How does trial by jury work in practice?
Having been brought up in South Africa (during the Apartheid era), I could see that trial by jury would there have been beset my many problems. First of all, there would have been the language problem - South Africa had two official languages - English and Afrikaans and unless there was simultaneous translation, jurors would be expected to understand both languages which was not always the case. The next would have been the choice of language be used in the jury room. South Africa had the added problem of race relations. I won't enlarge on that, otherwise my posting would go on forever.
I have been on one jury in the United Kingdom. We were asked if any of us knew the defendant, the judge or any of the lawyers (barristers and advising solicitors) in the case. No-one did so the original twelve that were selected remained on the panel. During the proceedings, I looked at my fellow jurors to see who would make the best foreman and came to the conclusion that there were only two of us who were really suitable, one of whom was me. When it came to choosing a foreman, the other guy proposed me, the remaining 10 were in agreement so I accepted.
The case was one of attempted rape - the defendant, who had got drunk at a party the previous evening after a cricket match, was walking back home when he passed a home for the mentally handicapped. He had frequently visited the home as part of his job as a refuse lorry driver. He entered the grounds, caught sight of one of the female residents whose mental age was described by one witness as being that of a two-year old and by another as being that of a six-year old. He then broke into the building via an open window and was disturbed by the sub-warden as he was about to mount her. While the sub-warden was raising the alarm, the defendant disappeared through a window and was arrested a few hours later.
He faced three charges - breaking and entering the building with intention of rape, attempted rape and attempted sexual intercourse with a mentally deficient person. It is a matter of public record that after deliberating for ten minutes, the jury returned unanimous guilty verdicts on the second and third charges. However, after two and a half hours deliberation on the first charge, the judge told the jury that he would accept a majority verdict and the defendant was found guilty on a 11-1 vote. In my view, the evidence present by the Crown as regards the first charge was very weak.
Years after the trial, when reflecting what happened, I realised that any competent barrister could have driven a horse and carriage through the prosecution’s case on the first charge, but the defence barrister chosen not to do so. Instead he reserved all his energies to plead for a light sentence - the defendant was previously of good character, his mother had died three weeks previously etc, etc. He knew that his client was going to prison and the most serious charge was the second, so being found guilty or otherwise on the first would not affect the sentence. However if he annoyed the judge by challenging the first, his client might well have got eight years (or more) rather than the seven to which he was sentenced. (He was sentenced to two years for each of the first and third charge, all three sentences to run concurrently).
Yes, juries certainly have a role to play provided that they are truly the defendant's peers. In the discussions in the jury waiting room before we were called to the case, one of the other jurors remarked that if we were going to get a fraud case, I would probably have been the only person who understood the evidence. Had this been the case, this would clearly have been a situation where the jurors would not have been the defendant's peers.
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Some very strong and interesting points... and of course the Canadian references are of particular interest to me. Thanks a lot for sharing this Trevor - it is clearly well thought through and carefully edited, which must have taken many hours. I have two short comments, but I want to point out that the brevity of my response is not reflective of the value of this piece - I think it is something to publish and reference back to in future.My two comments;
1. I like the concept of choice (the accused can waive the right to a jury) and multiple solutions (some cases are too small or straight-forward to justify the expense of a jury). Canada is by no means perfect and I am regularly shocked by the ability of police here and to the south to destroy the lives of innocent people by wrongful and long term arrest - something South Africa summarily ended almost immediately after Mandela was released... but I do like the practicality of not having a jury in every case, considering the burden it puts on the jurors and the tax payer. One of my biggest concerns with juries is the parallels it has to military conscription and how it is achieved through compulsion. My proposed jury system does not use compulsion. Each litigant selects 6 (or some equal number) jury members, probably friends, family or colleagues, and they have the option to decline.2. Juries may be closer to freedom than decrees by the king, but it is so in the same way as democracy is closer to freedom than a monarchy - they still assume the existence of government and oppression, just with the throttle in the hands of more people. No state compulsion involved or required. Just a shared desire to litigate an issue cheaply and fairly. I would much prefer other kinds of trial not dependent on the existence of government, like trial by HR or trial by HOA or trial by private arbitration service. I currently have a dispute with my neighbour and I can (and probably will soon) phone the town's "Bylaw" line and have them send out a Peace Officer to come chat to the guy, but I wish this was a private service.This will almost certainly result in the officer being redirected to you.In short, I think I'm coming around to the idea of a jury having a place in the world, but I would not consider that the one and only solution available to us. I would consider it a tool in the toolkit of defenses against government (along with democracy, a constitution, a bill of rights, legal process) rather than a feature of Libertarianism, which does not need any of those tools. You don't need a constitution if there is no State to apply it to. But you will always have fellow citizens with whom you have disputes.
