Development of Jury

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Course Name:        Common Law: Origins and Development

Assignment No.:        Question 4

        “Trace the history and assumptions underlying the development and role of the jury in the common law.”

Submission Date:        30 November 2007

Word Count:        5601 (incl. footnotes)

                

Brad KWOK Ching-hei

30 November 2007


“Trace the history and assumptions underlying the development and role of the jury in the common law.”

TABLE OF CONTENTS

  1. INTRODUCTION
  2. GENERAL VIEW OF JURY
  3. RISE OF JURY SYSTEM
  4. ROLE AND DEVELOPMENT OF JURY
  5. THE DECLINE OF THE JURY TRIAL
  6. ASSUMPTIONS ON THE JURY
  7. CRITICISMS OF JURY TRIAL
  8. CONCLUSION


INTRODUCTION

The purpose of this assignment is to trace the history and assumptions underlying the development and role of the jury in the common law.  

For the first half of the assignment, I would outline the development of jury in the English Legal System.  First, the general view of jury would be briefly discussed.  This includes the definition, functions and composition of jury.  Then it comes to one of the main themes of the discussion: the history and development of jury.  Notwithstanding the origin of jury in the English Legal System was controversial, different views would be examined and presumably a final view with supporting arguments on the start of English jury system would be established.  

Base on its origin, one would follow its development by critically analyzing the virtue of the system.  This includes criticizing the system by referring to its drawbacks and difficulties.  Different authorities would be cited to review the development of both criminal and civil jury, the role of the jury and its function in trials.  With the substantial problems found in the analysis, one would conclude the decline of the jury trial and its effects on the English Legal System.

For the second half of the assignment, I would examine the assumptions on the jury.  The discussion involves the rationale in introducing the jury system in trials and how its merits or strength would contribute to promote fair and just trial.  On the other hand, the weaknesses of jury would also be discussed.  I would point out some recent examples which showed the defects of jury and how an inappropriate juror may cause detriment to the trail.  This comes to the criticisms of jury system and appropriate reform would be discussed at the end of this assignment.  


GENERAL VIEW OF JURY

The word “jury” originates in Latin, from “juris”, which means law.

Jury, in the English Legal System, is a sworn body temporarily assembled, constituted for the purpose of deciding, in the administration of civil and criminal justice, the disputed facts and returning a verdict in the case submitted to them.  It consists ideally of twelve impartial persons, taken from the community and residing in the vicinity.  It is the duty of jury to hear evidence as the court may rule proper for consideration and to find therefrom the facts in question.  Then, it will apply the law to the facts thus determined and thus find a final verdict.

Most juries are selected to try criminal offences but juries are also used to coroner’s inquests and in some civil cases.  The judge in a trial is responsible to direct the jury on points of law and sum up the evidence of the prosecution and defence for them, and leave the jury to decide all questions of facts for considering a verdict.  The verdict of a jury should, if possible, be unanimous, but when there are at least 10 people on the jury and they cannot reach a unanimous verdict, a majority verdict is acceptable.  The concept of majority verdict will be discussed in the later part of this paper.

There are two major classes of jury, namely petit jury and grand jury.  The composition of the jury abovementioned refers to petit jury (or trial jury).  It usually consists of 6 or 12 persons summoned and empaneled.  

A grand jury is a body of people (usually 23 persons) who are chosen to sit permanently for at least a month (sometimes a year) and who, in ex parte proceedings, decide whether to issue indictments.  If the grand jury decides that evidence is strong enough to hold a suspect for trial, it returns a bill of indictment charging the suspect with a specific crime.  Frank Miller clearly stated the function of grand jury:

“The grand jury serves – or may serve – two distinct functions.  One is a screening function; the grand jury evaluates evidence supporting possible charges and returns an indictment only in those cases in which the evidence amounts to at least a probable cause.  The other is an investigatiorial function; the grand jury sometimes develops information that is of value in determining whether grounds for a charge exist and – perhaps incidentally – in proving that charge at the defendant’s later criminal trial.”1

        

1.        Frank W. Miller et al., Cases and Materials on Criminal Justice Administration, 3rd ed. 1986, at 546.

In order to have a more comprehensive understanding of the composition of jury, the operation of jury and the role and function of jury, I would introduce you to 1,000 years before for a look on the history and development of the jury system.

RISE OF JURY SYSTEM

The origin of jury in the English Legal System was controversy.  Some historians contended the jury system was developed from laws and customs brought over by the Norman Conquest in 1066, while others pointed to the evidence of the existence of jury trials, in an embryo state, among the Anglo-Saxons period which was prior to the Norman Conquest.  Some scholars suggested even prior dates.

According to Blackstone, who gives credit to Anglo-Saxons for establishment of the jury system:

“Some authors have endeavored to trace the origin of juries up as high as the Britons themselves, the first inhabitants of our island, but certain it is that they were in use among the earliest Saxon colonies, their institution being ascribed by Bishop Nicolson to Woden [or Odin] himself, their great legislator and captain.  Hence it is that we may find traces of juries in the laws of all those nations which adopted the feudal system, as in Germany, France and Italy, who had all of them a tribunal composed of twelve good men and true…… being the equals or the peers of the parties litigant…… Its establishment however and use in this island, of what date so-ever it be, though for a time greatly impaired and shaken by the introduction of the Norman trial by battle, was always so highly esteemed and valued by the people that no conquest, no change of government, could ever prevail to abolish it.  In Magna Charta it is more than once insisted on as the principal bulwark of our liberties.” 2

In this paper, I will take the Blackstone’s view for the start of English jury system because evidence shows from my research that the jury system was probably developed due to democratic ideals, and the Normans had later adopted and altered the system.

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2.        Bl. Com., vol. 3, pp. 349-450

Under the Anglo-Saxons3, the inhabitants were divided into the freemen and un-freemen.  The great fundamental finding in Anglo-Saxon period was that, in those primitive Anglo-Saxon courts, whole company of freemen were judges.  In Anglo-Saxon periods, there was the inquisition by 12 senior thanes (note: a thane was always a man of importance in the Kingdom), who were sworn in the county courts.  The 12 thanes were in the nature of a jury of presentment, like the grand jury, and the absolute guilt or innocence of those accused by them had to ...

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