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Petit Jury - History

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Petit jury - a trial jury, which weighs the evidence against someone accused of a crime, and determines his or her guilt or lack of guilt under the law. Trial or petit juries traditionally have 12 people, although several states have juries with only 6 people. In most states, all the members of the jury must make their decision on the person's guilt or lack of guilt (verdict) unanimously. Some states, however, only require a majority which is greater than a simple majority. If a jury cannot agree on verdict, it is declared a "hung jury," and the matter is either dropped or brought to another trial with a new jury..

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Do some people get called for jury duty more than others?

Whether you consider it "good" luck or "bad," some people do get called for jury duty more than others. There is no government conspiracy behind the fact that you may have received four jury summons in the past decade while your neighbor hasn't gotten one it's simply the luck of the draw. It's like those people who win the lottery multiple times, except instead of getting millions of dollars, you get to sit in a stuffy courthouse waiting room with slow WiFi.

The simple reason why some people get summoned to report for jury duty more than others is that the selection system is completely random. Prospective jurors are randomly picked by a computer from the jury pool. The pool, in most states, is a combined list of names from both the voter registration rolls and the driver's license database.

If your name is in the jury pool, there is no limit to the number of times that you can be flagged for jury duty. The good news is that once you report for service, your name is pulled from the jury pool for at least the next 12 months, even if you don't get placed on a jury [source: Philadelphia Courts]. If you actually serve, you are exempt from jury duty for the next two or three years, depending on the state. After that, you're tossed back in the mix.

Instead of seeing it as a curse, you could be thankful that you even qualify to be called for jury duty. Convicted felons aren't allowed to sit on juries, for example, nor are people with serious physical or mental illnesses [source: U.S. Courts]. In that way, it's a blessing that you are able to serve your country and its impartial judicial system. We salute you, juror number 178293!

Still not convinced that the system is fair? Keep reading to learn more about the jury system in America and (shhh!) how to lower your odds of getting picked for jury duty.

The History of the Jury System

Why exactly are people randomly picked to serve on a jury? Wouldn't it be better to let legal experts decide important court cases, and a not a dozen random strangers? Who came up with this system, anyway?

The answer to that last question, like most, is the ancient Greeks. In the groundbreaking Athenian democracy created in 507 B.C.E., all court cases were decided directly by the people. Huge juries of 500 people or more were selected every day from a pool of roughly 40,000 adult male citizens to rule on everything from murder cases to neighborly squabbles [source: History.com].

The Magna Carta, penned in 1215, expressly included the right of every free man to protection from punishment without "the lawful judgment of his peers" [source: Library of Congress]. The 18th-century framers of the United States Constitution believed that a trial by an impartial jury was among the principle rights of any free society. In fact, the Fifth, Sixth and Seventh Amendments to the Constitution ensure the right to a jury in both criminal and civil cases [source: U.S. Courts].

Today, U.S. federal law states that juries must be "selected at random from a fair cross section of the community . wherein the court convenes." Hence the computer-selected names from a list of registered voters and licensed drivers. The law further states that "all citizens shall have the opportunity to be considered for service . and shall have an obligation to serve as jurors when summoned for that purpose" [source: Cornell University Law School].

These two components of the U.S. jury system — randomness and compulsory service — combine to ensure that a jury is a representative sample of the community regardless of race, gender, political affiliation or ability to weasel out of jury duty.

Being called for jury duty does not mean that you'll sit on an actual case. In fact, there's a good chance that you will be dismissed the same day and sent home with your free pass for a year.

When a trial requires a jury, prospective jurors are brought in and asked questions by lawyers from both sides in a process called voir dire [source: U.S. Courts]. From a large group of prospective jurors called each day, only six to 12 (a trial or petit jury) will be chosen for the trial phase of criminal or civil cases, and up to 23 for a grand jury [source: U.S. Courts]. Each side's lawyers can reject a number of prospective jurors without giving a reason. This is called a peremptory challenge, and the number allowed ranges between three and 20 per side, depending on the type of case [source: Cornell University Law School]. Since some alternates are also needed for the jury box, you have to have large pool of potential jurors to seat 12 people and two alternates. That's one reason you might find your jury summons coming quite regularly. Another is if you live in an area with high rate of no-shows. That means the court may request a lot more people to appear than it might need.

Is there a way to lower your odds of being summoned for jury duty or selected for an actual trial? Find out on the next page.

Yes, jury duty is a legal obligation, and sure, it contributes to the impartiality and overall fairness of the American judicial system, but it's also a genuine pain in the neck.

You miss work. You battle rush-hour traffic to get downtown. You wander cluelessly around the courthouse looking for your room. You wait for what seems like an eternity (two hours). Finally, you're herded into a courtroom to be questioned by bored lawyers and a scary-looking judge. Then you're sent home with a few bucks for your trouble. Or worse, you are selected for a trial that lasts all week!

There are legitimate reasons to want to avoid jury duty, but we would never encourage you to break the law. Instead, use the law to your advantage.

For example, most states draw prospective jurors from the voter registration rolls and the driver's license database. If your name appears differently on those two lists — Bob instead of Robert, for example, or married name versus maiden name — you might be counted twice. The same thing can happen if your address or birth date are different [source: Superior Court of California]. Lower your odds of getting picked by updating your records through the Department of Motor Vehicles.

Then there are the exemptions from service. When you receive your jury summons, it will come with a questionnaire to determine your eligibility for service. Medical or physical conditions are certainly grounds for exemption, if accompanied by a doctor's note (jurors over 70 don't need a note). You can also claim a "hardship" exemption if serving on a jury will result in a critical loss of wages, or you need to be home to take care of a child or elderly relative [source: Philadelphia Courts].

What if you can't legally get out of jury service, but want to avoid being picked for an actual trial? Homer Simpson's sage advice: "Getting out of jury duty is easy. The trick is to say you're prejudiced against all races." Well, not exactly. While it's true that lawyers or the judge will dismiss a juror who is openly biased against one of the parties in the case, don't pull a Homer. Once you've heard an overview of the case, you can simply claim that you are unable be fair and impartial, and they'll let you go [source: Warner].


How You Were Selected to Serve as a Juror in the Southern District of West Virginia

Pursuant to 28 U.S.C. Section 1861, all litigants "have the right to grand and petit jurors selected at random from a fair cross section of the community." The court uses a two-step process to select jurors. First, a master jury wheel is created by selecting names at random from the Registered Voters List for the State of West Virginia. Then, names are randomly drawn periodically from the master jury wheel to receive juror qualification questionnaires. Individuals' answers to these questionnaires determine whether they are legally qualified to serve. If so, the names of those persons are put on a second wheel, a qualified jury wheel. As prospective jurors are needed for a specific trial or grand jury, juror summonses are sent to persons randomly selected from the qualified wheel. All of these selections are carried out through a properly programmed electronic data processing system for pure randomized selection. The pure randomized process ensures that the mathematical odds of any single name being picked are substantially equal.

If you have been randomly selected to serve as a prospective juror for the United States District Court for the Southern District of West Virginia, you will receive a Summons for Jury Service for service on a Petit Jury Panel or a Grand Jury Panel.

This federal court may summon citizens for jury service who live in in the four divisions composed of the following twenty-three counties:

If you moved from one division to another, please contact the Clerk&rsquos Office and request a transfer. If you moved to a county not mentioned above, please provide your new address and request to be disqualified.


Petit Jury Handbook

The purpose of this handbook is to acquaint trial jurors with the general nature and importance of their role as jurors. It explains some of the language and procedures used in court, and it offers some suggestions helpful to jurors in performing this important public service.

Nothing in this handbook is to be regarded by jurors as instructions of law to be applied by them in any case in which they serve. The judge will instruct the jury in each separate case as to the law of that case. For example, in each criminal case, the judge will tell the jury, among other things, that a defendant charged with a crime is presumed to be innocent and the burden of proving the defendant's guilt beyond a reasonable doubt is upon the Government. Jurors must follow only the instructions of law given to them by the trial judge in each particular case.

Importance of Jury Service

Jurors perform a vital role in the American system of justice. The protection of our rights and liberties is largely achieved through the teamwork of judge and jury who, working together in a common effort, put into practice the principles of our great heritage of freedom. The judge determines the law to be applied in the case while the jury decides the facts. Thus, in a very important way, jurors become a part of the court itself.