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In the UK, any individual has a one in three chance of being summonsed to do jury service once in their lifetime. When I did jury service, it appeared to me that the area from which jurors were summoned was the northern third of Hampshire (by area) which has a population of about half a million. Between 40 and 50 people were summonsed and as far as I could see, three courts were in session. It also appeared that those summonsed were chosen at random from the voter’s roll. Certain people were prohibited from sitting - basically anybody connected with the justice system (police, lawyers, judges etc) and anybody with a serious criminal record. Fifteen potential jurors were then summonsed to appear in the relevant court. The clerk of the court had the names on those fifteen on cards which she was openly shuffling and then she would draw a name. Twelve names were drawn, and they were the chosen jury unless there was an objection to any one of them (eg they knew the accused, one of the barristers, solicitors, judge etc). In order to secure a conviction, ten jurors out of twelve had to agree on a "guilty" verdict. If a juror dropped out due to illness etc (unlike the US, there were no "reserve jurors"), then ten out of eleven had to agree on a verdict.
In order to test the reliability of this system, we need to apply some statistics. A lot of work has been done of quality control using statistics and those statistics can be applied to the way in which the jury works. In the real world, some jurors will be unreliable - even if the defendant is blatantly guilty, they will vote "not Guilty" and equally, if for some reason they do not like the defendant (often the wrong colour skin, wrong accent etc), they will vote "guilty", even if he is not guilty. Sometimes it might happen that two such people will be on the same jury which effectively means that the remainder will have to be unanimous.
The origin of trial by jury in England was trial by one's peers. AS recently as the last century, this meant that if a member of the House of Lords was on trial, the jurors had to be chosen from the House of Lords. In the UK, things have now changed so that they go to great lengths to ensure a random selection from the population. This now works the opposite way - in specialised cases the jurors might not understand the underlying concepts: for example, in fraud cases many jurors might not really understand the concepts of what constitutes fraud and what does not. In the case where I was a juror, the basic concepts that had to be understood was giving of consent to engage in having sex and the reason why a person who had a serious mental disability could not give consent. There was no need for the court to explain those concepts to the jury.
Going to Trevor's proposal that each party choose half the jurors is in my view a recipe for deadlock. The closest that I have heard to that was in my law course (I never completed by BCom at UNISA), I learned that during medieval times, when a dispute arose between traders in the Hanseatic League towns, a court was summonsed with six local traders and six visiting traders as the jury who were urged to get a verdict before the tide changed.
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"Be seated and come to order. Bring the jury in," Cooper ordered the bailiff.
Two lone white faces, both young, one male and one female, among a sea of black females and one Hispanic male struck Stephan as peculiar, seeing the jury assembled like this for the first time, seated in rows in a cordoned-off section to the left of
the prosecution's tables. In the state of Georgia, females are 50.8% of the population and whites 65.8% according to the U.S. Census Bureau in 2006. This jury was 75% female and only 16.66% white. A rich white male from South Africa was
being judged by a predominantly poor, black and female jury and a black judge. What's wrong with this picture?
What Stephan did not know at the time and what Steel and Griffin would never tell him was that the jury he was looking at was not a jury as contemplated by the Sixth Amendment to the Constitution for the united States—no, it's correct, united
States as written in the Constitution—that guarantees the accused a trial by jury. A constitutional jury would be a common-law jury of his peers, his equals, of the same social and legal standing, who could judge the facts and the law, and if the law
is oppressive, could refuse to apply the law—the citizens' protection against overreaching or abusive government. The jury that Stephan was looking at had been sworn to apply the law as Cooper dictated and could only decide the facts, and was by
no means a jury of Stephan's peers, equals and of the same social and legal standing.
The impartial jury guarantee of the Sixth Amendment is a restatement of the language of the English Magna Charta (19th chapter) that calls for a man's equals, that is, of men of his own condition, as Lord Coke described in his commentaries. "A jury is
a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as he holds," the Supreme Court
recognized in Strauder v. West Virginia 100 U.S. 303 (1879).
