viewing the case as a means to accomplish larger social goals
 Under this set of constraints judges successfully sought to “discover” the law in existing
expectations, rather than “make” law.
 rent seekers who repeatedly played to the same judges for an expected outcome
based on a particular judge’s ideology did not capture those judges as easily,
because of absence of stare decisis
 judges had little power to bind other judges by authority but could do so only on the
basis of the persuasiveness of their rulings
 judges reserved the right to reject the precedent if it was thought wrongly decided.
Stare decisis, by contrast, enables a first judge in time to bind subsequent judges,
thereby perhaps making it accurate to say that the first judge “makes” law to be
applied by subsequent judges
 When courts enforce community expectations, they should look not just to the most
recent case on point—the strict doctrine of stare decisis—but to the concepts that
underpin the relevant case law and the larger order the case law exists within
 Thus, enforcing expectations of community will not result in a static and formulaic
reinforcement of norms propounded by fallible human actors, i.e., judges, but
application of rules of a spontaneously formed societal order that necessarily does
respond to changing needs of society, as that order reflects rules that society’s
members continually create by their actions but not by their design
 development of monopolistic and hierarchical court systems and
the rise of stare decisis— are relatively recent in Anglo American
law
 these developments dramatically increased the potential for courts
to “make” law, as opposed to “finding” law, as they did in the
traditional common-law world
 Recent judicial innovations, such as the rise of stare decisis and
appellate courts of last resort, have in many ways dramatically
altered traditional common law
 Supreme court today can “make” law in the way that the
decentralized court systems of the history of the common law
could not.
Constitution of Liberty, 1960:163

 This medieval view, which is profoundly important as


background for modern developments, though completely
accepted perhaps only during the early Middle Ages, was that
‘the state cannot itself create or make law, and of course as
little abolish or violate law, because this would mean to
abolish justice itself, it would be absurd, a sin, a rebellion
against God who alone creates law.’ For centuries it was
recog-nized doctrine that kings or any other human authority
could only declare or find the existing law, or modify abuses
that had crept in, and not create law. Only gradually, during
the later Middle Ages, did the conception of deliberate
creation of new law—legislation as we know it—come to be
accepted.
Sir John Davies, Attorney General for Ireland, 1612,
Preface Dedicatory to Irish Reports (London 1674)

 the Common Law of England is nothing else but the Common Custome of the Realm: and a
Custome which hath obtained the force of a Law is always said to be jus non scriptum; for it cannot
be made or created either by Charter, or by Parliament, which are Acts reduced to writing, and are
alwaies matter of Record; but being onely matter of fact, and consisting in use and practice, it can
be recorded and registered no-where but in the memory of the people.
 For a Custome taketh beginning and groweth to perfection in this matter: When a reasonable act
once done is found to be good and beneficiall to the people, and agreeable to their nature and dispo-
sition, then do they use it and practise it again and again, and so by often interation and
multiplication of the act it becometh a Custome; and being continued without interruption time out
of mind, it obtaineth the force of a Law.
 And this Customary Law is the most perfect and most excellent, and without comparison the best,
to make and preserve a Com-monwealth. For the written Laws which are made either by the Edicts
of Princes, or by Councils of Estates, are imposed upon the Subject before any Triall or Probation
made, whether the same be fit and agreeable to the nature and disposition of the people, or whether
they will breed any inconvenience or no. But a Custome doth never become a Law to bind the
people, untill it hath been tried and approved time out of mind, during all which time there did
thereby arise no inconvenience: for if it had been found incon-venient at any time, it had been used
no longer, but had been interrupted, and consequently it had lost the virtue and force of a Law.
 Until the discovery of Aristotle’s Politics in the 13th century and the
reception of Justinian’s code in the 15th Western Europe passed through
an epoch of nearly a thousand years when law was regarded as
something given independently of human will, something to be
discovered, not made, and when the conception that law could be
deliberately made or altered seemed almost sacrilegiousUntil the
discovery of Aristotle’s Politics in the thirteenth century and the
reception of Justinian’s code in the fifteenth... Western Europe passed
through... [an] epoch of nearly a thousand years when law was...
regarded as something given independently of human will, something
to be discovered, not made, and when the conception that law could be
deliberately made or altered seemed almost sacrilegious
 Hayek thinks that virtually the only proper business of a legislature is to
direct and control government, for example by levying the taxes that are
necessary to defray the cost of government and monitoring government
officials
 Historically that was primary function of English Parliament and not laying
down of rules of conduct for private citizens.
 judges’ duty is to enforce the expectations created by custom. Only question
a judge is entitled to decide is whether the conduct under dispute conformed
to recognized rules, that is, to the established custom which they the parties
ought to have known.
 Judges who step outside this boundary are stepping onto the slippery slope
to totalitarianism
 judge is not performing his function if he disappoints reasonable
expectations created by earlier decisions.
 new situations in which established rules are not adequate will con-stantly arise,
requiring the formulation of new rules by the judges. But they are to fill these gaps
with custom.
 Their role remains a passive one. They are prohibited from engaging in a
balancing of particular interests affected by the rules in light of their importance or
from concerning themselves with the effects of the rules’ applications in particular
instances.
 Neither the judges nor the parties involved need to know anything about the
nature of the resulting over-all order, or about any ‘interest of society’ which they
serve.
 The overall order which the judges are to serve is the market, but they needn’t even
know that. Hayekian judge is required to think only about the internal logic of the
law.
 impartial justice is not concerned with the effects application of ‘end-independent
rules’
 When impersonal processes generate rules that govern social interactions, such as
market prices, language, customs, or legal rules, being forced to follow those rules
does not improperly restrain individual freedom.
 law is a purpose-independent mechanism that enables individuals to pursue their
own several ends, rather than forcing individuals to pursue ends favored by
authoritative decision makers
 Just as we distinguish between a market economy and a centrally planned
economy, we can distinguish between a rule-of-law society and a society organized
to accomplish distinct end-state social goals
 A society organized by abstract and impersonal law, as opposed to the particular
decisions of particular men, commands of authoritative decision makers, is in fact
a liberal society
 Although rules are purpose-independent with respect to the individual members of
a society, the legal system is purposive with respect to the society as a whole, the
purpose being the maintenance of the spontaneous order of society and the
coordination and order it produces
Michael Oakeshott, The Rule of Law, in ON HISTORY: AND
OTHER ESSAYS 119, 121–25, 148 (1983)

 Michael Oakeshott’s understanding of the rule of law as characterizing


a civil association, as opposed to an enterprise association
 A social order organized around end-independent rules, he observes,
will produce freedom, “[b]ut this ‘freedom’ does not follow as a
consequence of this mode of association; it is inherent in its character.”
 “And this is the case also with other common suggestions: that the
virtue of this mode of association is its consequential ‘peace’ (Hobbes)
or ‘order.’ A certain kind of ‘peace’ and ‘order’ may, perhaps, be said to
characterize this mode of association, but not as consequences.”
just as a farmer is not “coerced” when he sells his
grain at the prevailing market price that emerges
from the decentralized voluntary interactions of
millions of buyers and sellers, restrictions on
freedom are compatible with the rule of law when
individuals are coerced by legal rules that are the
emergent properties of a spontaneous-order system
 Evolution of language is also a product of a spontaneous-order process. In order to
communicate in a given society, one must follow certain linguistic rules and use
certain words.
 These rules and words emerge spontaneously from the usage patterns of millions
of individuals voluntarily interacting in society
 Your freedom is not restricted when you choose to use the term that emerges from
spontaneous-order process rather than an alternative nonsensical or foreign word
that he might prefer to use.
 In order to communicate effectively, an individual must acquiesce in using the
word according to the expectations of others.
 It would be illogical to see it as an infringement on your freedom to be required to
use word that others expect you to use rather than your preferred nonsense word.
 Rules of language are emergent product of many decentralized voluntary
interactions and are not created and enforced by any particular individual or
individuals
Hayek’s theory of law
 Superiority of spontaneous to planned order is based on theory of costs of information
 Argument in favor of law over legislation is same as argument in favor of free market over centralized
planning
 Socialism is unworkable because it requires more information about the economy than could possibly be
obtained and processed by a central planning board.
 Information necessary for the operation of the economy is dispersed among multitude of individuals who
engage in economic activity. Each has a tiny amount of the relevant information and the price system is the
only feasible way in which the information possessed by each can be pooled and translated into an efficient
schedule of economic outputs.
 Customs and laws forged from decentralized human experiences and then incorporated into expectations
lead superior results compared with centralized design by legislators or judges.
 Legislation is a last resort, not a tool for fine-tuning society. good law cant be product of conscious
decisions and conscious designs by legislators and judges.
 Law need not spring from the barrel of a gun or from the mind of a law-giver. Law can and often does
evolve from the actions and expectations—the customs—of ordinary people going about their daily
business
 Friedrich A. Hayek finds the origins of law in the process through which
complex social orders naturally evolve by a manner akin to natural
selection. Not all types of behavior support social life, he explains. Some
-- like violence, theft, and deceit -- undercut it.
 "Society can thus exist only if by a process of selection rules have
evolved which lead individuals to behave in a manner which makes
social life possible." (F. A. Hayek, Law, Legislation, and Liberty, Vol. 1
[Chicago: University of Chicago Press, 1973], p. 44)
 The only difference between natural law theory and Hayek’s conclusions
respecting these rules is how they are discovered.
 For Hayek they can only be uncovered by a process of evolution, while a
Lockean would maintain that reason alone is sufficient to decipher
them.
 Critics say that manufacturers could be expected to evolve a custom of ignoring the pollution they
create; that custom could not be made the basis of environmental law.
 Classic case is the familiar one of public goods, externalities, and free-rider problems
 If some desirable outcome, once produced, cannot easily be withheld from those who contribute nothing to produce it, then it
is a safe prediction that a suboptimal quantity of such a “public good” will be produced.
 It is not worth paying for something if others will free-ride off of your payments, or if you can get it by free-riding on others’
payments.
 To assume that legislation will improve a market failure is unjustified
 market failures are not necessarily more prevalent or more onerous than government failures.
 Government, however, creates its own collective-action and free-rider problems.
 number and intensity of government failures is likely greater than that of market failures given that
majoritarian politics inherently involves winning coalitions forcibly imposing their wills upon losing
coalitions.
Voting vs polluting
 Voting and polluting both involve the voter/polluter choosing and acting without being obliged to take
account of the consequences that his choices and actions have on third parties. Anyone eligible to vote has a
say in the way other people will live their lives.
 To determine its economic integrity—that is, how likely it is that a vote is cast in an informed, non-free-
riding manner—requires investigating the constraints and opportunities facing each voter as he or she casts
a ballot.
 Because each voter enjoys the privilege of voting in every election by virtue of being a voting-age citizen,
each voter is unconstrained in casting ballots for candidates and policies that will worsen others’ lives.
 Furthermore, because no single voter expects his vote to determine the outcome of the election, each voter
has little incentive to consider the consequences that any election outcome will have on even his own
material well-being.
 Nothing about the voting situation compels any voter to modify his views in light of other people’s
preferences, or to take careful account of the ways that his vote and the collective outcome of the election
will affect other people or even himself.
 In short, vot-ers have little incentive not to behave as uninformed, careless busy-bodies.
 Because nearly every voter expresses free-of-charge opin-ions on how other people will live their lives, and
because losing coalitions are forced to live by the rules imposed by the winning coalition, electoral
outcomes are infused with externalities.
 The situation is similar for elected representatives. While the legislative process differs from the citizen-
voting process in a number of important ways—for example, legislation is often the product of logrolling.
Common law as a spontaneous order
 Rules generated by the common law are the outputs of a spontaneous order; thus they are not chosen by
anyone, even judges. Judges should only “declare” the law rather than “make” it
 The legal principles that govern precedents emerge from implicit collaboration among many judges and
reflect greater wisdom and consensus than any sovereign work of a “law-making” individual judge
deciding any particular case.
 Just as a market price emerges from the decentralized interaction of many individuals, legal principles
similarly emerge from the decentralized process of the common law
 Law that emerges from this decentralized common-law process will be better than legislative law or its
equivalent, law imposed by a judge because the rule that emerges will have been tried out in several
different factual contexts and found to be reasonable and in accordance with the parties’ expectations
 For Hayek, legal rules are another social institution similar to that of prices. Legal rules convey
information to individual actors about how they should behave and permit accurate predictions about
how other people are likely to behave, thereby enabling a more seamless dovetailing of expectations and
individual plans.
 Prices and legal rules, however, are not the exclusive social institutions that perform these sorts of
functions. Tradition is a particularly powerful and important source of rules that provides guidance as to
parties’ legitimate expectations of one another’s actions and, therefore, improves interpersonal
coordination.
 Hayek characterizes the common law as a spontaneous order in the same
way that the market is a spontaneous order.
 Just as a market price for a particular good or service emerges from the
decentralized interaction of many individuals, legal principles similarly
emerge from the decentralized process of the common law.
 law that emerges from this decentralized common-law process will be
better than legislative law or its equivalent, law imposed by a judge in a
single case and followed under stare decisis in subsequent cases.
 This is because the rule that emerges will have been tried out in several
different factual contexts and found to be reasonable and in accordance
with the parties’ expectations.
 Posner views judges as future-looking rule makers who decide
which rules to impose on the parties before them based upon
the most efficient outcome that will follow from those rules.
 This includes assessing what would be the most efficient
outcome in circumstances where, because of transaction costs,
a transaction would not occur without judicial intervention.
 Judges must rely not only on the facts provided by the parties
in the cases before them, but also on general social science
data that can help judges ascertain how a legal rule will
influence behavior.
 In Posner’s model, the law is only as good as a particular judge is wise.
 Hayek’s model, by contrast, is built on the insights of sound Burkean
tradition, in that the common law reflects the accumulated knowledge
of many judges collaborating over time.
 common law is imbued with tacit knowledge that should be followed
even if all of this knowledge cannot be fully understood and articulated
 precedent not just reinforces individual expectations but also because
accumulation of precedent over time reflects a body of traditional
knowledge that can provide a source of wisdom deeper than learning
or experience of any single or group of contemporary judges.
 To focus on the properties of any given rule in isolation is to
miss the larger point - how the rules that comprise the system
of legal rules mesh with one another, and even more
fundamentally, the still higher level of selection regarding
which behaviors should be governed by legal rules rather than
some other system of social ordering, such as market
exchange or voluntary civil society associations
 Spontaneous orders are abstract and complex in nature; thus,
individuals today generally will not know for certain which set
of rules are optimal.
 As a result, only through competition among various rule
systems do we find out which system is actually superior.
 common law—that it is a “purpose-independent” system
designed to enable individuals to increase the predictability of
each others’ behavior and, thus, to better coordinate their
affairs.
 A primary purpose of the rule of law, therefore, was to subject
governmental behavior to the discipline of rules, but the rule
of law also rightly referred to the ability to predict the
behavior of all actors, not merely the government.
 Thus, the rule of law swept in the idea of the reliable
enforcement of property rights and contracts and protection
from tortious and criminal behavior.
Common law can be compared to other systems of
law (such as civil-law systems) where rules are made
by identifiable sovereign decision makers.
This parallel runs both ways—just as the common
law bears a conceptual resemblance to markets,
Hayek’s condemnation of legal positivism flows from
his recognition that— in postulating the need for a
sovereign decision maker—positivists were implicitly
engaging in central planning of the legal system.
 Should social institutions, such as law, be designed primarily to try to efficiently funnel
dispersed knowledge from individuals to centralized decision makers, or should social
institutions primarily seek to convey to decentralized private economic decision makers such
additional knowledge as they need in order to enable them to dovetail their plans with those
of others?
 Question is whether the purpose of the law is to accomplish some overall social objective or
plan, or whether the law is designed to serve as an input to individual expectations in order to
enable individuals to effectuate their own individual plans by coordinating their affairs with
others who are necessary to effectuating those plans
 This is not a dispute about whether planning is to be done or not. It is a dispute as to whether
planning is to be done centrally, by one authority for the whole economic system, or is to be
divided among many individuals.
 Competition means decentralized planning by many separate persons.
 goal of social institutions—including law—is fundamentally to enable smooth individual
coordination.
 Coordination cannot be taken for granted—smooth coordination results only from the
existence of social institutions that enable individuals to predict one another’s actions.
 Posner suggests that purpose of social institutions should be to accomplish the former— to
funnel information about individual preferences, constraints, and the like to judges, who can
then weigh these various elements and come out with a rational resource allocation.
 Hayek indicates by contrast that the purpose of law is to provide to dispersed economic
decision makers the “additional knowledge” necessary to rationally plan their own affairs.
 Purpose of law for Hayek is to preserve legitimate expectations and to enable interpersonal
coordination and not to try to accomplish some end-state goal.
 Whereas Posner exhorts judges to decide cases so as to further some external standard of
value, such as wealth maximization, a Hayekian judge has the more modest responsibility of
ensuring the internal consistency of his own decision within the overall operation of the
spontaneous order—or, perhaps more accurately, spontaneous orders—in which the judge
acts.
 Legitimate expectations are best preserved by making legal rules internally consistent within
a given set of rules.
 When confronted with a dispute that cannot be resolved by settled rules, judge’s task is to
make any new rule cohere smoothly within set of existing rules.
 If decision cannot be logically deduced from recognized rules, it still must be consistent with
existing body of such rules in sense that it serves same order of actions as these rules.
 “[A]dvance here is achieved,” Hayek writes, “by our moving within an existing system of thought
and endeavouring by a process of piecemeal tinkering, or ‘immanent criticism’, to make the
whole more consistent both internally as well as with the facts to which the rules are applied.”
 Hayek marks this emphasis on “immanent” versus external criticism as a distinguishing feature
of “evolutionary (or critical)” rationalism as opposed to “constructivist (or naïve) rationalism.”
 Hayek argues that by focusing on improving internal coherence of legal system rather than on
improving the legal system relative to some external benchmark, judge thereby upholds the
parties’ legitimate expectations and acts as “a servant endeavouring to maintain and improve the
functioning of the existing order.”
 By nurturing the operation of legal order through improvement of its internal coherence, judge
helps to maintain overall coordination of society and of economy that depends on legal order.
 objective is to increase social coordination such that individuals will have maximum freedom to
act on local information as it arises.
 Interpersonal coordination, not aggregate economic efficiency, should be overarching goal of the
legal system.
Hayek, Use of Knowledge in Society

Law-making is necessarily a continuous process in


which every step produces hitherto unforeseen
consequences for what we can or must do next.
economic problem of society is thus not merely a
problem of how to allocate ‘given’ resources . . . . It is
rather a problem of how to secure the best use of
resources known to any of the members of society,
for ends whose relative importance only those
individuals know.
F.A. HAYEK, LAW, LEGISLATION, AND LIBERTY:
THE MIRAGE OF SOCIAL JUSTICE 25 (1976)

If we possess all the relevant information, if we can


start out from a given system of preferences, and if
we command complete knowledge of available
means, the problem which remains is purely one of
logic.
Posnerian judge will thus face a 3-fold challenge