Jurors must be men and women possessed of sound judgment, absolute honesty, and a complete sense of fairness. Jury service is a high duty of citizenship. Jurors aid in the maintenance of law and order and uphold justice among their fellow citizens. Their greatest reward is the knowledge that they have discharged this duty faithfully, honorably, and well. In addition to determining and adjusting property rights, jurors may also be asked to decide questions involving a crime for which a person may be fined, placed on probation, or confined in prison. In a very real sense, therefore, the people must rely upon jurors for the protection of life, liberty, and the pursuit of happiness.

In this country, there are two systems of courts. The courts of the individual 50 States and the District of Columbia and the courts of the Federal Government. This book is written for jurors selected to serve in the trial court of the Federal Government, the United States District Court. The types of cases which can be brought in this court have been fixed by the United States Congress according to our Federal Constitution.

Cases in the United States District Courts are divided into two general classes: criminal cases and civil cases.

Criminal cases are those in which individuals or organizations are charged with breaking the criminal laws. Typical criminal charges in a federal court are those involving violation of the federal income tax and narcotics laws, mail theft, and counterfeiting.

Civil cases are suits in which persons who disagree over their rights and duties come into court to settle the matter. A typical example of a civil case is one involving a broken contract. One party may claim that it should be paid under the terms of the contract, while the other side may assert a defense to the claim, such as the lack of a binding contract. The court is asked to decide who is right. This depends on the law as laid down by the judge and the facts as decided by the jury.

The Criminal Case

The person charged with a violation of the law is the defendant. The charge against the defendant may be brought in two ways. One way is by means of an indictment the other is by an information.

An indictment is a written accusation by a grand jury that charges the defendant with committing an offense against the law. Each offense charged will usually be set forth in a separate count of the indictment.

An information is the name given to a written charge against the defendant filed by the United States Attorney and not by the grand jury. But even in cases where the defendant has the right to have a grand jury consider the charges presented, the defendant may agree to give up this right and consent to the filing of an information.

After the indictment or information is filed, the defendant appears in open court where the court advises the defendant of the charge and asks whether the defendant pleads "guilty" or "not guilty." This procedure is called the arraignment.

No trial is needed if the defendant pleads guilty and admits to committing the crime. But if the defendant pleads not guilty he or she will then be placed on trial.

The judge in a criminal case tells the jury what the law is. The jury must determine what the true facts are. On that basis, the jury has only to determine whether the defendant is guilty or not guilty as to each offense charged. What happens thereafter is not for the jury's consideration, but is the sole responsibility of the judge. In other words, the sentence is not to be considered in any way by the jury in arriving at an impartial verdict as to the guilt or innocence of the defendant.

The jury must consider separately each of the charges against the defendant, after which it may find the person: not guilty of any of the charges, guilty of all the charges, or guilty of some of the charges and not guilty of others.

The Civil Case

The following is an example of the kind of civil case jurors in a United States District Court will help decide.

Let us call the case John Smith v. XY Company. This means that John Smith has filed a claim against the XY Company. John Smith is called the plaintiff, the person who begins the case. The XY Company is the defendant. The plaintiff and the defendant are the parties.

The plaintiff, John Smith, states his claim in a paper called the complaint. The defendant, XY Company, replies to the complaint in a paper called the answer. The complaint and the answer are the main pleadings in the case. The points in the pleadings upon which the parties disagree make up the issues of fact and law. Sometimes these issues are set forth in a pre-trial order. This is an order drawn up by the judge after consulting with the attorneys for the parties.

The Voir Dire Examination

To begin a jury trial, a panel of prospective jurors is called into the courtroom. This panel will include a number of persons from which a jury will be selected to try the case. Alternate jurors may be chosen to take the place of jurors who become ill during the trial.

The panel members are sworn to answer questions about their qualifications to sit as jurors in the case. This questioning process is called the voir dire. This is an examination conducted by the judge and sometimes includes participation by counsel. A deliberately untruthful answer to any fair question could result in serious punishment to the person making it.

The voir dire examination opens with a short statement about the case. The purpose is to inform the jurors of what the case is about and to identify the parties and their lawyers.

Questions are then asked to find out whether any individuals on the panel have any personal interest in the case or know of any reason why they cannot render an impartial verdict. The court also wants to know whether any member of the panel is related to or personally acquainted with the parties, their lawyers, or the witnesses who will appear during trial. Other questions will determine whether any panel members have a prejudice or a feeling that might influence them in rendering a verdict. Any juror having knowledge of the case should explain this to the judge.

Parties on either side may ask that a member of the panel be excused or exempted from service on a particular jury. These requests, or demands, are called challenges.

A person may be challenged for cause if the examination shows he or she might be prejudiced. The judge will excuse an individual from the panel if the cause raised in the challenge is sufficient. There is no limit to the number of challenges for cause which either party may make.

The parties also have a right to a certain number of challenges for which no cause is necessary. The are called peremptory challenges. Each side usually has a predetermined number of peremptory challenges. The peremptory challenge is a legal right long recognized by law as a means of giving both sides some choice in the make-up of a jury. Jurors should clearly understand that being eliminated from the jury panel by a peremptory challenge is no reflection upon their ability or integrity. In some courts the peremptory challenges are made openly in the hearing of the jury. In others, they are made from the jury list out of the jury's sight.

The Jurors' Solemn Oath

After the voir dire is completed, the jurors selected to try the case will be sworn in. The judge or clerk will state to the jury: "Members of the Jury, you will rise, hold up your right hands, and be sworn to try this case."

The jurors then rise and hold up their right hands. The jurors face the judge or the clerk who is to administer the oath. That official slowly, solemnly, and clearly repeats the oath. The jurors indicate by their responses and upraised hands that they take this solemn oath.

Jurors not wishing to take an oath may request to affirm instead of swear. In some districts the jury is sworn upon the Bible and not by uplifted hand.

The Eight Stages of Trial

The trial proceeds when the jury has been sworn. There are usually eight stages of trial in civil cases. They are:

1. The lawyers present opening statements. Sometimes the opening statements on behalf of one or more parties are omitted.

2. Plaintiff calls witnesses and produces evidence to prove its case.

3. Defendant may call witnesses and produce evidence to disprove the plaintiff's case and to prove the defendant's claims.

4. Plaintiff may call rebuttal witnesses to disprove what was said by the defendant's witnesses.

5. Closing arguments are made by the lawyer on each side.

6. The judge instructs or charges the jury as to the law.

7. The jury retires to deliberate.

8. The jury reaches its verdict.

During the trial, witnesses called by either side may be cross-examined by the lawyers on the other side.

Throughout the trial, the judge may be asked in the presence of the jury to decide questions of law. Usually these questions concern objections to testimony that either side wants to present. Occasionally, the judge may ask jurors to leave the courtroom briefly while the lawyers present their legal arguments for and against such objections. The law requires that the judge decide such questions.

A ruling by the judge does not indicate that the judge is taking sides. He or she is merely saying, in effect, that the law does or does not, permit that question to be asked.

It is possible that the judge may decide every objection favorably to the plaintiff or the defendant. That does not mean the case should be decided by the jury for the plaintiff or the defendant. Even where the judge decides every objection favorably to the plaintiff or the defendant, the jury should maintain its objectivity and base its verdict strictly upon the testimony and exhibits received in evidence at trial.

The juror takes an oath to decide the case "upon the law and the evidence." The law is what the judge declares the law to be. The evidence which you will consider consists of the testimony of witnesses and the exhibits admitted in evidence. What evidence is proper for the jury to consider is based upon the law of evidence.

The Arguments of Counsel

After presentation of the evidence is completed, the lawyers have the opportunity to discuss the evidence in their closing arguments. This helps the jurors recall testimony that might have slipped their memory.

The chief purpose of the argument is to present the evidence in logical and comprehensible order. The lawyers fit the different parts of the testimony together and connect up the facts.

It must be remembered that each attorney presents the view of the case that is most favorable to his or her own client. Each lawyer's side appears to be right to that lawyer. Each lawyer's statement may be balanced by the statement of the lawyers on the other side.

