Do you know how the system of trial by jury developed, and what was originally the purpose of juries of common people?
Juries emerged as a way of delivering justice in England around 1600 years ago (some evidence exists that versions of juries had been used earlier elsewhere). At the time juries were constituted of people who lived in the same neighbourhood or village as the accused, and passed judgement on the basis of what they knew about the accused (and the case). That made jurors character witnesses, using their judgement of characters and proximity to case to reach a verdict.
Juries took on greater importance after the abolisment of the trial by ordeal, in which the accused was subjected some kind of ordeal – for example, pushed underwater – the thinking being that God would intervene divinely and save an innocent person. Moreover, as villages grew into towns, jury trials began to give greater weighting to evaluation of evidence, and less to character.
The expansion of the British Empire then spread the system widely around the world. A separate limb of trial by jury developed in France, when it adopted and adapted the jury system – this second limb became known as l’intime conviction, which means the evaluation of evidence according to inner conscience and subjective (or moral) certainty. This diverged from the British system of guilt beyond reasonable doubt.
The past century has seen a rollback of, or pushback against, trial by jury, something that accelerated with the collapse of the British empire and the increasing complexity of criminal justice. One country after another started narrowing the scope of trial by juries, or trying to build safeguards into the system due to its inherent weaknesses – jurors do not understand complex laws, or jurisprudence into what constitutes reasonable doubt and the interaction between complex laws and guilt; and the greatest weakness, the bias of jurors (an individual bias as well as jurors being a reflection of wider societal sensibility and prejudice).
A range of countries moved to abolish the system outright.
In India, for example, which inherited the jury system during British colonial rule, the Law Commission recommended in 1958 the abolishment of the jury system due to systematic weaknesses, including the difficulty in securing unbiased jurors. A year later the matter was electrified in a high-profile case in which a jury acquitted the naval commander K M Nanavati of murdering his wife’s lover despite overwhelming evidence. Trial by juries then lost favour in the legal profession, and were formally abolished in India in 1973.
In another former British colony, Singapore, the founding prime minister Lee Kuan Yew, who had been a practicing lawyer, is reported to have said: “I had no faith in a system that allowed the superstition, ignorance, biases, and prejudices of seven jurymen to determine guilt or innocence.” Singapore formally abolished the jury system in 1969.
Other former British colonies, such as Pakistan and Malaysia, also abolished trial by juries, with Malaysia doing so only in 1995.
Countries in continental Europe also moved away from the jury system in the last century. Some maintained it in ways more limited than the British system. In France, for example, six lay jurors join three judges in deliberating on guilt.
Germany has not had British-style trials by jury since 1924, when it adopted a system of lay assessors working alongside professional judges in deciding a case. This is called the Schoffen system, and the article about this system in the Brittanica Encyclopedia remarks that “many professional jurists, including lawyers as well as judges, tend to believe that their [jurors] influence is continuing to wane and that they may eventually be abolished because of their alleged tendency to project personal rather than legalistic opinions.”
It appears that at present around fifty countries involve common people in trials, mostly limited to serious, violent crimes.
Jury trials remain most widely used in the US and UK (to varying degrees, Scotland and Northern Ireland have a different legal system to England and Wales), but their use has been shrinking due to changes in court practices and law.
In the UK, governments have in the past 20 years periodically attempted to narrow the use of jury trials – and met resistance from wide section of the legal profession. The latest attempt was made last March, when the government sought to change the law to limit trial by juries to criminal cases punishable by at least three years imprisonment – and once again faced a backlash. (Malta did this years ago – trial by juries used to apply to all crimes punishable by more than 2 years in prison, but are now applicable to more serious crimes only.)
One legislative change that made it through, in the Criminal Justice Act of 2003, was to introduce a law on jury tampering, which empowers judges to hold a juryless trial. The explanatory notes of the act stated that this measure provides for “a trial on indictment in the Crown Court to be conducted without a jury where there is a danger of jury tampering, or continued without a jury where the jury has been discharged because of jury tampering.”
Different countries have attempted to stave off the susceptibility of jury to bias or prejudice, and prevent awry verdicts, by vetting jurors. This voir dire process is most rigorous in America, where a typically large panel of jurors are questioned by the judge and the lawyers of the parties to detect bias or preconceived notions of guilt or innocence, and that way select the jurors that seem objective. In this manner, the parties can challenge potential jurors and dismiss those found or considered wanting.
Some voices in the American legal profession justify the delays and cost of voir dire by pointing to the benefits of jury trials. In a speech in Temple University, whose law school is said to be the second best in the US when it comes to trial advocacy, a chief judge in a US district court, Rebecca Pallmeyer, argued that juries are integral to the legitimacy of the American legal system and instill public respect for law. She said that Americans perceive juries to be more impartial than judges, and bring diversity of experiences and perspectives to the resolution of cases.
This is a common line of thought in defense of juries: that juries are a bulwark, or safeguard, against judicial tyranny, or overreach, or activism; and that it is easier to tamper with one or several judges than it is with a jury properly selected.
The latter idea is put into practice in some jurisdictions, most notably in France, where a verdict deemed faulty is tried in front of a larger jury. In the first instance, serious crimes in France are decided by three professional judges and six lay jurors, and if the verdict is successfully appealed, the case is retried afresh in front of three professional judges and nine lay jurors.
Defenders of the jury system also point to a study which indicates that judges and jurors would reach the same verdict in eight out of ten cases.
Yet jury trials continue to shrink almost everywhere for various reasons. This includes the growing use of plea bargaining – in which the accused admits to the crime, and the defence and prosecution agree on a reduced sentence – which is reducing the number of jury trials. Nine in ten criminal prosecutions in America are now settled via plea bargaining.
In America, as well as other Anglo-Saxon countries to a lesser extent, trial by jury exists in criminal as well as in civil cases, and the parties, or the accused, can in certain instances decide whether to opt for trial by judge or trial by jury. (America also has the system of grand juries, in which a jury actually participates in deciding whether to indict or not, and what, in the first instance.)
Macleane Stanly, an American lawyer and author, wrote in Psychology Today that lawyers advice clients to avoid juries if given a choice and called for abolishing trial by juries.
“Perhaps no one fears a jury more than a lawyer,” he wrote. “We tend to advise our clients to avoid juries like the plague. This is because they are so utterly unpredictable. For attorneys, presenting a case before a jury is like taking a plunge from an unknown height.”
He also wrote that “there is no doubt that the jury system has valiant aims. But I question if it still comports with today’s society. The reality is that juries are seldom impartial and seldom equipped to understand the issues before them. The entire process also imposes a burden upon citizens who must take time away from their jobs, worry about their potential safety, and potentially be traumatized with the evidence they observe or stigmatized by the decisions they make.”
Juries are shielded from public scrutiny because their deliberations are secret, and they do not have to explain why they decided in that particular way. They simply pronounce a finding of ‘guilty’ or ‘not guilty’; unlike judges, who have to write sentences in which they analyse the evidence, describe the law and jurisprudence, and then give reasons for their decision and punishment. Yet this makes the decision-making in jury trials opaque, which jars with the principle of transparent justice, an opacity that is all the more unsettling when a decision goes awry.
In some jurisdictions, appeals can be filed on any aspect of the case: the facts, the verdict, the sentence and so on – such a wide remit of appeal was introducted in France in 2001, for example, where an appealed case then goes for retrial (as already pointed out above) in front of a larger number of jurors and judges.
