Jurors

A jury is a sworn body of people convened to render an impartial verdict (a finding of fact on a question) officially submitted to them by a court, or to set a penalty or judgment. A trial in which a jury decides the verdict is a jury trial. A person who is serving on a jury is a juror.

Etymology

The word jur originates from the Latin jus (gen. juris), meaning "law". Juries are most common in common law adversarial-system jurisdictions. In the modern system, juries act as arbiters of fact, while judges act as arbiters of law. A trial without a jury (in which both questions of fact and questions of law are decided by a judge) is known as a bench trial.

Types of jury

The petit jury (or trial jury) hears the evidence in a trial as presented by both the plaintiff (petitioner) and the defendant (respondent). After hearing the evidence and often jury instructions from the judge, the group retires for deliberation, to consider a verdict. The majority required for a verdict varies. In some cases it must be unanimous, while in other jurisdictions it may be a majority or supermajority. A jury that is unable to come to a verdict is referred to as a hung jury.

The size of the jury varies; in criminal cases there are usually 12 jurors, although Scotland uses 15. In civil cases many trials require only six. A grand jury, a type of jury now confined almost exclusively to some jurisdictions in the United States, determines whether there is enough evidence for a criminal trial to go forward. Grand juries carry out this duty by examining evidence presented to them by a prosecutor and issuing indictments, or by investigating alleged crimes and issuing presentments. A grand jury is traditionally larger than and distinguishable from the petit jury used during a trial, with at least 12 jurors.

Composition of juries

Serving on a jury is normally compulsory for those individuals who are qualified for jury service. Since a jury is intended to be an impartial panel capable of reaching a verdict, there are often procedures and requirements, for instance, fluent understanding of the language, or the ability to test jurors or otherwise exclude jurors who might be perceived as less than neutral or more partial to hear one side or the other. Juries are initially chosen randomly from the eligible population residing in the court's jurisdictional area (unless a change of venue has occurred). Jury selection varies widely; in the United States, some form of organized questioning of the prospective jurors (jury pool) occurs—voir dire—before the jury is selected (impaneled). A head juror is called the foreman or presiding juror. The foreman is often chosen before the trial begins or upon the beginning of deliberations. The role of the foreman is to ask questions on behalf of the jury, facilitate jury discussions, and sometimes to read the verdict of the jury. Since there is always the possibility of jurors not completing the trial for health or other reasons, often one or more alternate jurors are nominated. Alternates hear the trial but do not take part in deciding the verdict unless a juror is unable to deliberate.

Historical roots

The modern jury evolved out of the ancient custom of many ancient Germanic tribes whereby a group of men of good character was used to investigate crimes and/or judge the accused. The same custom evolved into the vehmic court system in medieval Germany. In Anglo-Saxon England, juries investigated crimes. After the Norman Conquest, some parts of the country preserved juries as the means of investigating crimes. The use of ordinary members of the community to consider crimes was unusual in ancient cultures, but was nonetheless also found in ancient Greece.

The modern jury trial evolved out of this custom in the mid 12th century during the reign of Henry II. [1] Juries, usually 6 or 12 men, were an "ancient institution" in some parts of England. ("Henry II" 286) Members consisted of representatives of the basic units of local government—hundreds (an administrative sub-division of the shire, embracing several vills) and villages. Called juries of presentment, these men testified under oath to crimes committed in their neighborhood and indicted. The Assize of Clarendon in 1166 caused these juries to be adopted systematically throughout the country. The jury in this period was "self-informing," meaning it heard very little evidence or testimony in court. Instead, jurors were recruited from the locality of the dispute and were expected to know the facts before coming to court. Source of juror knowledge could include first-hand knowledge, investigation, and less reliable sources such as rumor and hearsay.[2]

Between 1166 and 1179 new procedures including a division of functions between the sheriff, the jury of local men, and the royal justices ushered in the era of the English Common Law. Sheriffs prepared cases for trial and found jurors with relevant knowledge and testimony. Jurors 'found' a verdict by witnessing as to fact, even assessing and apply information from their own and community memory—little was written at this time and what was: deeds, writs, were subject to fraud. Royal justices supervised trials, answered questions as to law and announced the court's decision which was subject to appeal. Sheriffs executed the decision. These procedures enabled Henry II to delegate authority without endowing his subordinates with too much power. ("Henry II" 293)