The Charge to the Jury

The charge of a judge to a jury in a United States District Court frequently is much more than a statement of the rules of law. Sometimes it may contain a summary of the facts or some of the facts.

It is the jury's duty to reach its own conclusion based upon the evidence. The verdict is reached without regard to what may be the opinion of the judge as to the facts, though as to the law the judge's charge controls.

The judge may point out and may also explain what basic facts are in dispute, and what facts do not actually matter in the case. In other words, the judge may try to direct the jury's attention to the real merits of the case and impartially summarize the evidence bearing on the questions of fact. The judge will state the law related to the facts presented to the jury.

The Jury's Verdict

In both civil and criminal cases, it is the jury's duty to decide the facts in accordance with the principles of law laid down in the judge's charge to the jury. The decision is made on the evidence introduced, and the jury's decision on the facts is usually final.

Courtroom Etiquette

A court session begins when the court official raps for order. Everyone in the court rises. The judge takes his or her place on the bench, and the court official announces the opening of court. A similar procedure is used when court adjourns.

Common courtesy and politeness are safe guides as to the way jurors should act. Of course, no juror will be permitted to read a newspaper or magazine in the courtroom. Nor should a juror carry on a conversation with another juror in the courtroom during the trial.

Jurors will be treated with consideration. Their comfort and convenience will be served whenever possible. They should bring to the attention of the judge any matter affecting their service and should notify the court of any emergencies. In the event of a personal emergency, a juror may send word to the judge through any court personnel, or may ask to see the judge privately.

Conduct of the Jury During the Trial

Jurors should give close attention to the testimony. They are sworn to disregard their prejudices and follow the court's instructions. They must render a verdict according to their best judgment.

Each juror should keep an open mind. Human experience shows that, once persons come to a preliminary conclusion as to a set of facts, they hesitate to change their views. Therefore, it is wise for jurors not to even attempt to make up their mind on the facts of a case until all the evidence has been presented to them, and they have been instructed on the law applicable to the case. Similarly, jurors should not discuss the case, even among themselves, until it is finally concluded.

During the trial the jury may hear references to the rules of evidence. Some of these rules may appear strange to a person who is not a lawyer. However, each rule has a purpose. The rules have evolved from hundreds of years of experience in the trial of cases.

The mere fact that a lawsuit was begun is not evidence in a case. The opening and closing statements of the lawyers are not evidence. A juror should disregard any statements made by a lawyer in argument that have not been proved by the evidence. A juror should also disregard any statement by a lawyer as to the law of the case if it is not in accord with the judge's instructions.

Jurors are expected to use all the experience, common sense and common knowledge they possess. But they are not to rely on any private source of information. Thus they should be careful, during the trial, not to discuss the case at home or elsewhere. Information that a juror gets from a private source may be only half true, or biased or inaccurate. It may be irrelevant to the case at hand. At any rate, it is only fair that the parties have a chance to know and comment upon all the facts that matter in the case.

If it develops during the trial that a juror learns elsewhere of some fact about the case, he or she should inform the court. The juror should not mention any such matter in the jury room.

Individual jurors should never inspect the scene of an accident or any event in the case. If an inspection is necessary, the judge will have the jurors go as a group to the scene.

Jurors must not talk about the case with others not on the jury, even their spouses or families, and must not read about the case in the newspapers. They should avoid radio and television broadcasts that might mention the case. The Jury's verdict must be based on nothing else but the evidence and law presented to them in court. Breaking these rules is likely to confuse a juror. It may be hard to separate in one's mind the court testimony and reports coming from other sources.

Jurors should not loiter in the corridors or vestibules of the courthouse. Embarrassing contacts may occur there with persons interested in the case. If juror identification badges are provided, they should be worn in the courthouse at all times.

If any outsider attempts to talk with a juror about a case in which he or she is sitting, the juror should do the following:

1. Tell the person it is improper for a juror to discuss the case or receive any information except in the courtroom.

2. Refuse to listen if the outsider persists.

3. Report the incident at once to the judge.

Jurors have the duty to report to the judge any improper behavior by any juror. They also have the duty to inform the judge of any outside communication or improper conduct directed at the jury by any person.

Jurors on a case should refrain from talking on any subject--even if it is not related to the matter being tried--with any lawyer, witness, or party in the case. Such contact may make a new trial necessary. Some cases may arouse much public discussion. In that event, the jury may be kept together until the verdict is reached. This procedure is used to protect the jurors against outside influences.

In the Jury Room

In some districts the judge selects the foreperson of the jury. In other districts, the jurors elect their foreperson and in still other districts, the first juror to enter the jury box becomes the foreperson automatically.

The foreperson presides over the jury's deliberations and must give every juror a fair opportunity to express his or her views.

Jurors must enter the discussion with open minds. They should freely exchange views. They should not hesitate to change their opinions if the deliberations have convinced them they were wrong initially.

In a criminal case all jurors must agree on the verdict. This is also required in a civil case, unless the jury is otherwise instructed by the court.

The jurors have a duty to give full consideration to the opinion of their fellow jurors. They have an obligation to reach a verdict whenever possible. However, no juror is required to give up any opinion which he or she is convinced is correct.

It would be dishonest for a judge to decide a case by tossing a coin. It would be just as dishonest for a juror to do so.

The members of the jury are sworn to pass judgment on the facts in a particular case. They have no concern beyond that case. They violate their oath if they render their decision on the basis of the effect their verdict may have on other situations.

After The Trial

After the jurors return their verdict and are dismissed by the judge, they are free to go about their normal affairs, although in some districts, jurors must check with jury office personnel to see if their service is concluded. They are under no obligation to speak to any person about the case and may refuse all requests for interviews or comments. Nevertheless, the court may enter an order in a specific case that during any such interview, jurors may not give any information with respect to the vote of any other juror.

To decide cases correctly, jurors must be honest and intelligent. They must have both integrity and good judgment. The jury system is based on these attributes. The continued vitality of the jury system depends on them.

To meet their responsibility, jurors must decide the facts and apply the law impartially. They must not favor the rich or the poor. They must treat alike all men and women, corporations and individuals. Justice should be rendered to all persons without regard to race, color, religion or sex.

The performance of jury service is the fulfillment of a high civic obligation. Conscientious service brings its own reward in the satisfaction of an important task well done. There is no more valuable work that the average citizen can perform in support of our Government than the full and honest discharge of jury duty.

The effectiveness of the democratic system itself is largely measured by the integrity, the intelligence, and the general quality of citizenship of the jurors who serve in our courts.

[Prepared for the use of trial jurors serving in the United States District Courts under the supervision of the Judicial Conference of the United States. Published by the Administrative Office of the United States Courts, Washington, DC 20544]


History of the Jury System

To many, trial by jury is viewed as a recent, but enduring symbol of democracy. Others likely believe this right was first enshrined in our constitution. Few suspect it is a right dating to antiquity. From whence does the jury trial originate? Its roots trace back all the way to Anglo-Saxon practices imported to England following the Norman Conquest in 1066.[1] During the reign of Anglo-Saxon kings rudimentary rules and procedures of “trial” by jury took root. Innovations in this trial system included questioning residents under oath to collect information about local affairs – such as the number of livestock in an area or who owned certain pieces of land.[2] Jurors were later used to settle disputes or decide the outcomes of both civil and criminal trials.[3]

This system served as a source of stability for the country, both politically and socially. Juries consisted of members of local governments charged with investigating allegations to determine whether or not a crime had been committed amongst the community.[4] The Articles of Visitation in England (1194) separated the investigatory/ accusatory roles of jurors from the decision-making roles of jurors sitting on trials – the Grand and Petit juries of modern dual jury system. Today, prosecutors call Grand Juries to investigate allegations of criminal wrongdoing and to determine whether to issue formal charges, known as indictments, against the accused. Petit juries, in contrast, determine whether or not the government has proved, beyond a reasonable doubt, that the allegations (the indictments) are true or not. Not only are petit juries prohibited from investigating the truthfulness of allegations, they are permitted to consider only evidence introduced at trial in reaching their verdicts. In time, the petit Jury began to decide civil cases as well.

