Trial by jury is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge. It is to be distinguished from a bench trial where a judge or panel of judges make all decisions.
English common law and the United States Constitution recognize the right to a jury trial to be a fundamental civil liberty or civil right; however most other nations do not recognize it as such, because jury trials evolved within common law systems rather than civil law systems. Jury trials are of far less importance (or of no importance) in countries that do not have a common law system.
Juries weigh the evidence and testimony to determine questions of fact and of law. Jury determination of questions of law, sometimes called jury nullification, may lead to the overturning of a verdict by the judge.
A jury trial should not be confused with grand jury proceedings. In the United States, where grand juries are still used, the jury used for a trial can be referred to as a "petit jury" (or, simply, a "trial jury") to distinguish it from a grand jury, used for indictments.
There exists a connection between England and Rome that goes back to the time of Julius Caesar, when he conquered the southern part of the British isle. How deep was the imprint left by the Roman institutions on the Celts that were romanized is difficult to determine. With the fall of the Roman empire and the following barbarization of the region, historians doubt that Roman customs and laws survived. The arrival of Roman institutions to England is more widely attributed to William the Conqueror and the Normans during times of greater interest in Roman law.
According to George Macaulay Trevelyan in A Shortened History of England, during the Viking occupation: “The Scandinavians, when not on the Viking warpath, were a litigious people and loved to get together in the ‘ thing’ to hear legal argument. They had no professional lawyers, but many of their farmer-warriors, like Njal, the truth-teller, were learned in folk custom and in its intricate judicial procedure. A Danish town in England often had, as it principal officers, twelve hereditary ‘law men.’ The Danes introduced the habit of making committees among the free men in court, which perhaps made England favorable ground for the future growth of the jury system out of a Frankish custom later introduced by the Normans.” The English king Ethelred the Unready set up an early legal system through the Wantage Code of Ethelred, one provision of which stated that the twelve leading thegns (minor nobles) of each wapentake (a small district) were required to swear that they would investigate crimes without a bias. These juries differed from the modern sort by being self-informing; instead of getting information through a trial, the jurors were required to investigate the case themselves.
One posible precursor to the English jury trial, however, 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, specifically in North Africa, Islamic Spain and the Emirate of Sicily, and shares a number of similarities with the later jury trials in English common law. Like the English jury, the Islamic Lafif was a body of twelve members drawn from the 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." The only characteristic of the English jury which the Islamic Lafif lacked was the "judicial writ directing the jury to be summoned and directing the bailiff to hear its recognition." According to John Makdisi, "no other institution in any legal institution studied to date shares all of these characteristics with the English jury." It is thus 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 (see Arab-Norman culture), and then evolved into the modern English jury.
In the 12th century, King Henry II took a major step in developing the jury system. Henry II set up a system to resolve land disputes using juries. A jury of twelve free men were assigned to arbitrate in these disputes. Unlike the modern jury, these men were charged with uncovering the facts of the case on their own rather than listening to arguments in court. Henry II also introduced what is now known as the "grand jury" through his Assize of Clarendon. Under the assize, a jury of free men was charged with reporting any crimes that they knew of in their hundred to a "justice in eyre," a judge who moved between hundreds on a circuit. A criminal accused by this jury was given a trial by ordeal.
The Church banned participation of clergy in trial by ordeal in 1215. Without the legitimacy of religion, trial by ordeal collapsed. The juries under the assizes began deciding guilt as well as providing accusations. The same year, trial by jury became a pretty explicit right in one of the most influential clauses of Magna Carta, signed by King John. Article 39 of the Magna Carta read:
Nullus liber homo capiatur, vel imprisonetur, aut desseisetur de libero tenemento, vel libertatibus, vel liberis consuetudinibus suis, sut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae. It is translated thus by Lysander Spooner in his Essay on the Trial by Jury: "No free man shall be captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers, and or by the law of the land." Although it says and or by the law of the land, this in no manner can be interpreted as if it were enough to have a positive law, made by the king, to be able to proceed legally against a citizen. The law of the land was the consuetudinary law, based on the customs and consent of John’s subjects, and since they did not have Parliament in those times, this meant that neither the king nor the barons could make a law without the consent of the people. According to some sources, in the time of Edward III, by the law of the land had been substituted by due process of law, which in those times was a trial by twelve peers. During the mid-14th Century, it was forbidden that persons who had sat on the Presenting Jury (i.e., in modern parlance, the Grand Jury) to sit on the trial jury for that crime. 25 Edward III stat 5., c3 (1353). Over time, English juries became less self-informing and relied more on the trial itself for information on the case. Jurors remained free to investigate cases on their own until the 17th century. The Magna Carta being forgotten after a succession of benevolent reigns (or, more probably, reigns limited by the jury and the barons, and only under the rule of laws that the juries and barons found acceptable), the kings, through the royal judges, began to extend their control over the jury and the kingdom. In David Hume's History of England, he tells something of the powers that the kings had accumulated in the times after the Magna Carta, the prerogatives of the crown and the sources of great power with which these monarchs counted:
The first paragraph of the Act that abolished the Star Chamber repeats the clause on the right of a citizen to be judged by his peers: Abolition of the Star Chamber July 5, 1641 An act for the regulating of the privy council, and for taking away the court commonly called the star-chamber.
