Jury

• 1. Introduction

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  A jury is a group of sworn ordinary citizens called together to decide one of the most consequential questions any society can ask: is this person guilty? Twelve strangers, sometimes fewer, sometimes more, are pulled from their daily lives, handed the weight of evidence, and asked to agree. The institution traces back to medieval England, and today it operates in courtrooms across the United Kingdom, the United States, Canada, Australia, Ireland, and many other countries whose legal systems grew from the British Empire. Most of the world, however, does not use juries at all. Countries grounded in European civil law or Islamic sharia law typically entrust that same judgment to a single professional judge. What is it about the jury that made it spread so widely in some places, and why do critics still argue about whether it should exist? Those questions run through everything that follows.

• 2. Ancient Roots

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  Records of jury courts in the ancient city-state of Athens reach back to 500 BCE. These early Greek juries voted by secret ballot and were eventually granted the power to annul unconstitutional laws, a practice that introduced what we now call judicial review. Far to the north, many ancient Germanic tribes relied on a group of men of certain social standing to investigate crimes and judge the accused. That same custom eventually became the vehmic court system in medieval Germany. In Anglo-Saxon England, juries investigated crimes, and after the Norman Conquest, certain parts of the country preserved the practice. The so-called Wantage Code offers one of the earliest written references to a jury-like body in England: a decree issued by King Ethelred the Unready, at Wantage around 997, required that in every Hundred, the twelve leading thegns together with the reeve would swear on relics that they would not accuse any innocent man nor shield a guilty one. Before 1066, Normandy had already established a jury of nobles to decide land disputes, partly so that the Duke, as the largest landowner, could not act as a judge in his own case.

• 3. The English Common Law Crucible

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  The modern jury trial took shape in the mid-12th century, during the reign of Henry II. Juries, usually six or twelve men, were already described as an "ancient institution" by that time in some parts of England. Called juries of presentment, these men testified under oath about crimes in their neighbourhood. They were recruited from the locality of the dispute and were expected to know the facts before arriving in court; their knowledge could include firsthand experience, community investigation, and even rumour and hearsay. The Assize of Clarendon in 1166 caused these juries to be adopted systematically across the country. Between 1166 and 1179, new procedures divided responsibility among the sheriff, the jury of local men, and the royal justices, ushering in the era of the English Common Law. Sheriffs found jurors with relevant knowledge; royal justices supervised trials and announced decisions; sheriffs then executed those decisions. The arrangement allowed Henry II to delegate authority without giving any single subordinate too much power. Then came a turning point. In 1215, the Catholic Church removed its sanction from trial by ordeal, which had been the standard way of testing guilt. England had forty years of judicial experience to fall back on, and justices were already accustomed to asking juries of presentment about points of fact; it was, as one account puts it, a short step to ask jurors whether they concluded the accused was guilty as charged.

• 4. Types of Jury

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  Not every jury does the same job. The petit jury, also called the trial jury, hears the evidence presented by both sides in a case and, after receiving instructions from the judge, retires to deliberate on a verdict. Some jurisdictions require a unanimous decision; others allow a majority or supermajority. A jury that cannot reach any verdict is called a hung jury. The grand jury is a different creature, now confined mostly to federal courts and certain state jurisdictions in the United States and Liberia. Its task is not to decide guilt but to examine whether there is enough evidence for a criminal trial to proceed. U.S. federal grand juries have between 16 and 23 members, and the Fifth Amendment to the U.S. Constitution guarantees Americans the right to be free from charges for serious crimes unless a grand jury has issued an indictment. A third type, the coroner's jury, can be convened in some common law jurisdictions in connection with an inquest into ambiguous or suspicious deaths; it exists mainly to increase public confidence in the coroner's finding where controversy might otherwise arise, particularly when a law enforcement officer is involved in a death. A fourth type, the advisory jury, is non-binding entirely. Its findings serve only to inform the judge, who remains the final decision-maker on both fact and law. The practice originated in the English Court of Chancery, where factual issues were sometimes referred to common law courts for a jury's opinion in a procedure later known as the feigned issue.