Unlike jury selection today (where the “purity” of the jury trial is preserved by eliminating prospective jurors who know either parties/witnesses or have read about the allegations in the media), originally people who had the most knowledge about the dispute, allegations or individuals involved were chosen as jurors. They relied on their own knowledge of the dispute, together with the evidence introduced at the trial, to determine the facts.[5] Indeed, in the fifteenth century, jurors were instructed to make their decisions based on both their personal knowledge of the dispute or allegations, and the evidence presented to them in court.

During the rule of King Henry II, juries were expanded to twelve jurors in an effort to lessen the likelihood of corruption, such as bribery, and intimidation. The concept of twelve self-informing men, basing their decisions solely on the information they knew, slowly progressed. The Puritans brought this elementary framework for jury trials to colonial New England.

Though the jury system in colonial America resembled the jury system used in England, colonial juries eventually fell into disfavor with the British crown for returning verdicts that appeared antagonistic to enforcement of British laws. In response, the British crown began denying colonists the right to trial by jury. Not only did outraged colonists use the usurpation of this basic right to incite the revolution, they even referenced it in the Declaration of Independence among the reasons for severing ties with England (“for depriving us in many cases, of the benefits of a trial by jury”).

The founders of our nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a ‘safeguard too precious to be left to the whim of the sovereign. Chief Justice William Rehnquist, 1979

In 1787, the Constitution of the United States included a provision for a right to trial by jury in any criminal proceeding brought in any federal court pursuant to Article III. It was not until the ratification of the Constitution, together with the addition of the Sixth and Seventh Amendments, that citizens were guaranteed the right for a trial by jury in civil cases.

While the right to a trial by jury has been well established in the United States for more than two centuries, it is rare in other parts of the world. It was not until the mid-1800s when European nations such as Germany and France started to put the trial by jury system into effect, that other countries warmed to the idea. Even then, jury trials were often reserved for the most serious criminal offenses.

Trial by jury is the best appendage of freedom. Patrick Henry

Today, countries all over the world are implementing the jury trial system, including countries in Asia, Central America, South America, and East Asia. Even Russia and China have made a version of this right available. Some nations have adopted the jury trial system to quiet protests of government policies. Law Professor at UC Santa Cruz, Hiroshi Fukurai, explains, “The jury represents a check on the power of the government to restrict [protesting] voices, and it also is a check on the external influence on their own government.” (McNulty). “Increasingly, the United States is becoming so powerful it can impose its will around the world. People in these nations are arming themselves with the legal apparatus to resist oppression from their own governments, which are vulnerable to outside influence.” (McNulty).

While some countries, like Mexico, make this right available in principle, few citizens are actually afforded this right in practice. Indeed, in Mexico, nearly every criminal case is decided by a judge rather than a jury. (McNulty).

Because the jury system is relatively new it continues to evolve. However, the one constant is the principle that representatives of the community perform the necessary function of checking, even containing, government power.

The jury system has come to stand for all we mean by English justice. The scrutiny of 12 honest jurors provides defendants and plaintiffs alike a safeguard from arbitrary perversion of the law. Winston Churchill

American Bar Association Division For Public Education. Dialogue on the American Jury, Part I: The History of Trial by Jury (n.d.): n. pag. ABA.org. American Bar Association. Web.

Carrington, Paul D., The Civil Jury and American Democracy, 13 Duke Journal of Comparative & International Law 79-94 (2003)

Cohen, Jerome A. “A “People’s Jury” Trial For China’s Criminal Defendants?” US-Asia Law Institute. New York University School of Law, 14 Nov. 2007. Web. 24 June 2014.

Gorphe, Francois, Reforms of the Jury-System in Europe: France and Other Continental Countries, 27 J. Crim. L. & Criminology 155 (1936).

“History of Trial by Jury.” English Legal History. N.p., 10 June 2013. Web. 24 June 2014.

Lloyd-Bostock, Sally & Thomas, Cheryl, Decline of the “Little Parliament”: Juries and Jury Reform in England and Wales, 62 Law and Contemporary Problems 7-40 (1999)

McNulty, Jennifer. “Nations Embracing Jury System as Part of ‘wave of Judicial Reform,’ Says UC Santa Cruz Expert.” UC Santa Cruz News. N.p., 14 Nov. 2007. Web. 24 June 2014.

Tokmakov, Sergei. “Jury Trials in Modern Russia.” ISCIP. Boston University, 28 Jan. 2010. Web. 25 June 2014

[1] Carrington, Paul D., The Civil Jury and American Democracy, 13 Duke Journal of Comparative & International Law 79-94 (2003)

[2] American Bar Association Division For Public Education. Dialogue on the American Jury, Part I: The History of Trial by Jury (n.d.): n. pag. ABA.org. American Bar Association.

[3] Lloyd-Bostock, Sally & Thomas, Cheryl, Decline of the “Little Parliament”: Juries and Jury Reform in England and Wales, 62 Law and Contemporary Problems 7-40 (1999)

[4] Carrington, Paul D., The Civil Jury and American Democracy, 13 Duke Journal of Comparative & International Law 79-94 (2003)


Parker's Address to Petit Jury at close of August Term 1895

Gentlemen, we have been together as a court and as jurymen for over two months. I think it appropriate before discharging you from service as jurymen of this court that I should remind you that one of the greatest propositions confronting us is, whether with our institutions the men of crime can be held in check by the law enforced in the courts by the jurors thereof so the peaceable and law-abiding citizens of the land can have protection for every right, especially the right of life. Our laws are ample for this purpose, if executed. If the terror of certain punishment is held before the criminal minded they will not commit deliberate crimes. We are living in an age when from ignorance of conditions, imbecility in some cases, and in others a desire to cater to a diseased public sentiment, many people, and many courts even, have become practically useless in the enforcement of the criminal laws of the land. This we see almost everywhere. We see so often the spectacle of the people losing confidence in the courts and resorting to mob violence to punish the man of crime. This is a condition that every good man must deplore and combat until certainty of enforcing the laws of the land is secured, for this is necessary for the safety of the people.

Gentlemen, without any desire to flatter you, but speaking the words of truth and soberness, I say to you that at this term of court, by your action in the trial of these great cases of crime, you have nobly performed the great duties which rest on American citizens acting as jurors, and you have not only done your duty faithfully and well, but you have wrought much to secure civilization to the Indian country. You have taught an object lesson that may be well observed by all persons in every part of the land. I want to remind you that for twenty years and over this court, by its officers and juries, has labored to suppress crime in the Indian country by the arrest, trial and conviction of criminals. The jurors have been citizens of Arkansas. The enforcement of the law has been vigorous, impartial, just and most effective. I say it without fear of contradiction that no court in all America has done so much to uphold the laws of this land, to protect the innocent by the punishment of the guilty, as has this court. It has done more than all agencies besides to make civilization possible in the Indian country. It has done more to destroy the power of murderers and bandits in that country than all agencies combined, it has destroyed them. Gang after gang has been captured and by the juries of this court have been brought to merited punishment. No court can be found where certainty of arrest and surety of punishment exists as it does here. This has been going on for all these long years. The court and its officers and jurors should be commended for this unflagging and unfaltering course, which has brought such grand results. Yet in this great battle between law, order and civilization on one side, and dark and bloody crimes on the other, many have been found to slander and abuse the court. There are those who, without intending it, and without knowing it even, by insidious influences have been carried to the side of the men of blood, and used unwittingly to aid in the escape from justice of criminals. This is sad, but true.

To my mind the terrible mistake has been made of taking away the jurisdiction of this court over high crimes committed in the Indian country. It has been brought about, in my opinion, by a mistake of facts. This change of jurisdiction at this time, when we consider the public interests, is a grave mistake. That country until its autonomy is changed to statehood, for the safety of its innocent and unoffending people, for the protection of the Indians who have rights in that country, needs to have extended over it the strong arm of this court. These Indian people have been largely aided in their preparations for statehood by the action of this court, by its officers and jurors. They have been taught by example to rely upon that great handmaiden of civilization - law, because its mission is peace and order. The railroads and other great public interests in the Indian country need the strong arm of this court to afford them that security necessary to protect them in the transaction of their business against bandits and outlaws. They all need this court, whose jurors can act without fear, favor or affection.

Gentlemen, you have at this term of court done your duty faithfully, honestly, ably, and justly. From your body have been chosen juries devoted to duty, above all improper influences, governed alone by the law of the land and the truth as they saw it. By your work you have left a record for honor, integrity and ability which reflects upon you the greatest credit. You, by this action in the line of duty at this court, have taught an object lesson of the highest benefit to the whole country. You have shown that the highest and the lowest before you stand on the same ground.