Many English colonies adopted the jury trial system including the United States. Jury trials in criminal cases were a protected right in the original Constitution and the Fifth, Sixth, and Seventh Amendments of the U.S. Constitution extend the rights to trial by jury to include the right to jury trial for both criminal and civil matters and a grand jury for serious cases.
Some jurisdictions with jury trials allow the defendant to waive their right to a jury trial, this leading to a bench trial. Jury trials tend to occur only when a crime is considered serious. In some jurisdictions, such as France and Brazil, jury trials are reserved, and compulsory, for the most severe crimes and are not available for civil cases. In Brazil, for example, trials by jury are applied in cases of First and Second-degree murders, even if only attempted. In others, such as the United Kingdom, jury trials are only available for criminal cases and very specific civil cases (defamation, malicious prosecution, civil fraud and false imprisonment). In the United States, jury trials are available in both civil and criminal cases. In Canada, jury trials are compulsory for crimes which the maximum sentence exceeds 5 years, and optional for crimes of which the maximum sentence exceeds 2 years, but less than 5 years. However, the right to a jury trial may be waived if both the prosecution and defense agree.
In the United States, because jury trials tend to be high profile, the general public tends to overestimate the frequency of jury trials. Approximately 150,000 jury trials are conducted in state courts in the U.S., and an additional 5,000 jury trials are conducted in federal courts. Two-thirds of jury trials are criminal trials, while one-third are civil and "other" (e.g., family, municipal ordinance, traffic). Nevertheless, the vast majority of cases are in fact settled by plea bargain, which removes the need for a jury trial.
This last point may be disputed. For example, in highly emotional cases, such as child rape, the jury may be tempted to convict based on personal feelings rather than on conviction beyond reasonable doubt. Former attorney, then later minister of Justice Robert Badinter, remarked about jury trials in France that they were like "riding a ship into a storm," because they are much less predictable than bench trials.
Another issue with jury trials is the potential for jurors to be swayed by prejudice, including racial considerations. An infamous case was the 1992 trial in the Rodney King case in California, in which white police officers were acquitted of excessive force in the violent beating of a black man by a jury consisting mostly of whites without any black jurors, despite an incriminating videotape of the action. This led to widespread questioning about the case and riots ensued.
The positive belief about jury trials in the UK and the U.S. contrasts with popular belief in many other nations, in which it is considered bizarre and risky for a person's fate to be put into the hands of untrained laymen. Consider Japan, for instance, which used to have optional jury trials for capital or other serious crimes between 1928 and 1943. The defendant could freely choose whether to have a jury or trial by judges, and the decisions of the jury were non-binding. During the Tōjō-regime this was suspended, arguably stemming from the popular belief that any defendant who risks his fate on the opinions of untrained laymen is almost certainly guilty. Similarly, jury trials were abolished by the government of India in 1960 (this was followed by Pakistan soon afterwards) on the grounds they would be susceptible to media and public influence. One Pakistani Judge called a trial by jury "amature justice".
Jury trials in multi-cultural countries with a history of ethnic tensions may be problamtic, and lead to jurys being unduly biased and partial. This is one of the reasons why both India and Pakistan abolished jury trials soon after independence. Indeed in these countrys; a jury trial is seen as a failing of some foreign legal system rather than an advantage. This despite both nations being common law countries.
A major issue in jury trials is the secretive nature of the process. While proponents may say that it aids in the protection of liberty by protecting the jury from undue(although what exactly constitutes "liberty", of course is a subjective issue), opponents contend this prevents there from being a transparent trial. The fact that jurys do not often have to give a reason for their verdict is also critisized, since opponents argue it is unfair for a person to be deproved of life, liberty or property without being told why it is being done so. In contrast where there is a decision by a judge or a bench, they are required to give often detailed reason of both fact and law as to why such a decision is given.
