Juries

The law is axiomatic. In order to convict a person of a crime, every element of the crime with which he is charged must be proven beyond a reasonable doubt. This Article argues that this fundamental proposition of American criminal law is wrong. Two types of elements are typically found in crime definitions: factual elements and moral elements. Proving factual elements involves answering questions about historical facts—that is, questions about what happened. By contrast, proving moral elements—such as “reckless,” “unjustifiable,” “without consent,” or “cruel”—involves answering questions not only about what happened but also about the evaluative significance of what happened. This Article argues that the beyond a reasonable doubt requirement should not apply to such moral elements for three reasons. First, the beyond a reasonable doubt requirement applied to normative elements compels overly underinclusive interpretations of crime definitions because the standard requires factfinders to acquit where there are reasonable moral disagreements. Second, by, in effect, thus limiting the scope of crime definitions, the requirement undermines the value of using normative terms in crime definitions as a method of guiding citizens to behave as responsible law-abiding citizens. Third, the requirement produces a situation where important normative decisions are delegated to ultimate factfinders, especially the jury, with excessively restrictive instructions as to when they are allowed to act on their moral beliefs. The Article concludes by discussing some implications of these arguments and exploring general features of criminal law that conspire to produce these problems with the beyond a reasonable doubt standard.

This article critiques the impact of the European Convention on Human Rights, as interpreted in the jurisprudence of the Strasbourg court, on the criminal trial jury. It argues that thus far the Convention has had a limited effect on jury trial, and that the Court tends to proceed with undue caution when confronted with issues affecting the key attributes of this mode of trial. It further argues that this caution may be influenced by non-legal considerations which should have no place in human rights adjudication.

The purpose of this article is to explore perceptions and assessments of lay participation in Norway during a historic time of transition away from all-layperson juries. This study consisted of sixteen months of court observation and interviews with judges, prosecutors, former lay decision makers, defense attorneys, and other contributors to the country's long-standing jury debate. My ethnographic research demonstrates that all-layperson juries in Norway face practical and procedural checks that differentiate them from Anglo-American juries, among others. For this reason, legal professionals in Norway evince confidence that mixed courts of lay and professional citizens can facilitate fair case outcomes. A central finding from this research is that comparative analyses of all-layperson juries and mixed courts require attention to the social specificity of the states that support such systems. To this end, lay participation in Norway challenges the conventional wisdom that jurors have greater independence and control over case outcomes than lay judges.

Two distinct life stages are examined in this article: the end of youth and the onset of old age. Each of these life stages affected a person’s ability to engage with late medieval London society and institutions.
Records of litigation between masters and apprentices are used to show that difficulties were common at all stages of an apprenticeship, and that they were a feature of the transition from youth to adulthood, as experienced by apprentices. While remedies and support mechanisms were available, they often existed outside the apprenticeship system.
About five hundred Londoners over the age of seventy petitioned for exemption from jury duty between 1375 and 1496. The petitioners’ desire to withdraw from civic involvement contrasts with their earlier active role. A final section explores particular issues raised by a striking peak in the number of exemptions between 1400 and 1430.

Drawing on a second survey of lay adjudication in Europe conducted by the authors in 2011-2012, this article points to a general decline across Europe in the use of the 'traditional' jury and a trend towards diminishing its capacity to deliver independent decisions. Two examples from Eastern and Western Europe are used to illustrate this trend: a case study of the Russian jury shows how a lack of respect within the legal culture of professionals for lay adjudication has reduced the jury in Russia to a mere 'decorative' institution and an analysis of the ECtHR's jurisprudence shows how the Court's concern to avoid arbitrary decision making has been encouraging Western European states to introduce greater accountability measures, which threaten the jury's independence. The article ends on a more optimistic note by arguing that greater accountability measures need not detract from the jury' s traditional role in promoting lay and political participation in the administration of justice.

