This was written as part of a presentation for Issues in Criminal Law: History, Evolution and Theoretical Approaches, D. Hay & M. Beare, which is part of Osgoode Hall Schoolís LL.M (Criminal) program.

Why is the jury found in common law systems, but rarely (and belatedly) in civil law (civilian) systems?

Introduction

Bodies of lay adjudicators occurred in many (and most European) tribal societies. There was even a petty jury of 12 in ancient Athens shortly after the Trojan War. Ancient Rome used a jury of 51 (81 less 15 challenges by each side). Mention of lay fact-finders has appeared in the histories of Egypt, Scandinavia, Jerusalem in the times of the Crusades, Russia and of course the British Isles.

Assembling an inquest jury to decide the facts of an important case or to determine which local legal custom was relevant to a dispute was, from the eighth century on, a regular, if uncommon, procedure both in England and on the continent.

When Pope Innocent III withdrew Church approval of trials by ordeal in 1215, a replacement method of fact-finding (hopefully more rational) was urgently needed. The continental judges had inquisitorial canon law procedure to turn to; in England the only tool close at hand was the inquest.

English Development

King Henry III's judges did not wake up the next morning impaneling 12 man juries; they went on circuit and improvised. At first, the Judge merely polled the grand jury which had leveled the initial accusation. At another time four panels of eight jurors were chosen. Initially jurors were witnesses and once a party had 12 oaths in his favour, he won. Sometimes the procedure was inquisitorial, with the Judge asking questions of witnesses and jurors.

An accused was 'put to his country' by which is meant that he was offered trial by jury. If he refused this offer, the accused was likely condemned on the presentment of the grand jury or kept in prison until he was willing to plead in front of the petty jury. By the middle of the thirteenth century, the system had been regularized into a compulsory 12 man jury.

The evolution of the jury proceeded incrementally in tandem with the development of rules for the reception of evidence. The new jury procedure was interwoven with the established (and popular) royal courts and depended entirely on the Judge for its power; if the Judge were to refuse to follow its verdict, he would not be in violation of any statute. However, the convenience of being able to blame the jury for unpopular verdict was too tempting to pass up.

On the Continent (Civilian)

Civil Law is based on the Code of the Roman Emperor Justinian. After the collapse of the Roman Empire, isolated elements of this Code were absorbed, to varying degrees, into the customary laws of Europe. In the late eleventh century, Roman law was revived. Lawyers from all over the continent flocked to the university in Bologna and, once critical mass was reached, Codes, both civil and criminal, were established in Italy, Germany and, after the revolution, in France.

By the late 1600s perceived problems with their criminal procedure caused continental governments to consider the importation of the English jury. Moore provides a survey of the mixed experience which various jurisdictions have had with trial by jury but I will restrict myself to France.

During the Revolution, the aristocratic judges were terminated and replaced with juries. Regrettably, the passions of the Reign of Terror led several juries to dispense with even the pretense of fair trials. When calm was restored, the government had to reconsider the advisability of the jury.

Considerations militating against the jury in France included the following:

1. The French prepared a thick written dossier which would overwhelm any jury whereas the English concentrated and simplified the issues for trial. And when the case did finally come to Court, the French preferred an inquisitory procedure system with the Judge asking questions as opposed to the accusatorial English trial.

2. There was a deep-seated distrust of orality. It was believed that a witness was more likely to give accurate account in private than in open Court

3. Juries had to answer too many questions in the course of rendering their verdict.

 4. In England the law of evidence was the child of the jury; in France the jury was borne out of an only partially realized desire to abolish the old law of evidence. In England the test was admissibility; in France the issue was the weight or value of the evidence. The French often needed a confession to convict, a requirement which sometimes gave rise to judicially sanctioned torture. There had to be testimony from more than one witness to prove a fact and many findings of fact ended up being determined by formulaic presumptions. Then the pendulum swung to the opposite extreme and for a period, the French functioned without any set system of evidence or proof.

5. French law failed to fully protect the accused from self-incrimination.

6. French juries acquitted too many accused.

 7. Juries were felt, by those in power, to be unsuited to French culture and character, legal and otherwise: While the English were hard hearted enough to wield the bloody sword of justice, the French were thought too delicate to do so. Unanimity was thought impossible for them.

8. French Judges were organized in strict order of seniority leading to a greater need for hierarchical control of the appeal process. Dossiers, which allowed for detailed scrutiny of the court below often bordering on trial de novo, were well suited to this, secret jury decisions, especially in the form of general verdicts, were much less so.

 Currently in France, serious criminal cases are decided by a Court composed of three professional judges and nine jurors who retire together to consider their verdict of guilt and the appropriate penalty. Decision is by a simple majority.

Elsewhere around the Civil Law World

The jury system is all but unknown in Asia. As part of its modernization, Japan imported criminal law and procedure from Germany in the late nineteenth century. Jury procedure was added in 1923 but did not function properly and was permanently suspended in 1943.

Conclusions and Implications

In England, the sapling of the institution of the jury had generations in which to mature with the support of citizens both high and low until its tradition became a sturdy and towering oak tree. In France juries were new and their fairness therefore suspect. The sapling, imported during a time of turmoil and transplanted in a foreign soil, was never given a chance to flourish.

A jury system of justice has not worked well everywhere it has been tried. The strength of its reception varied with the political climate and the intersection of historical imperatives. We should not presume that its continued existence in our court procedure is unassailable.
 

If you would like the WORD version of the above which includes footnotes of authorities for all of the above, please e-mail me at dmm@interlog.com  and I will attach it by return e-mail.