judge must possess sufficient learning, information,


and expertise to be able to determine the efficient
legal rule in isolation
judge must be able to determine whether the
efficient rule in isolation is also the efficient rule
when embedded in and interacting with other
relevant legal rules
judge must be able to discern how the legal rule
interacts with other nonlegal rules that may be
relevant to the determination.
 Hayek’s challenge, however, is more fundamental—assuming that a judge possesses
technical ability to execute economic analysis necessary to choose economically efficient
rule and assuming further that the same judge faithfully seeks to implement his scheme,
can such a judge actually predict that any decision he makes will in fact effectuate an
improvement in the law?
 Hayek’s critique is not primarily grounded in the idea that it is inappropriate for judges to
impose particular policy views in the law, but rather that it is impossible for judges to
reliably and predictably bring about the desired policy goals that they seek to obtain.
 Very complex orders, comprising more information than any one brain could possibly
access, can only be brought about spontaneously.
 Role of a Hayekian judge is “passive,” relegated to enforcing expectations created by
custom, rather than seeking to improve law according to socialist principles, capitalist
principles, or any other principles.
 Judge retain task of distinguishing legitimate from illegitimate expectations, determining
how particular rules fit within the larger overall framework of rules, and determining how
legal and non-legal rules have changed.
• A central requirement in the design of a legal system is the
protection of law enforcers from coercion by litigants through
either violence or bribes.
• The higher the risk of coercion, the greater the need for
protection and control of law enforcers by the state.
• Such control, however, also makes law enforcers beholden to
the state, and politicizes justice.
• This perspective explains why, starting in the 12th and 13th
centuries, the relatively more peaceful England developed
trials by independent juries, while the less peaceful France
relied on state-employed judges to resolve disputes.
• Common and civil law systems differ in reliance on written records versus oral
argument, importance of trials, role of appeal, combining versus separating
prosecution from judging, and the importance of precedent.
• civil law relies on professional judges, legal codes, and written records
• common law relies on lay judges, broader legal principles, and oral arguments.
• A central choice in the design of a legal system is that between judges
controlled by the sovereign (royal judges) and judges who are not (juries).
• At the same level of development, civil law countries
exhibit heavier regulation, less secure property rights,
more corrupt and less efficient governments, and even
less political freedom than do the common law
countries
• One area where the greater insecurity of property rights
in the civil law countries shows up clearly is the
development of financial markets.
• On just about any measure, common law countries are
more financially developed than civil law countries
• Historical evolution of legal systems in France and England
starting in the 12th and 13th centuries has shaped how civil
and common law systems operate
• Legal systems of the two countries until then were similar
and governed primarily by religious and customary law
• France went in the direction of adjudication by royally
controlled professional judges
• England moved toward adjudication by relatively
independent juries
• A central goal of a national legal system is how to protect law enforcers
from being bullied with either physical force or bribes by powerful local
interests.
• For a legal system to protect property, the effects of coercion and
corruption must be limited.
• When bullying is moderate, it is more efficient to leave the adjudication
of disputes to independent local decision makers, such as juries, than to
delegate it to possibly biased state-employed judges who are better
insulated from bullying.
• In contrast, when bullying is extreme, it is better to accept the distortions
inherent in more biased but better insulated adjudication by state-
employed judges, than to leave decisions in the hands of the vulnerable
locals.
• The politicization of justice may be necessary when the state is the only
institution with enough military power to fight local bullies.
• King always prefers adjudication by a royal judge beholden to him.
• However, if the nobles want a jury system strongly enough, they are
willing to fight and to pay for it.
• Decision to adopt the royal judge versus independent jury hinges upon
the extent to which the magnates fear the crown more or less than they
fear each other
• Juries are better systems when local magnates are not freely able to
terrorize them; i.e., when peace prevails. Without peace, state inquisitors
may be the only means of enforcing the law.
• As long as there is some way of enforcing a bargain whereby the king
agrees to decentralized adjudication in exchange for taxes, there might
be efficiency pressures toward such a bargain, including efforts to secure
peace.
• The Magna Carta, as a document in which the king gave up some control
over adjudication in exchange for peace and taxes, might reflect such a
bargain.
• The key advantage of juries is that they reflect the preferences of the
community, not those of the king.
• Juries, unlike judges, cannot be incentivized or controlled by the king, or at
least that there are significant limits of such control.
• The disadvantage of juries is that they are vulnerable to influence by local
magnates, which can take the form of either physical bullying or corruption
intended to influence the verdict.
• A royal judge is less vulnerable to bullying by a powerful local lord than a jury
both because of the king’s own military resources and because the king’s
payments offset the influence of local magnates.
• On the other hand, a royal judge caters to the king’s rather than the subjects’
preferences.
• Trade-off is between a judge incentivized by the king and therefore less
vulnerable to local magnate pressure, and a jury, whose preferences are closer
to those of the community but which faces no incentives and can be more
easily coerced.
• In the middle ages, judges and juries faced both physical and financial
incentives to cater to the preferences of local feudal lords.
• Feudal lords in France were so powerful that they were more afraid of each
other than of the king
• As a consequence it was more efficient to delegate dispute resolution to the
sovereign, even if he had his own stake in the matter.
• People demand a dictatorship when they fear a dictator less than they fear
each other
• Balance of power between king and the community of his subjects, first of all
knights and nobles
• Some of the members of the community, whom we call the magnates, are especially
powerful and have the ability to subvert justice, to threaten or corrupt the
adjudicator, when their interests are infringed upon
• In any dispute all sides would bully adjudicators
• The fundamental difference between juries and royal judges is that the latter, but
not the former, can be put on an incentive scheme (“protected”) by the king, so as to
either counter the pressure from the magnate or follow the king’s own preferences.
• There are many reasons why juries are much harder than judges for the sovereign to
control: there are many more of them, they rotate from case to case, and the
sovereign usually does not even know who the jurors are to “incentivize” them.
• in the 12th and 13th centuries the English king clearly prevailed over the
nobles and commanded greater power over his subjects than did the
French king
• The French king was at best the first among equals with various dukes,
and did not even have full military control over the Ile de-France.
• It would seem natural, then, for the more powerful English kings to
create a legal system that extended royal control more deeply into the
life of the country, while for the weaker French king to accept more
decentralized adjudication of disputes.
• Yet the opposite happened.
the Rule of Law is the product as well as the guarantor of the
evolutionary process through which traditions develop.
A critical step in the development of individual freedom is the
evolution of "negative" or "end-independent" rules of conduct,
which by themselves do not determine action, but rather set
limits on the means by which our ends may be pursued.
Individual reason is typically oriented toward
relatively concrete goals, and assumes, rather than
designs, the systems of rules which make the pursuit
of such goals possible.
The articulation of negative, abstract rules whose
function is to maintain social order rather than to
realize our conscious aims, is always evolutionary
process of trial and error, and not of rational design.
• In the 12th and 13th centuries, a central problem of government was
the division of control over local affairs (including adjudication)
between local feudal lords and the king.
• In a more recent context of the developing world, unpaid or low-
paid judges and jurors are subject to local political pressures and
corruption from oligarchs, landowners, and local officials.
• In post communist world, influence by the oligarchs and regional
governments over courts is the central problem of rule of law.
• Even in the United States, local juries and judges have been
routinely intimidated or bribed, as in various acquittals of Al
Capone or civil rights cases in Southern courts ilustrate.
• The French kings could not make effective use of local village
and county institutions, as English kings could, because the
tradition of local self-government was less developed in the
Frankish than in the Anglo-Saxon kingdom and was therefore
more vulnerable to a takeover by the feudal barons
• Nobles such as the Duke of Burgundy or the Constable
Bourbon essentially ran independent principalities within the
technical borders of France.
• Even during the apotheosis of the centralized French power
under Louis XIV and Napoleon Bonaparte, the ability of local
authorities to undermine central control was much greater in
France than in the age of Parliamentary control in England
• When there is significant local inequality—powerful local lords
have the resources to bribe or bully
• When general level of violence in the society and supply of armed
warriors is high, it is cheaper to coerce the king’s justice
• when the crown is weak it cannot punish effectively violators.
• The crown may be weak either because it has access to few tax
revenues or because transport costs prevent its forces from
enforcing justice.
• Feudal lords in England were less powerful, and more afraid
of the king than of their neighbors.
• As a consequence, they were willing to pay the king to allow
them to resolve disputes locally.
• In England local magnates were weaker relative to the
knights, in large part because William the Conqueror
prevented the creation of vast contiguous land holdings.
• As a consequence, local pressure on the juries was weaker,
and the decisions they could reach were probably closer to
the community standards of justice.
• It was more efficient, then, to delegate the adjudicatory
powers to the juries, and the magnates were willing to pay
the king for that privilege.
• England and France went their different ways in adopting judicial systems
for reasons of efficiency.
• The relatively higher ability of the magnates to subvert justice in France led
to the adoption of the civil law system controlled by the crown.
• The relatively lower ability of such magnates in England to subvert justice
led to the adoption of the jury-controlled common law system.
• Both outcomes were efficient at the time for their environments.
• One can view the Magna Carta as a remarkable example of an early Coasian
bargain, in which the community and the crown agree on a cash
• transfer needed to support the efficient outcome.
• A broader view of the Coase theorem is to identify the incentives and
pressure to move toward efficiency.
• To the extent that decentralized jury-controlled adjudication was more
efficient in England, the Magna Carta might reflect such pressure.
• France, which started with institutions so similar to the English,
followed in the end such a different course.
• The community courts, analogous to the English county and hundred
courts, had been captured by local feudal lords during the breakdown of
government in the tenth and eleventh centuries.
• When the rebuilding of monarchy began, the French crown lacked an
important resource that the Norman kings of England had already put
to very good use.
• Over large parts of France that owed a nominal fealty to the king, great
territorial lords had effective control; in them, for long, the king’s writ
did not run. Even within the king’s own domain there could be no
massive enlistment of free subjects whose allegiance was to the crown as
a symbol of national government transcending and displacing the bonds
of feudal tenure
• adoption of canonist inquest by royal judges was a sign of the crown’s
weakness in France, not of strength
• Why were the local magnates so much weaker in England than in France?
• First, in 1066 William the Conqueror gave out to his followers dispersed
holdings of land, precisely to minimize the ability of any general to create a
• local power base. As a consequence, while the French nobles held sway over
vast, contiguous areas of land, the English nobles had parcels that were
dispersed over the country.
• This initial allocation of land holdings limited the creation of concentrated
local authority.
• Second, during the last millennium, England experienced much more
limited warfare on its territory than did France.
• Without recounting the full history of hostilities, we estimate that between
1100 and 1800, France had a war on its soil during 22 percent of the years,
whereas England only 6 percent (one can also argue that the wars on
English soil were relatively bloodless).
• The constant war on the French soil meant that weapons and warriors were
readily available to anyone who wanted to subvert justice.
• Judges in England have been traditionally more independent than those
in France.
• Throughout history, common law judges insisted that the principal
source of English law was historical precedent rather than the will of the
sovereign
• Chief Justice Edward Coke emerging as the leading advocate of this
view, defending common law against the encroachment by the
ecclesiastical hierarchy, local courts controlled by the aristocracy, and
meddling by the King.
• Coke interpreted Magna Carta in a much broader way applying it not
only to the protection of nobles, but also to all subjects of the crown
equally
• Coke famously asserted that "Magna Carta is such a fellow, that he will
have no sovereign“, effectively established the law as a guarantor of
rights among all subjects against even Parliament and the King.
• Interestingly, the two periods of lengthy battle on English soil were the War of
the Roses in the second half of the 15th century and the English civil war.
• The ability of local nobles to subvert justice increased during the War of the
Roses, and after the war Henry Tudor brought English justice closer to the
French model through the courts of Star Chamber.
• The English civil war was fought in part to secure the independence of the
legal system from royal control, and in fact succeeded in doing so.
• Tudors and Stuarts responded to the increasing independence of judges and
juries by creating new courts more subordinate to the monarchy, such as the
Star Chamber, and by punishing juries whose decisions they disliked.
• Glorious Revolution conclusively removed royal control over the legal system.
The Star Chamber was abolished in 1641, and the Act of Settlement in 1701
confirmed judicial independence from both king and Parliament.
• Starting in the 18th century, judicial independence was an undisputed element
of the English legal system, in contrast to the sovereign control of judges in
France.
Credible commitment

 The more likely it is that the sovereign will alter property rights for
his or her own benefit, the lower the expected returns from
investment and the lower in turn the incentive to invest.
 For economic growth to occur the sovereign or government must
not merely establish the relevant set of rights, but must make a
credible commitment to them.
 A ruler can establish credible commitment in two ways.
o One is by setting a precedent of "responsible behavior," appearing to be
committed to a set of rules that he or she will consistently enforce.
o The second is by being constrained to obey a set of rules that do not permit
leeway for violating commitments.
 Because the state has a comparative advantage in coercion,
what prevents it from using violence to extract all the surplus?
 By striking a bargain with constituents that provides them
some security, the state can often increase its revenue.
 Absolutist states which faced no such constraint, such as early
modern France or Spain, created economic conditions that
retarded long-run economic growth.
 Development of free markets must be accompanied by some
credible restrictions on the state's ability to manipulate
economic rules to the advantage of itself and its constituents
 Successful economic performance, therefore, must be
accompanied by institutions that limit economic
intervention and allow private rights and markets to prevail
in large segments of the economy.
 Institutions determine whether the state produces rules and
regulations that benefit a small elite and so provide little
prospect for long-run growth, or whether it produces rules
that foster long-term growth.
 States in early modern Europe were frequently at war.
 Since wars became increasingly expensive over the period,
putting increasingly larger fiscal demands on the sovereign.
 When survival was at stake, the sovereign would heavily
discount the future, making the one-time gain of reneging
more attractive relative to the future opportunities forgone.
 There is a long history of reneging under the fiscal strain
accompanying major wars.
Civil war

 After the first few years of the Stuarts' reign, the Crown was not able
systematically to raise funds.
 Crown resorted to a series of "forced loans“
 A second revenue-raising method was the sale of monopolies.
 Fiscal needs led to increased levels of "arbitrary" government and
expropriation of wealth through redefinition of rights in the sovereign‘s
favor.
 Major source of power for the Crown was the royal prerogative, by
which the Crown issued proclamations or royal ordinances.
 On issues concerning prerogative, the Star Chamber had come to have
final say and allowed the Crown to enforce its proclamations
 Everything this led, ultimately, to civil war.
Glorious Revolution of 1688
 Explicit limits was set on the Crown's ability unilaterally to alter the terms of its commitments
and produced a marked increase in the security of private rights.
 Fundamental institutions of representative government emerged
o Parliament with a central role alongside the Crown
o a judiciary independent of the Crown

 Several other ways for the Crown to renege on promises were eliminated, notably its ability to
legislate unilaterally (through the prerogative), to by-pass Parliament (because it had an
independent source of funds), or to fire judges who did not conform to Crown desires.
 The new constitutional settlement endowed several actors with veto
power, and thus created the beginnings of a division or separation of
powers.
 institutional structure that evolved after 1688 did not provide incentives
for Parliament to replace the Crown and itself engage in similar
"irresponsible" behavior.
 Supplying private benefits at public expense now required the cooperation
of the Crown, Parliament, and the courts.
 Only the Crown could propose an expenditure, but only Parliament could
authorize and appropriate funds for the proposal, and it could do so solely
for purposes proposed by the Crown.
 The crown demands, the Commons grants, and the Lords assent to the
grant
 Creation of a politically independent judiciary greatly expanded the
government's ability credibly to promise to honor its agreements, that is,
to bond itself.
 By limiting the ability of the government to renege on its agreements, the
courts played a central role in assuring a commitment to secure rights.
 The institutional and political changes accompanying the Glorious
Revolution significantly raised the predictability of the government.
 By putting the government on a sound financial basis and regularizing
taxation, it removed the random component of expropriation associated
with royal attempts to garner revenue.
 Following the Glorious Revolution, not only did the government become
financially solvent, but it gained access to an unprecedented level of funds.
 The "long arm of the future" provides incentives to honor the loan agreement
today so as to retain the opportunity for funds tomorrow.
 In many of the simple repeated games this incentive alone is sufficient to
prevent reneging.
 The institutional innovations increased dramatically the control of wealth
holders over the government.
 By requiring Parliament's assent to major changes in policies (such as
changing the terms of loans or taxes), the representatives of wealth holders
could veto such moves unless they were also in their interest.
After Glorious Revolution the government began as a regular
practice to earmark new taxes, authorized by statute for each
new loan issue, to pay the interest on all new long-term loans.
By earmarking taxes beforehand, parliamentary interests
limited the king‘s discretion each year over whether to pay
bondholders their interest.
Bank of England could not lend the Crown money or purchase
any Crown lands without the explicit consent of Parliament.
5 institutional changes

 Glorious Revolution
o it removed the underlying source of the expediency, an archaic fiscal system and its
attendant fiscal crises.
o by limiting the Crown's legislative and judicial powers, it limited the Crown‘s ability to
alter rules after the fact without parliamentary consent.
o parliamentary interests reasserted their dominance of taxation issues, removing the
ability of the Crown to alter tax levels unilaterally.
o they assured their own role in allocating funds and monitoring their expenditure. The
Crown now had to deal with the Parliament on an equal footing-indeed, the latter clearly
had the advantage with its now credible threat of dethroning a sovereign who stepped
too far out of line.
o by creating a balance between Parliament and the monarchy rather than eliminating the
latter as occurred after the Civil War parliamentary interests insured limits on their own
tendencies toward arbitrary actions.
 In combination, these changes greatly enhanced the predictability of
governmental decisions.
 While in 1690 France was the major European power, it declined in
power and stature relative to England over the next century.
 At the end of the 7Years War, in which France suffered a humiliating
defeat - it had lost its New World colonies (Canada and Louisiana) and
was in financial peril from which it did not recover until after the
revolution.
 The contrast between the two economies in mid-century is striking: in
1765 France was on the verge of bankruptcy while England was on the
verge of the Industrial Revolution
Bill of Rights, 1689

 Englishmen, as embodied by Parliament, possessed certain immutable


civil and political rights. These included:
o freedom from royal interference with the law (the Sovereign was forbidden to
establish his own courts or to act as a judge himself)
o freedom from taxation by royal prerogative, without agreement by Parliament
o freedom to petition the Monarch
o freedom from a peace-time standing army, without agreement by Parliament
o freedom to elect members of Parliament without interference from the
Sovereign
o the freedom of speech in Parliament, in that proceedings in Parliament were
not to be questioned in the courts or in any body outside Parliament itself (the
basis of modern parliamentary privilege)
o freedom from cruel and unusual punishments, and excessive bail
o freedom from fines and forfeitures without trial
• The Frankish inquest existed in France as well, and institutions like juries—
such as enquete par turbe - continued to show up throughout the ancien
regime.
• jury of notables in France would not have been able to deliver justice when
the interests of the local magnates were involved.
• It was more efficient to surrender adjudicatory powers to royal judges even
when the preferences of the king did not reflect community justice.
• Critical step in France was the decision under Philip Augustus and Louis IX
to move toward a judge-inquisitor model governed by Romano-Canon law.
• This model became widely available in the 12th and especially 13th centuries,
after the Justinian code was rediscovered in 1080, and the scholars of
Bologna modernized it for the use by the Catholic Church in its own courts.
• In this system, judges would question witnesses privately and separately,
prepare written records, and themselves determine the outcome of the case.
• Royal judges were directly beholden to the king, and there is no
question that the king had the ability to strongly influence their
actions through appointments, reappointments, and bribes.
• Royal control over judges in France was not absolute. Sale of
judicial offices afforded judges at least some independence.
• Indeed, through the centuries, French kings made efforts to
redesign the system of courts, and to create new courts of law
whose judges would be more responsive to the king’s will. Some,
like Louis XIV, succeeded better than others, like Louis XV.
• Despite ongoing tug-of-war between the king and the judges,
sovereign control over the judiciary remained greater in France
than in England, and culminated in an effort at a complete
subordination of the judiciary by Napoleon.
• Codification naturally follows from the original choice of royal judges
over juries.
• Codification emerges as an efficient attempt by the sovereign to control
judges as his knowledge of individual disputes deteriorates, when the
states and the economies developed
• they are a natural consequence of the reliance on state-controlled
judiciaries
• common law regime is efficient when juries are capable of making
roughly efficient and independent decisions, and therefore bright line
rules are unnecessary to control adjudication.
• In contrast, when pressures on adjudicators are high, the king chooses
to employ his judges and to restrict their discretion through codes.
• Codification aims to provide adjudicators with clear bright line rules, as opposed to broad legal principles
or standards, for making decisions.
• Compared with a legal principle, a bright line rule describes which specific actions are prohibited.
• The simplicity of bright line rules, rather than broad principles for adjudication, and the possibility of
verifying their violation, enables the king to use them to structure incentive contracts for judges.
 Absent bright line rules and other guides for adjudicators, precedents may serve to remind judges and
juries where the law has drawn lines previously.
 Precedents may serve to eliminate excessive unpredictability, which may be a natural consequence of the
importance of individual trials and of particular sentiments of the juries.
 Precedents have the further advantage that, unlike bright line rules, they have been established by
independent judges rather than by the sovereign.
 As such, they again may provide protection from the ability of the state to change the rules through dictate.
 It is for this reason that writers like Coke and Hayek have celebrated the reliance on precedents as a key
guarantee of freedom in the English legal system.
• The common law system greatly relies on oral argument and evidence.
• The civil law systems, much of the evidence is recorded in writing.
• Civil law systems rely on regular and comprehensive superior review of both
facts and law in a case.
• in common law systems, in contrast, the appeal is much less frequent, and is
generally restricted to law rather than facts.
• Common law systems have generally relied on heavily incentivized state
prosecutors, who are separate from judges, especially in the criminal cases.
• In civil law systems, in contrast, judging and prosecution are generally
combined in the person of the same judge.
• common law systems generally rely to a greater extent on the precedents from
previous judicial decisions than do the civil law systems.
 The key feature of written evidence is that it facilitates
oversight of the court by higher level officials.
 For the central authorities to monitor judges, it is much
easier to verify whether the decisions adhere to the rules
and to the preferences of the sovereign when there are
written records.
 A higher authority would find it difficult to punish and
reward judges in the hinterland if the judges do not
produce any written records, and decisions are made based
on oral evidence provided to the jury.
 Review by higher level courts is automatic in a civil law system and reconsiders both
law and evidence.
 Review by higher level courts in a common law system restricts itself largely to law.
 Appellate review is crucial element of incentive scheme that ensures that state-
employed judges follow the preferences of the sovereign
 it is one of the main ways that judicial incompetence and corruption are detected
 In a common law system, in contrast, it is the unincentivized juries rather than the
state-employed judges that render verdicts
 The need to monitor the decisions of such juries is less pronounced, except to the
extent that the judges must be properly informing the juries about the basic outline of
the law
In civil law systems most evidence is collected prior to
the trial by a judge-inquisitor
hence the trial plays only a secondary role of rehashing
writen evidence publicly
More central role of trials in the common law system is
obviously linked with adjudication by generally illiterate
juries
Evidence can only be collected from and presented to
such juries in a public trial and in oral form
 With independent and weakly incentivized judges and juries, a
common law system needs to rely on prosecutors and attorneys
to develop cases
 Judges and juries do not care strongly enough about
convictions to invest resources in collecting information and
otherwise developing cases
 Private parties bringing suit have strong enough incentives to
do the work.
 In criminal cases (which were brought privately in England
until well into the 19th century for obvious incentive reasons), it
may be necessary to have motivated prosecutors who are paid
for convictions, even if they end up being advocates of the
state’s position rather than seekers of justice
In a civil law system, to the extent that a judge is
already motivated to do the state’s bidding, parties
play much weaker role
Many functions of state prosecutor are fulfiled by
investigative magistrate.
French Cour de Cassation and US Supreme Court –
2 opposites

Cour de cassation is held to be rather formalistic,


because of its short decisions, both syllogistic in
structure and magistral in tone.
US Supreme Court on the other hand is considered
to be pragmatic, because of its extensively
motivated decisions, more dialogical in structure
and personal in tone.
Cour de cassation

 Cour de cassation authorized interpretations of law reappear in the


decisions in their typical very brief, formalized, syllogistic, and
ritualized forms, containing a large number of standard formulae
and phrasings
 French court decisions are directed to other authorities and hard to
understand for lay people
 Elite of magistrates, selected and educated on a meritocratic basis,
has a republican ethos of service to the state, in the name of the
general public interest.
 This ethos presupposes a right answer to difficult legal questions,
to be discussed, discovered and authoritively given by judicial elite
Who guards the guardians?

 In a pluralistic society it is increasingly difficult to build


legitimacy on a shared conception of substantial justice, to be
discovered by a legal elite.
 For this reason, it is maintained, we should strive for
procedural justice, not for substantial justice.
 Modern citizens are less inclined to put their trust in a legal
elite.
 What is considered to be the right outcome of legal
proceedings is not so much the right answer that the experts
have discovered, but the result of a fair trial in which all have
had their due.
Supreme Court

 Notorious for its ethos of independence


 Well known for its anti-formalism.
 The sheer length of the Supreme Court decisions (20 or more pages) suggest an
extensive argumentation in a dialogical form.
 Explaining and justifying case law by argumentative means contributes to
 understanding and acceptance of the decision by the parties
 judicial accountability and transparence towards society
 informational and educational purposes
 Court decisions contain a heavily fact-oriented analyses.
 Legal consequences depend to a large extent on their purposes and effects.
 The practical consequences of the decisions, more than their grounds, seem the
determining factor in the decision-making process.
President Dwight Esenhower:

“During my presidency I have made two mistakes,


and they are both sitting in the Supreme Court” –
referring to Chief Justice Earl Warren and Associate
Justice William Bernan
Personalization of Justice

Court opinions are written in a very personal style, in which the


legal ethos of the judge can easily be recognized.
This individual judicial responsibility is strengthened by the
personal signature of the judge under the majority decision, as
well as the possibility of concurring and dissenting opinions.
Each judge is accountable for his or her personal decisions as
well as his or her arguments in each individual decision.
Therefore it is in the first place the judge speaking, not the court
or the judiciary.
Judicial polyphony

 The discourse of the Supreme Court is an integrated


discourse with a plurivocal sound, since each judge has its
own voice.
 This system exemplifies the ideas of pratical rationality and
procedural justice in a democratic system, showing that there
is not one right answer to be discovered and authorized by a
judiciary elite, but that there are several options that can be
defended on good grounds.
 In a democratic society this seems preferable, simply because
more people recognize their views and convictions in the
motivations of the courts.
2 forces moved jury around the globe

• Expansion of the British Empire, which brought the


jury to Asia, Africa, and the American continent.
• French Revolution and Napoleonic wars, which
brought Code d’Instruction Criminelle of 1808 and
juries, as a symbol of popular government, to the
European continent: first to France itself, then, to
the Rhineland, later to Belgium, most of German
states, Austria-Hungary, Russia, Italy, Switzerland,
Holland, and Luxembourg
British colonial proliferation of jury

 Under Blackstonian jurisprudence colonists arriving in


unsettled or plantation territories, carried with them the full
jurisdiction of the common law :
 " …if an uninhabited country be discovered and planted by
English subjects, all the English laws then in being, which are
the birthright of every subject, are immediately there in force."
 The acquisition of the right to jury trial under this principle, as
in many of the North American colonies, tended to allow much
greater control by local colonists over the composition and
functioning of the jury.
 Colony, acquired by annexation or conquest from another
power, required legislation to establish the right of jury trial.
Role of the jury within the British Empire

 In a colonial world in which settlers enjoyed little constitutional power


over imperial legislation, it represented a focus for their political
aspirations.
 Jury was form of direct political empowerment of European colonial
settlers.
 In the decades leading up to the American Revolution, high profile
criminal trials and jury nullification became a vehicle for political dissent.
 This habit of mind led many colonists to value free participation in the jury
more highly than the right to vote.
 After experiencing jury revolt in America, where system was based on
English model, in Canada, Australia, New Zealand, Hong Kong and the
Cape high qualificatory thresholds were adopted .
 In areas where British settlers were less numerous, the discretionary
system based upon the 1832 Bengal Regulation was adopted, as in India,
many parts of British Africa and the Pacific colonies
North America