In November 1670, Chief Justice John Vaughan established, in Bushell’s Case, that jurors could no longer be judicially fined for reaching a conclusion with which the trial judge disagreed. This case has traditionally been taken as a foundational moment in the history of jury power; but in the last few decades its significance has been downplayed by legal historians, who have pointed to the continued existence of judicial control of their juries. This article, drawing on recent work on conscience as a juridical concept in early-modern England, seeks to rehabilitate Bushell’s Case, and does so by situating in within its wider discursive setting. Bushell’s Case, taken together with the concurrent pamphlet literature, offers a positive model of jury trial which downplays the jury’s relationship either with the judge’s or with the sovereign’s laws in favour of a focus on the juryman’s soul. Whatever the practical limitations of the idea, this reconceptualisation of jury trial is an important moment in the history of jury power, and one which warrants study on its own terms.

This paper explores recent developments on judicial directions and juror use of the internet and argues that, at the same time as it has become increasingly difficult to control the evidence a jury sees, the courts have developed strategies for more closely regulating jurors’ thoughts. Looking at these developments through the lens of Devlin’s classic theory of jury trial, it asks whether the possibility of jury nullification might be undermined by a denial of the jury’s power to respond to the case differently to the professionals involved in administering the trial.

The Criminal Justice and Courts Act 2015 has created several new offences regarding juror misconduct. While this legislation has been passed in response to jurors accessing improper ‘evidence’ online, it is wrong to treat juror misconduct as a new problem. The most famous case on this topic (Bushell's Case) did not completely prohibit juror punishment, but the rhetorical force of the decision was such that penal practices have until recently been overlooked in the academic literature. This paper argues that assessing the new offences is greatly helped by understanding how juror misconduct has been responded to in the past. Drawing on the language of Bushell's Case itself, as well as new archival research, it argues that previous practices of juror punishment have largely depended on whether particular instances of misconduct related to the juror's ‘ministerial’ or ‘judicial’ functions; and that ‘judicial’ offences (those relating to verdict formation) have been much less likely to be punished. Rather, such offences have tended to be managed away. If today's judges continue acting in this way, the new offences are unlikely to be resorted to very often, with the judiciary being much more likely to focus on techniques for avoiding misconduct in the first place.

The Criminal Justice and Courts Act 2015 creates several new offences relating to juror misconduct, which have generally been considered pragmatic responses to the immediate problem of jurors using the internet to find additional “evidence”. Taking as its starting point the possibility of jury studies being written from an “interdisciplinary” perspective situated between mainstream legal scholarship and legal history, this article argues that after the practical abolition of juror punishment in 1670 the judge-jury relationship has usually been focused on juror guidance, not on juror punishment. This has had important consequences for the institution’s civic function, meaning any move in the direction of juror punishment has to be considered not simply as a pragmatic response to an immediate, isolated problem, but also as an important part of the jury’s continuing history as a political institution.

The Sex Disqualification (Removal) Act 1919 ended the prohibition on female jurors. This did not mean that English and Welsh juries became representative institutions overnight, however: the property qualifications ensured that juries were still drawn from the top few per cent of the local population; and the 1919 Act expressly permitted trial judges to order single-sex juries where the nature of the evidence required it. The continued existence of peremptory challenges allowed defendants in felony trials to exclude women from their juries whenever they preferred to be tried only by men. Finally, some judges permitted female jurors to excuse themselves from particular trials if they so desired. This paper explores the effects these factors had on the practical enjoyment of the female jury franchise after the passing of the 1919 Act. It finds that the picture is remarkably localised: rates of women serving on juries were very different for the five assize circuits for which adequate records exist (Midland, Oxford, South Eastern, South Wales and Western). By exploring these issues, this paper reveals how flexible the female jury franchise was in its early years, and shows how important local differences were in keeping women off the jury.

Título: “Historia genealógica de la Casa de Mercadillo (Obispo de la Provincia del Tucumán, Juríes y Diaguitas – Virreinato del Perú/Lima)“. Autor: Federico G. Bordese. Editor: Revista del Archivo Fotográfico de Córdoba. Año: octubre de 2012.

Esta genealogía —antes de publicarse— fue donada al Fray Sebastián Mazza de la Orden Domínica el 06 de octubre de 2012. Ya, en el mismo año igualmente se deja una copia al Centro de Estudios Genealógicos y Heráldicos de Córdoba.