In 1215 the Roman Catholic Church removed its sanction from all forms of ordeal—procedures by which suspects were 'tested' as to guilt (e.g., the ordeal of hot metal was applied to a suspected thief by pouring molten metal into his hand, if the wound healed rapidly and well it was believed God found the suspect innocent, if not than guilty). With the ordeals banned establishing guilt would have been problematic had England not had forty years of judicial experience. Justices were accustomed to asking jurors of presentament about points of fact in assessing indictments; it was a short step to ask jurors if the accused was guilty as charged. ("Henry II" 358)

An early reference to a jury type group in England is in a decree issued by Aethelred at Wantage, which enacted that in every Hundred "the twelve leading thegns together with the reeve shall go out and swear on the relics which are given into their hands, that they will not accuse any innocent man nor shield a guilty one."[3].

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.

One of the earliest antecedents of modern jury systems are juries in ancient Greece, including the city-state of Athens, where records of jury courts date back to 500 BCE. These voted by secret ballot and were eventually granted the power to annul unconstitutional laws, thus introducing judicial review. In modern systems, law is "self-contained" and "distinct from other coercive forces, and perceived as separate from the political life of the community," but "all these barriers are absent in the context of classical Athens. In practice and in conception the law and its administration are in some important respects indistinguishable from the life of the community in general."[4]

18th Century England

In 1730, the British Parliament passed the Bill for Better Regulation of Juries.[5] The Act stipulated that the a list of all those liable for jury service was to be posted in each parish and that jury panels would be selected by lot, also know as sortition, from these lists. Its aim was to prevent middle-class citizens from evading their responsibilities by bribing the under-sheriff whose job was to select jury members. Prior to the Act, the main means of ensuring impartiality was by allowing legal challenges to the sheriff’s choices. The new provisions did not specifically aim at establishing impartiality had the effect of reinforcing the authority of the jury by guaranteeing impartiality at the point of selection.

The example of early 18th century England legal reform shows how civic lotteries can be used to organize the duties and responsibilities of the citizen body in relation to the state. It established the impartiality and neutrality of juries as well as reiterating the dual nature of the citizen-state relationship.

Notes

1. W.L. Warren, "Henry II" University of California Press,(1973)
2. Daniel Klerman, "Was the Jury Every Self-Informing," Southern California Law Review 77: (2003), 123. https://lawweb.usc.edu/users/dklerman/documents/Klerman.Self-informing.pdf
3. Oxford History of England, 2nd ed 1955, vol III Domesday Book to Magna Carta, A l Poolepp.397-398
4. Carey, Christopher. "Legal Space in Classical Athens." Greece & Rome 41(2): Oct. 1994, pp. 172-186.
5. Dowlen, Oliver. Sorted: Civic Lotteries and the Future of Public Participation. (MASS LBP: Toronto, 2008) pp 38
6. Review could reduce jury numbers BBC News, 26 April, 2008
7. Scotsman Newspaper 11 May 2009
8. Nullifying the Jury: “The Judicial Oligarchy” Declares War on Jury Nullification Washburn Law Journal May 2, 2007
9. New Statesman, 2000-10-09.
10. "wikipedia.org/wiki/Geschworenengericht Geschworenengericht". Retrieved on 2007-09-10.
11. "NZ's first majority guilty verdict". Stuff. Retrieved on 2009-06-03.
12. "Lov om rettergangsmåten i straffesaker (Straffeprosessloven)". Lovdata. Retrieved on 2008-08-22.
13. ESPAÑA | Juicio a Mikel Otegi por asesinar a dos ertzainas. Un jurado popular adsuelve al joven de Jarrai
14. King NJ (1999). "The American Criminal Jury". Law and Contemporary Problems 62: 41. Retrieved on 2009-06-04.
15. Landsman S. (1999). "The Civil Jury in America". Law and Contemporary Problems 62: 285. Retrieved on 2009-06-04.
16. Amar, A.R. (1998). The Bill of Rights. New Haven, CT: Yale University. pp. 81-118.
17. This power is often used in drug cases "to impose an enhanced sentence ... based on the sentencing judge’s determination of a fact that was not found by the jury or admitted by the defendant". In April 2008, the U.S. District Court, in a 236 page opinion to address this ruled that juries should be told before they deliberate if a defendant is facing a mandatory minimum sentence and also called it "inappropriate" to ignore the juries power to refuse to convict (jury nullification).
18. https://www.ncsconline.org/WC/CourTopics/StateLinks.asp?id=47&topic=JurMan