Gentlemen, in the name of the law, and in behalf of the government and the officers of this court, I most sincerely thank you for the fearless and impartial discharge of duty by you. Give me such jurymen as you have proven yourselves to be, and such executive officers to make arrests as we have here, and the necessity of mob law must disappear, crime driven to cover and largely suppressed. I shall ever remember this jury as one of the most able, most honest and most just that has ever been in this court.

Gentlemen, you have never before served as jurymen in any court where during a single term there was the same number of murder cases tried showing the same number of wicked, unprovoked and diabolical murders. In the time I have been judge of this court I have looked into the faces of over five thousand jurymen, and I have never seen a better body of men than those who make up this panel. I have never seen a better body of men in any court of this land, men who have performed their duties more faithfully, more honestly, and more ably. Speaking in the name of law, truly may I say to you, 'Well done, good and faithful servants.'

In bidding some of you goodbye, I say, may God bless and protect you and yours.


Trial by jury is the mainstay of the accusatorial system of criminal justice. Accusatorial procedure antedated the Norman Conquest [of England in 1066]. From the early Middle Ages, civil and ecclesiastical authorities throughout western Europe had employed substantially similar accusatorial procedures. The latter half of the twelfth century and the first half of the thirteenth was a period of transition that witnessed profound transformations of procedure. Old forms of trial, once universal, broke down and newer ones emerged. In England the new forms, presentment (the formal statement of an offense, presented to authority) and trial by jury, preserved the accusatorial character of the old on the Continent and in the ecclesiastical courts, inquisitorial procedure was triumphant. By no coincidence, the liberties of the subject were to thrive in England and be throttled on the Continent.

Community courts and community justice prevailed in England at the time of the Norman Conquest. The legal system was ritualistic, dependent upon oaths at most stages of litigation, and permeated by both religious and superstitious notions. Legal concepts were so primitive that no distinction existed between civil and criminal cases or between secular and ecclesiastical cases. Proceedings were oral, very personal, and highly confrontative. Juries were unknown. One party publicly "appealed," or accused, the other in front of a community meeting at which the presence of both was obligatory. Absence meant risking fines and outlawry. After the preliminary statements of the parties, the court rendered judgment, not on the merits of the issue or the question of guilt or innocence, but on the manner by which it should be resolved. Judgment, in other words, preceded trial, because it was a decision on what form the trial should take. It might be by compurgation [sworn character witnesses], by ordeal, or, after the Norman Conquest, by battle. Excepting trial by battle, only one party was tried or, more accurately, was put to his "proof." Proof being regarded as an advantage, it was usually awarded to the accused party in effect, he had the privilege of proving his own case.

Trial by exculpatory oath and compurgation, also called canonical purgation, consisted of a sworn statement to the truth of one's claim or denial, supported by the oaths of a certain number of fellow swearers. Presumably they would not endanger their immortal souls by the sacrilege of false swearing. Originally the oath-helpers swore from their own knowledge to the truth of the party's claim. Later they became little more than character witnesses, swearing only to their belief that his oath was trustworthy. If he rounded up the requisite number of compurgators and the cumbrous swearing in very exact form proceeded without a mistake, he won his case. A mistake "burst" the oath, proving guilt.

Ordeals were usually reserved for more serious crimes, for persons of bad reputation, for peasants, or for those caught with stolen goods. As an invocation of immediate divine judgment, ordeals were consecrated by the church and shrouded with solemn religious mystery. The accused underwent a physical trial in which he called upon God to witness his innocence by putting a miraculous sign upon his body. Cold water, boiling water, and hot iron were the principal ordeals, all of which the clergy administered. In the ordeal of cold water, the accused was trussed up and cast into a pool to see whether he would sink or float. On the theory that water which had been sanctified by a priest would receive an innocent person but reject the guilty, innocence was proved by sinking—and with luck a quick retrieval guilt was proved by floating. In the other ordeals, one had to plunge his hand into a cauldron of boiling water or carry a red-hot piece of iron for a certain distance, in the hope that three days later, when the bandages were removed, a priest would find a "clean" wound, one that was healing free of infection. How deeply one plunged his arm into the water, how heavy the iron or great the distance it was carried, depended mainly on the gravity of the charge.

The Normans brought to England still another ordeal, trial by battle, paradigm of the adversary system, which gave to the legal concept of "defense" or "defendant" a physical meaning. Trial by battle was a savage yet sacred method of proof which was also thought to involve divine intercession on behalf of the righteous. Rather than let a wrongdoer triumph, God would presumably strengthen the arms of the party who had sworn truly to the justice of his cause. Right, not might, would therefore conquer. Trial by battle was originally available for the settlement of all disputes, from debt and ownership to robbery and rape, but eventually was restricted to cases of serious crime. In this particular form of proof there was a significant exception to the oral character of the old procedures. The accusation leading to battle, technically known as an "appeal of felony," had to be written, and nothing but the most exact form, giving full particulars of the alleged crime, would be accepted. The indictment, or accusation, by grand jury would later imitate the "appeal" in this respect.

Whether one proved his case by compurgation, ordeal, or battle, the method was accusatory in character. There was always a definite and known accuser, some private person who brought formal suit and openly confronted his antagonist. There was never any secrecy in the proceedings, which were the same for criminal as for civil litigation. The judges, who had no role whatever in the making of the verdict, decided only which party should be put to proof and what its form should be thereafter the judges merely enforced an observance of the rules. The oaths that saturated the proceedings called upon God to witness to the truth of the respective claims of the parties, or the justice of their cause, or the reliability of their word. No one gave testimonial evidence, nor was anyone questioned to test his veracity.

The Inquest

It was the inquest, a radically different proceeding, that eventually supplanted the old forms of proof while borrowing their accusatorial character. An extraordinarily fertile and versatile device, the inquest was the parent of our double jury system, the grand jury of accusation and the petty jury of trial. Fortunately for the history of freedom, the inquest, a Norman import, was also one of the principal means by which the monarchy developed a centralized government in England. The survival of the inquest was insured by its close ties to royal power and royal prosperity its particular English form was founded on the old accusatorial procedures. The word "inquest" derives from the Latin inquisitio, or inquisition, but beyond the similarity in name shared nothing with the canon law procedure, which became, in fact, its opposite and great rival. The inquest was also known as the recognitio, or recognition, which meant a solemn answer or finding or declaration of truth. The inquest was just that, an answer or declaration of truth, a veri dictum, or verdict by a body of men from the same neighborhood who were summoned by some official, on the authority of the crown, to reply under oath to any inquiries that might be addressed to them. Men of the same locality were chosen simply because they were most likely to know best the answers to questions relating to the inquest—who had evaded taxes, who owned certain lands, who was suspected of crime, and who knew of misconduct among the king's officers. . . .

Reforms of Henry II

What was an irregular and in some respects an extraordinary procedure became under King Henry II (1154–1189) normal and systematic. A man of powerful will, administrative genius, and reforming spirit, Henry II greatly increased the jurisdiction of the royal courts, and wherever they traveled on eyre [circuit] through the kingdom, the inquest followed. Henry II disliked and distrusted the traditional forms of proof. More boldly than his predecessors, he regarded breaches of peace or threats to life and limb as offenses of a public nature, warranting more than merely private retribution. Crimes of a serious nature he took to be offenses against the king's peace, requiring settlement in the king's courts by the king's system of justice, whenever possible, rather than by the older proofs only and the king's system was founded on the inquest, the representative verdict of the neighborhood. What was once only an administrative inquiry became the foundation of the jury of accusation and the jury of trial in both civil and criminal matters. . . .

Henry II did not abolish older forms of proof he sought, instead, to supersede them in as many instances as possible, by discrediting them and by making available to litigants an alternative and more equitable form of proceeding. Innovations began in 1164 when the Constitutions of Clarendon prescribed the use of a recognition by twelve sworn men to decide any dispute between laymen and clergy on the question whether land was subject to lay or clerical tenure. The Constitutions of Clarendon provided also that laymen should not be sued in ecclesiastical courts on untrustworthy or insufficient evidence, but that if the suspect were someone whom no one might dare to accuse, the sheriff on the request of the bishop must swear a jury of twelve to declare the truth by bringing the accusation. In the Constitutions of Clarendon, then, one sees the glimmering of the civil jury in cases of land disputes and of the grand jury of criminal presentment or accusation.