This document was put together for the Bristol Post in July 2020, to note the centenary of the first women acting as trial jurors in England and Wales after the Sex Disqualification (Removal) Act 1919 had ended the previous ban on women serving.

In R v Kokopenace, the Supreme Court of Canada confronted the question of what it means to say that a jury is representative. The accused argued that he should be granted a new trial because the jury roll from which his jury was chosen contained very few Indigenous people – a fact that was easily established on the record before the Court. In a judicial district in which 30 per cent of the population was Indigenous, only four per cent of those on the jury roll were Indigenous, and no Indigenous people sat on Mr. Kokopenace’s jury. The representativeness issue was particularly significant given that Mr. Kokopenace was Indigenous. In a 4-3 decision, a majority of the Supreme Court ruled that the state had met its constitutional obligation to ensure a representative jury roll “by providing a fair opportunity for a broad cross-section of society to participate in the jury process.” This article makes three principal claims about the Kokopenace decision. First, it argues that the majority did not respond adequately to the equality dimensions of the case, leading it to conclude, wrongly, that the roll from which Mr. Kokopenace’s jury was chosen was representative. Second, it suggests that to be meaningful, a constitutional right to a representative jury must guarantee proportional representativeness. And third, it explains that Kokopenace provides new insights on the meaning of the right to trial by jury guaranteed by section 11(f) of the Canadian Charter of Rights and Freedoms.

This article considers the extent to which the exclusionary common law rules relating to hearsay and bad character, which existed for hundreds of years in England and Wales and still apply in Ireland, were informed by distrust of jury capabilities. It will be demonstrated that the rationales for the radical reform of these rules in England and Wales were partly couched in terms of increased faith in juror competence. The exclusionary rules relating to hearsay and bad character in Ireland and the reformed English law, which is inclusionary in effect, will be analysed in light of empirical jury studies examining the ability of jurors to evaluate these two types of evidence. The capacity for different approaches to certain types of evidence to reflect varying conceptions of the jury and its perceived competence is a central theme of this article, as is the importance of testing juror performance empirically.

Morton asserts Court should allow a jury to decide this foreclosure case because the issues are primarily legal ones involving factual issues regarding whether Chase is an appropriate assignee or successor beneficiary to the original lender under Washington's Deed of Trust Act and Washington's version of the UCC.

What was the role played by jurors in civil and criminal trials from the late eighteenth to the late nineteenth century? This article establishes that during this period, juries in Ireland played a relatively active role. It examines individual reports of civil and criminal trials and considers the nature of juror participation during this period, establishing that jurors frequently questioned witnesses, berated counsel, interrupted judges, demanded better treatment and added their own observations to the proceedings. This article compares the nature and level interaction from different categories of jury – civil and criminal, common and special. It asks why Irish jurors continued to be active participants until late in the nineteenth century, and how the bench and bar received their input. It also suggests that English jurors may also have played a more active role during this period than previously thought. Finally, the article considers some possible reasons for the silencing of Irish jurors by the late nineteenth century.

This paper reports the results of a study investigating how jurors interpret and digest scientific evidence when it is presented to them in a trial setting and how differences in juror attitudes and education influence interpretation of scientific evidence. The study involved a sample of mock jurors recruited from Amazon Mechanical Turk (n=91). Study subjects each viewed a transcript of a mock legal case involving DNA evidence. Results suggest that when presented with conflicting expert testimony, jurors will interpret evidence in a way that is consistent with pre-existing attitudes or beliefs (such as political predispositions). Importantly, results suggest that a juror’s ability to do this and therefore the polarization between jurors of different political pre-dispositions increases as level of education increases. For jurors classified as Conservative, as education levels increased, the prosecution expert was rated as more credible and the defendant was found guilty more often. ...