In what way were members of this jury Stephan's peers and equals, having the same legal status in society?
Stephan was a permanent resident, called a resident alien, an affluent, white South African male. The jury consisted of mostly relatively poor black females who were all United States citizens.
Stephan owned and ran several international companies with hundreds of employees. No juror had ever owned or run a company or managed more than a few people.
Jurors qualified for Government jobs, could vote, could run for public office and become president of the United States; Stephan could not.
Stephan if convicted, even for minor offenses such as passing a bad check or a traffic offense such as driving under the minor influence, would lose all Social Security benefits and be deported; jurors not.
Stephan could be criminally prosecuted and deported for failing to report a change of address; jurors not.
Unlike jurors, if convicted, Stephan would be ineligible to get a year off his sentence by taking certain classes; would be ineligible for camp or minimum-security level confinement; could not get a job in UNICOR, the government-sponsored prison
In fact, one would be hard-pressed to find in what way the jurors were Stephan's peers and equals and of the same social and legal standing.
The Supreme Court recognized in Taylor v. Louisiana 419 U.S. 522 (1975) that the jury has to be selected from a representative cross-section of the community. In Duran v. Missouri 439 U.S. 357 (1979), it held that representation of the population not reflected in the composition of the jury violates the requirement of the Sixth Amendment. Recognizing that "common sense and common experience confirm that conscious and unconscious prejudices persist in our society that influence juries" and "racial animus will affect the verdict," Justice Clarence Thomas in Georgia v. McCollum 505 U.S. 42 (1992) found that "the integrity of the courts is jeopardized where prosecutor's discrimination invites cynicism respecting the jury's neutrality and undermines public confidence" in the verdict. Stephan's jury being 83.33% non-white and 75% female in a district where males and females are virtually evenly matched and is 66.8% white "is a disparity unlikely to have been produced by happenstance," the Supreme Court recognized in Miller-El v. Dretke, 545 U.S. 231 (2005). The Eleventh Circuit Court of Appeals, in which the District Court in which Stephan was tried falls, recognized, "If a disparity is sufficiently large, then it is unlikely that it is due solely to chance or accident, and, in the absence of evidence to the contrary, one must (emphasis mine) conclude that racial or other class-related factors entered the selection process,'' in Bryant v. Wainwright 686 F.2d 1373 (11th Cir. 1982). The Government would argue, and some inferior courts would agree, that unless the defendant can show that the Government has systematically been doing it in a long line of cases over a prolonged period of time, the defendant can't assert a claim that his jury was rigged; the judges quite willing to ignore the absurdity that an accused's constitutional right is only violated if he can prove that the Government has done it to many others and that he just happens to be the last one in a long line. The Government and those inferior courts require an accused to prove continuity, that the Government has been shuffling the cards and stacking the decks behind the scenes all along, "imposing a crippling burden on the accused to discover that which the Government has every incentive and power to conceal," and ignore the Supreme Court holding in Williams v. State of Georgia 349 U.S. 375 (1955), that an accused is "not required to make a searching investigation out of court to determine whether jurors who are summoned are disqualified … [N]ot only is no such duty placed by the law upon the accused and his counsel, but the contrary practice is to be encouraged for obvious reasons.'' The Government would argue that exclusion from a jury is a violation of the juror's right to sit on the jury and disqualification or discrimination could only be asserted by the excluded juror, choosing to ignore that it is the right of the accused that is guaranteed by the Sixth Amendment, not the excluded juror's, according to the Supreme Court in Virginia v. Reeves 100 U.S. 313 (1880) and Ex Parte Commonwealth of Virginia 100 U.S. 339 (1879). It is not the accused's duty to vet the Government and judge's jury selection process to ensure an impartial jury of his peers and equals, of the same legal status and a statistical representation of the community; it is the Government and the judge's. The Supreme Court in Martin v. Texas 200 U.S. 316 (1906) placed the burden on the prosecution to prove that that particular jury was a statistical representation of the community. In Neal v. Delaware 103 U .S. 310 (1880), the Supreme Court held that exclusion or jurors because of race—in Stephan's case whites—violates the defendant's right to an impartial jury under the Constitution.
No defense attorney practicing in federal court will inform the client, the accused, of the issues and law cited above.
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