Origins of the Grand Jury

The Assize, or ordinance, of Clarendon, which Henry II promulgated two years later, on the centennial of the Conquest, provided for the firm foundation of the grand jury and instituted a variety of significant procedural reforms. The king instructed the royal judges on circuit, or eyre, to take jurisdiction over certain serious crimes or felonies presented to them by sworn inquests, the representative juries of the various localities. Twelve men from each hundred of the county and four from each vill or township of the hundred were to be summoned by the sheriff to attend the public eyre. They were enjoined to inquire into all crimes since the beginning of Henry II's reign, and to report under oath all persons accused or suspected by the vicinage. The parties who were thus presented, if not already in custody, would be arrested and put to the ordeal of cold water. Even if absolved, those of very bad reputation were forced to leave the realm. In certain cases, then, mere presentment was tantamount to a verdict of banishment, but generally was not more than an accusation that was tried by ordeal. The Assize of Northampton, issued in 1176, recodified the Assize of Clarendon, extended the list of felonies, and substituted maiming for hanging as the punishment of the accused felon who was "undone" at the ordeal he also lost a foot, his right hand, his chattels, and was banished. In actuality he usually fled to the forest if he could to live as an outlaw to escape the ordeal or banishment. The Assize of 1176 made permanent, at least at the pleasure of the king, the revised procedure of accusation by twelve knights of the hundred or twelve freemen of the hundred and four of the vill.

The Assizes of Clarendon and Northampton, by establishing what became the grand jury, offered a royally sanctioned option to the old system of private accusations by appeals of felony. Trial by battle, which was begun by an "appeal of felony" in criminal cases, continued, but it was undermined by the king's jury of criminal presentment as the model way of beginning a criminal trial. . . .

Civil Juries

Reform of the machinery of civil justice at the expense of trial by battle was one of Henry II's foremost achievements. Once again his instrument was the sworn inquest or jury. Its use in cases of property disputes contributed to the stability of land tenures, extended the jurisdiction of the royal courts at the expense of the feudal courts, aided the cause of justice at the same time that fees for the privilege of using the royal courts contributed to the king's exchequer, and sapped trial by battle in civil cases. The Constitutions of Clarendon in 1164 provided the precedent for turning to twelve men of the countryside for a verdict on a question concerning property rights. Such questions, especially in relation to the possession and title of land, produced the most common and surely the most important civil actions. For their solution Henry II gradually introduced what became the trial jury.

In 1166 the assize of novel disseisin, or recent dispossession, established the principle that no one might be evicted or dispossessed of his land without the approval of a jury verdict. This assize created a legal remedy for one who had been dispossessed. He could obtain a writ commanding the sheriff to summon twelve freemen of the vicinity who presumably knew the facts of the case, put them under oath, and then in the presence of the itinerant royal judges require them to render a verdict on the question whether the tenant had been dispossessed. A verdict in the tenant's favor restored him to possession of his land. If, however, a lord seized the land of a tenant who died before the tenant's heirs might take possession of it, the assize of novel disseisin provided no remedy. The assize of mort d'ancestor, instituted in 1176, did so. The heir might obtain a writ that put before a jury the question whether the decedent died in possession of the land and whether the claimant was his rightful heir. In the same reign, the assize of darrein presentment provided for a verdict by jury on questions involving rival claims to the possession of certain "advowsons," or ecclesiastical benefices, which were regarded as a form of real estate. . . .

By the time of Magna Carta in 1215, the inquest in civil cases was becoming fairly well established as the trial jury, though in criminal cases it was scarcely known at all. The petty or possessory assizes of novel disseisin, mort d'ancestor, and darrein presentment had proved to be so popular that chapter eighteen of Magna Carta guaranteed that the circuit court would sit several times a year in each county for the purpose of obtaining verdicts on disputes that they settled. Civil disputes of virtually any description, not merely those named in the petty assizes, might be referred to the verdict of local recognitors if both parties would consent to the procedure.

Juries and Criminal Cases

On the criminal side of the law, Magna Carta in chapter thirty-six provided that the writ de odio et atia, which by 1215 had become known as the writ of life and limb, should be granted without charge. It was by no means uncommon by then for a person accused by private appeal to demand a jury verdict on any number of "exceptions," such as the writ of life and limb, in the hope of getting the appeal quashed. In such cases, however, the jury decided only the question whether the "exception" was valid the main question of guilt or innocence, which the appeal had raised, was still settled by battle if the exception was not sustained. Criminal accusations, which were presented in accord with the grand inquest provided by the Assize of Clarendon, were tried by ordeal. Magna Carta, in chapter twenty-eight, ensured that no one could be put to the ordeal unless formally accused by the jury of presentment before the royal judges on circuit. This was the implication of the provision that "credible witnesses," members of the presenting jury, must corroborate that fact that there had been an indictment. The celebrated chapter twenty-nine did not guarantee trial by jury for the simple reason that its use in criminal cases was still unknown in 1215. At best that chapter ensured that the indictment and trial by whatever was the appropriate test, whether battle or ordeal, must precede sentence.

The course of history was affected at the same time by events in Rome. The Fourth Lateran Council in 1215 forbade the participation of the clergy in the administration of ordeals, thereby divesting that proof of its rationale as a judgment of God. As a result, the ordeal died as a form of trial in western Europe, and some other procedure was needed to take its place. . . .

With the ordeal abolished, battle remained the only means of trying a criminal case. But the movement of the law was away from battle. The same reasons of "equity" that led [Ranulf de] Glanville [chief justice to Henry II] in 1187 to say that the right to a freehold "can scarcely be proved by battle" spurred the search for an alternate means of proving an accusation of crime. Thus Magna Carta had made the writ of life and limb free but still reflected traditional thinking in terms of ordeals and battle. Battle could never be had, however, in cases where one of the parties was aged, crippled, sick, or a woman. . . .

Not only was there no way to try those who could not engage in battle there was the greater quandary of what should be done with persons who had been accused by the sworn verdict of a grand inquest. Battle was possible only in the case of a private appeal of felony. According to [Sir James Fitzjames] Stephen, "When trial by ordeal was abolished and the system of accusation by grand juries was established, absolutely no mode of ascertaining the truth of an accusation made by a grand jury remained." Nevertheless, compurgation and suit by witnesses lingered for a long time.

The crown's bewilderment was revealed in a writ of 1219 giving instructions to the circuit judges: "Because it was in doubt and not definitely settled before the beginning of your eyre, with what trial those are to be judged who are accused of robbery, murder, arson, and similar crimes, since the trial by fire and water has been prohibited by the Roman Church," notorious criminals should be imprisoned, those accused of "medium" crimes who were not likely to offend again should be banished, and those accused of lesser crimes might be released on "pledge of fidelity and keeping our peace." The writ concluded, "We have left to your discretion the observance of this aforesaid order according to your own discretion and conscience," a formula that left the judges further perplexed but free to improvise.

Origins of the Petty Jury

Treating an accusation as a conviction, when an accusation was little more than an expression of popular opinion, was a makeshift that fell so short of doing justice that it could not survive. In retrospect it seems natural that the judges on circuit should have turned to a sworn inquest for help. An eyre was a great event, virtually a county parliament. Present were the local nobles and bishops, the sheriffs and bailiffs, the knights and freeholders, and a very great many juries. From every hundred of the county there was a jury of twelve men, and from every township four representatives. Surrounded by the various juries, the judge in a criminal case could take the obvious course of seeking the sense of the community. The original jury of presentment was already sworn, presumably knew most about the facts, and was a representative group. The jurors' indictment had not necessarily voiced their own belief in the prisoner's guilt it rather affirmed the fact that he was commonly suspected. Although practice varied considerably at first, the judges began to ask the jury of presentment to render a verdict of guilty or not guilty on their accusation. Because the jury of presentment was more likely than not to sustain its indictment, even though the jurors had sworn only that the accused was suspected and not that he was guilty, the judges usually swore in the representatives of the surrounding townships and asked whether they concurred the jury of another hundred might also be conscripted to corroborate the verdict. In effect a body of the countryside gave the verdict.