This article considers aspects of lay participation in the Irish justice system, focusing on some political dimensions of the trial jury in the nineteenth century. It then identifies some broad themes common to systems of lay participation generally, and particularly nineteenth-century European systems. These include perceptions of legitimacy, State involvement and interference with jury trials, and issues around representativeness. The traditional lack of scholarship in the area of comparative criminal justice history has meant that many of the commonalities between different jury systems have been hitherto unexplored. It is hoped that this paper will contribute to a wider discussion of the various commonalities and differences in the development of lay participation in justice systems.

A “backstrike” is a peremptory challenge used to strike a prospective juror after the juror has been accepted onto the jury panel but before the panel has been sworn.  Thus, backstrikes permit an attorney to tentatively accept a juror by declining to exercise a peremptory challenge, but then revisit that decision after additional potential jurors are questioned. The data we analyze for this article provide the first systematic evidence on the role played by backstrikes. Our results show that use of backstrikes is common in Caddo Parrish, Louisiana, occurring in 40 percent of the 332 cases we studied. Moreover, controlling for other characteristics, prosecutors had overall between three and five times the odds of using a backstrike on a black prospective juror as on a non-black prospective juror.  Depending on the type of case and the race of the defendant, the odds of prosecutorial backstrikes against black prospective jurors could be as high as almost nine times that of non-black ones.  Prosecutors were also more likely than defense attorneys to exercise backstrikes.  This analysis reveals the nefarious implications of backstrikes for race-neutral jury selection.

The participation of lay persons in the adjudication of legal disputes is generally regarded as a necessary and effective constituent for a credible and independent judicial system. This is exemplified in the trial by jury in jurisdictions with legal systems following the common law tradition, and the participation of lay assessors sitting together with (a) professional judge(s) in mixed-court tribunals in jurisdictions with legal systems following the civil law tradition. This article offers a comprehensive, legal-historical and comparative analysis of the respective modes of adjudication adopted in the People’s Republic of China and its Special Administrative Region of Hong Kong, for as far as these make provision for the participation of ordinary citizens in the adjudication of criminal legal proceedings. The focus on lay participation in the criminal legal proceedings of these two jurisdictions serves as an example of legal transplants from other “Western” jurisdictions to the “East” through conquest, colonization, and legal reform. The critical analysis and review of these legal transplants as provided for here, not only elucidate the unique laws and legal systems of these two jurisdictions operating under the one country two systems principle, it also raises questions with regard to the true value and suitability of the respective lay participation models with reference to its distinct, contemporary Chinese context. The question remains, from medieval “West” to the present-day “East”, whether the participation of lay persons in the adjudication of legal (criminal) disputes is not overestimated, and whether it is truly a guarantor of (or at least contributing to) a credible and independent judicial system.

It is well established in legal and psychological research that combining multiple charges against a defendant into a single trial event has a tendency to increase the chance of conviction - this is known as the joinder effect. Legal scholars have long theorised that combining the trials of multiple defendants has a similar effect, disadvantaging co-accused by tainting them with guilt by association. However, little empirical evidence has been presented to support this. It has further been suggested that the joinder of co-accused defendants became more pronounced during the twentieth century, as judges in common law jurisdictions became increasingly reluctant to increase the courts' workload by severing trials. Drawing on a sample of prosecutions data from Victoria, this article explores the impact that being co-accused had on trial outcomes and the wider legal and sociohistorical issues surrounding such joint trials.

Bushell's Case, 24 Eng. Rep. 1006 (C.P. 1670), established that jurors may not be fined or imprisoned for returning a verdict that conflicts with the judge's assessment of the evidence. Chief Justice John Vaughan's opinion did not defend jury nullification - in fact, the opinion asserted that jurors must follow the judge's directions concerning the law - but the opinion has long been recognized as a crucial resource for those who advocate nullification. Modern defenses of jury nullification that draw on Bushell's Case often point to Vaughan's argument that jurors must be permitted to form their own views because reasonable people may disagree about a witness's credibility or the reliability of the evidence. In the 1680s, however, when Bushell's Case was first being publicly debated, commentators focused primarily on Vaughan's argument that because jurors were chosen from the locality where the crime occurred, they should be presumed to have personal knowledge of the facts of the case. By the late seventeenth century, however, this premise was untenable. This article considers why the "personal knowledge" argument might have been so appealing, despite its implausibility, and examines the process by which that justification for jury nullification gave way to the "independent assessment" argument. In the course of the movement from the first justification to the second one, Bushell's Case began to viewed as supporting the jury's right to find both fact and law - a right that Vaughan had never defended.

