jury

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

A jury is a sworn body of persons convened to render a rational, impartial verdict and a finding of fact on a legal question officially submitted to them, or to set a penalty or judgment in a jury trial of a court of law.

Overview

In most criminal justice systems and some civil cases which require a jury, panels are initially selected at random from the adult population of the district served by the court concerned. A person who is serving on (is a member of) a jury is known as a juror.

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

Serving on a jury is normally compulsory if a citizen is chosen (exceptions and exclusions vary between jurisdictions and are discussed below). Since a jury is intended to be an impartial panel capable of reaching a verdict, there are often procedures and requirements, for instance, fluent understanding of the language, or the ability to test jurors or otherwise exclude jurors who might be perceived as less than neutral or more partial to hear one side or the other.

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

In common law countries such as England and the United States, the role of the jury is the "finder of fact", while the Judge has the sole responsibility of interpreting the appropriate law and instructing the jury accordingly. Occasionally, a jury may find the defendant "not guilty" even though he violated the law if the jury thinks that the law is invalid or unjust. This is commonly referred to as jury nullification. When there is no jury ("bench trial"), the Judge makes factual rulings in addition to legal ones. In most continental European jurisdictions, the Judges have more power in a trial and the role and powers of a jury are often restricted.

Actual jury law and trial procedures differ between countries.

The concept of a modern jury trial stems back to Magna Carta, which gave English nobles and freemen the right to be tried by a panel of their peers, rather than by summary judgment of the king or other official who often had the utter power to impose his own arbitrary judgment. The concept can also be traced to Normandy before 1066, when a jury of nobles was established to decide land disputes. In this manner, the Duke, being the largest land owner, could not act as a judge in his own case. Many ancient cultures had similar concepts, notably ancient Judea whose panel of judges called the Sanhedrin served a similar purpose. The Athenians by 500 BCE had also invented the jury court, with votes by secret ballot. These courts were eventually granted the power to annul unconstitutional laws, thus introducing judicial review.

Selection

A common method for drafting jurors is to draw them at random from electoral rolls (known as allotment or sortition). The most common exclusions are for people whose job in some way precludes them (for instance, teachers, doctors, firefighters, people who themselves work in the criminal justice system), are caring for young children, have an interest in the case, are under the age of 18 years, or who have health problems or serious criminal records. In some jurisdictions in the United States, prior legal education or being a lawyer may also be a reason to be exempted, under the theory that a legal professional may be overly influential to other jurors. However, in recent years, many jurisdictions have eliminated these exemptions.

In the United States, potential jurors form the jury in waiting or jury pool (sometimes referred as the venire). Jurors are picked by a selection process. If the jury in waiting is exhausted without the jury being completed the clerk of the court is required to ask the jury assembly area to send more jurors.

Selected jurors are generally subjected to a system of examination whereby both the prosecution (or plaintiff, in a civil case) and defense can object to a juror. In common law countries, this is known as voir dire. The method and scope of the possible rejections varies between countries:

• In England these objections would have to be very well based, such as the defendant knowing a potential juror, to be allowed.
• Some jurisdictions, including Australia, Canada, France, New Zealand, and the United States, give both the defense and prosecution a specific number of unconditional peremptory challenges. No justifications have to be brought to exclude a specific juror. Generally, defense attorneys exclude jurors who have professions or backgrounds similar to that of the victim and who could thus feel an emotional link to them, while prosecuting attorneys exclude jurors who might show affinity to the defendant. However, in the United States, if the prosecution excludes a minority and the defense challenges, under Batson rules the prosecution must provide a race-neutral reason for the exclusion (later extended by court rulings to gender-neutral reasons as well).
• Some systems allow argument over whether a juror's particular background or beliefs make them biased and therefore unsuitable for service on the jury. In the United States, and probably other nations, it is known that citizens deliberately get out of jury duty (for example by mentioning knowledge of legal concepts).

Verdicts

In general, there are no restrictions on how a jury may proceed to reach such a verdict, and no set time limit. Juries may deliberate for as many as several days.

Juries are traditionally expected to reach a unanimous verdict through their deliberations. If this is not possible after an extended period of deliberations, jurisdictions vary as to whether they will accept a majority verdict or declare a mistrial (generally, a criminal trial will require a unanimous verdict, while a civil trial may allow for less than a unanimous verdict).

Initially, a judge will usually instruct a jury not to contemplate a majority verdict. After a time, if no verdict is forthcoming, the judge may recall the jury and instruct them that he is prepared to consider one. Some jurisdictions allow majority verdicts in criminal cases if a juror becomes unfit to continue, or if a judge permits it when a jury is deadlocked. Certain jurisdictions require a minimum number of jurors to agree, but in others (notably Scotland) a simple majority is acceptable.

Sometimes a jury will take a wider view than the judge's summing up, and reach a verdict influenced by or based on their view of the public interest - that is, whether they think it right, all things considered, for the defendant to be convicted of a crime. Verdicts which appear not to apply the law to the evidence are sometimes called "perverse" verdicts. In the event that this "perverse" verdict involves the conviction of a defendant who should not have been convicted on the basis of the evidence presented, English law has no means of correcting this error: Appeals being based ONLY upon new evidence or errors by the judge or prosecution, (but not the defence), or because of jury irregularities.