This practice of enlarging the original jury of presentment or seeking a series of verdicts from different juries was common during the thirteenth century. What became the petty jury was thus initially larger than the grand jury. The practice was too cumbersome, the body too unwieldy. Twelve was the number of the presenting jury and twelve the jury in many civil cases gradually only twelve jurors were selected to try the indictment, but they always included among their number some of the original jury of presentment. The unfairness inherent in this practice, and the theory that the accused must consent to this jury, eventually led to a complete separation of the grand jury and the trial jury.

Consent and the Petty Jury

Consent, even if induced by coercion, was an ancient feature of accusatory procedure. . . . But no man would be likely to consent to the verdict of accusers if they sought his conviction. And no man, it was thought, should be forced to accept the verdict of accusers acceptance should be voluntary. While ordeals were still in use, if an accused refused to submit himself to the proof, he was considered to have repudiated the law and might therefore be punished as if he had outlawed himself. But the inquest acting as a trial jury was a novel and extraordinary device, and thus the reasoning that had branded as outlaws those who rejected the ordeal now seemed repugnant when it was applied to a man who refused to put himself to the test of a jury. He might think the jury would not fairly decide, or that his chances of getting a verdict of not guilty, for whatever reasons, were hopeless. . . .

In cases of no consent, some judges proceeded with the trial anyway others treated the prisoner as if he were guilty but most felt that it was unreasonable to compel a man to submit unless he consented. If he refused to consent, the law was nonplussed, the proceedings stymied. At length, in 1275 a statute supplied the answer: extort his consent. The statute read, "that notorious felons who are openly of evil fame and who refuse to put themselves upon inquests of felony at the suit of the King before his justices, shall be remanded to a hard and strong prison as befits those who refuse to abide by the common law of the land but this is not to be understood of persons who are taken upon light suspicion." . . .

The other path taken by the notion of consent led to the emergence of the petty jury in criminal cases. This was the outcome of permitting the prisoner to challenge members of the presenting jury who were impaneled to serve on his trial jury. . . . With increasing frequency defendants challenged petty jurors who had first served as their indictors, though the king's justices resisted the challenges because indictors were more likely to convict. For that very reason in the 1340s the Commons twice protested against the inclusion of indictors, but it was not until 1352 that the king agreed to a statute that gave the accused a right to challenge members of the petty jury who had participated in his indictment. As a result of this statute, the two juries became differentiated in composition and function. From about 1376 the custom of requiring a unanimous verdict from twelve petty jurors developed by that time the size of the grand jury had been fixed at twenty-three, a majority of whom decided whether accusations should be proffered.

A Fair Trial, for Its Time

By the middle of the fifteenth century, criminal trials were being conducted by rational principles that seem quite modern. Although the law of evidence was still in its rudimentary stages, the trial jury was no longer regarded as a band of witnesses, men who of their own knowledge or from knowledge immediately available from the neighborhood, might swear to the guilt or innocence of the accused. The jury was beginning to hear evidence that was produced in court, though the jurors still continued to obtain facts by their own inquiry. As late as the 1450s it was common for the jurors to visit a witness at his home in the country to take his testimony, but they were also beginning to pass judgment on evidence given in their presence in court. More important, they were regarded as a body of objective men, triers of fact, whose verdict was based on the truth as best they could determine it. . . .

Of course, trial by the local community could be trial by local prejudice, but at least the prisoner knew the charges against him, confronted his accuser, and had freedom to give his own explanations as well as question and argue with the prosecution's witnesses. He suffered from many disadvantages—lack of counsel, lack of witnesses on his own behalf, lack of time to prepare his defense—yet the trial was supremely fair, judged by any standard known in the Western world of that day.


Jury Trial

The petit (petty or small) jury is distinguished from the grand jury in Anglo-American law both by its name and by its function. Both are groups of local citizens who perform their responsibilities under oath in accordance with traditions derived from the continental inquest. The concept of jury trial is ancient, but its origins are obscure. The English trial jury dates from the early thirteenth century and was used initially in criminal cases. This common law jury consisted of adult males of the vicinity from whence the accusation or dispute arose, and a verdict of twelve was necessary to determine guilt of an accused person or to determine civil liability. A verdict was reached in large measure by the jurymen's own knowledge of the law and facts. From the fifteenth century juries were instructed in the law by the judge, and it was not until the seventeenth century that juries tended to become impartial finders of fact. In English America the jury in some civil matters consisted of less than twelve members, but for criminal purposes the number was twelve. Through the eighteenth century in English America, in many criminal cases the jury found both fact and law. Although trial jury is one of the principal hallmarks of the Anglo-American legal system, in England it has virtually disappeared for civil purposes.

Stephen F. Austin's Anglo-American colonists in Texas used the jury for both civil and criminal purposes, but the jury ordinarily did not consist of twelve men. The Anglo Texans were instrumental in having a provision included in the Constitution of Coahuila and Texas (1827) that allowed the legislature to provide for jury trial of criminal matters and eventually in civil cases. The state's judiciary act of 1827 did not so provide, however, and jury trials were therefore discontinued among the Anglo Texans. In 1830 the state legislature passed a bill for jury trial by seven jurors in Texas criminal cases, but the bill was effectively vetoed by the governor when he returned it to the legislature with recommendations for revision. At least one jury trial was, nevertheless, held in Texas on the assumption that the bill had been enacted. A jury of twelve with eight votes necessary for a verdict was instituted for Texas in 1834, and for criminal cases a verdict of twelve was provided by the Constitution of the Republic of Texas. In 1843 Texas extended jury trial to matters of equity to which it did not apply at common law. For matters of common law the jury of twelve became a matter of right under the Constitution of 1845. That constitutional rule was construed to mean that a jury trial of twelve was required only in those situations when required under Anglo-American common law. Thus, for some purposes for which a jury trial was not required at common law, a smaller jury may be used (as in the case of the jury of six in the probate courts) or jury trial may be statutorily forbidden (as in certain instances of determining the validity of marriage of minors).

When trial by jury is appropriate, it may be demanded in a civil case by either party or it may be waived by both parties. In criminal cases a jury trial is automatically accorded to the accused. A jury of twelve is impaneled in the district courts, while a jury of six is used ordinarily in county and other inferior courts. Though Texas juries were once impaneled from a body of free, male citizens over twenty-one years of age, with certain other restrictions with respect to literacy, character, interest in the dispute, and property holding, many of these limitations have been abandoned. Women have sat on juries since 1955 and property qualifications were removed in 1969. Release from jury duty for broad categories of persons (such as clergy, public officeholders, physicians, and lawyers) was significantly limited in 1971, and the minimum age for jurors was reduced to eighteen in 1973.

In selecting a jury of twelve from the panel called by lot, each party to a civil trial is allowed six challenges without cause and an unlimited number of challenges for cause. In criminal trials the number of challenges without cause are generally more numerous and depend on the seriousness of the offense charged, but challenges cannot be made on the ground of race or sex. The most common challenge is one for biased views with respect to the facts or the parties. In the course of the trial and in charging the jury, the judge may not comment on the evidence. In civil cases the judge charges the jury to find the facts in dispute based on the evidence presented, and according to the facts found by the jury the court renders judgment. As an aid to understanding testimony, juries elsewhere are sometimes allowed to leave the courtroom to view a scene or some object that cannot be brought into the courtroom, but this procedure of juryviews is not allowed in Texas.

In criminal trials the jury is charged to find a verdict of guilty or not guilty, and all verdicts of guilty in felony cases must be unanimous. A jury that cannot achieve unanimity is termed a "hung jury," and a new trial may be had. Whereas in English law sentencing was always left to the judge, a Texas statute of 1846 allowed the jury to sentence except in capital cases or if the penalty was fixed by law. In 1857 the first of these restrictions was removed, and the jury was also allowed to suspend sentence. With the revision of the Code of Criminal Procedure in 1965, a two stage procedure was instituted for criminal trials under which the questions of guilt and punishment (in the event of a verdict of guilty) are presented to the jury at two separate hearings. In a misdemeanor case if no more than three jurors have been discharged, a guilty verdict may be delivered by as few as nine members. In civil cases since 1973 a verdict may be rendered by ten members of the jury.