 Juries established in Virginia in 1606, Massachusetts Bay Colony in 1628,


New York in 1664, New Jersey in 1677 and Pennsylvania in 1682 were
among the first to be transplanted from the British Isles
 Juries were available in virtually all civil, as well as criminal, cases in
Virginia no later than 1624.
 They were specifically provided for in the 1641 Massachusetts Body of
Liberties. In 17th and 18th century Massachusetts, juries were the primary
instrument of governance.
 Juries were not introduced in British Canada until considerably later than
in America and were granted significantly less independence
 Following the Treaty of Paris, a 1763 Proclamation instituted English
criminal law in Canadian colonies but permitted French civil law to remain
in force.
 Military tribunals were eventually replaced by jury courts under the Quebec
Act of 1774
US vs Canada

 The activism of Massachusetts Grand Juries was attributable to their


appointment by election rather than nomination by the Sheriffs.
 Social diversity of American juries permitted by the relatively low
property qualification, enabled them to take a much more significant
role in articulating public opinion than was possible elsewhere in the
empire, and particularly in Canada and the West Indies.
 Property qualifications in Canada were much higher than in America
and the jury panels were compiled by local Sheriffs who were
themselves appointed by the Crown.
 It was not until later in the 19th century that Canadian juries began to
assert their independence from the local oligarchies
 In 1850 the task of juror selection was transferred from the Sheriff to
certain locally elected officials
India

 East India Company Charter of 1661 envisaged jury trial only for European colonists
 Native residents of the Bengal Presidency were subject to summary jurisdiction at the hands of the Collector, or
Zamindar, an English officer empowered to impose sentences including flogging and execution.
 European judges, typically, had little understanding of local customs or languages and needed the authority of
local religious leaders, particularly the Moslem Imams, to validate their judgments by Fatwa.
 Universal jury trial first appeared in India in 1774 but Bengal already enjoyed very developed forms of Islamic
and indigenous justice
 Lord Bentinck’s Bengal Regulation VI of 1832 year abolished necessity of confirmation through Fatwa for the
decision of an East India Company court
 in 1861 the Legislative Council established a general system of jury trial in Sessions Courts throughout Bengal
but exercisable only with the consent of the State Government, which was to specify the classes of offences
which would qualify. This enabled the courts to offer Europeans jury trial in the Calcutta Supreme Court for
serious offences, while denying it to Indians
 In 1923 when Act XII placed all accused persons, of whatever race, on an equal footing, anyone charged with a
serious offence which raised a conflict between a European British subject and an Indian British subject, could
claim jury trial before a panel comprising a majority of their own race
 Unsurprisingly therefore, jury trial was abolished shortly after independence. By 1960 it had been abrogated in
11 Indian states and the remainder would follow promptly
Australia

 Australia was settled from 1788, not as a plantation in the usual sense, but as a penal colony and place
 Very notion of former convicts (known as “Emancipists”) sitting on juries, horrified the Colonial
Secretary, Lord Bathurst
 Emancipated convicts, after all, could not sit as jurors in England and there was no reason to depart
from this practice in the settlement
 New South Wales Act of 1823 authorized the King to grant Charters of Justice for New South Wales and
Van Diemens Land, envisaged the reconstitution of the military tribunals as military “juries” of seven
officers.
 Quarter Sessions court was established, sitting with or without a jury till 1828.
 military law and military juries was abolished in 1839
 It was not until 1832, with the colony prospering and attracting large influxes of free immigrants,
including lawyers and other professionals.
 Juries Act contemplated an extremely high property qualification for jurors of £30 per annum income
or a personal estate of £300
 Similar jury provisions were extended shortly to the new colony of Western Australia and subsequently
to the remaining states of the continent
Africa

 Early British colonies such as Sierra Leone and the Gambia acquired right of jury
trial under the "plantation" principle
 In others, including the Cape, Nigeria, Zanzibar, Kenya and Southern Rhodesia,
right of jury trial was provided for by statutory enactment , usually based on the
Indian Criminal Procedural Code of 1882 which had separate provisions for the
trial of Europeans and Americans
 In colonies acquired after the 1890s, such as Uganda and Tanganyika, jury trial
was never available.
 In west African settlements Africans were never barred from sitting on juries on
account of their race, although the language and property qualifications were a
major restriction. So scarce were qualified jurors that it was common here and in
many parts of Africa, to empanel juries of seven.
 In Kenya, where juries were qualified strictly by European race without any
property or literacy requirements, Africans could not be tried by jury after 1906
 In Southern Rhodesia trial by European jury was provided for the Europeans and
trial by judge and assessors for the Africans.
South Africa
 Introduced jury in 1828 , following the annexation of Natal in 1844, trial by jury was introduced there as well,
but jury trial had been reduced to procedural insignificance.
 Under Charter of Justice of 1827, Jury was consisting of 9 males aged between 21 and 60, owning or renting
property to a value of £1.17s per annum or having liability for taxes of 30s in CapeTown and 20s outside.
 Although Black and Asian Africans, who comprised over 90% of the population, were not specifically excluded
until 1865, the property qualification again effectively prevented them participating in the jury lists. No non-
European was ever to sit on a jury in Natal. Black jurors sat occasionally in Cape Town and elsewhere.
 Under Ordinance 14 of 1846, juries were to be composed of white male £10 property owners (rising by 1872 to
£100) who were to vote on a six to three majority
 In the Transvaal, juries of 12 sat with unqualified judges (Landroost) to decide cases by unanimous verdict.
After 1858, jurors were required to be enfranchised burghers over 30 years old.
 From 1854, juries in the Orange Free State were to consist of 6 or 9 men who decided cases on the basis of
unanimity.
 Annexation of the Transvaal in 1877 led to a standardization of jury procedure, with a reduction to 9 jurymen
and the introduction of British-trained judges and English law
 By the time of the promulgation of the Union Constitution in 1910, all the 4 provinces empanelled juries of 9
persons for trials of serious offences. Only in the Cape were non-Europeans permitted to sit on juries and only
in Natal were majority verdicts of seven to two permitted
 In 1969 jury was replaced by a mixed bench of judge and assessors, still operates in trials of serious criminal
offences
Changes in European Jury System
till early 20th century

 Passive participation of judge in jury deliberations, i.e. ready to answer questions. It


provides a minimum of cooperation, only what is needed to assist juror's doubts. This is
Geneva system, first adopted in Serbia and Italy, later by Poland and Czechoslovakia
 Combination of jurors and Judges to determine verdict, after verdict of guilty – used in
Geneva, Belgium and France
 Complete combination of Judges and jurors – employed in Portugal, Bulgaria, Tessin,
Germany and Berne
 Substitution assessor court for jury court. Jurors are randomly selected and adjudicate
only one case, while assessors are nominated by authorities and sit for long fixed period –
2 years in Italy. Assessor system is perceived as transitory stage towards ordinary judge
court
 Limit jurisdiction of juries to certain classes of offences – Belgium, Spain, Bulgaria,
Germany, Austria, Japan. Jury trial was reserved only for serious offences, including
political and press offences.
 Reducing number of jurors. In Greece to 10, in Vaud and Berne to 8, in Germany to 6, in
Tessin to 5, in Denmark to 4 and Bulgaria to 3
 Revison of verdict on appeal either by sending back cases deemed doubtful to another jury
– Norway, Spain, or by reviewing the verdict in appellate court of judges.
 The modern notions of procedural fairness in criminal procedure have their origins
in the following Anglo-American concepts of an adversarial trial by jury:
o the presumption of innocence
o the privilege against self-incrimination
o the equality of arms
o the right to a public and oral trial
o the accusatory principle
o the judge's independence from the executive or investigative agency
o exclusionary rules addressing excessively prejudicial and illegally gathered evidence
o regulation of hearsay and relevance
o adoption of the principle of "free evaluation of the evidence" unfettered by formal rules of
evidence.
o separation of powers within the adversarial criminal process between a neutral judge,
responsible for deciding questions of law and punishment, and a panel of lay persons
responsible for questions of fact and guilt, also gave rise to common law rules of evidence
Adversarial system

 In accordance with established procedures, each party’s attorneys engage in a


battle before an impartial arbiter, the judge or the jury.
 It is the attorneys who control and conduct most of the trial.
 The jury, once selected, is passive.
 The judge is, for the most part, passive and usually becomes involved only to
instruct the jury or to rule on evidentiary matters, motions, or other legal issues.
 As with other contests a large number of procedural rules are necessary to
ensure that the contest will be well-run and fair to all sides.
 Fairness can be achieved only if the lawyers representing the respective parties
are of equal ability and have equal resources.
Inquisitorial system

 The judge is quite active. He controls and conducts, it is the lawyers who
have a more passive role.
 Witnesses are called by the court, judges determine order of trial and
conduct most of the examinations.
 If experts are needed, it is judge who designates and initially examines the
expert.
 Fact-finding proceedings are less formal and less confrontational
 This form of dispute resolution requires fewer rules and is much less
dependent on the establishment of procedural guidelines.
 Legal education of lawyers is more theoretical than the case method
generally employed in countries with adversarial systems.
Adversarial system aims to resolve conflict
Decision maker in adversarial conflict-solving
process should have a “virgin mind” to be tutored
only through the bilateral process of evidentiary
presentation and argument
Careful balance that must be preserved between the
two sides of the contest for an independent and
impartial verdict to be reached may then be tilted
heavily towards the state.
Inquisitorial system serves to enforce state policy
When the courts become the tool for enforcing state
policy then the danger is that the judicial role is not
viewed as independent from the executive
Policy implementing tasks would seem best carried out
by professionals
Transfer of fact-finding responsibilities from lay triers to
professional triers inevitably dilutes the quality of the
adversarial struggle between prosecution and defence
and casts the trier of fact in a much more dominant
position
EVIDENTIARY RULES

 Within the classic common law jury system, judge is given a pivotal
role in preventing the admission of evidence which lacks sufficient
probative value or is unduly prejudicial in nature.
 Over time, exclusionary rules of evidence such as the hearsay rule
and the rule against the admission of an accused's bad character
were developed to guide judges on what evidence should be
admissible.
 because lay persons have no legal training, certain rules of evidence
have been developed to filter what jurors may hear in order that
they not be influenced by illogical or extra-legal considerations.
 In adversarial system effect of the exclusionary rule has been
further expanded by the “fruit of poisonous tree” doctrine.
Principle of free proof

 throughout the 19th century continental European systems adopted a


principle of free proof whereby the law did not dictate the probative
effect of evidence, or the necessary quantum or quality of proof
 A necessary consequence of this doctrine of free proof was also an
antipathy towards rules excluding evidence on the ground that it was
of dubious probative value.
 Instead, triers of fact were permitted to evaluate evidence freely,
which required that the trier of fact be provided with all available
evidence contained in the investigative dossier, such as witness
statements for the prosecution, judgments from previous crimes
committed by the accused, and materials of forensic expertise.
Exclusionary Rules

 inquisitorial judges are not inclined to create broad exclusionary rules


 Some inquisitorial countries are more inclined than others to develop
exclusionary rules. Where they have been implemented, the rules of
exclusion are generally more limited and somewhat different than
those found in the United States.
 Suppression of evidence is usually based on a finding that the
authorities violated a specific rule set out in a code or constitution, and
even then the evidence may not be excluded. “Poisonous tree” principle
is generally not recognized
 in continental jury models jurors have access only to materials presented
during the hearing.
 One exception is in Spain and Geneva where jurors have access to all
documents and elements of evidence that are included in the investigative
dossier.
 there is danger that information from dossier which is not considered to be
evidence may be used to determine guilt.
 dossier may contain prejudicial information about the accused's past which
may lack probative value in relation to the offences charged.
 In courts, where lay judges sit with professional judges, effectiveness of
shielding lay judges from the contents of dossier can be more readily called
into question as professional judges may, inadvertently or not, leak contents
of it to their lay colleagues.
Majority of European collaborative courts provide
lay judges with full access to the investigative
dossier so that they are on an equal footing with
their professional colleagues.
Swedish namndeman remain unaware of the
contents of the complete investigative dossier
which is a prerogative reserved for the professional
judges and the parties to the case.
principles of immediacy and orality

 principles of immediacy and orality, which requires that evidence be presented


through "live" testimony in court rather than by means of written pre-trial
statements of witnesses and other investigative documents, have been given
some support by Article 6(3)(d) of the ECHR, which recognizes the right of the
defense to examine witnesses as a minimum standard of fairness in criminal
proceedings
 Practice of basing a conviction wholly or mainly on pre-trial witness statements
when there has been no opportunity for examination by the defense has been
considered in some judgments of the European Court on Human Rights as an
unfair restriction on this right
 While certain countries do not allow written statements to be used as evidence,
majority of countries permit their use, but only under certain conditions, such
as where a witness is deceased, ill, too old, or overseas. A minority of countries
leave the decision as to admissibility of written statements to the judge's
discretion.
 Some jurisdictions allow such statements to be read to the court and
used as a basis for the judgment in cases where witnesses are
unavailable for a variety of reasons: for example, old age, illness, or
remote residence in Austria; death in Denmark; serious illness or
death in Finland; death or unknown domicile in Hungary; and death
or residence abroad in Poland.
 In other jurisdictions, such as Bulgaria, the Czech Republic, Germany,
Greece, and Slovakia, the court is able to use a pre-trial statement in
the absence of the witness only with the consent of the parties.
 In the third group of jurisdictions, which includes Estonia, France,
Latvia, Liechtenstein, Macedonia, and Ukraine, the trial judge has the
discretion to use the statement as evidence at the trial.
 Juries are expected to decide the case presented to them on the strength of the evidence
adduced by the contending parties.
 Introduction of evidence is regulated by a series of rules circumscribing the use of
certain sorts of proof.
 Most important evidence restrictions require that only relevant materials be presented
in court and that prejudicial materials be excluded.
 Judge must serve as gatekeeper by deciding what is relevant and what is prejudicial and
in the course of making those decisions is, of course, exposed to the challenged proofs.
 laxity of the evidentiary rules opens the door to incidents where the jury is exposed to
inadmissible evidence, including the defendant’s criminal record or evidence that has
been suppressed by the court.
 Psychological investigation suggests that the judge may, unwittingly, be biased by what
she or he hears.
 One of the values of the jury is that it will not, generally, be exposed to prejudicial
material and, therefore, will be more likely to decide cases without the biases with
which judges must contend.
In contrast to adversary procedure in inquisitorial trial a
written deposition taken by an official may be used at the
formal trial to challenge live testimony.
At the formal trial primary questioning of the witnesses is
conducted by the judge or judges—often there is more than
one judge as well as lay person members of the tribunal —
and the lawyers for the parties play a relatively passive role.
In contrast to the formalized rules of direct and cross-
examination in the adversary system, testimony is taken in
narrative form.
Inquisitorial investigatory procedures

 Investigating magistrate conducts the investigation, interviews witnesses,


seeks and obtains other evidence, and ultimately decides whether charges
should be brought against the suspect.
 During the investigatory process an extensive file or dossier is prepared that
contains witness statements, accounts of investigatory actions, and other
records pertaining to the case.
 Traditionally, pleas of guilty and plea bargaining were unknown in
inquisitorial countries. In recent years there has been a tendency to move to
short trials or the reduction of charges that bear similarities to guilty pleas.
Inquisitorial Trials

 There is no separate sentencing procedure, and, for


 Evidence regarding the defendant’s work history, family
situation, and similar matters is admitted at the trial.
 There is also less of a tendency to require live testimony, and
witness statements from the dossier and other hearsay
evidence may, in some instances, be considered.
 since the jury is composed of conscripted lay persons it is
essential that the proceedings be completed in a compressed
period of time—a single hearing of evidence, or ‘trial’—so that
the jurors may return to their occupations and personal lives.
Victim’s rights

 The victim may be, and often is, represented by an attorney


who participates in the proceedings and questions witnesses.
 This practice can, in effect, add another prosecutor to the
proceedings.
 If a civil action is brought on behalf of the victim, it may be
joined with the criminal case and both cases will be litigated at
the same trial
 The presence of the victim and/or a victim’s representative
who is not legally trained leads to outbursts, improper
comments, and other incidents that unfairly prejudice the
defendant
Appeal

In inquisitorial system appeal can result in a trial de


novo. Either the defendant or the prosecution and in
certain situations the victim can take an appeal
In adversarial systems prosecutor is barred on
double jeopardy grounds from taking an appeal from
an acquittal on the merits
 Inquisitorial system lacks separation of powers in an adversarial jury trial
 Can a judge, who has studied the investigative file and determined, be- fore
the trial, that it includes sufficient evidence for a finding of guilt, preserve the
presumption of innocence and act as an impartial fact/guilt finder?
 If the judge has a duty to uncover the truth and the defendant invokes his or
her right to remain silent, how effective is this right when the judge is also the
finder of guilt?
 What is the meaning of the a "verdict according to one's conscience," in a
"mixed court," where the presiding judge has unique access to the dossier and
is responsible for drafting the judgment in such a way as to withstand the
formal requirements of appellate scrutiny
 Career judges have little experience in the outside world.
 Limited range of life experience may negatively affect the
fact-finding abilities of career judges
 highly educated, well-trained elite group of jurists who may
have attitudes and experiences quite different from those of
the general public.
Modern grand jury
 England abandoned grand juries in 1933
 New Zealand abolished the grand jury in 1961.
 Canada abolished it in the 1970s
 Grand juries are today virtually unknown outside US
 Approximately half of US states employ grand jury
 Only 22 States require use of grand jury
 5th Amendment requires that under federal jurisdiction no
trial, involving charges of "capital or infamous crimes“, can
be conducted without authorization of grand jury.
 US Constitution permits bypass of the grand jury for
misdemeanor offenses, which can be charged by
prosecutor's information
Role of grand jury

 Prosecutor must convince the grand jury, as an impartial panel of


23 ordinary citizens that there is
 probable cause that a crime has been committed
 enough evidence for a trial
 high probability that conviction would be obtained
 Grand jury's proceedings are secret
 Defendant and his/her counsel are not present for other
witnesses' testimony
 Majority of 12 is sufficient to make decision
 Nowadays grand jury is convened by professional prosecutors
rather than having powers of their own to investigate crime.
 Grand juries may issue subpoenas for the appearance of witnesses
and the production of evidence.
 In nearly all European countries, the introduction of trial by
jury coincided with liberal reforms,
 Suspension, abolition, or limitation of the jury trial always
coincided with limitations of civil rights in periods of
monarchic reaction or dictatorship or totalitarian regimes
 Bolshevism in Russia (1917)
 Fascism in Italy (1931)
 dictatorship of Primo de Rivera (1923) and of Franco (1936) in Spain
 Vichy Regime in France (1943).
 Only exception was Germany, in which the democratic
Weimar Government abolished the classic jury, albeit in an
undemocratic manner, by the Emminger decree of 1924.
Marxist-Leninist principles

Governmental power cannot be dispersed or


separated and nothing, including rule of law, can be
permitted to rival the authority of the state.
Authoritarian control is essential to ensure that the
country is progressing satisfactorily on the road to
communism
Bolsheviks based their system on the German
Schöffengeright.
Soviet Procurator General Andrei Vyshinsky

believed that
 under the new German system of criminal
adjudication, the lay assessors could be
much more easily influenced by judges than
was possible under the old system
 the system of people’s assessors was
necessary to defend the interests of the
Soviet people against opponents of socialism
Restoration of Jury

 The recent reintroduction of trial by jury in both Russia (1993) and


Spain (1995) represents surprising reversal in the long-term trend
toward the elimination of the classic jury in favor of either courts
composed exclusively of professional judges, or of mixed courts in
which professional judges and lay assessors collegially decide all
questions of fact, law, and sentence
 trial by jury is often introduced after regime changes towards
democracy
 According to Tocqueville, autocrats do not like to be constrained by
their own population, which is why they get rid off jury
 in January of 2009, President Medvedev signed a law eliminating
the jury trial for those accused of crimes against the state
Liberal Constitutions of 1812, 1837, and 1869, Code of
Criminal Procedure of 1872 and, finally, in the Law on the
Jury of 1888 provided for some kind of trial by jury.
Jury functioned between 1888 and 1923 and then again
between 1931 and 1936
Jury was introduced by Alexander II's Judicial Reform
Act of 1864. 1st jury trial was held in 1866.
subsequent legislation removed political and press crimes
from jurisdiction of Russian jurors
Jurisdiction Of The Jury Court

The defendant has a right to a jury trial in Russia


in any case tried in second-level courts of original
jurisdiction.
Jury trial is practiced in Spain in second-level
courts of original jurisdiction, the provincial courts
trial by jury is based of the magnitude of
threatened punishment and is limited to particular
types of crimes, such as crimes committed by
public officials in the exercise of their duties,
crimes against persons, honor, liberty, and
security, and arson.
 In Russia the defendant may waive his or her procedural
right to trial by jury.
 In Spain jury courts have exclusive jurisdiction because the
right to a jury trial embodies not as much defendants right
to be tried by jury of his peers but the citizens' right to
participate in the administration of justice as jurors.
 "Citizens may engage in popular action and take part in
the administration of justice through the institution of the
jury, in the manner and with respect to those criminal
trials as may be determined by law, as well as in
customary and traditional courts.“ - Section 125 of Spanish
Constitution
Composition Of The Jury Court

The jury court is composed of 9 jurors and 2


alternates in Spain and 12 jurors and 2 alternates in
Russia. 1 professional judge presides over the court
in both countries.
Taking of the Evidence in Russia

 Law does not limit jury's access to the preliminary investigation file, nor to regulate
the use of prior statements of witnesses or defendants.
 Many acquittals have been reversed by Supreme Court because the trial judge
excluded evidence which the Supreme Court deemed admissible.
 In several cases Supreme Court has reversed acquittals because the defense had
unsuccessfully moved to exclude allegedly coerced confessions and then had, either
through the testimony of the defendant, other witnesses, or through the defense
lawyer's closing argument, alluded to the allegedly unlawful actions of the
interrogators
 Legislation prohibits mention of a defendant's past criminal record before the jury.
To achieve parity Supreme Court ruled en banc that the defendant may not
introduce good character evidence before the jury
 Supreme Court upheld the conviction of an arguably "battered" woman for the
aggravated murder of her husband even though she was prevented from introducing
evidence of his bad character. The court held that admission of such evidence would
turn the case into a trial of the victim
Taking of the Evidence in Spain

In Spain trial judge does not conduct the


preliminary hearing and the evidentiary file is not
physically present at the trial.
Thus, the trial judge's knowledge, as well as that of
the jurors, is restricted to the evidence introduced at
trial.
This difference in procedure effectively prevents a
Spanish judge from assuming the inquisitorial role
of his Russian counterpart
Role of Judge and Jury
in Rendering Judgment

Both the Russian and Spanish have rejected the


Anglo-American general verdict of "guilty" or "not
guilty."
Instead, Russia and Spain have followed the French
model, later adopted by most Continental European
countries in the 19th century, whereby the jury is
presented with a list of questions or propositions.
Objeto del veredicto