Secrecy and independence

For juries to fulfill their role to analyze the facts of the case, there are strict rules about their use of information during the trial. They are not allowed to learn about the case from any source other than the trial. Nobody involved in the trial is allowed to speak with a member of the jury, and jurors are not allowed to read news or other accounts of the trial. In order to achieve this goal in high-profile cases, some juries are sequestered either for the deliberation phase, or for the entire trial.

Conversely, jurors are generally required to keep their deliberations in strict confidence. Whether this non-disclosure requirement extends after the verdict has been rendered depends on the jurisdiction. In English law, the jury's deliberations must not be disclosed outside the jury, even after the case, and to repeat parts of them is contempt of court and can result in imprisonment. In the United States, this rule does not apply, and sometimes jurors have made remarks that called into question whether a verdict was properly arrived at.

Because of the desire to prevent undue influence on a jury, jury tampering is a serious crime, whether attempted through bribery, threat of violence, or other means. In 1995, a juror in Vancouver named Gillian Guess slept with a defendent during his murder trial, and voted to acquit him. Gillian Guess was later convicted of obstruction of justice for her actions, and was sentensed to 18 months in prison.

Imposition of penalties for guilty verdicts

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

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

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

Jury Nullification

In the United States, the jury is required to follow the law as it is explained to it by the judge and to render a judgment justified by the facts. If it reaches a conclusion contrary to the law, but based on its own beliefs as to what the law or result should be, regardless of the law, this is known as jury nullification. It finds its most common expression when verdicts are rendered based on passion, prejudice, sympathy or bias. It has been asserted that the jury has the power to "nullify" a law it believes is unjust, by, for example, refusing to find the defendant guilty, in spite of the evidence, if it believes that a guilty verdict would be unjust. Important past exercises of this de facto power include cases involving the Slavery (see Fugitive Slave Act of 1850), Freedom of the Press (see John Peter Zenger), and Freedom of Religion (see William Penn). Modern American jurisprudence, however, generally does not recognize this practice and jury verdicts can be reversed if found to be based upon factors other than the established law and the facts of the case.

In the United Kingdom, a similar power exists, often called 'Jury Equity'. This enables a jury to reach a decision in direct contradiction with the law if they feel it is unjust. This can create a persuasive precedent for future cases, or render prosecutors reluctant to bring a charge - thus a jury has the power to influence the law. Perhaps the best example of modern-day jury equity in England and Wales was the acquittal of Clive Ponting, on a charge of revealing secret information, under s.2 of the Official Secrets Act 1911 in 1985. Mr Ponting's defence was that the revelation was in the public interest. The trial judge directed the jury that "the public interest is what the government of the day says it is" - effectively a direction to the jury to convict. Nevertheless, the jury returned a verdict of not guilty.

Trial procedures

France (Napoleonic code)

In France and similarly organized jurisdictions, the jury sits on an equal footing with three professional judges. The jury and judges first consider the questions of guilt. Then, if applicable, they consider the penalty to apply.

United States (Common Law)

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

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

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

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

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

In criminal law, a grand jury is convened to hear only testimony and evidence to determine whether there is a case to be answered and hence whether the accused should be indicted and sent for trial. A separate petit jury (formed of petit jurors) is then convened to hear the trial. In many areas, depending upon the law, a third jury will determine what the penalty should be or recommend what the penalty should be in the penalty phase. When used alone the term jury usually refers to a petit jury.

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

The Sixth Amendment to the United States Constitution guarantees the right to jury trial in both state and federal criminal proceedings, although in practice most criminal actions in the U.S. are resolved by plea bargain. Juries are also used in many civil cases in the United States, and the Seventh Amendment to the United States Constitution explicitly protects the right to a jury trial in civil cases tried in the United States District Courts.

Jury selection is a rather complicated process. A jury is made up from a list of citizens living in the jurisdiction of the court. When selected, being a juror is, in principle, compulsory. However, jurors can be dismissed for several reasons and many people are released from serving on a jury. People can, for instance, claim hardship if they take care of their children, or claim to be biased. Attorneys are routinely dismissed from jury duty for a number of reasons, particularly because attorneys in a community are likely to know of or have some connection with the attorneys involved in the case. Many individuals are paid only the token amount issued by the court for jury duty, and must take time off from work to serve. Especially for high profile trials, or long trials, it is unusual to compel one to serve because of the possibility that a juror would have other things on their mind, such as their finances, during the trial or deliberations. Commentators often quote Dave Barry who claimed that the Sixth Amendment "states that if you are accused of a crime, you have the right to a trial before a jury of people too stupid to get out of jury duty"^[1]

See also

• Fully Informed Jury Association
• Jury instructions
• Jury in Japan
• Jury nullification
• Jury trial
• People's jury
• Twelve Angry Men
• Jury research

External links

• Guide to California Jury Service
• Court of assizes in Belgium (including info about the jury)
• Guide to Jury Service in England and Wales
• Guide to Jury Duty in New Zealand

References

D. J. A. Cairns, Advocacy and the Making of the Adversarial Criminal Trial, 1800-1865 (Oxford: Clarendon Press, 1998)

1. ^ Dave Barry Slept Here, Ballantine Books (1997) ISBN 0-345416600