One issue that has been raised is the ability of a jury to fully understand statistical or scientific evidence. It has been said that the expectation of jury members as to the explanatory power of scientific evidence has been raised by television in what is known as the CSI effect. In at least one English trial the misuse or misunderstanding of statistics has led to wrongful conviction.
Recently, in Britain, Lord Goldsmith, the government's Attorney General, has been actively pressing forward with the Fraud (Trials Without a Jury) Bill in Parliament, which seeks to abolish jury trials in major criminal fraud trials. The Bill was subject to sharp criticism from both sides of the House of Commons, , but passed its second Commons reading in November 2006. The Bill follows the Government's earlier, unsuccessful attempt to pass measures allowing trials without jury in the Criminal Justice Act 2003.
The voir dire system of examining the jury pool before selection is not permitted in Australia as it violates the privacy of jurors. Therefore, though it exists, the right to challenge for cause during jury selection cannot be employed much. Peremptory challenges are usually based on the hunches of the counsels and no reason is needed to use them. All Australian states allow for peremptory challenges in jury selection, however, the number of challenges granted to the counsels in each state are not all the same. Until 1987 New South Wales had twenty peremptory challenges for each side where the offence was murder, and eight for all other cases. In 1987 this was lowered to three peremptory challenges per side, the same amount allowed in South Australia. Eight peremptory challenges are allowed for both counsels for all offences in Queensland. Victoria, Tasmania and the Northern Territory allow for six. Western Australia allows five peremptory challenges per side, according to section 104 of the Criminal Procedure Act 2004 (WA).
In Australia majority verdicts are allowed in South Australia, Victoria, Western Australia, Tasmania, the Northern Territory and New South Wales, while Queensland and the ACT require unanimous verdicts. Since 1927 South Australia has permitted majority verdicts of 11:1, and 10:1 and 9:1 where the jury has been reduced, in criminal trials if a unanimous verdict cannot be reached in four hours. They are accepted in all cases except for "guilty" verdicts where the defendant is on trial for murder or treason. Victoria has accepted majority verdicts with the same conditions since 1994, though deliberations must go on for six hours before a majority verdict can be made. Western Australia accepted majority verdicts in 1957 for all trials except where the crime is murder or has a life sentence. A 10:2 verdict is accepted. Majority verdicts of 10:2 have been allowed in Tasmania since 1936 for all cases except murder and treason if a unanimous decision has not been made within two hours. Since 1943 verdicts of “not guilty” for murder and treason have also been included, but must be discussed for six hours. The Northern Territory has allowed majority verdicts of 10:2, 10:1 and 9:1 since 1963 and does not discriminate between cases whether the charge is murder or not. Deliberation must go for at least six hours before delivering a majority verdict. Majority verdicts were introducted in New South Wales in 2005 (see Jury Act 1977 (NSW), s 55F).
Austria, in common with a number of European civil law jurisdictions, retains elements of trial by jury in serious criminal cases.
In Belgium one can only have a jury trial when the crime is grave enough. The only court that tries by jury is la cour d'assises/het hof van assissen, which tries violent crimes.
Under Canadian law, a person has the right to a jury trial for all crimes punishable by five years of imprisonment or more.
The country which gave birth to the concept of the jury trial retains it in an unusual form. Serious crimes in this country are tried by a panel of three professional judges and four lay jurors who decide the facts and appropriate penalty if convicted.
Being a Common Law jurisdiction, Gibraltar retains jury trial in a similar manner to that found in England and Wales, the exception being that juries consist of nine lay people, rather than twelve.
The Israeli judicial system is conspicuous in having no juries of any kind - a feature especially interesting considering that very many other features of this system are derived from the British one - i.e. many Israeli laws are derived from British ones (including, in some cases, laws already repealed in Britain itself but which were in force when Israel became independent in 1948) and the Israeli Supreme Court makes frequent reference to British precedents. However, the authorities in British Mandatory Palestine had taken the conscious decision not to introduce any jury system, officially due to the consideration that it would not work in conditions where the population was divided into mutually-hostile communities of Jews and Arabs.
The United Kingdom consists of three separate legal jurisdictions, but there are some features common to all of them. In particular there is seldom anything like the U.S. voir dire system; jurors are usually just accepted without question. Controversially, in England there has been some screening in sensitive security cases, but the Scottish courts have firmly set themselves against any form of jury vetting.
In Scotland juries consist of 15 people for criminal trials and 12 people for civil trials. In criminal trials there has never been a requirement for verdicts to be unanimous; they are reached by simple majority. (People were occasionally hanged on majority verdicts in Scotland.) Juries may also return the unusual verdict of not proven. The backing of at least eight jurors is needed to return a guilty verdict, even if the number of jurors drops below 15, e.g., because of illness. It is not possible for Scots juries to be "hung"; if there is not sufficient support for any verdict then this is treated as a verdict of not guilty.