 Before arguments and the defendant's last word, the Spanish judge prepares a
verdict form containing propositions, both in favor and against defendant.
 The propositions are restricted to facts presented by parties during trial and
relate to the elements of the crimes charged, conditions which modify or
exclude guilt, and statutory factors that aggravate or mitigate the defendant's
criminal responsibility.
 Document will then set out the extenuating circumstances and facts that may
determine the degree of participation of defendant in crime for which the
defendant will be found guilty or not guilty. This document will form the basis
of the jury's deliberations.
 The judge's proposed verdict form must be discussed with the parties; the
parties' objections to the form's contents may form the basis for an appeal.
 jury's verdict is made up of five distinct parts.
 1st lists facts held to be established,
 2nd lists facts held to be not established,
 3rd contains jury's declaration as to whether accused is guilty or
not guilty
 4th provides a succinct statement of reasons for verdict,
indicating the evidence on which it is based and reasons why
particular facts have been held to be established or not.
 5th contains a record of all events that took place during
discussions, avoiding any identification that might infringe
secrecy of deliberations.
 jury is asked to affirm or deny the proof of the defendant's guilt as
to the "criminal acts" contained in the parties' pleadings.
 After voting on each of these issues, the jury has to draw up a
document under 5 headings of the facts declared proved, the facts
not proved, the declaration guilty or not guilty, the reasons for why
they consider the facts proved or not and, finally, the voting
incidents during deliberation.
 If the jury believes that guilt has been proved as to one or more of
the allegations, it may nevertheless recommend a suspension of
sentence or ask that the government grant complete or partial
amnesty for the offense.
Russian "question list"

 Jury is required to answer 3 basic questions:


o whether the corpus delicti of the crime has been proved
o whether the defendant's identity as perpetrator of the

crime has been proved


o whether he or she is guilty of having committed the

crime.
 The Russian system separates the guilt question into 3
component parts, thereby permitting implicit jury
nullification by allowing an acquittal even though the jury
has determined that the corpus delicti.
Justice & Morality

 An interesting innovation was introduced in Russia in the


judicial reform of Alexander II
 Unlike in modern jury trials, jurors decided not only whether
the defendant was guilty or not guilty, but they had the third
choice: "Guilty, but not to be punished“
 Alexander II believed that justice without morality is wrong.
 In the famous Vera Zasulich case of 1878, the jury acquitted a
young revolutionary sympathizer of shooting a Tsarist official
by availing itself of this option of a "not guilty" verdict, even
though all of the elements of the crime had been proved.
Spanish law treats contradictions between the
questions of corpus delicti, the identity of the
perpetrator and guilt as a defect in the verdict which
the jury is instructed to correct.
Both countries resorted to the "question list" verdict
form to give the professional judge a factual
foundation for the imposition of a reasoned
judgment. The factual foundation is a statutory or
constitutional requirement in both countries.
 Even though the Russian Supreme Court has in fact reduced Russian
jurors to judges of "naked acts," and does not even let them decide
mens rea questions, the judge still gives a complete instruction on the
substantive law during his or her summation.
 The judge is also required to summarize the evidence and the positions
of the parties, a practice adhered to in Spain from 1888 until 1931,
when it was repealed because it was seen as tantamount to an ultimate
accusation by the supposedly neutral bench at the end of the trial when
no response was afforded to the defense.
 Several convictions have been reversed by the Russian Supreme Court
because of the one-sidedness of the presiding judge's summation, or
because he or she neglected to mention some of the evidence.
Deliberation, Verdict, and Judgment

 Jury deliberations in both Russia and Spain are entirely secret. The presiding judge is
not allowed to participate and jurors may not reveal any information about the
deliberations.
 In Spain, 7 of 9 votes are required to prove any propositions unfavorable to the
defendant, whereas only five votes are needed to prove any proposition favorable to
the accused.
 Jurors are also allowed to alter the propositions submitted to them as long as they do
not substantially alter the subject of their deliberations and the alterations do not
result in an aggravation of the possible criminal responsibility of the defendant.
 Similarly, "guilty" verdicts require 7 votes while "not guilty" verdicts or
recommendations of suspension of sentence and clemency require only 5.
 Spanish jury can request more instructions or clarifications as to the verdict form, and
if the jury has not voted after 2 days of deliberations, the judge can call them into
court to determine whether they have had any problems understanding the verdict
form.
 Detailed special verdicts used in Spanish and Russian cases
certainly enable the sentencing and appellate judges to divine
the reasoning process of the jury
 Spain has gone one step further and required that the jury
give a succinct rationale for their verdict, indicating the
evidence upon which the verdict was based and the reasons
for finding a particular proposition proved or not proved.
 Other than a nonbinding statement by the jury provided for
in the Austrian Code of Criminal Procedure, this is the
clearest attempt yet by a legislature to require that juries
justify their verdicts.
 After receiving the verdict from the jury, the judge must review the
verdict for defects and ask the jury to make any necessary
corrections.
 In a Spanish case, if the judge returns the jury three times to correct
defects in the verdict, and they fail to do so, he or she may dissolve
the jury and retry the case before a new jury.
 If the new jury also fails to reach a verdict due to similar problems,
the judge must, on his or her own motion, enter a verdict of
acquittal.
 The judge's ruling following a guilty verdict in both countries must
be based on the facts found to be true by the jury, which the judge
then juridically qualifies before imposing sentence.
Russian Jury Statistics

 In 1995 37.3% defendants requested to be tried by a jury


 acquittal rate in 1995 was 14.3% for juries and 1.4% for ordinary courts
 The appellate jurisprudence of the Russian Supreme Court has radically
restricted the jury's power to decide issues of mens rea, the pivotal
questions in most murder trials, and aggravating circumstances, which
can trigger imposition of the death penalty.
 In 1994, the Russian Supreme Court reversed 42.9% of all judgments
and 20.1% of all acquittals, in 1995 31.5% including 17.3% of all
acquittals, 22.2% in 1996, including 48.6% of all acquittals
 In Russia, the issues subject to review by appellate courts are not
limited by those framed by the appellants and respondents. This
inquisitorial remnant in the new adversarial framework has enabled
Russian Supreme Court to reverse many cases on issues not briefed by
any of the parties.
Comparison of Criminal Jury Rules

 Unanimous decision rule for guilt and acquittal generally


enforced in America Canada and some jurisdictions in
Australia is very much an anomaly.
 More relaxed majoritarian and supermajoritarian rules
clearly dominate the global jury system landscape.
 Unanimous decision rule hardly can give the accused any
benefit of the doubt because acquittal requires unanimity
too.
 countries that utilize jury systems are more or less evenly
divided about whether judges should deliberate with jurors.
Jury in Council of Europe States
 Constitutions of 14 Council of Europe Member States refer to the
institution of jury (Azerbaijan, Austria, Belgium, Denmark, Georgia,
Greece, Ireland, Macedonia, Portugal, Russia, Serbia, Spain,
Sweden, Ukraine)
 Not all of these countries employ juries in the Anglo-American
sense.
 Portugal, Greece, Macedonia, and Serbia call their lay assessors in
mixed courts "jurors"
 Azerbaijan, Georgia, and Ukraine have not introduced trial by jury
in their jurisdictions yet.
 4 constitutions stipulate for participation of lay or court assessors,
and the rest of the constitutions confine themselves to vague
formulae of people's or citizens' participation.
Criminal jury world-wide

 As of 2008, 55 of 192 UN member states employed some


variation of a jury system Criminal jury appears alive and
mostly well in Australia, Canada, New Zealand, United States,
and at least 50 other jurisdictions around the globe.
 juries are an inherent part of legal systems in
 Africa (e.g. Ghana; Malawi),
 Asia (e.g. Sri Lanka; Hong Kong),
 Mediterranean (e.g. Gibraltar; Malta),
 South Pacific (e.g. Tonga; The Marshall Islands),
 South America (e.g. Guyana; Brazil)
 Caribbean (e.g. Montserrat; Barbados; Jamaica).
COUNTRIES WITH JURIES

Algeria Ireland Sri Lanka


Australia Madagascar Sweden
Austria Malawi Ukraine
Belgium Mauritius U. K.
Brazil Mexico United
States
Canada New Zealand

Denmark Norway
Finland Panama
France Russia
Ghana Senegal
Greece Spain
Countries with lay assessors

Algeria Germany Philippines Venezuela


Australia Ghana Poland Vietnam
Austria Guatemala Senegal
Belgium Hungary Slovakia
Botswana Italy Slovenia
Bulgaria Latvia South Africa
Burkina Faso Lebanon Swaziland

Czech Madagascar Sweden


Republic
Denmark Malaysia Switzerland
Estonia Mauritius Turkey
France Norway Ukraine
Countries with juries and lay assessors

Algeria Madagasc
ar
Australia Mauritius

Austria Norway
Belgium Senegal
Denmark Sweden

France Ukraine
Ghana
Countries without any lay participation (including justices of
the peace and lay magistrates)

Albania Cyprus Lithuania South Africa


Argentina Ecuador Luxembourg South Korea
Armenia Egypt Moldova Turkey
Azerbaijan Hungary Netherlands Uruguay
Bangladesh Iceland Nigeria Many cantons of
Bosnia & India Pakistan Switzerland have
Herzegovina no jury, but
Cambodia Indonesia Paraguay involve
(sometimes
Czech Republic Israel Peru elected) lay judges
Chile Kazakhstan Romania in criminal case
Costa Rica Kyrgyz Republic Singapore dispositions.
Year of Introduction of Jury In Some European Countries

Rhenish Germany 1798 Russian Empire 1864


Luxembourg 1814 Romania 1866
Spain 1820 Hungary 1869
Belgium 1831 Italy 1874
Portugal 1832 Norway 1887
Greece 1834 Serbia 1892
Portugal partially - 1832, Denmark 1919
more fully - 1837
Geneva 1844 Poland 1921
Italy, Piedmont 1848 Bavaria and Hessen 1948

Prussia, Wurtemberg and Baden 1849


Austria 1850
Country Year of Year of Country Year of Year of
Creation Abolishment Creation Abolishment
Austria 1874 Norway 1887
Belgium 1790 1814 Poland

Bulgaria 1895 ? Portugal 1830/37 1927


Croatia 1874 1921 Romania 1864
Czechoslovakia Russia 1864 1917
France 1791 1808 Serbia 1929

Germany 1808-48 1924 Spain 1888 (1931) 1923 (1936)


Greece 1834/44 1967 Switzerland 1844 (some
cantons)
Holland 1813

Hungary 1861 1919


Italy 1848 1931
(Sardinia)
Japan 1928 1943
Luxemburg 1814
Malta 1829
Country Legal MinimalPe # of Selection Probabilty of # of Decision Jury Reasons Appeal Comments

Basis nalty criminal modus ever jurors rule participation in given? possible?
Cases being determination
annually appointed of
sentence?

Austria Art. 91of Con Must be One 0.005(65- 8 In case of


(1929) used for >10 nomineeper 25)/2 = 0.1 absence, fine
years; may 200inhabita (In Vienna of up to
be for > 5y nts (in 20%) 10.000
Vienna 100) Schilling
(plus costs of
trial); 18.15
€/hour

Belgium Art.150 Con In practice 0.01% of all Randomly 12 2/318 Yes No No jury trial as
limited to criminal from jury right of the
murder and cases pool public to
other for > participate
20y. (not right of
accused!)

France 1958 9 8/9 No


Switzerland > 5 years 1.76% Voter 35% (being 12 (6) Yes
(Geneva) registration on the list)
lists
Denmark 1919(Con. Of > 4 years ~ 100 One 0,04 12 2/3, plus 2 Yes No No teachers,
1953, Art. nominee per out of 3 farmers,
65) 300inhabita professional public
nts judges employees of
(Committee large firms
of local heavily over-
councils) represented

Spain Art.125 of 2nd-level Voterregistr 9 7 Yes


Con courts, ation lists
provincial
courts
Norway > 6 years Party 10 7/10 No, but No. Again, 35 US$/day
members judgment the „court“ is
pronounced by to give
„court“ reasons for
made up of its sentence
judges and
jurors, in
which the
jurors have
the majority

Ireland Art.38.5; All except 0.4% register of 12 10/12 Many


Con of 1937 minor Dáil electors unemployed
offences

Russia Offences as 43.2% (in Voter 12 No No Yes (and ½ av. daily


murder, 1997) registration many pay of a trial
rape, treason lists decisions are judge;
reversed) 4$/day; fine
of $250
(hardly ever
imposed)

England Case before ~1% 12 10/12 Jury occ.


Crown Court Match occ.
Of
population
quite closely
(L-B., 70)

Scotland Murder, 7.7% of all electoral 15 8/15 Yes “not proven”


rape, treason trials (but roll; by (since1926) verdict;
(Cases only ~ 1% of ballot in “right to
before High all criminal court among jury” as right
Court) cases) those who of the
have accused does
appeared. not exist.
COUNTRIES WITH MIXED SYSTEM
Continental Juries

• Most Western European democracies, including France,


Germany, Italy, the Netherlands, and Sweden, generally
employ alternatives to the Anglo-Saxon jury system.
• In these countries the jury and several professional judges sit
together to determine guilt.
• These panels sit at the front of the courtroom, as opposed to
being located off to the side in the style of an American jury.
• The European panel also typically decides by majority rather
than by unanimous vote.
• If guilt was determined, jury and judges together decide the
appropriate penalty.
Selection of Lay Judges
in Continental Mixed Court

 Selection of lay judges is much less random than the selection of jurors in the Anglo-
American system.
 Random selection from the community as a whole helps to maintain clear distinction between
the bench, represented by the professional judges, and the jurors, i.e. ordinary citizens.
 Jurors are chosen from the community, and during their period of service, they remain
representatives of the public. Lay judges, by contrast, are appointed to represent the court,
and during their period of office, become members of the court.
 Lay judges are usually selected for 4 year terms
 Selection process of lay judges is divided into a nomination and a selection phase.
 Some authorities compile random lists of residents, others delegate the task to the political
parties represented on the city counsel, and still others vigorously seek out volunteers. Some
authorities even allow the police to exercise a veto power over the provisional list.
 End result is that lay judges often have educational and social back- grounds more similar to
professional judges, which may diminish the effectiveness of the lay role in the mixed court
system.
Dangers of Mixed Court
in society with hierarchical nature and respect for authority

 Professional judge or judges would have more than simply their intended "guiding"
influence over the laypersons.
 Respect for higher authority combined with a desire to maintain harmony and
avoid confrontation may result in listening and adopting for oneself what that
authority has to say.
 Because of this, lay judges in mixed court system may have difficulty voicing any
personal beliefs about the case
 In Germany lay judges affect the verdict in only 1.4% of cases they hear. Studies of
other nations with mixed tribunal systems – from Croatia, to South Africa, to
Sweden – yield similar results
 Classical jury system would create the largest chance for full participation of all
jurors.
 Although the cultural concepts of hierarchy and respect for authority would still
play a role in the jury's decision-making, there would be more leeway to work
around these concepts if no legal authority figures such as professional judges were
present.
 German mixed courts showed that
 in 70% of all cases, the lay judges surrender their position;
 in the remaining 30%, they carry the dissent to the vote;
 in roughly 2/3 of these cases, they outvote the judges.
 Overall, in only 21% of all disagreement cases do the lay judges affect the verdict on guilt.
 judges do not consider the lay persons as equal partners, they are not involved
in the passing of decisions, which is not expected by the majority of assessors
either.
 Even those assessors who initially are active to a certain extent shortly take a
passive role, adapting themselves to the traditions, and become mere observers
of the events.
 The influence of professional judges is illustrated by the contrast in the French
cour d'assises between acquittal rates before 1941, when the jury court was
transformed into a mixed tribunal, and after that date: 20% and about 9%,
correspondingly.
 lay judges in the German collaborative model becoming more experienced in their
role.
 On the one hand, it may be said that improving and enhancing the skills of lay judges
can assist them in gaining a better understanding of criminal proceedings and the
nature of crimes.
 On the other hand, several years of service as a lay judge could turn civil duty into a
dull, routine practice and allow lay judges to cultivate "quasi-professional" stereotypes
concerning the personality of defendants, their background, and the supposed
circumstances in which offences are usually committed.
 These stereotypes in turn can interfere with the right of defendants to be tried only on
the basis of evidence and thus prevent lay judges from taking a fresh and impartial
view of each case, which is an ability sometimes said to be lacking in professional
judges.
 Apart from this danger, the development of 'quasi-professional' stereotypes may be
said to contradict the very purpose of lay adjudication, which is to bring community
values into formal legal adjudication.
Models of Continental Juries

Continental Jury Model


German Collaborative Court Model
French Collaborative Court Model
Expert Assessor Collaborative Court Model
Pure Lay Judge Model
Continental Jury Model

 9 members of the Council of Europe retain this jury model: Austria, Belgium,
Denmark, Malta, Norway, Russia, Spain, Sweden, and some Swiss cantons.
 some jurisdictions, such as France and Portugal, kept the name of the jury or juror in
their legislation but completely changed the nature of the institution and adopted a
different mode of adjudication which involved professional judges deliberating
together with jurors—what we shall call the French collaborative court model.
 Continental jury courts consist of 2 separate panels: a lay panel that varies according
to jurisdiction from 6 to 12 jurors and a professional panel of 1 or 3 judges
 Continental juries are usually reserved for the most serious criminal cases: homicide,
aggravated rape, robbery, in some jurisdictions, political offences (Austria, Belgium,
Denmark, and Russia), and violations of press laws (Belgium and Sweden).
 The main characteristic of this model of lay adjudication is that it follows the classic
English tradition of giving the lay tribunal the exclusive function of determining the
defendant's guilt without the input of professional judges.
 In Switzerland, jurors sit in 2 different types of courts: cour
correctionnelle (1 professional and 6 jurors) and cour
d'assises (1 professional and 12 jurors).
 There are 6 jurors in cour correctionnelle in Geneva, 8 in
Austria, 9 in Malta, Sweden and Spain, and 10 in Norway
 professional panel consists of 3 judges in Belgium,
Denmark, and Norway.
 As opposed to other systems, the Norwegian jury court is an
appellate instance.
German Collaborative Court Model

 Laypersons and professional judges sit together in a single panel that


deliberates and decides on all issues of verdict and sentence
 German or Schbffen Court model is widely practiced in 19 countries
of the Council of Europe: Austria, Bulgaria, Croatia, Czech Republic,
Denmark, Estonia, Finland, Germany, Hungary, Latvia, Macedonia,
Norway, Poland, Serbia, Slovakia, Slovenia, Sweden, Switzerland,
and Ukraine.
 Classic Schoffen Court consists of 1 professional judge and 2 lay
assessors, or schbffen, but the composition can vary in different
jurisdictions and courts within each jurisdiction on the basis of the
possible sentencing range of the tried case.
 Generally, number of lay judges exceeds the number of professional
judges by no more than 1.
2 kinds of German Mixed Courts

 For more serious crimes, the mixed court consists of 5 "judges" - 2 lay and 3
professional ("2-3 court")
 For less serious crimes, the court consists of 3 "judges" – 2 lay and 1
professional ("2-1 court")
 Any decision that disadvantages the accused requires a 2/3 majority vote.
 This means that in the 2-3 court, 4 of the 5 judges must agree on a verdict of
conviction, giving 2 laymen a veto power if they act together.
 In the 2-1 court, the 2/3 voting rule allows the 2 laymen either to convict or
acquit over the opposition of the professional
 Unlike the Anglo-American jury, when the trial is over presiding judge leads
these in camera deliberations and puts the questions and takes the votes. This
safeguards against the laymen making decisions based on ignorance or bias.
French Collaborative Court Model

 France has a hybrid model which represents a via media


between the continental jury courts and the Schbffen Courts.
 Ratio of lay adjudicators to professional judges in the joint
panel is much greater in the French court than in the German
one
 Deliberation practices also differ, with juries in the cour
d'assises voting secretly after deliberation.
 French system has retained a system of random selection
from the community as a whole. In the German model, by
contrast, the lay judges are appointed as members of the
bench.
 Number of jurisdictions such as Italy, Greece, and Portugal adopt a
combination of both French and German features in their systems
 in Greece and Portugal, the number of lay assessors in collaborative courts
exceeds the number of professional judges by no more than 1, similar to the
German model,
 lay courts in Greece and Portugal apply a method of random selection
peculiar to the French model.
 Italian court consists of 2 professional and 6 lay judges, while the French
court is comprised of 3 professional and 9 lay judges.
 Although the ratio of lay assessors in Italian collaborative courts is 3 lay
assessors to 1 professional judge (6-2), similar to the French collaborative
court, court may reach a guilty verdict by a simple majority of votes. Such a
rule is characteristic of the German model as opposed to the French model
where a qualified majority of 2/3 of the votes is required for conviction.
Expert Assessor Collaborative Court Model

Expert assessors are employed in certain complex criminal


cases in a number of European countries, such as Croatia,
France, Germany, Iceland, and Norway.
The idea of a professional judge sitting with expert assessors
has been revived in England and Wales in recent years as a
means of trying complex fraud cases, but has not yet
attracted enough support to be implemented.
In common with lay judges in the German and French
models of collaborative courts, expert assessors have the
same rights as the judge.
Pure Lay Judge Model

 France, as well as England, Wales and Scotland use pure lay bench to try minor
cases.
 These lay judges sit on their own to determine cases and no professional judge is
present during the hearing.
 in England and Wales, they sit on a bench of 3 with legally qualified clerks
present to guide them on the law. There, they exercise significant jurisdiction,
deciding cases that can carry as much as two years of imprisonment.
 Elsewhere, they sit alone, or on a bench of 3, unguided by any legal official, but
with a very limited jurisdiction.
 In Scotland, the maximum penalties available to the district court where the lay
judges sit are 60 days imprisonment or a fine of £2500.
 In France, they sit alone and have jurisdiction over so-called petty offenses of the
fourth class (les contraventions de la 4e classe), punishable by no more than
€750.
Lay Judges in Appellate Courts

 In Norway, for example, a jury is used for the purpose of


reconsidering the verdict of the first instance court, which
consists exclusively of professionals, or lay assessors and
professionals.
 Ratio of lay judges to professional judges in the collaborative
appellate courts either remains the same as that at the first
instance, as in Greece, Liechtenstein, and Macedonia, or is
reduced, as in Denmark, Germany, Norway, and Sweden.
 Only jurisdiction with an increased ratio of lay assessors in the
appellate courts is France, where twelve lay assessors sit together
with three professional judges in the cour d'assises d'appel.
Questions List - Comparative

 In 7 countries – Austria, Belgium, Ireland, Norway, Russia, Spain


and Switzerland – jurors are presented with specific questions before
they retire to deliberate on facts of case.
 In Norway judge directs jurors on each legal issue raised and explains
rules they should follow when they retire to deliberate on the verdict.
At the end of trial, he also sums up evidence to jury or draws its
attention to evidence of importance.
 In Austria the jurors' verdict is reached on basis of a detailed
questionnaire which sets out main elements of various charges and
contains questions requiring a “yes” or “no” answer.
Jury Deliberation - Comparative

 In Belgium judge may be invited to deliberation room to provide jury


with clarifications on a specific question, without being able to
express a view or to vote on issue of guilt.
 In Norway jury may summon judge. If jury considers that it needs
further clarifications as to questions to be answered, legal principles
applicable or the procedure to be followed, or that questions should
be amended or new questions put, it must return to the courtroom, so
that the matter can be raised in presence of parties.
 In Canton of Geneva judge attends jury's deliberations to provide
assistance, but cannot give an opinion on the issue of guilt. A registrar
is also present to make a record of decisions taken and reasons given.
Finland and Sweden

 criminal courts often have a single professional judge presiding, but the judge
must deliberate and vote with 3 lay judges who have equal voting power to
decide guilt and punishment.
 Simple majorities prevail (with 2-2 ties leading to verdicts in favor of the
defendant), so a judge can be outvoted by laypeople.
 small size of these panels and the vetting process required to become a lay
judge characterize these jurisdictions
 Finland changed its system of lay judges in the 1990s to give greater voting
rights to lay judges in collaborative courts.
 The old collaborative courts were comprised of seven lay judges with a
collective vote which could overrule the presiding judge only in the case of
unanimity; otherwise, the decision of the professional judge prevailed.
 The new Finnish collaborative court consists of one professional and three lay
judges with equal voting rights.
Poland

 Jury’s jurisdiction was limited by pre-war Constitution to serious


offenses, punishable with more than 10 years' imprisonment and
offenses deemed political
 Statute limited jury’s scope temporarily to formerly Austrian
province of Galicia
 Judge was a passive participant in the jury's deliberations and vote
 Nowadays Poland also has mixed court system, which employs 1
professional judge and 2 lay assessors for lesser crimes - and 2
professional judges and 3 lay judges for crimes with sentences of 25
years or life imprisonment.
 Majority verdicts can convict a defendant after all judges—lay and
professional—deliberate together
Pre-modern Germany

 in Hauenstein, to whose inhabitants an old charter of 1442 secured the


right of “being tried in all cases by a court consisting of their equals, and by
no stranger.”
 Swabian ordinance of the year 1562, declared, “that the burgomaster and
council of the four judicial districts should summon so many
‘jurymen’(urtheiler), as that each court might be provided with twelve good
and fit (tüchtigen) jurymen.”
 In Emmendingen the tribunal was composed of 12 persons, the headmen of
the surrounding villages.
 In Oppenau and Oberkirch the burgers chose a number of their fellow-
citizens to act as jurymen for a certain period, and these were known by the
name of 12-men (zwölfer), because that was the number required to
constitute a court.
 In Friburg the tribunal was composed of thirty burgers, of whom six were
town-councilors, and twenty-four masters of guilds or companies.
Germany, 19th – early 20th c
 Jury was effected by the Judiciary Act of 1877 (revised in 1924). The jury-Courts dealt only
with the most serious offenses (i. е., in general, punishable with more than 10 years'
imprisonment)- murder, assault with intent to kill, arson, robbery, sedition, and press-
offenses.
 Jury was referred as "an importation from France" and "an anomalous graft in the evolution
of German law," and favored the assessor-system as being an historic national institution, still
in force in many provinces.
 1st important reform was made by the Act of March 22, 1924. Jurors were reduced to 6 in
number (3 to be males) and were united with the Court, composed of a presiding judge and 2
others of the Regional Court.
 Thus both judges and laymen formed a single bench, passing upon both guilt and penalty; the
jurors now becoming assessors.
 The tribunal kept its old name of jury-court ("schwurgericht"), and it was still distinct from
the assessor-Court ("schoeffengericht," having lower jurisdiction).
 Assessors, appointed for 1 year, were drawn by lot, though there was a certain amount of
selection, in order to obtain citizens, whose occupation permits them to perform their duties.
 Assessors in the jury-court, however, serve for one session only; this feature marks the great
difference.
Germany

 1 to 3 professional judges sit collaboratively with 2 or 3 lay


assessors, who are selected to serve through a process of
political appointment
 the laypeople are ultimately chosen to sit in a particular
case through a lottery system, though the pool is not drawn
from the population at random
 Majority rule prevails for procedural matters and 2/3
majorities are required to convict and sentence a defendant
 failures to achieve convictions are treated as acquittals
Argentina

1994 Constitution provides for trial by jury


national enacting legislation has not yet been passed
Since August 2005 jury trials may be taking root at the
provincial level
adopting a mixed tribunal of judges and jurors,
expecting them to deliberate together on factual issues.