Discrimination during voir dire remains a critical impediment to empaneling juries that reflect the diversity of the United States. While various solutions have been proposed, scholars have largely overlooked ethics rules as an instrument for preventing discriminatory behavior during jury selection. Focusing on the ABA Model Rule 8.4(g), which regulates professional misconduct, this article argues that ethics rules can, under certain conditions, offer an effective deterrent to exclusionary practices among legal actors. Part I examines the specific history, evolution, and application of revised ABA Model Rule 8.4(g). Part II delves into the ways that ethics rules in general, despite their limited use, have spurred legal and cultural change. Focusing on jury exclusion Part III shows how ABA Model Rule 8.4(g) in particular might be applied to more effectively challenge and sanction instances of discrimination based on race and sex during voir dire. In so doing, this article reaffirms t...

During the fourth century, the amount of money Athenians got from the polis for volunteering to sit on a jury and for attending the assembly diverged significantly. Jury pay remained at 3 obols a day, despite inflation, while the pay given for a principal (kyria) assembly eventually rose from 1 obol to 9 obols – outpacing inflation and over-compensating most citizens for their time. What demographic reconstruction of the jury can explain why the real value of jury pay never declined to the point that too few Athenians volunteered? Self-reliant citizens (penētes) must have dominated the jury pool, and penētes with young adult children would have volunteered most often. Having an additional source of household labour reduced the opportunity cost of jury service for these Athenians and made their participation more resilient in the face of the declining value of pay. Citizens who faced greater opportunity costs probably participated less over time, meaning that fourth-century juries gradually became less diverse. By contrast, the growth in assembly pay can best be understood in terms of the ‘Lycurgan’ agenda of the 330s and 320s. Greater pay helped to ensure that the assembly’s newly expanded meeting place on the Pnyx was filled to capacity with citizens from all over Attica. The result was a massive spectacle that celebrated a threatened democracy and stimulated the polis economy. Since the courts lacked the same capacity for spectacle, there was no political motivation to pay jurors more.

This document offers a short account of the first women jurors in Nottingham, and offers some brief explanatory context. It was prepared for the Vote100 celebrations in Nottinghamshire in 2018. It is based on the following two publications:

K Crosby, ‘Keeping Women off the Jury in 1920s England and Wales’ (2017) 37(4) Legal Studies 695-717

K Crosby, ‘Restricting the Juror Franchise in 1920s England and Wales’ forthcoming in Law and History Review

This paper is an analysis of real versus simulated, or “mock,” juries. It is specifically focused on similarities
and differences between the two forms of group-based deliberation with respect to the content and organization of
deliberative talk. Via analysis of transcript from six deliberations—two real and four mock—the value of mock juries as an
investigative tool is assessed based not on the relationship between “input” variables, such as the nature of the case, the
sociodemographic or sociometric nature of the jurors themselves, or wording of the juries’ decision rules, and the
“output” variable of the jury’s decision, but rather based on the internal nature of jurors’ discourse. This is a radically
different focus from traditional studies comprising mock juries, one enabled by use of real deliberations for comparative
evaluation.

This article explores the last 50 years of the jury of matrons, a special type of jury used in England and Wales until the middle of the 20th century to secure reprieves for pregnant women sentenced to death. Despite claims that the jury of matrons had fallen out of use by the middle of the Victorian era, such juries were used in over 10% of cases in which women were sentenced to death during the first three decades of the 20th century. Exploring the circumstances in which the jury of matrons was abolished in 1931 can help us see how various important parts of the contemporary criminal justice system of England and Wales developed. In particular, it allows us to see in greater detail how ideas of the jury and of capital punishment were changing at this time, and how important political networks were in securing legislative reforms.