In Northern Ireland, the role of the jury trial is roughly similar to England and Wales, except that jury trials have been replaced in cases of alleged terrorist offences by courts where the judge sits alone, known as "Diplock courts". This was because of widespread jury intimidation during the Troubles. With the improving security situation in the province, Diplock courts were due to be phased out in 2007.
In the United States every person accused of a felony has a constitutional right to a trial by jury, which arises from Article Three of the United States Constitution, which states in part, "The Trial of all Crimes...shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed." The right was expanded with the Sixth Amendment to the United States Constitution, which states in part, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed." Both provisions were made applicable to the states through the Fourteenth Amendment. Most states' constitutions also grant the right of trial by jury in lesser criminal matters, though most have abrogated that right in offenses punishable by fine only. Also, a person accused of any crime punishable by more than six months imprisonment is also entitled to demand trial by jury; the Supreme Court has ruled that if imprisonment is for six months or less, trial by jury is not required, meaning a state may choose whether or not to permit trial by jury in such cases.
In the cases Apprendi v. New Jersey (2000) and Blakely v. Washington (2004), the Supreme Court of the United States held that a criminal defendant has a right to a jury trial not only on the question of guilt or innocence, but any fact used to increase the defendant's sentence beyond the maximum otherwise allowed by statutes or sentencing guidelines. This invalidated the procedure in many states and the federal courts that allowed sentencing enhancement based on "a preponderance of evidence", where enhancement could be based on the judge's findings alone.
Jurors in some states are selected through voter registration and drivers' license lists. A form is sent to prospective jurors to pre-qualify them by asking the recipient to answer questions about citizenship, disabilities, ability to understand the English language, and whether they have any conditions that would excuse them from being a juror. If they are deemed qualified, a summons is issued.
The right to trial by jury in a civil case is addressed by the 7th Amendment, which provides: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. In Joseph Story's 1883 treatise Commentaries on the Constitution of the United States, he wrote, "[I]t is a most important and valuable amendment; and places upon the high ground of constitutional right the inestimable privilege of a trial by jury in civil cases, a privilege scarcely inferior to that in criminal cases, which is conceded by all to be essential to political and civil liberty."
The 7th Amendment does not guarantee or create any right to a jury trial; rather, it preserves the right to jury trial that existed in 1791 at common law. In this context, common law means the legal environment the United States inherited from England at the time. In England in 1791, civil actions were divided into actions at law and actions in equity. Actions at law had a right to a jury, actions in equity did not. Federal Rules of Civil Procedure Rule 2 says "[t]here is one form of action - the civil action[,]" which abolishes the legal/equity distinction. Today, in actions that would have been "at law" in 1791, there is a right to a jury; in actions that would have been "in equity" in 1791, there is no right to a jury. However, Federal Rule of Civil Procedure 39(c) allows a court to use one at its discretion. To determine whether the action would have been legal or equitable in 1791, one must first look at the type of action and whether such an action was considered "legal" or "equitable" in 1791. Next, the relief being sought must be examined. Monetary damages alone were purely a legal remedy, and thus entitled to a jury. Non-monetary remedies such as injunctions, rescission, and specific performance were all equitable remedies, and thus up to the judge's discretion, not a jury. In Beacon Theaters v. Westover, the U.S. Supreme Court discussed the right to a jury, holding that when both equitable and legal claims are brought, the right to a jury trial still exists for the legal claim, which would be decided by a jury before the judge ruled on the equitable claim.
The right to a jury trial in civil cases does not extend to the states, except when a state court is enforcing a federally created right, of which the right to trial by jury is a substantial part.
Following the English tradition, U.S. juries have usually been composed of 12 jurors, and the jury's verdict has usually been required to be unanimous. However, in many jurisdictions, the number of jurors is often reduced to a lesser number (such as five or six) by legislative enactment, or by agreement of both sides. Some jurisdictions also permit a verdict to be returned despite the dissent of one, two, or three jurors.
The vast majority of U.S. criminal cases are not concluded with a jury verdict, but rather by plea bargain. Both prosecutors and defendants often have a strong interest in resolving the criminal case by negotiation resulting in a plea bargain. If the defendant waives a jury trial, a bench trial is held.
In United States Federal courts, there is no absolute right to waive a jury trial. Only if the prosecution and the court consent may a defendant have a waiver of jury trial. However, most states give the defendant the absolute right to waive a jury trial.