Only professional judges, however, can decide legal


matters and determine sentences and punishments.
Pre-war Japan
 Japan actually used a jury system for criminal trials from 1928 to 1943
 jurors number 12. At the close of evidence and argument the presiding judge sums up the evidence and the issues
 In general the jurisdiction of the jury-court was limited to offenses punishable with death or imprisonment for life.
 On request of the accused, the jury may also try offenses punishable by more than 3 years' imprisonment; but in
such case the accused had to pay the costs, so that such requests were rare.
 Jury had no jurisdiction over certain offenses, like attempts on the Emperor's life, high treason, disclosure of
military secrets, and offenses against the public safety or peace; some of these offences were tried directly by 5
judge-panel of Supreme Court.
 In case of opting for jury trials criminal defendants automatically were waving right of appeal on points of fact.
 Because sentence of a convicted criminal was usually mitigated upon appeal, defendants were interested to preserve
right to appeal, even if it meant waiving the right to jury trial and this was happening quite often.
 Japanese jury did not return a general verdict of "guilty" or "not guilty." Instead, it responded to questions
submitted by judge and related to the existence of facts.
 Jurors' responses were not binding. The court, upon finding jury's answer unwarranted, could disregard it, call
another jury, and submit case anew.
 This provisions effectively undermined any true power of jury and allowed judges to continue to make the final
decisions on guilt and innocence
Modern Japan

Since May 2009 Japan started 3-year pilot


criminal jury (Saiban-in Seido) system
3 judges and 6 randomly-selected lay jurors
will sit and deliberate together.
A simple majority is all that will be required
to reach a verdict, so long as one judge and
one juror concur.
Japanese Grand Jury

 Re-introduction of the first quasi-jury trial also marks the start of another newly-
revised grand jury system, called “Kensatsu Shinsakai,” or the Prosecutorial Review
Commission (PRC). It’s resolutions from advisory become legally mandatory
 PRC was originally created by the Allied Forces occupying Japan after World War II
 PRC is composed solely of 11 randomly chosen citizens from the local community and is
appointed to a 6-month term
 System is similar to that of the US’s civil grand jury in examining and inspecting the
proper functioning of local public offices, including the District Attorney’s office
 similar to the criminal grand jury, the PRC has influence over decision to indict – it asks
randomly chosen citizens to examine appropriateness of prosecutors’ non-indictment
decisions
 commission only begins the investigation process when a victim, proxy, or the
commission itself brings a complaint and applies for a commission hearing
South Korea

 Since February 2008 South Korea launched a 5-year program


introducing jury
 jurors deliberate without any judges present, but majority of jurors may
request judges’ opinion on the relevant legal and factual issues
 If jurors resolve that a unanimous decision is not possible, judges join
deliberations and inform the jury of their opinions. During this time,
however, judges cannot explicitly offer thoughts on whether accused is
guilty or not. After opportunity for further discussion independent from
judges, jury takes a majority vote
 If the jury finds the defendant guilty, it re-convenes with judges to
deliberate on question of sentencing. Judges leave room before any
decisions are made and do not vote
 Trials will have 3 judges and 5 to 9 randomly-chosen jurors
 However, jurors’ “verdict” will only be advisory during the pilot period.
People’s Republic of China

In 2005, Standing Committee of the National


People’s Congress adopted Directive on
Concerning Improvement of People’s Assessor
System
Common citizens “participate in all hearing
activities of the People's Courts as authorized by
law, and are to have the same rights as judges.”
Pre-war Austria

 In Austria the jury-court's jurisdiction was limited for most serious crimes, including by
the law of June 5, 1920.
 In 1933, the number of jurors was reduced to 6 later to 3, and the jurors were united to
the Court.
 The procedure was changed in following respects:
 judge presides over the deliberations and the votes of the jurors

 If judge deems fit he may sum up the points of the evidence and arguments, pro and
con, without expressing his own opinion
 judge must also explain the nature of the charge and its application to the evidence,
and also the penalties involved
 jurors vote before the judges, in alphabetical order; they need not follow the precise
terms of the charge; and each may state the reasons for his vote
 Decree of Aug. 28, 1934 transformed jurors into genuine assessors. They were drawn by
lot from a select list, and they serve for a year; they must be 40 years old or over, must
lack any criminal record (even of a political offense), and must have shown themselves to
be well-tried patriots.
Austria

 randomly selected lay jurors in some contexts and lay judges in others administer
justice
 Lay assessors sit for 5 days per year over the course of 2 years and are not empanelled
only for single cases.
 offenses a single-judge court hears the trial and issues a verdict
 offenses punishable with up to 10 years prison 2 professional judges sit with 2 lay
judges
 offenses punishable with more than 10 years prison 3 professional judges sit with 8
randomly-selected jurors. The 8 jurors reach a verdict after deliberation isolated from
the judges.
 simple majority controls, with ties resulting in acquittal
 Jurors in tandem with the judges are often involved in discussions about sentencing
 3 judge panel can refuse to enter judgment in certain cases if it concludes unanimously
that the jury verdict was erroneous. In such a case, the judges may send the case to a
higher court for further consideration, which may recommend a new trial. If a second
jury also reaches the original jury’s conclusion, the judges no longer have the power to
suspend the verdict
Austria

Jury court (Geschworenengericht) can be transformed into


a Schoffen court (Schoffengericht) in 2 circumstances:
 when all professional judges consider this change necessary and a
simple majority (5 out of 8) of jurors agree to it;
 when jurors make such a request.

In this situation, professional judges will deliberate with the


lay jurors on the question of guilt.
Verdict continues to require only majority agreement and
the judges retain their veto right through unanimous
agreement at the backend.
Denmark, 19th – early 20th c

The jury was introduced in 1849.


In 1879 reverted to a juryless court of judges for all offenses
(though the judge was attended by 2 "witnesses," who could vote
in capital cases only, and then were increased to 4).
In 1919 (Act of 26 March) a genuine jury-court was re-established
for Kopenhagen and Viborg, and in 1933 this tribunal was termed
"Landsret."
A jury's verdict of guilty was not conclusive; for the court may
direct the case to be re-tried before another jury; and there is
ample opportunity for revision by the Supreme Court.
Denmark before 2008

 For lesser crimes, mixed courts were used in which 2 lay assessors sat with a professional
judge. When these cases were appealed, three lay assessors sat with 3 professional judges, all
of whom got one vote.
 In both of these situations, judges and jurors deliberated together, simple majorities
controlled, and ties led to a judgment in favor of the defendant.
 in cases where prosecutors asked for sentences of 4 years or more, in cases of political
offenses, and in cases where the prosecution was seeking confinement in a mental institution,
12 jurors would sit with a panel of 3 judges, and a majority vote of the judges and an 8-4 vote
of the jurors had been necessary to issue a verdict adverse to the defendant, though
deliberations among the judges and jurors were conducted separately.
 Failure to reach either of the required majorities led to an acquittal
 At the sentencing phase in cases when a jury was empanelled, judges and jurors deliberated
and voted on a sentence together: each juror had a single vote and each professional judge had
4 votes to create “parity” between judges and jurors. The weighted majority controlled and
ties were resolved by favoring the side recommending the less severe penalty.
 Sentences were generally appealable to the highest court in the country.
Denmark after 2008
 January 1, 2008 reform of the Administration of Justice Act became effective
 lower level courts will now use 6 lay jurors with 3 judge panels and the mid-level courts (in
which 12 jurors were previously employed) will now use 9 lay jurors and 3 judges. In both
cases, a 2/3 majority of jurors (4 out of 6 and 6 out of 9, respectively) and a majority of judges
(2 out of 3) will be required to reach a guilty verdict.
 Failure to reach these majorities will lead to acquittal.
 Jury verdicts will, under the new regime, be subject to appeal on the question of guilt.
 judges and jurors will ne required to deliberate together in a traditional mixed court setting in
both instances.
 Unlike many other jury systems which employ randomly-selected citizens as jurors, lay
judges and jurors in Denmark are selected through an appointment process
 potential lay judges and jurors are first nominated by special representative “Basic List”
committees, themselves appointed by city councils in accordance with proportional
representation. The committees try to pick consensus laypersons to add to the Basic List,
from which lay judges and jurors are drawn.
 When it comes time to seat lay assessors for a specific case, however, selection is made by lot.
Lay judges and jurors must sit for a few days each year (usually about 3 cases) for four
consecutive years.
France, 19th – early 20th c

 The French system began as an imperfect imitation of the English


system, but has since then departed more and more from its
model.
 Very early it gave up the grand jury.
 Then in 1832 it authorized the trial jury to take into consideration
extenuating circumstances, which thus allowed it indirectly to
share in determining the penalty.
 Then in 1881 the presiding judge's summing-up was taken away.
 And finally, in 1932, it for-mally allowed the jury to meet with the
Court in deciding upon the penalty and the legal defenses.
Modern France

 mixed jury convenes to try crimes with minimum sentences of 10


years’ incarceration. At the trial level, 3 professional judges sit with 9
jurors, all of whom are randomly selected from lists of eligible voters to
sit for singular cases.
 The jurors and judges deliberate together about questions of guilt and
punishment and must agree by a margin of 8-4 to render decisions
adverse to the defendant. Failure to reach the required threshold leads
to acquittal or lesser punishment.
 although deliberation among the adjudicators transpires face-to-face,
the ultimate vote is taken in private. Since unanimity is not required,
jurors and judges do not necessarily know how their co-panelists vote.
 lay adjudication was expanded by introducing lay judges to the cour
d'assises d'appel in 2000, and established juges de proximite to hear
minor offences in 2003.
Correctionnalization

Correctionnalization - intentional downgrading of


offense
derived from the French tribunal correctionnel,
which tries defendants without participation of
jurors or people’s assessors
transferring cases for bench trials in which the
government is almost certain to win to avoid giving
defendants the opportunity for a trial involving
people’s assessors
Pre-war Italy

Italy had had French system.


In 1931, this was abandoned. In its place was put a
bench-court composed of 2 judges (the presiding
judge to be a member of the criminal branch of the
Court of Appeal) and 5 assessors, appointed for 2
years and taken from classes of citizens regarded as
specially qualified
Greece & Italy

 In Greece, serious felonies are tried by a mixed court of 3


professional judges and 4 randomly-selected jurors. Judges
and jurors deliberate together and majority controls (with
ties entered in favor of the defendant). Jurors serve for 24
days, so might hear more than one case
 Serious crimes in Italy are adjudicated by jury trial. The
mixed court includes two professional judges and six lay
jurors, the latter chosen through a process of random
selection to be seated for a period of time. The decision rule
is purely majoritarian, judges and jurors deliberate together,
and ties are resolved in favor of defendants.
Luxembourg, Netherlands

In Luxembourg jury came in with the Na-poleonic


Codes, but went out permanently in 1814.
In the Netherlands the jury was introduced with the
Napoleonic Codes.
On obtaining national independence in 1813, the
Codes were retained; but the jury was discarded;
and no one has ever proposed its restoration.
Portugal

 For serious crimes, Portugal uses mixed courts of three professional judges and
four jurors. Judges and jurors deliberate together and simple majorities
control the outcome with ties entered in favor of defendants. Jurors are
randomly selected and are seated for single cases.
 influence of the English model is apparent; single judge sat with 9 jurors and
summed up the case for them. In 1926 the jury was discarded.
 Following 1974 Carnation Revolution that had displaced ruling military regime, Portugal
passed a new Constitution with a provision guaranteeing trial by jury for certain crimes
 Article 210 Juries, People's Participation, Assessors
(1) Juries are made up of the judges of the plenary court and the jurymen; a jury is
called to court, at the request of either the prosecution or the defence, for the trial of
serious crimes, except terrorism.
(2) The law may provide for social magistrates to be called to court for hearings on
industrial disputes, offences against public health, misdemeanors, and other matters
involving the assessment of infringed social values.
(3) The law may also provide for technically qualified assessors to be called to
participate in the hearings concerning specific matters.
Pre-war Bulgaria, Czechoslovakia, Hungary Yugoslavia

 In Bulgaria, formerly, 3 jurors sat with the usual 3 judges, in the trial of serious crimes, on the issue of
guilt. But in 1922 the jury was discarded; there are now professional judges only.
 In Czechoslovakia Act of 1923, on the safety of the republic, and that of 1924, on press offenses, removed
certain political offenses from the jury-courts. In 1923 serious political offenses were assigned to a new
branch of the Supreme Court, and press offenses to a special court composed of 3 professional judges and 2
lay-assessors. Draft revised Code of Criminal Procedure of 1929, unifying the national law, restricted the
jury-courts to offenses punishable with death or more than 10 years' imprisonment. Later, the government
on recommendation of the Supreme Court could suspend trial by jury
 Jury was first adopted in Hungary in 1869 for press-offenses only, then extended in 1897 to include other
specific offenses—treason, rebellion, interference with personal liberty, murder, arson, robbery, etc. In
1914, just before the World War, the procedure was changed so as to allow judge to take part in the jurors'
deliberations, but without vote, and to allow 2 of the jurors to be delegated to take part with the Court in
determining the penalty (the jurors voting first). Decree of 1919 suspended the jury courts and temporarily
transferred to the usual judge-tribunals the jurisdiction over all kinds of offenses. Since that date, the jury-
system in Hungary has remained nominally in force, but is not used. Later it was abolished altogether.
 New Yugoslav State retained temporarily the former judiciary sys-tem (including the diluted Serbian jury-
system), in which the jurisdiction was limited and the presiding judge took part as adviser in the jury's
deliberations. 1929 Code of Criminal Procedure, unifying the law of the consolidated regions, discarded the
jury for the whole country.
COUNTRIES WITH CRIMINAL JURIES
Australia

 jury trials are relatively rare in Australia and are reserved for the most serious crimes
 12 randomly-selected laypersons serve as jurors for single cases.
 Most jurisdictions in Australia allow supermajority verdicts (11-1 and 10-2) for
conviction or acquittal but generally require juries to deliberate under a unanimity
constraint for three to 6 hours, depending on the jurisdiction.
 Still, unanimity is generally required for extremely serious offenses, such as murder
or treason.
 New South Wales, Queensland, and the Australian Capital Territory continue to
maintain symmetrical unanimity requirements for conviction and acquittal
 Supermajority verdicts are generally accepted in Victoria, Tasmania, South Australia,
Western Australia, and the Northern Territory.
 prosecution can appeal an acquittal for clarification of the law, but whatever decision
is rendered on the legal issue cannot affect the not guilty verdict in the appealed case.
 jury may make a recommendation of mercy, though the judge is not bound by the
recommendation.
Belgium

 Belgian jury is sometimes classed with the French jury, because of the
general identity of the 2 legal systems.
 Belgium did not adopt the French changes of 1832, in letting the jury
consider extenuating circumstances
 1831 abolish the judge's summing-up
 Reform of 1867 limited the jury’s jurisdiction by allowing the criminal
branch of the Superior Court by unanimous vote or the Court of
indictment by majority vote to transfer a case to the Magistrate's
Correctional Court for misdemeanors because of legal defenses or
extenuating circumstances, instead of sending it automatically to the
jury court.
 Nowadays juries of 12 randomly-selected citizens assist in the
adjudication of serious felonies through “Courts of Assizes.”
 Jurors sit for single cases. Simple majorities produce verdicts
Belgium

Even splits (6-6) are treated as acquittals.


Jurors together 3-judge of Courts of Assizes
ultimately deliberate about proper punishment
during the sentencing phase
Law of 21 December 2009 has amended procedure
in Assize Court, notably by requiring it to state
main reasons for verdict reached by the jury, in
order to clarify its meaning.
Brazil

Homicide cases, cases involving certain economic


crimes, and certain press offenses are prosecuted in
front of 7 jurors to decide guilt.
All decisions are made with majority of votes
Jurors in Brazil do not deliberate together
members of the jury are privately polled and their
votes control the outcome.
Canada

 12 randomly-selected members adjudicate a single case


 Jury must reach unanimity for conviction or acquittal.
 For less serious offences that come to trial, a judge alone makes the ruling.
 In some more serious offences, the accused person can choose to be judged by
either a judge or a judge and jury.
 In most serious offences, such as murder or treason, a judge and a jury are
always used.
 Juries do not make a recommendation as to the length of sentence
 In Canada in cases involving a conviction of second degree murder the jury can
make a non-binding recommendation within a selected range, regarding
appropriate sentence.
 Special Canadian juries may also be convened to determine if a mandatory
sentence of 25 years to life for murder should be shortened after the convicted
person has served 15 years.
Canadian appeal

 Attorney General has right to appeal a verdict of acquittal or a


verdict of not criminally responsible on account of mental
disorder on the narrow ground that the jury was erroneously
instructed on the law.
 If a finding of legal error is made at the higher level, case may be sent back for
retrial.
 These cases are rare, but have occurred in recent years.
 Grounds for an appeal must involve an issue of law, such as a
claim that jury was not properly instructed on the law.
 Limitation on double jeopardy requires a thorough review by
appeal courts, but on occasion, Crown has been successful in
obtaining a new trial.
Civil Jury In Canada

 Quebec and Federal Court of Canada unqualifiedly prohibit civil juries


 In provinces such as Alberta and Saskatchewan civil juries are available for certain types of claims.
 Generally, juries are available in cases in which the amount in controversy exceeds $10,000.
 In Saskatchewan, a jury may be ordered where:
 (a) the ends of justice will be best served if findings of fact are made by representatives of the community;
or
 (b) the outcome of the litigation is likely to affect a significant number of persons who are not party to the
proceedings.
 Provinces like British Columbia and Ontario provide jury for most kinds of actions, although the list of
excluded actions is significant
 Categorical bar to the use of the civil jury occurred in medical malpractice cases, because of the perception
that the factual issues were too complex and that the risk of prejudice against doctors was too great
 Judges may exercise discretion whether to release a jury which has come to know that the defendant carries
insurance that would cover any judgment against it, because of the perception that jurors would be more
likely to find liability if they knew that an insurer would pay any judgment against the defendant.
 Civil jury is rarely used in some provinces, while in others its use appears to range from 3 to 10 percent of civil
trials. In Ontario juries are used in about 20 percent of civil cases.
 Median length of trials determined by jury verdict exceeds by ¾ of a day the median length of bench trials.
However, when cases that go to trial but settle before their conclusion are included, the average length of jury
trials is less than that of bench trials.
Free Press vs Fair Trial In Canada

 accused has right to ask for an order banning publication of the content of
the proceedings until the charges are dropped or the trial is ended. The
motion must be granted; the judge has no discretion
 It is proscribed to publish anything said in the absence of the jury until the
jury retires to consider its verdict, at which time sequestration is
mandatory. The ban does not apply if the jury is sequestered during the
whole trial, but that kind of sequestration is extremely rare
 Injunctions involve delay, not permanent bans, on publication
 Supreme Court of Canada has increasingly relied on existing procedural
safeguards against jury prejudice in the face of media reporting instead of
banning publication
 Jurors are prohibited from ever disclosing anything about their
deliberations under threat of a summary conviction that could result in a
maximum sentence of six months imprisonment and a fine of up to $5,000.
English civil jury
 Frequency of civil jury trials steadily declined in England and Wales from the middle of
the 19th century.
 Today less than 1 percent of civil trials are jury trials.
 Supreme Court Act gives a qualified right to jury trial in only 4 types of civil case:
 libel and slander,
 fraud,
 malicious prosecution,
 false imprisonment.
 Even in these cases right can be denied where the court determines that trial requires
"prolonged examination of documents or accounts, or any scientific or local
investigation which cannot be conveniently made with a jury.
 Currently civil juries are used most often in defamation cases. A major cause for
concern has been the usually large size of jury awards in such cases.
 In 1975 Faulks Committee on Defamation recommended that the function of the jury in
defamation cases be limited to deciding issues of liability, leaving assessment of
damages to judge.
English criminal jury

 Only 1 or 2 percent of all trials are heard by a jury.