• 5. Jury Selection and Composition

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  In 1730, the British Parliament passed the Bill for Better Regulation of Juries, requiring the list of those eligible for service to be posted in each parish and selecting jury panels by lot, also known as sortition. Its aim was to prevent middle-class citizens from evading their responsibilities by financially undermining the official responsible for assembling the panel. In 19th-century Ireland, the sheriff was required to summon one potential juror from each letter of the alphabet, repeating as needed, until between 36 and 60 men had been summoned for the quarterly assizes. Normally the sheriff or a constable went to each person's home to show him the summons paperwork; it was not until 1871 that any Irish jurors could be summoned by mail. In 1874, a report noted that one-third of summoned Irish jurors failed to appear in court. Today, juries are generally drawn from large databases identifying eligible adult citizens, such as identity cards, driver's licenses, or tax records, and summons are delivered by mail. In the United States, the selection process known as voir dire allows lawyers to question prospective jurors, issue challenges for cause against those deemed partial, and exercise a set number of peremptory challenges to remove jurors without stating a reason, though the Supreme Court later limited the use of peremptory challenges when the stated reason was the juror's race. In Scotland, a criminal trial jury consists of 15 jurors, believed to be the largest in the world. A 2009 review by the Scottish Government considered reducing that number and concluded, in the words of the Cabinet Secretary for Justice, that Scotland had got it "uniquely right".

• 6. Jury Nullification

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  In 1670, the trial of the Quaker William Penn asserted what became known as the de facto right of a jury to render a verdict contrary to the facts or the law. The principle took dramatic form in 1728 with the case of one Carnegie of Finhaven, who had accidentally killed the Scottish Earl of Strathmore. The law as it stood required the jury to return a verdict of "proven" and condemn Carnegie to death for an accidental killing. Instead, the jury asserted what it called its "ancient right" to judge the whole case and returned a verdict of "not guilty". Perhaps the most striking modern example in England and Wales was the 1985 acquittal of Clive Ponting, who was charged with revealing secret information under section 2 of the Official Secrets Act 1911. The trial judge directed the jury that "the public interest is what the government of the day says it is," which amounted to a direction to convict. The jury returned a verdict of not guilty. Four years later, Michael Randle and Pat Pottle confessed in open court to helping the Soviet spy George Blake escape from Wormwood Scrubs Prison and smuggle him to East Germany in 1966. Pottle successfully asked the jury to disregard the judge's instructions and assert the ancient right to reject what he described as a politically motivated prosecution. Lord Devlin, in his book Trial by Jury, described the jury as "the lamp that shows that freedom lives" and called it "a little parliament," arguing that juries are usually dominated by judges but can, in extraordinary circumstances, throw off that control. In the United States today, juries are instructed to follow the judge's direction on the law; the Supreme Court ruled in Sparf v. United States by a 5-4 decision that a trial judge has no obligation to inform the jury of the right to nullify laws.

• 7. Effectiveness and Criticism

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  Detailed interviews with jurors after trials involving complex expert testimony have shown that jurors carefully assess the completeness and consistency of expert evidence, compare it with other evidence, and evaluate it against their own knowledge and life experience. According to Kalven and Zeisel (1966), a survey of approximately 8,000 criminal and civil trials found that judges and juries agreed on the verdict 80 percent of the time. One researcher has described a "jury-shaped hole" at the centre of contemporary jury science, because deliberations are conducted privately and researchers are generally not permitted to study live criminal juries. Studies of juror bias have found differences in conviction rates tied to whether jurors and defendants share the same ethnicity, and crime-type bias, where jurors' perception of a prosecutor's case shifts with the severity of the charge, is also documented. An analysis of over a quarter million felony cases in the United States found no statistically significant taste-based or statistical discrimination between Black and White defendants in grand juries, though other studies found significant sentencing disparities related to in-group favoritism. A study by the University of Glasgow suggested that a civil jury of twelve people was ineffective because a few jurors tended to dominate discussion, and that seven was a better number because more people felt comfortable speaking and the group had an easier time reaching a unanimous decision. Despite all this criticism, only about 3 percent of U.S. judges favor abolishing the jury.

• 8. Jury Sentencing

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  Jury sentencing, the practice of having jurors decide penalties rather than just guilt, began in the U.S. state of Virginia in the 18th century and spread westward through the influence of Virginia-trained lawyers. In Canada, the 1961 Criminal Code required judges to ask juries in capital murder cases whether they recommended clemency; when capital punishment was abolished in 1976, the Criminal Code was amended to allow juries to recommend periods of parole ineligibility in second-degree murder cases, though judges usually ignore those recommendations on the grounds that judges are better informed about sentencing jurisprudence. In 2007, New South Wales Chief Justice Jim Spigelman proposed involving juries in sentencing, a suggestion rejected by District Court Chief Judge Reg Blanch, who cited "an expected wide difference of views between jurors about questions relating to sentence" and raised concerns about jury tampering through intimidation by defendants. Germany and many other continental European countries take a different approach: professional judges and lay judges deliberate together at both the trial and sentencing stages, a mixed-court model that has been praised as dispensing with most of the time-consuming jury control practices of Anglo-American procedure while still serving the purposes of a jury trial. Canada's faint hope clause, which formerly allowed a jury to consider reducing a long-serving prisoner's parole ineligibility period, was repealed in 2011.