Among the central issues in scholarship on the American jury is the effect of Batson v. Kentucky (1986) on discriminatory empanelment. Empirical legal research has confirmed that despite the promise of the Batson doctrine, both peremptory strikes and challenges for cause remain tools of racial exclusion. But these studies, based on post-facto interviews, transcript analysis, and quantitative methods offer little insight into Batson’s critical impact on real-time decision-making and strategy in voir dire. If we increasingly know what kinds of juries are produced in the post-Batson world, we know very little about how they are produced.

This Article addresses this problem with data derived from a five-year field study of Assistant U.S. Attorneys. Through interviews and participant observation during jury selection proceedings, it provides an unprecedented empirical perspective on how Batson has made race central to the ways prosecutors perceive, pick, and strike jurors. Rather than diminishing race’s influence on voir dire, Batson has made it an essential consideration for prosecutors concerned with their in-court performance and professional reputations.

This race-conscious approach to jury selection has arisen in part due to a clear doctrinal shift in courts’ analyses of juror questioning and striking. This shift has expanded the scope of judicial inquiry during the adjudication of Batson challenges from scrutiny of individual “neutral” rationales for juror dismissals to a more robust comparative juror analysis. My empirical findings indicate that there is a meaningful connection between this latter approach and the incorporation of anti-discrimination norms into prosecutorial approaches to voir dire. Having identified and described this link, it becomes possible to perform a deeper audit of the Batson framework, and suggest, as this Article does, that with reform and expansion to address well-documented limitations, it may serve to narrow the gap between juries as they are and juries as the Constitution would have them be.

Jury Racial Construct: An antithesis to the reason curve

Abstract
The legal landscape of Anglo-American criminal jurisprudence is steeped in gut-wrenching racial discrimination. This occurs at all levels of the criminal justice system and has almost become normalized. One stops short of branding it institutionalized not because the term lacks justification but, because it is unhelpful in the debate and has a tendency to inflame passions without resolving matters.
It is difficult to point to a single period in history or a specific incident that can be highlighted as embodying the putrid bile of racial prejudice. Yet, its presence, in a seemingly modern of artificial intelligence, demonstrates both the unwillingness of the system to evolve in the face of intellectual advances and the challenges inherent in an unequal and disparate society. How can it? We are polarized on party partisan lines. We are polarized on social lines and we are polarized even on intellectual lines. Our leaders ferment prejudice by, in some case walking a fine line and in other cases, brazen and wanton acts of naked racial aggression.
It would be almost understandable if the prejudice was manifest only at the point of delivery in the criminal justice system. That would be an unpardonable form of escapism. We know it is palpable at the extant point of contact – a physical manifestation of a latent prejudice combined with power. Yet, the last recourse of the common man for redress is brushed aside at the point of service. That the courts abandon all attempts to exercise their powers to deliver justice is manifest. That they often do it deliberately to injure rather than nurture the spirit of justice and fair play is alarming yet, not surprising.
One wonders if Blackstone’s maxim of the one innocent man contemplated a colour-blind criminal justice dystopia.
This article attempts to draw out from the antiquities, the attempts to make justice colourless and argues that the jury, properly directed and educated, may hold the key – ceteris paribus.

This paper reports the results of a study investigating how jurors interpret and digest
scientific evidence when it is presented to them in a trial setting and how differences
in juror attitudes and education influence interpretation of scientific evidence. The
study involved a sample of mock jurors recruited from Amazon Mechanical Turk
(n=91). Study subjects each viewed a transcript of a mock legal case involving DNA
evidence. Results suggest that when presented with conflicting expert testimony,
jurors will interpret evidence in a way that is consistent with pre-existing attitudes or
beliefs (such as political predispositions). Importantly, results suggest that a juror’s
ability to do this and therefore the polarization between jurors of different political
pre-dispositions increases as level of education increases. For jurors classified as
Conservative, as education levels increased, the prosecution expert was rated as more
credible and the defendant was found guilty more often. For jurors classified as
Liberal, as education levels increased, the prosecution expert was rated as less credible and the defendant was found guilty less often. Theoretical and practical
implications of these findings are discussed.