 Vast majority are tried in magistrates' courts by a bench of 2 or 3 magistrates. A small
proportion are tried by legally trained stipendiary magistrates, but most magistrates have no
legal qualifications and receive no remuneration.
 1,940,000 defendants were proceeded against in the magistrates' courts in 1995, while the
total for trial in the Crown Court was 86,000.
 40 percent of contested trials before a jury resulted in acquittal.
 Only 20 percent of convictions following a plea of not guilty in the Crown Court were majority
verdicts.
 Unlike in Scotland, where rules require the prosecution evidence to be corroborated, in
England it is possible for a defendant to be convicted on the uncorroborated evidence of a
single witness or on uncorroborated confession evidence.
 Unlike in Scotland, where defendant is entitled to be acquitted if jury cannot achieve a
majority for conviction, in England, failure to achieve a sufficient majority either way results
in a hung jury, with the possibility of a retrial. Only a finding of not guilty by at least 10 out of
12 jurors entitles the defendant to be acquitted.
Jury selection in England

 Before 1972, jurors were drawn only from those who owned property of a prescribed value, which
ensured that juries were predominantly male, middle-aged, middle-minded and middle class.
 Since 1972 profound changes took place in the composition of juries. They have become much younger
and less middle class. However, there still appears to be an under-representation of women and ethnic
minorities.
 Results of the changes in juror qualification were not to everyone's liking - police, judges, and some
lawyers complained of a deterioration in the standard of jurors, who were now too stupid, too
irresponsible, too easily bribed or intimidated, or too much of a security risk.
 Runciman Commission put forward a limited proposal for ensuring that a jury includes at least 3
members from the same ethnic group as the defendant in exceptional cases.
 Court of Appeal held that jurors' names could be withheld if it was thought necessary to prevent a jury
being nobbled, provided that the defendant's right of challenge was preserved. Group of jurors was
called to the jury box only by numbers allocated to them by the court clerk.
 Attorney General published guidelines, which provide for juror investigation in cases where strong
political motives are involved. If anything indicating "disloyalty" is found, the juror is to be stood by.
Prosecution may have access to information on jurors obtained by the police, CID, or Special Branch
for purposes of jury vetting. It is up to the Director of Public Prosecutions to authorize vetting.
Number of jurors in England

Court At start of trial Minimum Majorities allowed


number
Crown Court 12 9 11-1, 10-2, 10-1, 9-1

High Court 12 9 11-1, 10-2, 10-1, 9-1

County Court 8 7 7-1


Coroner's between 7 and 11 — Minority no more
Court than 2
Admissibility of expert evidence in England

expert evidence is not admissible if it is within the


competence and experience of a jury.
For example, the reliability of witness testimony is
considered a matter of common sense, and expert
evidence from psychologists is not normally admitted on
this question.
 Jurors do not need psychiatrists to tell them how
ordinary folk who are not suffering from any mental
illness are likely to react to the stresses and strains of life.
England & Wales, N Ireland & Republic of Ireland

Juries consist of 12 randomly-selected citizens


empanelled for single cases.
more than 250,000 jurors called each year.
At one time, the defense was allowed 25 peremptory
challenges but this was reduced to 12 in 1925, to 7 in
1948 and 3 in 1977 before total abolition in England
and Wales under the Criminal Justice Act 1988, s. 118
and in Scotland under the Criminal Justice (Scotland)
Act 1995.
 Juries are summoned for criminal trials where the offence is an
indictable offence or an offence triable either way. Summary
offences are tried by magistrates and there is no right of Crown
Court trial by jury.
 With respect to the "either-way" crimes, it is the defendant, and not
the prosecutor, who decides whether the case will be tried in the
Crown Court before a jury or in the Magistrates Court without a
jury.
 Unanimous verdict was established by 1367 and abolished in 1967.
Nowadays English jurors are require to deliberate for at least 2
hours before rendering a verdict. At least 10 jurors should support
verdict
Republic of Ireland
 Origins of jury trial in Ireland share much in common with those of England and
Wales.
 Commencing with the Anglo-Norman invasion of 1169, the English common law
tradition, with its system of trial by jury, gradually supplanted the native custom-
based system of Brehon law; by the end of the 17th century, the common law tradition
was firmly established throughout the country.
 1937 Constitution provides that, "no person shall be tried on any criminal charge
without a jury”, subject to 3 exceptions,
 summary trial for minor offences,
 trial by special courts,
 trial by military tribunals.
 Constitution provides for the establishment by law of special courts "for the trial of
offences in cases where it may be determined in accordance with such law that the
ordinary courts are inadequate to secure the effective administration of justice, and
the preservation of public peace and order.
Republic of Ireland & Northern Ireland

 Continuing violence throughout this century led the to establishment of special


jury-less criminal courts on three occasions since 1939
 In 1972 upon recommendation of Diplock Commission jury trial was
suspended in Northern Ireland for criminal cases associated with the troubles,
when danger of intimidation may make law enforcement impossible
 Diplock courts are required to give reasons for convictions and there is an
automatic right of appeal to a 3 judge court of appeal against any conviction
 between 1990 and 1997 the number of accused persons indicted in the Special
Criminal Court fell from 49 to only 26, with as few as 12 and 15 accused
persons facing trial in the Special Criminal Court in 1995 and 1996,
respectively.
 civil juries are retained only for libel, slander, assault, and false imprisonment
cases; in Northern Ireland, civil juries are retained only for libel claims or if the
judge accedes to a particular application.
Inquest

 In common law jurisdictions judicial investigation by jury


convened by professionally qualified coroners to inquire into the
causes of death and they are given wide ranging powers to
subpoena witnesses
 In UK coroner must summon a jury for an inquest if the death
occurred in prison or in police custody, or in the execution of a
police officer's duty, or if it falls under the Health and Safety at
Work etc. Act 1974, or if it affects public health or safety or where
it occurred in circumstances which, if they were to continue or
recur, would be prejudicial to the health of safety of the public
 When a criminal charge is brought against an individual in
relation to a death, an inquest will be adjourned until the criminal
proceedings have been completed, but otherwise the inquest will
proceed
Role of inquest jury

 Inquests allow public scrutiny of cases where no official action has


been taken and the use of juries ensures that the scrutiny is
undertaken in a completely independent manner.
 Where the jury brings in a verdict of unlawful killing, this puts
added pressure on the police and prosecuting authorities to bring
charges, although there is no guarantee that this will happen or
that the perpetrators will be brought to justice
 jury has a role to play in situations where there may be a lack of
confidence on the part of the authorities to investigate cases
properly
 It has been said of coroners that they are of so great antiquity that their
commencement is not known.
 The name occurs in a rhyming charter granted by the Anglo-Saxon king
Athelstan to the monastery of St. John of Beverley, A. D. 925, which
contains the following lines:
 If a man be found slain idrunkend, Sterved on sain John rike, his aghen men
Withouten swike his aghen bailiffs make ye fight, Nan oyer coroner have ye
might: Swa rnikel freedom give I ye, Swa hert may think or eghe sée.
 In old times the coroner was an officer of some importance, as appears
from the way in which Chaucer mentions him in his description of the
Frankelein:
 At sessions there was he, lord and sire, Full often time he was knight of the
shire, A shereve had he been, and a coronour, Was no where swiche a worthy
vavasour.
 The earliest statute which regulates and defines the mode of taking a coroner’s inquest, is that
entitled De Officio Coronatoris, 4 Edw. I. st. 3 (A. D. 1276), and this enacts that
 when coroners are directed by the bailiffs of the king, or honest men (probi homines) of the county, to
go to those who are slain or have died suddenly, or been wounded, or to housebreakers, or to places
where treasure is said to be found,
 they shall forthwith proceed there, and command 4of the next towns, or 5 or 6, to appear before them
in such a place,
 and when they are come thither, the coroner upon the oath of them shall inquire, if it concerns a man
slain, where he was slain, whether it was in a house, field, bed, tavern, or company, and if any and who
were there.
 Likewise it is to be inquired who were and in what manner culpable, either of the act, or of the force;
 and who were present, either men or women, and of what age soever they be (if they can speak or have
any discretion).
 And how many soever be found culpable by inquisition in any of the manners aforesaid, they shall be
taken and delivered to the sheriff, and shall be committed to jail;
 and such as be found and be not culpable, shall be attached until the coming of the justices, and their
names shall be writren in the coroner’s rolls.
Special jury

 There is special jury alongside grand, petite and inquest


jury
 Trials by a special jury are seldom granted
 some county officer, in the presence of the parties or their
attorneys, selects 48 persons from those upon jury lists
 He must select those whom he considers most indifferent to
parties, and best fitted to decide the cause
 from this number parties strike off alternately names of
proposed jurors until but 24 remain
 From this list trial jury is then selected in usual manner
Scotland

 Scottish criminal jury embodies several unique characteristics:


 it consist of randomly-selected 15 people for criminal trials and 12
people for civil trials
 its verdicts may be reached on the basis of a bare 8-7 majority
 it has a choice between 3 different verdicts -- guilty, not guilty, and not
proven.
 Verdict of the Scottish jury seems always to have been reached by
majority vote.
 By midway through the 16th century, the majority verdict had
become formally established as an integral part of trial by jury,
encouraging the use of an odd number of jurors.
 any fewer votes to convict results in an acquittal
 Acquittals come in two forms: verdicts of “not guilty” and verdicts
of “not proven.”
 no legal consequences follow from the particular form of acquittal
 which version of acquittal is recorded in an defendant’s case is
decided by majority of jurors
 If the acquittal votes are split evenly, the verdict of record is “not
proven”
 Around 1/3 of all jury acquittals are the product of the not proven
verdict, while the equivalent in nonjury trials is around 1/5.
 Verdict of Not Proven corresponds to Non Liquet of the Roman
law
Not proven verdict

 If jurors were faced with a straight choice between guilty and not guilty,
they might opt for guilty where otherwise they would have found the
case not proven. There would be an increased danger of wrongful
convictions.
 Jury may well not be convinced of the accused's innocence. Of
particular significance here is the Scottish rule that the prosecution
case must be corroborated.
 There are many cases where one witness is completely believed, but
there is insufficient corroborating evidence to allow the jury, or the
judge in a nonjury trial, to convict, although they may be fairly certain
that the accused is indeed guilty.
 This might be particularly so with regard to the victim of a sexual assault.
Scottish jury statistics

 trial by jury is not especially common. Of all the criminal


cases only 2.2% were heard under solemn procedure and
thus offered even the possibility of trial by jury.
 Because of the greater propensity of those prosecuted
under summary procedure to plead guilty, jury trials
comprised 7.7% of all trials in Scotland.
 92.3% percent of contested cases were heard either by a
sheriff sitting alone or by lay magistrates.
New Zealand
 Jury trial dates back to the earliest years of colonization. Both the Supreme Court and the lesser
courts were established in 1841, the year following the formal annexation of the colony and its
separation from the Australian colony of New South Wales.
 Grand, common, special juries and even the ancient aliens jury, de medietate linguae, were all
pressed into service.
 In 1862, a system of "minor juries" was instituted to deal with cases under £ 100 in value. Minor
juries consisted of 6 members.
 By 1882, this had been reduced to a jury of 4, available at the request of either party, in cases
involving sums of more than fifty pounds and less than £ 500.
 “Minor jury" was finally abolished in 1977.
 Jurors are allowed to put questions in writing for the judge but it appears that the practice is ‘rare
and not encouraged’.
 Jury trials are so rare that the Department for Courts no longer even keeps statistics on it. By 1976
only 0.24% of those charged with criminal offences and 2.6% of those with the right to elect trial by
jury were actually being tried by jury. Civil jury is used in only 1 or 2 cases per year.
New Zealand’s Civil Jury
 In any civil case either party may request a jury trial where the only relief claimed is payment of
a debt, pecuniary damages, or recovery of a chattel to the value of more than $3,000. In other
cases trial is to be by judge alone unless the court orders otherwise on the ground that any
proceedings or issue "can be tried more conveniently" before a jury.
 The judge may still, on the application of either party, direct trial of the whole case or of any
particular issue before a judge alone if 1 of 2 conditions are satisfied:
 The case or issue involves the consideration of difficult questions of law, or
 The case involves the prolonged examination of documents or accounts or difficult questions of a scientific,
technical, business, or professional nature which "cannot conveniently be made with a jury.“
 Prior to 1880, civil juries essentially had to reach a unanimous verdict, as they were discharged
only if they failed to reach agreement after 12 hours' deliberation. In 1898, this statute was
amended to allow hung juries to be discharged after a "reasonable" period of deliberation,
provided that it was not less than 4 hours.
 Juries Act of 1880 had provided for all civil juries to render a 3/4 majority verdict after a
minimum of 3 hours' deliberation.
 In 1980, the minimum deliberation time was increased to 4 hours.
 recommendations encouraging question asking by jurors have also been put forward and will
most likely be passed into law.
New Zealand’s
Special & Criminal Juries

 In cases in which "difficult questions in relation to scientific, technical, business or


professional matters are likely to arise" special juries with "expert knowledge" were used.
 Special juries could consist of either 12 or 4 jurors in the usual way. Special juries were
available since the inception of the Supreme Court in 1841 and were abolished by the Juries
Act of 1981.
 Prosecution and defense may each peremptory challenge 6 potential jurors.
 In trials involving more than 1 defendant, the Crown has a maximum of 12 challenges, while
defense counsel may challenge six potential jurors for each defendant. It appears that
defense counsel challenge twice as often as prosecutors.
 For crimes involving a potential sentence of 14 years or more jury trial is mandatory.
 For other crimes, the accused has a right to elect for jury trial if the sentence could result in
more than 3 months’ imprisonment, but the Bill of Rights Act makes an exception that
excludes jury trial for certain types of assault, such as an assault on a police officer.
Pre-war Switzerland

 In Tessin jury system has been simplified in 1895. 3 judges sat with 5
jurors, and the issues of guilt and of penalty were voted upon by all
members. The jurors (3 in the petty courts, 5 in the higher ones) were
elected by popular vote from the citizen-body.
 In Berne the reform was enacted in the new Penal Code of 1928. Jurors
were selected as be-fore; but their membership was reduced to 8, and they
were united to the Court, for deliberating and voting on all the issues
involved.
 In several other Swiss cantons only minor changes have been made. In
Zurich, Vaud, and Geneva, an accused pleading guilty may waive jury-
trial; in Zurich he goes before the criminal division of the Superior Court.
The presiding judge's function has been amended; in Lausanne, he
answers publicly the jury's request for comments; in Zurich, he gives them
instructions on the law; in Geneva, he is present in the jury-room to
answer questions.
Modern Switzerland

 Jury trials continue to exist in some Swiss cantons, though they have been
abandoned by many others.
 jurors can sit in 2 different types of courts: the cour cour corectionnelle, in which a
judge presides with 6 randomly-selected jurors, and the cour d’assises, in which a
judge presides with 12 randomly-selected jurors.
 Simple majorities may return convictions and acquittals, with ties resulting in
acquittals and jurors sit only for single cases.
 in Geneva, judge sits with the jury at the cour d'assises and the cour correctionnelle
during deliberations on question of guilt. He or she can answer questions from
jurors, but can neither give advice nor exercise any right to vote.
 Juries are expected to give explanations for their verdicts and are involved in
assessing a sentence as well.
 Future of Swiss jury is not clear after 2010, when the federal government adopts a
new unified criminal procedure law.
 Until 1991 Canton of Geneva considered that the jury satisfied the
requirement of a reasoned decision by answering “yes” or “no” to the
precise questions put to it.
 17 December 1991 Federal Court found such replies to be insufficient and
required juries in canton to give reasons for their verdicts in future.
 In 1992 Articles 298 and 308 of the Geneva Code of Criminal Procedure
were amended to require the jury to state reasons for its choices should it
consider that this was necessary for an understanding of its verdict or its
decision.
 Article 327 of the Code of Criminal Procedure requires the jury to state “the
reasons for taking into account or disregarding the main items of
evidence and the legal reasons for the jury's verdict and the decision by
the court and the jury as to the sentence or the imposition of any
measure”.
LAY ADJUDICATION IN FSU

 People’s assessors are still utilized in Belarus, Tajikistan,


Turkmenistan, Ukraine and Uzbekistan
 Moldova have rejected lay adjudication completely
 Azerbaijan, Georgia, Kazakhstan, and Kyrgyzstan, Ukraine are
going to reintroduce some form of lay participation
 Although the Constitution of Armenia originally declared a right
to jury trial for each citizen, this right was omitted from a new
version of the Constitution which was put to a national
referendum in November 2005
 Article 85 of Constitution of Latvia created legal foundations for
trial by jury
 Trial by jury shall exist in Latvia in accordance with a special Law.
Azerbaijan

 In 1997 President Heidar Aliev signed the Law on Court and Judges,
that introduced jury, but failed to specify a timeframe for the
introduction
 trial by jury would be available only in matters involving especially
grave crimes, which are defined as serious felonies punishable by more
than 10 years imprisonment
 both the prosecution and the defense will only have 2 preemptory
challenges each
 Only prosecution but not defense counsel has right to make an opening
statement before the jury at the beginning of the trial
 little protection is available to shield jurors from prejudicial evidence
Azeri Criminal Procedure Code

 prosecution and defense will only have 2 preemptory challenges each


 Azeri Code does not give defense counsel right to make an opening
statement before jury at beginning of the trial, though it does grant that
right to prosecution
 allows evidence of the defendant’s prior convictions to be introduced at
trial
 exceptions to the hearsay rule allow virtually any statement made by a
witness or an expert during the pretrial investigation to be introduced into
evidence without the possibility for cross-examination
 person’s pretrial statement may be read out in open court not only if the
witness cannot appear in court due to death or serious illness, but also if
the witness refuses to testify in court hearing or gives testimony, which
contradicts his or her pretrial statement
Azeri Criminal Procedure Code

 judge is allowed to listen to arguments and rule on the admissibility of


evidence in the presence of the jury in all cases—and then to subsequently
direct the jury to disregard any evidence that the judge concludes is
inadmissible
 Azeri Code does not confine parties to discussing only admissible evidence
and issues to be decided by the jury when parties present their closing
statements to jurors
 Jurors’ only initial responsibility as to a verdict is to issue a decision on
whether the defendant is guilty
 In case of guilty verdict jurors must also then decide whether to
recommend that the court show leniency when pronouncing the sentence.
 Either party in a criminal proceeding may petition the judge to submit
additional questions to the jury
 Under the existing court system cases are decided by judges who sit
singly, occasionally with 2 public assessors ("lay judges" or professional
jurors with some legal training), or in groups of 3 for more serious
cases.
 Constitution provides for public, adversarial trials, including a judge,
public assessors, state prosecutor, defense, and jury (when required by
law).
 Law provide for a jury system, including procedures for the selection of
jurors, but did not address function and jurisdiction of jurors.
 jury system not function until a comprehensive judicial reform is
completed
Belarus

In 1992 Supreme Council approved idea of


introducing an Anglo-American type jury
1999 Code of Criminal Procedure sought to
introduce the jury into the Belarusian criminal
justice system
in 2000 jury provision was repealed in favor of
maintaining the people’s assessors model
there are approximately 32,000 people’s assessors in
Belarus
Kazakhstan

In 1998, article 75(1) of the Constitution of the


Republic of Kazakhstan was amended to state that,
“In cases provided by law, criminal procedures shall
be realized with the participation of jurors.”
16 January 2006 Law on Jurors and Section 13 of the
CPC “On Court with Participation of Jurors was
adopted that introduced French model of the mixed
court with 2 professional judges and 9 lay assessors
These laws came into force in January 2007
 Kazakhstani law gives the prosecutor at most 2 peremptory challenges, and the
defendant no more than 3
 Kazakhstani law does not provide right for parties to question prospective jurors
directly. Parties must submit their questions to the presiding judge
 Kazakhstani law forbids admission of character evidence concerning defendant’s
prior criminal record and other information that may have a prejudicial effect
 Kazakhstani law allows a simple majority (6 out of 11 votes) to reach any result,
except for sentencing with exceeds fifteen years of imprisonment, and the death
penalty
 In cases involving 15 or more years of imprisonment, 8 out of 11 votes are
sufficient. The death penalty can be imposed by a unanimous decision of both
professional judges and all 9 lay assessors.
 Simple majority verdict system reveals the intention of Kazakhstani lawmakers to
reduce possibility of acquittals in mixed courts. If both professionals in mixed
panel agree that defendant is guilty, support of only a minority of people’s
assessors is needed for a finding of guilt
Kyrgyzstan

In 2002 President Askar Akaev proposed re-


introduction of a Soviet type mixed court system with
1 professional judge and 2 lay assessors
After the Tulip Revolution in March 2005 the new
Kyrgyz government announced its intention to
introduce jury, which would be a part of the criminal
justice system along with lay assessors
Article 79(1) of the new constitution
 Citizens of Kyrgyz Republic have right to participate in
administration of justice in cases and in the manner provided
by law
Jury Statistcis
• More than 90 percent of all jury trials in the world are conducted in US
 In every country except US rate of criminal jury trial is around 1 percent or less, whereas in the US rate
is between 1.3 and 8 percent. About 1 to 2% of criminal cases are now decided by juries in UK
 Criminal jury trial rates range from 15 percent of all felony cases to as low as 2.1 percent in some state
jurisdictions.
• There are about 10,000 jury trials per year in the federal courts, of which about half are civil.
• Approximately 150,000 jury trials annually are conducted in state courts in the U.S
• 2/3 of jury trials are criminal trials
• 1/3 are civil and "other" (e.g., family, municipal ordinance, traffic)
• Civil jury trials in state courts account for about 1 percent of all civil case dispositions. In the federal
system, this figure was about 2 percent for 1990. The bulk of civil cases are resolved by negotiated
settlement between the parties.
• 60,000 criminal cases settled by jury trials in any year in the United States.
• Less than 5 percent of state felony criminal cases are resolved through a jury trial. Nearly 90 percent of
criminal defendants plead guilty and never go to trial at all.
• Others waive their right to a jury trial and choose to be tried before a judge.
• Fewer than 1 out of every 100 US juries are sequestered.
• Fewer than 5 percent of federal juries deadlock in US
• In some states deadlock rate reaches 10 to 15 percent
• In the federal system alone, more than 400,000 citizens were involved in voir dire in 1990 and more
than 100,000 were chosen to serve as jurors.
American jury awards

Median jury award in state courts is about $52,000, of


which about half is consumed in fees and costs.
Approximately 8 percent of jury awards exceed 1 million
dollars.
Punitive damage awards, are infrequent and are most
likely to be made in contract-related cases.
Median punitive award in tort cases is quite modest
($38,000), but the mean is much higher ($590,000)
because of the existence of a number of very large awards.
Juries convict in 2/3 to ¾ of all felony cases
submitted to them
each felony jury trial takes about 2 to 4 days to
complete
Jury selection phase of a felony case can last less
than an hour or can drag on for several days, but on
average seems to take up about 20 to 35 percent of
total trial time
Guardian Of Rights Or Medieval Relic

• Juries inject community values into the formal legal process, and thus they can
bring a sense of equity and fairness against the cold and mechanistic
application of legal rules.
• Jury opens up the justice system to independent scrutiny and in turn helps to
promote public understanding of the justice system
• jury trials lend legitimacy to court decisions because the general public sees
that people like themselves have handed down the verdicts
• popular participation in the judicial system helps to make court decisions more
acceptable to the community
• Juries legitimizes the law by providing opportunities for citizens to validate
general statutes in their application to specific trials
• verdicts should represent the conscience of the community and not just the
letter of the law
• Jury helps to promote the ends of adversary litigation,
opening up dialogue and participation between the parties
and curbing any judicial inquisitorial tendencies
• Juries are an important check against state power
• Juries are likely to provide a more sympathetic hearing to a
party, who is not part of the government or other
establishment interest, than would representatives of the state
 criminal jury protects against tyranny and oppression because
the government may not imprison a defendant until it
convinces a jury of ordinary persons that the accused is guilty
beyond a reasonable doubt
• jurors are selected randomly from a representative cross
section of the community
• no citizen should be denied the right to serve on a jury on
account of race, religion, sex, or national origin
• jury is best surviving example of direct rather than
representative democracy
• Jury as an endurance of medieval liberty, in the sense of
communal, as opposed to official, judgment
• high frequency of jury trial with conscription of large
numbers of citizens to serve on these juries may have
the socializing and legitimizing functions.
• jury provides an important civic experience
• jury makes tolerable the stringency of certain decisions
• jury acts as a sort of lightning rod for animosity that
otherwise might centre on the judge
• jury is a guarantor of integrity since it is more difficult to
bribe 12 people than 1
• jury as a group has wisdom and strength beyond that of
its individual members
• jury is a remarkable device for ensuring that the rigidity
of the general rule can be shaped to justice in a particular
case
• Jury ensures that justice would be directed by the spirit
of the law and not by its letter
there is a natural temptation for jurors from one
particular background to be disposed to acquit those
from the same background and conversely to convict
those from a different background
checks and balances can be put in place to try to
prevent prejudice.
 give more control to the judge
 exercise control over the selection of juries
 transfer trials to different venues
 The jury is the most neutral and passive decision-maker available. At trial it
hears only evidence that has been screened for objectionable and prejudicial
material.
 Juries are made up of people who come together to hear one case; they are,
therefore, unlikely to be tainted by the sorts of predispositions judges may
develop over the course of their careers either about certain sorts of claims or
certain lawyers or litigants. ‘
 Because the jury comprises a group, no single juror's prejudices can destroy its
ability to reach a fair decision. Moreover, its members may be questioned before
trial in voir dire, which facilitates the removal of potentially biased individuals. ‘
 All this is to be contrasted with the position of trial judges, who have to labor
unceasingly to manage litigation before them, who inescapably bring their legal
and political experiences into the courtroom with them, and who cannot be
questioned regarding their opinions or sympathies.
Juries’ selection