Whatever Happened To Grand Juries?

During the First World War, in 1917, a decision was made by the Government to “suspend” (infringe) the Common Law rights of the subject with respect to Jury trial.

The traditional system was that persons qualified to be members of Juries (freeholders aged over 21) were called by County Sherriff’s to Assizes (Now Crown Courts) and divided into “Grand” and “Petit” juries.

Grand Juries heard accusations of crimes and decided whether there was a case to answer. If there was, The Crown was required to place the matter before a Petit Jury.

Members of a Grand Jury could also make investigations on their own initiative as a posse.

The authority of a Grand Jury comes from the subject’s right to be tried by his Peers per Chapter 39 of Magna Carta 1215:

No freeman shall be taken or imprisoned, or disseised of his freehold, or liberties, or free customs, or outlawed, or exiled, or any otherwise destroyed nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, and by the law of the land.

The right of Grand Juries to present their verdicts to The Sovereign is acknowledged in Articles 5 and 11 of the Bill of Rights 1688:

5. Right to petition. That it is the Right of the Subjects to petition the King and all Commitments and Prosecutions for such Petitioning are Illegall.

11. Juries. That Jurors ought to be duely impannelled and returned .

Both Magna Carta 1215 and the Bill of Rights are “statutes in force”. As with many legal terms, “statute” has more than one definition. In these cases they were re-statements of the common law by The Sovereign as an exercise of the Royal Prerogative. No Parliaments were involved because in there had been lawful rebellions and “trial by battle” had settled the issue on both occasions (see footnote).

This also means that no Parliament has authority to infringe their provisions. This is also acknowledged in Article 13 of the Bill of Rights:

13. Frequent Parliaments. And that for Redresse of all Grievances and for the amending strengthening and preserveing of the Lawes Parlyaments ought to be held frequently.

“Amending” is a legal term which means “to improve”. “Strengthen” and “preserve” have their natural meaning. There is no lawful authority for a Parliament to infringe the subjects Common Law rights.

Returning to the fate of Grand Juries post 1917, the Administration of Justice (Miscellaneous Provisions) Act 1933 was passed which was described as “An Act to abolish grand juries and amend the law as to the presentment of indictments”. That Act was later repealed and the practice of accepting the signature of a Court Official, instead of that of the foreman of a Grand Jury on indictments (formal charges requiring a jury trial) has continued on dubious legal grounds.

There are in force at least two statutes which still require trial by Grand Jury. The first is known as “Statute the Fifth of 1351”:

IV. None shall be taken upon Suggestion without lawful Presentment nor disfranchised, but by Course of Law.

Whereas it is contained in the Great Charter of the Franchises of England, that none shall be imprisoned nor put out of his Freehold, nor of his Franchises nor free Custom, unless it be by the Law of the Land It is accorded assented, and stablished, That from henceforth none shall be taken by Petition or Suggestion made to our Lord the King, or to his Council, unless it be by Indictment or Presentment of good and lawful People of the same neighbourhood where such Deeds be done, in due Manner, or by Process made by Writ original at the Common Law nor that none be out of his Franchises, nor of his Freeholds, unless he be duly brought into answer, and forejudged of the same by the Course of the Law and if any thing be done against the same, it shall be redresseed and holden for none.

This is another example of a statute made by The Sovereign.

Now we turn to a statute in force made by a Parliament which requires that Grand Juries be embodied:

V. Indictment must be found by a Grand Jury within Three Years.

And to the intent that the Terror and Dread of such Criminal Accusations may in some reasonable time bee removed That . . . F1 noe Person or Persons whatsoever shall bee indicted tryed or prosecuted for any such Treason as aforesaid or for Misprision of such Treason that shall bee committed or done within the Kingdome of England Dominion of Wales or Towne of Berwick upon Tweed . . . F1 unlesse the same Indictment bee found by a Grand Jury within Three Years next after the Treason or Offence done and committed.

There we have it, Grand Juries never went away, they have been conveniently forgotten by the present establishment. That does not mean they can get away with it. In Bowles.v. Bank of England (1913) it was ruled that:

The Bill of Rights remains unrepealled and practice or custom, however prolonged . cannot be relied on by the Crown as justifying any infringement of its provisions.

If the present legal establishment fails to do their duty, freeholders aged over 21 may, on their own authority, form Grand Juries to investigate and indict criminals.

Here is confirmation from Blackstone’s Commentaries that “Right of War” sets lawful title to The Crown and the limitations which bind the King:

THIS conquest then by William of Normandy was, like that of Canute before, a forcible transfer of the crown of England into a new family: but, the crown being so transferred, all the inherent properties of the crown were with it transferred also. For, the victory obtained at Hastings not being a victory over the nation collectively, but only over the person of Harold, the only right that the conqueror could pretend to acquire thereby, was the right to possess the crown of England, not to alter the nature of the government. And therefore, as the English laws still remained in force, he must necessarily take the crown subject to those laws, and with all it's inherent properties the first and principal of which was it's descendibility. Here then we must drop our race of Saxon kings, at least for a while, and derive our descents from William the conqueror as from a new stock, who acquired by right of war (such as it is, yet still the dernier resort of kings) a strong and undisputed title to the inheritable crown of England.


Related Pages

The Circuit Court Clerk&rsquos office has often been called the &ldquoface of the Court system.&rdquo We are the people you see to file your paperwork, pay your fines and fees, and answer general court questions. We hope your find our office to be friendly, professional and efficient.

The Circuit Court Clerk ensures the efficient operations of our courts by maintaining dockets and records, handling administrative matters and serving as ambassadors to the public. Many of the duties and authority of a Circuit Court Clerk are outlined in T.C.A. 18-1-105 and T.C.A. 18-1-108. The Circuit Court Clerk in Warren County also serves as the Clerk of General Sessions and Juvenile Courts. In addition, the Circuit Court Clerk handles all financial matters for the three courts.

Court Dockets can be accessed by clicking the following links:

GENERAL SESSIONS and TRAFFIC LINKS:

Appeals from General Sessions Court

Jury service is an important civic duty. Jury service is a privilege and responsibility that you should accept with pride. By serving on a jury, you as a citizen will have a direct hand in the way justice is carried out. Without your willingness to serve as a juror, our judicial system could not operate.

Juror Selection: We acquire a list of persons who have a valid driver&rsquos license or an identification card in Warren County, Tennessee from the Tennessee Department of Safety. Jurors are randomly selected from this list using our juror management software. Grand jurors are selected every six months and petit jurors are selected every two months. Jurors are not selected from voter registration in Warren County.

Grand Jury: The Grand Jury is a body of twelve citizens (with 6 alternates) of the County who meet to hear evidence of criminal activity, in order to determine if there is probable cause to require the defendant to stand trial in Criminal Court. You will receive a Jury Duty Summons in the mail with a date and time to appear for a brief orientation. Cases reach the Grand Jury by having been bound over by the General Sessions Court, or by having the cases presented directly to them by the District Attorney&rsquos office. If the Grand Jury determines there is probable cause to require the person to stand trial, they will return a True Bill. If the Grand Jury does not find probable cause, it will then return a No True Bill, and the person will be discharged. After the Grand Jury has returned an indictment, the defendant will be brought into Criminal Court for arraignment.

Warren County Grand Jurors are selected to serve a six-month term. The Grand Jury will meet the first Friday of every month unless a special session is called or unless otherwise specified.

TCA 40-12-105 &ldquoIt is the duty of your Grand Jurors to investigate any public offense which they know or have reason to believe has been committed and which is triable or indictable in this county. Any person having knowledge or proof that such an offense has been committed may apply to testify before the grand jury subject to the provisions of Tennessee Code Annotated.&rdquo

Petit Jury: The Petit Jury (trial jury) is a panel of twelve persons called to issue a verdict in a civil action or a criminal prosecution. Warren County Petit Jurors are selected every two months. You will receive a Jury Duty Summons in the mail with a date and time to appear for a brief orientation. After the orientation, we will put you into groups and you will begin calling our Jury Duty Recording Line: 931-473-3673. Please call this number every day during your term as jury trial dates are ever changing.


Watch the video: The English History of Juries (July 2022).


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