Juries in the U.S. and England

Development of Common Law Juries

Normans brought “jury system” with them after the Conquest.

System developed at local level to help courts settle disputes based upon local custom and knowledge

Right jury was enshrined in Magna Carta

Modern Juries

Today, attorneys investigate and present facts Jury's role is to determine what the facts are

In criminal case, judge guilt or innocence. In civil cases determine which party wins dispute. Judge instructs jury as to the law.

Right to Juries

In U.K. Magna Carta originally gave the people the right, but it has since been restricted. Gradual decline of their use. Unlike U.S., right is NOT enshrined in constitution.

In U.S. - Constitution provides right in federal cases, states vary as to the right.

Use in Civil Cases (U.K.)

Decline in mid-1900s, today only 1% are heard by juries.

Supreme Court Act limits right to case involving: libel and slander, fraud, malicious prosecution, and

false imprisonment. Still not absolute right.

Courts have also limited right to jury.

Limiting Jury Trials in Personal Injury Cases

“That in cases of personal injuries it was a most material consideration for the judge to bear in mind when ordering trial by jury that an award of damages in such cases was basically a conventional figure derived from experience and from awards in comparable cases which the judge was allowed to know but the jury was not, with the result that it was not possible in jury trials to achieve uniformity in like cases; that the court could not sanction any departure from the present practice in jury trials; and that therefore, even when the issue of liability was one fit to be tried by a jury, the judge might think fit to order that damages be assessed by a judge alone.

Lord Denning, Ward v. James (1965)

Use in Criminal Cases (U.K.)

Only 2% of criminal cases heard by juries. Vast majority of criminal cases are minor and heard by

magistrates. Only cases heard by Crown Court are eligible for

juries. Shrinking list of “serious” crimes = shrinking use of

juries.

Criminal Trials (U.S.)

Routinely available for serious criminal charges Article III, Sec. 2 provides: “The Trial of All

Crimes, except in Cases of Impeachment, shall be by Jury.”

The Sixth Amendment provides that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”

Seventh Amendment

“In cases 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 reexamined in any Court of the United States, than according to the rules of the common law.”

Not applicable to the states.

Selecting a Jury

“We have a jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding twelve men who don’t know anything and can’t read.”

­ Mark Twain  

Importance of Jury Selection

Widely recognized as key part of trial Lawyers frequently trading on stereotypes

(sociological profiles) along wide variety of factors: ethnic, religious, race, gender, regional, nationality, age or political affiliations

Quite common for lawyers to conduct “mock jury trials” or use “focus groups” to test their case

Selection Process (U.S.)

Developing the Pool Automatic Exclusions

(Felons) Challenges for Cause Party Choice

(Peremptory Challenges)

Qualifications (U.K.)

On election rolls. Between 18 and 70

years old. Resident since 13

living in U.K for past five years.

Not committed serious crime.

Selection Process (England)

Pool is created using election rolls Names and addresses of potential jurors are

inspected by parties, then placed in box. Names are randomly selected from box by judge

and jury is sworn in. Parties are not allowed to ask jurors any

questions. In exceptional cases judge may use a questionnaire to

ensure that jury has not been prejudiced by pre-trial publicity.

Challenging Potential Jurors

Jury Vetting – process of state doing background checks on potential jurors. Now prohibited by law, EXCEPT

may compare with police records to ensure no disqualified person is on the panel

in terrorism and national security cases, cross-check with spy agency list of terrorist suspects.

Standing by for the Crown prosecution can move potential juror to “back of the

line.”

Challenge for Cause – available but hard to use because lawyers have little information about jurors.

Size of Jury (Criminal U.S.)

6th Amendment does NOT require 12 Cannot consist of less than 6 All Federal cases still use 12

Unanimous verdict is NOT required for 12 person jury 9 is permissible six person jury must be unanimous

Jury Size (Civil, U.S.)

Federal System No 12 person or unanimous requirement Fed law provides, 6 person unanimous in Fed cases

State System Size and unanimity vary

Cons of the Jury System

Delay and Expense. A jury trial takes at least twice as long as a judge trial given need to select and instruct jury, etc.

Evidence presented more slowly Competency Issues. Are juries good at deciding

cases? Rigidity that it Imparts to the Process Impact on the Legal Profession

Pros of the System

The Jury “cannot fail to exercise a powerful influence upon the national character.” (It) invests each citizen with a kind of magistracy; it makes them all feel the duties which they are bound to discharge towards society and the part which they take in its government. By obliging men to turn their attention to other affairs than their own, it rubs off that private selfishness which is the rust of society."

- De Tocqueville

Contemporary Issues in U.S.

Jury Size: Historically, juries had 12 members. Some courts have reduced to 6 or 8 members. Is this a good idea?

Unanimous Verdicts: Juries used to have to reach unanimous verdicts. To avoid “hung” juries, some states now require only majority votes such as 10 out of 12 votes

Are these good ideas? How will they impact jury deliberations?

Jury Nullification

Jury's refusal to render a verdict according to the law, as instructed by the court, regardless of the weight of evidence presented. Instead, a jury bases its judgment on other grounds.

Historically, examples include the unjustness of the law, injustice of its application, the race of a party, or the jury’s own common sense.

Jury Selection Simulation

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 where in the crime shall have been committed . . . .

Sixth Amendment to the U.S. Constitution