2 techniques have been developed in recent years


that promise to reinvigorate voir dire while
restraining lawyer excesses.
 to allow lawyer supplementation of the judge's questioning, thereby
making it possible to secure both the benefit of judicial restraint and
lawyer probing.
 to supplement oral voir dire with a written questionnaire answered by
each potential juror.
Methods of Selection

Random selection is the method adopted for selecting jurors


in Austria, Belgium, Malta, Russia, Spain, and Switzerland.
Random selection is also used to choose lay assessors in
Austria, Greece, France, Italy, and Portugal, and sometimes
in Germany.
In the Czech Republic and Latvia, people may even be
excluded from jury service on the basis of a previous
occupation, such as a former staff member of the KGB,
military personnel, and other collaborators of the
communist regime.
 The most common method of selection in continental Europe is by
appointment. This method is used for the selection of jurors in
Denmark, Norway, and Sweden, as well as for the selection of lay
judges in the vast majority of the Council of Europe Member
States.
 In some European jurisdictions, such as Sweden, lay judges are
"selected by political parties in proportion to the votes for the
county council
 In some European jurisdictions, including the Swiss canton of
Zurich, lay judges are elected by the people directly.
 Some jurisdictions, such as Germany, require a 2/3 vote by the
legislature to approve the list of candidates for lay judges.
Appointment is a 2-phased procedure.
At the 1st stage, candidates are nominated by officials of
an executive authority, by representative bodies, by
interest groups, by courts, by a group of citizens, or by
candidates themselves.
The 2nd phase of an appointment is the approval of the list
of candidates which is usually made by local legislative
assemblies.
 The selection of the lay judges for a specific trial or term of service is
usually conducted by the relevant court.
 Judges, or a special committee of the court, select the candidates by lot, as
in Denmark and Germany, or by appointment, as in Bulgaria and Slovenia.
 In some jurisdictions, such as Sweden, the relevant court is allowed to
examine the eligibility of the elected lay judges.
 In Iceland, the trial judge selects and appoints the expert assessors.
 Unlike Anglo-American jury systems, terms of service for the majority of
European lay judges are not limited to a single trial.
 Only lay adjudicators in Belgium, France, Portugal, Russia, Spain, and
Switzerland try a single criminal case.
 Jury duty in Austria lasts 5 days per annum for 2 years and in
Denmark, a specific number of days per annum for 4 years. The
same practice applies to the German collaborative court model,
where lay assessors serve a fixed term for a number of years
with the possibility of re-election.
 Term of service of lay assessors varies from country to country:
Bulgaria—at least 60 days for a 5-year term; Greece — 24 days;
Germany and Slovakia — 12 days for a 4-year term; Czech
Republic— no more than 20 days for a 4-year term; Latvia—30
days for a 5-year term; Slovenia — 5 years; and in Croatia,
Estonia, Finland, Hungary, Norway, and Sweden— 4 years.
 9 European countries allow the prosecution and defense to challenge lay
judges or jurors without cause:
 in Belgium, a maximum of 6 jurors may be challenged by each party;
 in Denmark, both the prosecution and defense may challenge 2 jurors (not including lay
assessors) in ordinary trials and 4 in trials concerning political offences;
 in France, the prosecution may challenge four jurors in the cour d'assises and 5 in the cour
d'assises d'appel (court of appeal), and the defense may challenge 5 and 6 jurors, respectively;
 in Greece, the public prosecutor and the defense are entitled to 2 challenges each;
 in Malta, the Attorney General and the defense are allowed 3 peremptory challenges, but where
there are more than 3 accused in one case, each has a right to 2 peremptory challenges only;
 in Norway, the prosecution and defense each may exclude 1 or 2 potential jurors;
 in Russia, the prosecution and the defense have 2 challenges each, and where there are several
defendants, challenges are conducted by mutual agreement, majority vote, or by lot;
 In Spain, both the prosecution and defense are permitted 4 peremptory challenges;
 in Switzerland, parties may challenge 4 jurors in the cour correctionnelle and 8 in the cour
d’assises.
Change of venue

Change of venue is remedial measure when


there is concern that
 jury pool may be tainted from media publicity; or
 from interpersonal sources of tainting when the crime is of
particular concern to large segments of the community.
In US and Canada courts admit expert
testimony based on scientific surveys assessing
state of public attitudes in the community near
the time of trial
Challenge for cause
 Jurors may be challenged for 4 types of prejudice
 Interest prejudice involves instances in which a juror may have a direct stake, or the
appearance of a stake, in the outcome of the case. Interest prejudice usually is
recognized when the juror is related to one of the parties or witnesses in the suit, has
financial or political dealings with one of the parties, or could be affected in some way by
the verdict.
 Specific prejudice involves attitudes and beliefs about the particular case or the parties
that could potentially cause the juror to be incapable of deciding the case with an
impartial mind. These attitudes and beliefs may result from personal knowledge or
biases about the case, public discussion and rumor, or from mass media coverage of the
crime or the parties.
 Conformity prejudice arises when the case is of significant interest to the community
such that a juror may perceive that there is a strong public consensus about the case and
the proper outcome. As a consequence, some jurors may be influenced by felt pressures
to reach a verdict in accord with the community consensus rather their own personal
judgement regarding the weight of the evidence.
 Generic, or general, prejudice involves the transferring of bias as a result
of juror stereotyping of the defendant, victims, witnesses, or the nature of
the crime itself. The stereotyping is accompanied by assumptions about
categories of persons who fall into these categories, assumptions that the
juror declares he or she cannot set aside in evaluating the evidence. Biases
against members of racial or ethnic groups is one example; prejudice
against homosexuals or large or foreign corporations is another example.
Both specific and generic prejudice would fall under what Blackstone
identified as ‘bias on the favour’. Recall that juries de medietate linguae
were established in England at least partly because of the recognition that
English jurors might not be indifferent to the evidence when one of the
parties was a foreigner. Arguably, some special juries evolved out of the
same types of concerns.
Challenge for cause

There is a legal presumption that a juror is impartial


Burden of proof for overcoming this presumption
lies with the party requesting the challenge.
In practice, this is almost always the accused.
Standard of proof is low, namely proof of an "air of
reality" or a "realistic potential "
Peremptory challenge & stand aside
 In more diverse communities, the right to make a peremptory challenge can act as an
important "safety valve," which enables defendants to correct any perceived under-
representation of his or her community on the jury and correct any perceived religious or
political imbalance
 UK and Republic of Ireland have abolished peremptory challenges, but US, Australia, New
Zealand, Northern Ireland, and Canada all retain peremptory challenges. In the Australian
state of Tasmania only the defense retains challenges.
 In UK there remains the option of challenging for cause in these jurisdictions but parties are
not allowed to question jurors in these countries to establish cause.
 In Canada questioning of prospective jurors is generally limited to asking jurors whether their
ability to judge the evidence would be affected by certain facts in the case.
 Although in the earliest development of the jury system Crown had an
unlimited number of peremptory challenges, by the 14th century only the
defendant could exercise them. In capital cases the number of peremptory
challenges was set at 35
 However, while Crown’s peremptories were taken away, it had an unlimited
number of stand asides.
 Stand aside was a procedure whereby Crown could require that any juror that
it viewed unfavorably for any reason could cause that juror to be passed over in
favor of the next juror.
 Only if the jury pool was exhausted through peremptories or challenges for
cause was that juror called back to sit on the jury.
 stand aside provision still exists in England, even though the defendant’s
peremptory challenges have been abolished. This Crown privilege is supposed
to be used sparingly.
Non-discrimination in jury selection

 In 1986 Supreme Court in Batson v. Kentucky held that it was improper for
lawyers to use peremptory strikes to remove African-American juror candidates
simply because of their race.
 The Court mandated a 3-step process beginning with the complaining party
making a "prima facie [showing] of purposeful discrimination" based on race.
Once the complainant has made such a showing, the burden shifts to the party
who exercised the peremptory strikes to articulate a "neutral explanation" for
his or her selections. Then it is up to the trial court to decide whether unlawful
discrimination has been proven
 In 1994 J.E.B. v. Alabama Supreme Court has extended Batson rule to
peremptory challenges that discriminate on the basis of gender.
 1st woman to serve on a jury anywhere in world took her place in a Wyoming
Territory panel in 1870
 word “male” was not expunged from many qualification statutes until 1930s.
"Scientific selection" of jurors

 Task of selecting jurors has become increasingly difficult as


America's population has grown, the diversity of the jury pool has
increased, and lawyers with a national practice find themselves
more frequently trying lawsuits in communities they do not know.
 Since the early 1970s, method of so-called "scientific selection" of
jurors become increasingly popular. It relies on the input of "jury
consultants“ - social scientists, etc, to help lawyers exercise their
peremptory strikes.
 Science (or, more accurately, business) juries’ selection is premised
on the notion that statists, evaluation of community attitudes,
surveys, focus groups, and courtroom assessment of juror behavior
can significantly improve the identification of favorable jurors.
 If true, jury trials might be reduced to contests to see whose
social scientists are better at profiling favorable jurors.
Fortunately for the jury system, such a scenario is
unsupported by careful research.
 overwhelming majority of decisions are dictated by the weight of the evidence
rather than any trait of the jurors.
 most significant benefit to be derived from the use of jury consultants is not
related to peremptories at all but to the pretrial rehearsal and critique such
consultants provide for lawyers.
 Extensive questioning of jurors by the opposing lawyers
assisted by "jury consultants“ takes place in high profile trials.
In ordinary trials in most federal courts the questioning is
conducted by the judge in a truncated hearing.
Trier
 By the middle of the 1700s English law allowed challenges to jurors on the grounds that they were not eligible
to serve or not impartial with regard to a “manifest presumption of par-tiality“ or ”to the favour”.
 Ineligibility would include persons who were not landholders or persons convicted of a crime.
 ‘Manifest partiality’ involved such matters as a juror having a consanguinity relationship to one of the parties
in the litigation; having accepted money or gifts; having owed money to one of the parties; or having
expressed an opinion about matters in dispute at the trial.
 Challenges on the grounds of ‘manifest partiality’ were usually decided by the court, but the decision could be
placed in the hands of 2 triers. However, all challenges ‘to the favour’ were required to be decided by triers.
 Decision about prejudice was placed in the hands of some of the members of the jury panel rather than the
court.
 Triers were 2 members from the jury pool who were sworn as arbiters to determine the truth of the challenge.
They listened to the evidence, including sworn testimony of juror who was challenged, and rendered a verdict
as to the validity of the challenge - whether he or she is "impartial between the Queen and the accused."
 After the 1st juror is chosen, he or she replaces one of the triers to choose the 2nd impartial juror.
 The 1st 2 jurors then serve as triers for juror number 3; jurors 2 and 3 are the triers for juror 4; the rotating
"trier" schedule continues until 12 jurors are seated.
 Even if the triers decide that a person is impartial, either the Crown or the defendant can exercise one of their
peremptory challenges necessitating other jurors to be called and tried until that juror slot is filled.
Trier procedure today
 Trier procedure persisted into the late 19th century in some federal
and state courts in the United States. In Connecticut and
Philadelphia (though not necessarily in other courts in
Pennsylvania) judge is absent and lawyers conduct the questioning
and choose the jurors. Judge plays a role in cases of conflict
 It is reasonable to hypothesize that the disappearance of trier
procedure in US was due primarily to the fact that litigants were
given relatively extensive powers to question jurors and reject them
through the use of peremptory challenges or challenges for cause
made through motions to the judge.
 Today the trier procedure remains as a common procedural practice
only in the Canadian jury system, although it is available, but rarely
used, in Australia.
Number of jurors

 In Scotland juries consist of 15 people for criminal trials and 12 people for civil trials.
 Civil juries of US and Canada and rare civil juries in other countries show considerable
deviation from the number 12, though not ordinarily dropping below 6 persons, except in New
Zealand where 4 person juries were authorized for civil and minor criminal cases.
 In 1970 Supreme Court, in Williams v. Florida, upheld a Florida statute mandating 6 person
juries in all state court criminal prosecutions except those involving the possible imposition of
the death penalty. In the Williams decision, the Supreme Court referred to reliance on 12
jurors as an "historical accident. Three years later, the Court extended the 6 person rule to
federal civil trials in Colgrove v. Battin.
 Research would strongly suggest that smaller juries
 are no more efficient than larger ones.

 is likely to lead to more wildly fluctuating verdicts,

 reduces the opportunity for minority jurors to serve,

 place added pressure on minority jurors who do serve to surrender to the majority point of
view.
 In Ballew v. Georgia, the Supreme Court rejected 5 member juries as constitutionally
inadequate in criminal cases.
University of Chicago Study
HARRY KALVEN, JR., and HANS ZEISEL, in collaboration with THOMAS CALLAHAN and
PHILIP ENNIS. The American Jury. Boston: Little, Brown, 1966.

• Judicial exposure to inadmissible prejudicial materials concerning criminal defendants' prior records
clearly affected judges' judgments about guilt and innocence and led them to decide more cases against
defendants than untainted juries did.
• A study found that trial judges agreed with more than 3 out of every 4 jury verdicts in their courtrooms
• Survey of some 7,000 jury trials, conducted in 1966, the presiding judges were requested to reveal how
they would have decided without a jury
 There was complete agreement between the judges and the juries in some 66.2 per cent of the cases.
 Of the 33.8 percent on which there was disagreement, some 19.1 percent, or more than one half of the
total, was on the question of guilt.
 As to the nature of the disagreement, some 34 percent was over the facts in the case; 45 percent over a
combination of facts and values, and 21 percent over values alone.
 Juries tended to be more lenient than judges: in some 28.3 percent of the cases, as against 5.5 percent
for the judges.
 Disparity in ability of the defense counsel does not produce more than a 1 percent difference in the
outcome of verdicts
University of Chicago Study
HARRY KALVEN, JR., and HANS ZEISEL, in collaboration with THOMAS CALLAHAN and
PHILIP ENNIS. The American Jury. Boston: Little, Brown, 1966.

 Main reasons for disagreement between judges and juries:


• sentiments on the law - 29 percent;
• sentiments on the accused -11 percent;
• issues of evidence -54 percent;
• facts that only the judge knew - 2 percent;
• disparity of ability on the part of the defense counsel - 4 percent.
• In both civil and criminal trials, judge and jury agreed in 78 percent of all verdicts
• In civil cases the disagreement in the remaining cases was symmetrically split
• In 19 percent of the criminal cases the judge would have convicted, whereas the jury
acquitted
 There seemed to be no marked difference in the ability of the lawyers for the
defense and for the prosecution.
• In 11 percent of the cases, the defense counsel was superior
• in 13 per cent, the prosecution lawyers were superior
• in 76 per cent of the cases they were of about equal ability.
University of Chicago Study
HARRY KALVEN, JR., and HANS ZEISEL, in collaboration with THOMAS CALLAHAN and
PHILIP ENNIS. The American Jury. Boston: Little, Brown, 1966.

Study showed that jury verdicts are based on a careful


following and analysis of the evidence produced in the
trial
Study disprove following criticisms:
 jury verdicts are not arrived at as the result of protracted
discussion, argument, and analysis in the jury room, but rather
by the posture of the vote at the beginning of the deliberation
process.
 Deliberation by juries is not the method by which verdicts are
reached. It is only the route by which small group pressures
produce consensus out of the initial majority.
John Baldwin & Michael Mcconville,
Jury Trials (1979)

 Study of the Birmingham Crown Court in the 1970s


 Defense side tended to see acquittals as justified, and the prosecution side
tended to see them as questionable.
 Acquittals were seen as fully justified 83 percent of the time by defense
solicitors, compared with 65 percent by prosecuting solicitors, and 48 percent
by the police.
 The defense solicitor expressed "serious doubts" about only 10 percent of
acquittals, while the prosecuting solicitor expressed "serious doubts" about 26
percent of acquittals and the police 44 percent.
 Not surprisingly, the pattern was reversed in cases of conviction - Prosecuting
solicitors doubted the convictions least often and defense solicitors doubted
them the most often.
 Police expressed the most doubt about both convictions and acquittals,
suggesting an overall skepticism of jury verdicts.
Free Press vs Fair Trial

 US and England may be seen to occupy 2 ends of a continuum with respect to controls on the
media
 In US 1st Amendment has been interpreted by Supreme Court as allowing media extensive
access to all major phases of trial.
 Statutory and common law in England place severe restraints on what the media may report,
subjecting violators to sanctions involving heavy fines or even jail.
 After charges have been laid against an accused, media in UK are constrained to reporting
only the barest information about proceedings before trial, such as the names of persons
involved and the place and date of a preliminary hearing or inquiry.
 Reporting constitutes contempt if the reporting gives rise to a ‘substantial risk’ that the trial
will be ‘seriously impeded or prejudiced’.
 All common law jury systems retain change of venue as a remedial measure when there is
concern that the jury pool may be tainted from media publicity or from interpersonal sources
of tainting when the crime is of particular concern to large segments of the community.
Jury confidentiality

 Some courts have placed limitations on the press, what individual jurors may say to the
press, and even limitations on what jurors are permitted to disclose, but, in general,
there are few restraints on jurors.
 In England, N Ireland, and Canada the law forbids jurors from disclosing the content of
jury deliberations, avoiding many of these problems.
 Secrecy of deliberation not only prevents disclosure of what jurors are thinking, it also
prevents disclosure of how their decision is arrived at.
 In England, Canada, Australia, and New Zealand the jury confidentiality constraints
have prevented legal and social science scholars from interviewing jurors even though
the information derived from the activity might shed light on contentious policy debates
about jury.
 However, in both Australia and New Zealand those restraints have recently been
loosened to allow researchers access to jurors for purposes of studying jury policy
issues.
 Today jurors in US are rarely sequestered
 Law in many countries bars testimony or statements by jurors offered to prove virtually anything
about deliberation - any matter occurring or statement made, or effect of anything on mind or
emotions of any juror, or mental processes of the juror whose statement of testimony is offered
 Jurisdictions also go to varying lengths to restrict communications between jurors and other parties
about what happened in the jury room.
 Jurors can testify about the existence of improper influences but not about what effect this had on
the jury's deliberations.
 Communications between the jury and persons outside the jury are invariably forbidden during the
trial and during deliberations and some jurisdictions go so far as to prohibit anyone from obtaining
particulars of any statements made by jurors during the course of jury deliberations.
 Even jurisdictions which permit interviews with jurors after trial often take steps to protect jurors
from harassment and to ensure that jurors are made aware that they have an absolute right not to
discuss the deliberations or verdict in the case with any person.
 Recent amendments to s. 206 of the Californian Code of Civil Procedure provide that attorneys who
seek post-verdict information from jurors must identify themselves and remind jurors of their
absolute right not to discuss the deliberations or verdict in the case with them.
Judicial comment on evidence

 Following fairly closely the practices devel-oped in the 17th and 18th
centuries in England, in all countries except US and Scotland judges
have the positive duty to not only instruct the jury on the applicable
law but to also impartially review the trial evidence.
 In Scotland the judge is not required to summarize but does have
the authority to do so.
 Most US states outlawed judicial comment on the evidence (known
as "summing up") in the 1800s by constitutional provision, statute,
or judicial decision
 Although such commentary would be permissible in federal courts
and some state courts in the United States, in practice it appears to
be obsolete.
Judicial comment on evidence

 Judge must impartially, but substantially, review the theories of the prosecution and the defense and the evidence
presented by both sides
 This review may include commenting on the strengths and weaknesses of witnesses and discussion of how the
totality of evidence fits with the theories of the opposing sides.
 Judge is entitled to express an opinion to jury about importance of various pieces of evidence and may even offer an
opinion regarding the credibility of a witness
 In undertaking this commentary, judge must make it clear that jury is not bound to accept her opinion regarding
facts
 Judge also has obligation of raising any questions arising from the evidence that favor the accused even if they were
not raised by the accused's legal counsel
 jurors are usually given instructions only once -- after all the evidence has been heard and the lawyers have made
their closing arguments. This arrangement keeps jurors in the dark about the law throughout the case and allows
them only a single chance to learn about its requirements.
 If relevant instructions were given at the start of the case or before final arguments, jurors would be afforded extra
opportunities to consider the law's import and apply it to the facts.
 Moreover, lawyers would have a clearer picture of the law being presented to the jury and could more effectively
tailor their proof and remarks to the legal principles laid down.
 written copies (or, in some cases, tape recordings) of the instructions facilitates jury review during deliberations,
enhances the accuracy of recollection of legal requirements, and focuses jurors on the precise legal questions to be
resolved.
 In some jurisdictions, such as Austria, Spain, and Swiss
canton of Geneva, judges should only explain questions of law
to the jurors.
 In other countries, such as Russia, besides legal issues, judges
also summarize evidence heard in court without formally
expressing their personal opinions about the evidence.
 In the third group of countries, which includes Belgium,
Denmark, Malta, and Norway, judges direct jurors on the law
and may also comment on the evidence.
 Instead of the standard of proof of 'beyond a reasonable doubt'
applied in common law jury systems, judges in Austria, Belgium,
Russia, and Spain instruct jurors on such principles as intime
conviction, or "deep-seated" conviction, presumption of
innocence, and in dubio pro reo.
 In these countries, freedom of jurors to evaluate evidence
according to their in time conviction is limited by two principles:
presumption of innocence and in dubio pro reo.
 In dubio pro reo principle, which means "in doubt you must
decide for the defendant," was developed by continental jurists
in the 12th and early 13th centuries, based on works of Pope
Gregory the Great (c. 540 - 604)
Jurors’ questions and preliminary deliberation

 Over time the role of the jury became even more passive in the sense that legal
theory and actual legal practice developed around the notion that the jury should
be seen and not heard.
 By the middle of the 20th century juries were not ordinarily instructed of their right
to ask questions and in fact usually discouraged from asking them.
 Juries also instructed that they should not discuss any of the evidence among
themselves until after the closing arguments and instructions from the judge
 In Arizona, a state that leads in jury reforms, jurors are specifically instructed that
they may ask questions of witnesses through written submissions to the judge, and
they are encouraged to do so.
 Judge reviews the questions to ensure they do not violate legal rules before they
are allowed and ordinarily the judge will read them.
 Arizona juries are also instructed that they may discuss the evidence during the
trial whenever all jurors are together in the jury room during recesses and before
the court opens for the day.
Civil Jury

 was seen as a safeguard against the domination of the courts by the


merchant classes and served as a bulwark against threats to fundamental
freedoms
 decide complex matters involving causation and liability and determine
compensatory and exemplary damages, sometimes involving very large
sums.
 Juries promote settlement and thereby save cost and time in the
administration of justice: More jury cases settle prior to trial, and the jury
cases that reach trial settle earlier than bench-trial cases that settle
 Critics view civil litigation as an ill-suited mechanism for providing
compensation and effecting deterrence in most areas of torts and instead
look to administrative state to provide redress
 with the exception of the United States and parts of Canada, the jury has
been largely abandoned for civil cases.
Unanimity & majority verdicts

 in his "Fundamental Constitution of Carolina," Locke declared, "that it should not


be necessary for a jury to agree, but that the verdict should be according to the
opinion of the majority."
 Historical juror unanimity rule has shown considerable erosion in England and
Republic of Ireland.
 In those countries jury is told to deliberate under a unanimity rule, but after a
period of time, typically around 2 hours, it is informed that a majority of 10 is
sufficient.
 Scotland’s jury is unique with its rule allowing a bare majority of eight of the 15
members for a valid verdict.
 Another thing that distinguishes the Scots jury from all other juries is that if a
majority of 8 cannot be achieved, the accused is entitled to an acquittal.
 In other countries, failure to achieve unanimity or the requisite majority for
conviction or acquittal permits the prosecution to retry the case to a new jury.
In Canada, New Zealand, and federal and most
state courts in the United States unanimity is
required.
In Oregon and Louisiana majority verdicts are
allowed for criminal trials. Majority verdicts are
also allowed in civil trials in many US states.
Unanimity & majority verdicts in US

• Unanimous verdicts was specifically embraced by the Supreme Court in 1897 in American Publishing Co. v.
Fisher.
• American Publishing stood until 1972, when, in reviewing a pair of state criminal decisions, the Supreme Court
held that less than unanimous verdicts are constitutionally permissible in state court convictions.
• In Apodaca v. Oregon, the Court upheld an 11/1 verdict in an assault with a deadly weapon case, while in
Johnson v. Louisiana, a 9/3 conviction regarding a robbery charge was accepted.
• In 1972, when Johnson was decided, under both the Louisiana Constitution and the Code of Criminal
Procedure, criminal cases in which there was a mandatory punishment of hard labor were tried by a jury of 12,
and the vote of 9jurors was sufficient to return either a guilty or not guilty verdict.
• Only Louisiana and Oregon accept less than unanimous verdicts in felony criminal trials
• Juries that needed only to reach an 8/4 verdict in a particular mock case deliberated 75 minutes on average,
while their unanimous-jury counterparts needed 138 minutes, and 10/2juries needed 103 minutes.
• Majority rule juries felt significantly less certain about the correctness of their decisions.
• Critics believe that under a majority rule regime, minority viewpoints and contributions may be marginalized or
even disregarded altogether.
 Unlike juries in many common law systems, continental jury systems do not require unanimity for
verdicts.
 4 European jurisdictions: Austria, Belgium, Russia, and Switzerland, employ a simple majority
rule, and in another 4 jurisdictions, jurors can convict the defendant by a qualified majority.
 simple majority rule contradicts the principle of the general presumption of innocence. very fact
that a substantial minority have voted against guilt in itself suggests that the defendant's guilt has
not been proven beyond a reasonable doubt.
 In Denmark, the verdict is reached by 8-out-of-12 votes; in Malta, 6-out-of-9; in Norway, 7-out-of-
10; and in Spain, 7-out-of-9.
 Finland and Sweden are the exceptions, since some of their courts consist of 1 professional and 3
lay judges.
 Although the German courts use 2/3 majority, in fact, in the panel of 1 professional and 2 lay
judges, 2/3 majority and simple majority are the same.
 Finnish and Swedish collaborative courts are the exceptions, since in order to convict, they require
at least 2-out-of-3 lay judges' votes.
 8-of-12 votes of the whole panel are required for a conviction in France; this means that at least 5-
of-9 lay judges must vote for a guilty verdict.
 Generally, in the German model a guilty verdict is satisfied by a simple
majority vote, which means that the court can convict the defendant if all
professionals and half, or in some cases, even a minority, of lay judges concur,
because number of lay judges cannot exceed the number of professionals by
more than one.
 In contrast, French collaborative court model requires at least 55 percent of
the lay assessors' votes for a conviction.
 2nd characteristic of the French model is the secret ballot rule. This rule
mandates that lay judges have freedom to express their final decision on the
defendant's guilt according to their intime conviction and anonymously from
the professionals, as well as from one another.
 Thus, in the French collaborative court model lay assessors have greater
freedom and opportunity to influence the verdict than in the German model
General verdict

 There are, essentially, three forms of verdict possible: a general


verdict, a general verdict with interrogatories, and a special
verdict.
 Most frequently used form is the general verdict
 General verdict leaves all questions about the legal and factual
merits in the jurors' hands.
 It asks the jury only to declare which side has prevailed and fix
damages, if appropriate.
 This form cedes the jury maximum authority.
 Jurors do not have to explain or justify their decision in any
way.
General verdicts with interrogatories
 General verdicts with interrogatories take a significant step away from jury control
toward judicial management and oversight to make sure that the jurors have
understood the case and rationally integrated facts and law.
 Jury is still asked to deliver general verdict but is also required to answer a series of
supplemental questions on the factual underpinnings of the verdict and require the
jurors to specify a number of their factual conclusions.
 Jury's responses allow the court to scrutinize the soundness of the panel's reasoning.
 If the interrogatory answers are consistent with the verdict rendered, then the judgment is fully validated.
 If the verdict is inconsistent with the interrogatories but the interrogatories are internally consistent, the
court may enter a verdict on the interrogatories, ask the jury to deliberate further, or order a new trial.
 When the interrogatories are internally inconsistent, jury may be asked to deliberate
further or a new trial may be required.
 General verdict with interrogatories is viewed as particularly useful in complex cases.
Special verdict

 Special verdict shifts even more responsibility to court.


 When used, it requires that jurors answer a series of special questions
about the facts of a case.
 special verdict finds only the facts, leaving court to decide which of the
parties should receive judgment
 Special verdict removes the jury's ultimate decision-making power, as
court determines legal outcome, based upon jury’s answers
 Field experiments have shown that in trials where special verdict forms
were used, jurors reported feeling better informed, more satisfied, more
confident that their verdict was correct and reflected a proper
understanding of the judge's instructions.
 Providing justification for verdict is cumbersome and burdensome for
juries
In some of US States - Georgia, Louisiana, Maryland,
and optionally in Minnesota - in all criminal cases
the jury are to be the judges of both law and fact
Similar provision in Illinois has been practically
annulled by Supreme court of that state.
In Indiana province of judge has been further
encroached upon by a provision giving to jury which
convicts an offender of a capital offense, the right to
decide whether he shall be punished by death.
Right to a Reasoned Judgment

 Although ECHR does not provide for right to a reasoned judgment, this right has been
established in several decisions of the European Court of Human Rights.
 However, European Court does not oblige national tribunals to give a detailed answer to every
argument.
 Since the European Court in these cases interprets the right to a reasoned judgment as a part of
the right to a fair trial guaranteed by Article 6 (1) of ECHR, only the defendant can require a
reasoned judgment from the court.
 Article 2 of ECHR requires states to take appropriate steps to safeguard the lives - states must
not only provide for substantive criminal law provisions against unlawful killing but also must
take steps to protect individuals whose lives are known to be at risk from the criminal acts of a
third party
 Where a judge learns that a jury is about to acquit a defendant who is charged with the
attempted murder of a victim and there is strong evidence against him and evidence also that he
is likely to remain a serious risk to the victim's life, it may be asked whether in these
circumstances the judge would be required to discharge the jury in order to ensure full
compatibility with the European Convention.
In the Zarouali v. Belgium (1994) and Papon v. France
(2001) cases the Commission and the Court found that
 “although the jury could answer only 'yes' or 'no' to each of the
questions put by the President, those questions formed a
framework on which the jury's decision was based”, that “the
precision of those questions sufficiently offsets the fact that no
reasons are given for the jury's answers” and that “this appraisal is
reinforced by the fact that the Assize Court must state its reasons
for refusing to refer a question from the prosecution or the
defence to the jury”.
Taxquet V. Belgium (2009)
 The requirement for reasons to be given must also accommodate any unusual procedural
features, particularly in assize courts, where the jurors are not required to give reasons for their
personal convictions.
 In the instant case, the questions to the jury were formulated in such a way that the applicant
could legitimately complain that he did not know why each of them had been answered in the
affirmative when he had denied all personal involvement in the alleged offences. The Court
considers that such laconic answers to vague and general questions could have left the applicant
with an impression of arbitrary justice lacking in transparency. Not having been given so much
as a summary of the main reasons why the Assize Court was satisfied that he was guilty, he was
unable to understand – and therefore to accept – the court's decision. This is particularly
significant because the jury does not reach its verdict on the basis of the case file but on the basis
of the evidence it has heard at the trial. It is therefore important, for the purpose of explaining
the verdict both to the accused and to the public at large – the “people” in whose name the
decision is given – to highlight the considerations that have persuaded the jury of the accused's
guilt or innocence and to indicate the precise reasons why each of the questions has been
answered in the affirmative or the negative
 In these circumstances, the Court of Cassation was prevented from carrying out an effective
review and from identifying, for example, any insufficiency or inconsistency in the reasoning.
 Some argue that tribunal should give reasoned judgment in
order to demonstrate that they have not relied on improper
or prejudicial evidence to reach verdict. It can also be argued
that it enhances a defendant's right to appeal the judgment.
 In Belgium, Denmark, Norway, Spain and Switzerland jury is
obliged to provide an explanation for their decisions
 Compensating measure against an unreasoned judgment is
that legislation could provide the defendant with a right to be
re-tried by a court consisting of professional judges, or by a
special appellate lay tribunal, as is permitted in Greece, Italy,
France, and Norway.
 US Court of Appeals has considered that asking juries questions based
on the verdict risks "catechizing jurors away from an acquittal towards
a seemingly more logical conviction. Yet the jury, as the conscience of
the community must be permitted to look at more than logic."
 it may prove very difficult for 12 persons drawn from all sections of the
community to agree what reasons should be
 requiring juries to give reasons for acquittal interferes unduly with their
power
 If only guilty verdicts are required justification, danger is that juries
might be tempted to answer "yes" or "no" to the questions put in
perfunctory fashion, with little discussion of the evidence
Reviewing jury verdict

 judges have the right to ask juries to reconsider their verdicts and sometimes
to send a case for trial before a different jury when they disagreed with the
juries' verdict, especially where the jury is disposed to convict the accused.
 Primary sort of relief available for a fatally flawed jury decision is a new trial
of case before a new jury.
 This may be ordered if the trial judge feels she or he has committed a serious
error with respect to such matters as jury instructions or the application of
the rules of evidence.
 Alternatively, a judge may grant a new trial if jurors may be shown to have
seriously misbehaved, for example, by considering evidence not presented at
trial.
 Finally, the trial court may grant a new trial if the verdict is against "the clear
weight of the evidence." This last ground is generally said to be available
only when the original decision is manifestly unjust.
 A new trial may not be ordered simply because a judge disagrees with the jury's
assessment of the credibility of a witness or the weight of the evidence; instead, it
must be dictated by the overwhelming weight of all the proof taken together.
 Reviewing judge may use several alternative procedures rather than requiring a
new trial.
 Judge may grant judgment to the losing party (called a judgment

notwithstanding the verdict) if such a result is the only one rationally possible.
 Alternatively, the judge may insist that a new trial be held unless the plaintiff
accepts a reduction in the damages award (remittitur) or, in rare cases, the
defendant agrees to an increase in the award (additur).
 Rules regarding appellate court reversal are even more circumscribed. When an
appellate court reviews a jury's decision about the facts of a case, it is limited to
asking whether "the jury 'might reasonably' have found as it did." If there is
some basis for the jury's choice, it must be upheld.
 judge has power to direct a not guilty verdict if he or she determines
that prosecution’s evidence is not sufficient to convict.
 if the jury returns a verdict of guilty, but upon consideration the
judge concludes that evidence was not sufficient, verdict may be set
aside.
 In England, Wales and N Ireland acquittal may be set aside where a
person has been convicted of an offence of interference with, or
intimidation of, witnesses or jurors at the first trial and the acquittal
appears to have resulted from that offense
 Austria and Norway permit the professional panel to set aside a jury
acquittal by a unanimous decision, which clearly undermines the
independence of the jury
Right to Appeal

Article 2 of Protocol No. 7 to the ECHR declares: "Everyone


convicted of a criminal offence by a tribunal shall have the right
to have his conviction or sentence reviewed by a higher tribunal.
Although Protocol 7 does not require that there be appeals on
findings of fact, some argued that a right of appeal on such
grounds is an added protection against a wrongful conviction.
common law rule against double jeopardy prevents a jury
acquittal from ever being quashed, in continental systems the
right not to be tried twice only applies once defendants have
been finally acquitted
Appeal - Comparative

appeal against the jury's verdict is available in


Georgia, Ireland, Malta, Spain, Sweden and the
United Kingdom
no appeal is available in Austria, Belgium, Norway,
Russia and Switzerland (Canton of Geneva).
In Austria, convicted persons may appeal to Court of
Appeal against sentence only; they may also file a
plea of nullity with Supreme Court.
Retrial

 retrial after hang jury does not sit comfortably with the presumption of
innocence or with the associated principle of double jeopardy.
 prosecution has had its chance to prove the accused's guilt and has failed;
surely the presumption of innocence means that the accused is entitled to
be acquitted.
 presumption of innocence closes the logical space between proof of guilt
and proof of innocence, and thus where the verdict is not one of guilt, the
result must be acquittal rather than a retrial.
 if the prosecution cannot prove its case beyond reasonable doubt, the only
possible verdict should be not guilty.
Sentencing

US stands almost alone in common law jurisdictions


allowing jury a significant role in determining the
punishment of a person found guilty of a crime.
In the overwhelming majority of states where capital
punishment is used, the jury determines whether the
convicted person should die or be sentenced to a lesser
punishment.
In 5 states—Missouri, Arkansas, Kentucky, Virginia, and
Texas—the jury may be called upon to determine the
sentence of a person convicted of a non-capital crime.
 With the exception of Malta, Russia, and Spain, sentencing is no longer
sole prerogative of professionals in European jury systems.
 Austrian, Belgian, Danish, Norwegian, and Swiss juries turn into
collaborative courts when the question of sentencing arises.
 in Denmark, each of 12 jurors has 1 vote while each of the 3 professional
judges has 4 votes, which results in an equal number of votes being given
to lay panel and professional panel.
 In Norway, only 4 out of 10 Norwegian jurors - the foreman and 3 others
drawn by lot -participate in the sentencing decision, but lay sentencers
still outnumber the 3 professionals, which means that they can outvote
the professionals because all votes are given equal weight.
Jury reforms

Jurors in some jurisdictions may


 expanding the use of preliminary jury instructions,
 take notes during trial and review them during deliberations

 submit questions to the judge to be asked of witnesses

 discuss evidence during trial, prior to final deliberations

 continue deliberating with depleted numbers

 giving jurors copies of the judge's instructions

 reading the final instructions before closing arguments of counsel.

 substitute of juror alternates even during deliberations


 Attorneys in some jurisdictions
 prepare juror notebooks in complex cases
 make “mini-opening statements” to the jury panel before selection begins
 Judges in some jurisdictions
 provide for pre-instruction on substantive issues
 provide jurors with their own copies of the court’s final instructions on the law
to aid in comprehension and counsel argument
 provide jury not only with an outline of elements of offence but also a flow
chart with a sequential list of questions derived from the elements of the
offence
 one-day or one-trial terms of jury service
 a tax credit for employers who pay regular compensation and benefits to
employees while they are on jury duty
 on-site juror child-care programs and a child-care cost reimbursement
 Move towards greater jury activism is likely to have effects on a number
of rules of procedure and evidence
 It may also lead to greater pressure on jurors to become more cognitively
accountable by revealing what they are thinking during the trial
 Greater questioning by jurors enables trial participants to obtain greater
insight into what is going on in the mind of the jury.
 But this process is filtered by judge
 Note-taking by jurors also generates a "road-map" of juror thought
processes
 Notes provide a tempting means for courts and lawyers to get inside
jurors' minds.
Accountability

 Just as judges can be fallible, so can juries, and without a reasoned


decision it is often difficult to know if the jury has made a mistake or
not.
 Accountability may be defined as the duty of a public decision maker to
explain, legitimate and justify a decision and to make amends where a
decision causes injustice and harm.
 distinction can be made between
 hard political accountability
 whereby ultimately decision makers can be removed from their position where their actions
or decisions become unacceptable and
 softer measures of accountability
 which build on the requirement to explain decisions by demanding that decision making is
procedurally transparent and that decision makers themselves are representative or
reflective of the community they serve.
 Jurors usually swear an oath to give a true verdict according to the
evidence but the secrecy of the deliberation room means that there
is little means of knowing whether jurors actually do go about
deciding the case in accordance with the evidence.
 Judges have powers to discharge whole juries or individual jurors
when they are behaving improperly, including misconduct on the
part of a juror or jury and where there is a real danger of prejudice
to the accused a jury must be discharged.
 Secrecy of jury deliberations makes it difficult to uncover any
impropriety in jury room when it occurs and even when
allegations of impropriety are made there may be difficulties
under the secrecy rules in fully investigating them.
“Traditionalists" argue that there is little need to
demand greater cognitive accountability of juries
so long as judges and lawyers exercise considerable
input into the evidence admitted at trial and can
put arguments on evidence to them with
considerable freedom
Postmodernist argue that perception is not passive
process of encoding external stimuli
jurors do not soak up information like a sponge but
play an active role in making sense of it and
interpreting it as it is heard.
Juries frequently make decisions by utilizing
schemas, narratives or stories in order to
comprehend the events at the trial.
 A further question is whether jury deliberation process itself might be
opened up to greater scrutiny.
 From one side, transparency would not only reveal jury thought processes
but would also expose any improper methods used by juries to reach a
verdict which leads on to the issue of due process accountability.
 From another side, full and frank discussion in the jury room, jurors'
willingness to return an unpopular verdict and the community's trust in
the system would all be undermined by a barrage of post verdict scrutiny
of a juror's conduct.
 Secrecy helps to ensure the finality of the verdict and to maintain public
confidence in legitimacy of verdicts.
 Secrecy enables frank and uninhibited exchange between the jurors and thus
truly independent verdicts to be reached.
 Threat of later exposure would have chilling effect - if jurors knew that their
deliberations would later be made public, they would not engage so whole-
heartedly and independently in deliberations
 This would be undermined if the full story of what happened in the jury room
became known.
 Secrecy is justifies on the basis of the need to protect jurors' from pressure and
harassment from, or on behalf of, the defendant and to preserve jurors' privacy.
 Jury service is a civic duty but it is dependent on the good will of the community
to serve as jury members
 This goodwill would evaporate if jurors were subject to further stress after the
verdict of having their views publicly aired and dissected.
 secrecy eliminates any temptation for jurors to capitalize on disclosure
 Exposure of jury deliberations would undermine faith in the jury
as it may disclose incidents of incompetence or prejudice and
encourage criticism of the jury
 Group decisions, particularly one which is arrived at unanimously
after much argument, does not emerge in a logical and closely
argued manner
 It would be all too easy to expose logical flaws in process of group
decision making if this were opened up to scrutiny
 If one jurymen might communicate with the public upon the
evidence and their verdict, differences of opinion might be made
manifest and this will erode public confidence in general propriety
of criminal verdicts.
Gregory v. UK, 1997

 Juror informed trial judge that at least 1 juror was showing racial
prejudice.
 In the customary manner, judge recalled jury and directed them to try case
according to the evidence.
 Under Article 6 of European Convention on Human Rights a fair trial
requires tribunal to be independent and impartial.
 European Court emphasized the importance of a tribunal being impartial
from a subjective as well as an objective point of view
 European Court rules that judge had dealt with the matter adequately by
means of a firmly worded direction to the jury which was clear detailed
and forceful and which he had checked for understanding.
 No more was required to dispel any objectively held fears about their
impartiality of the jury.
Sander v. UK, 2000

 Juror informed trial judge that 2 of his fellow jurors had been making
openly racist remarks and jokes and he feared they would not convict
the defendants on evidence but because they were Asian
 Judge recalled jury, read out the complaint to them in open court and
asked them to search their conscience overnight and if they felt they
were unable to try case solely on evidence they were to write a personal
note to judge following morning
 The next morning he received 2letters from the jury, one signed by all
the jurors, including the juror who had sent the complaint, stating that
they utterly refuted the allegation and assuring the court that they
intended to reach a verdict on the evidence.
 The 2nd letter was written by a juror who explained that he might have
made jokes, that he was sorry he had given offence and that he was in
no way racially biased
 In response the judge decided he would not discharge the jury
 Applicant's counsel who insisted throughout the proceedings that
dismissing the jury was the only viable course of action
 European Court ruled that judge should have reacted in a more robust
manner than by merely seeking vague assurances from the jury.
 As the judge did not provide sufficient guarantees to exclude any
objectively justified or legitimate doubts as to the impartiality of the
court, the court considered that there had been a violation of the
applicant's right to a fair trial by an impartial tribunal.
 Sander suggests that there may be circumstances which compel judges
to make inquiries of what went on in the jury room, if they do not wish
to discharge jury altogether.
 US judges have been more actively investigating complaints that jurors
are deliberately nullifying the law in breach of instructions given to
them to decide the case according to the evidence and the law
 Steps are also being taken in certain jurisdictions to encourage jurors to
make complaints against fellow jurors who breach instructions given to
them to follow law and decide case solely upon evidence presented to
them
 Californian Court of Appeal recently upheld a statute which obliges
jurors to advise court if any juror refuses to deliberate or expresses an
intention to disregard law or to decide case based upon penalty or
punishment or upon any other improper basis
 Defense argued that this instruction tended to involve the court unduly
in deliberative process and would have a chilling effect on deliberations
because a juror might be unwilling to hold fast to an unpopular
decision if he or she knew that fellow jurors might report this to the
judge
 Court rejected this argument on the ground that jurors are also
instructed not to change an opinion simply because a majority of jurors
favor that decision and they would not be coerced by the prospect of a
complaint made against them.
 A number of other jurisdictions are considering less intrusive devices to
encourage jurors to act in accordance with the evidence and the law.
 Apart from the oath which jurors still commonly swear to bring in a
verdict according to the evidence, judges are increasingly being
encouraged to give jurors more detailed directions on how to go about
their task of reaching a verdict.
 When juries fail to agree on a verdict a number of jurisdictions provide for
further detailed guidance from judge
 juries should be encouraged to identify for court issues or questions of law
or fact that they are having difficulty with.
 Another way of discouraging improper conduct from influencing any final
verdicts is to give jurors themselves powers to out-vote "rogue" jurors
bent on improper conduct.
United States v. Thomas, 1997

 jurors made complaints against an African-American juror who was


unwilling to convict defendants charged with conspiracy to possess and
distribute cocaine and crack cocaine
 trial judge removed the juror pursuant to his power under Rule 23(b) of
Federal Rules of Criminal Procedure which permits the court to excuse a
juror for just cause after jury has retired.
 Court of Appeals concluded that a juror who intends to nullify law is no
less subject to dismissal than is a juror who disregards court's
instructions due to an event or relationship that makes him or her
biased or unable to render a fair and impartial verdict.
 In case in hand, however, the court overruled trial judge's dismissal
because it could not be said beyond doubt that juror who was dismissed
was unwilling to apply the law.