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the jury system

[péi shěn zhì]

judicial system

The jury system refers to the random selection of several people from the general public juror , delegate their participation criminal action or civil action And is independent of the judicial system in which the judge finds facts and decides the application of law.

Chinese name: the jury system

Number of people: Usually 6 to 12
Nature: judicial system

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Origin of the system

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the jury system

The number of jurors is usually 6 to 12, which is called "jury" as a whole. In criminal cases, the jury usually makes a judgment on the guilt or innocence of the defendant, while in civil proceedings, it usually makes a judgment on whether the defendant is liable or the amount of damages. The jury system mainly exists in the United States, Britain, Hong Kong, etc Common law (also known as "Anglo American law") countries and regions. After William, Duke of Normandy, conquered England in 1066, he normans Established in trial jury The old habits of the British brought to England. Later, with《 Clarington edict 》And the Westminster Dahir, which gradually established the prosecution jury and trial jury in Britain. Since the number of prosecution juries can range from 12 to 23, while the number of trial juries is fixed at 12, the former is called grand jury, and the latter is called grand jury Minor jury 。 While expanding outward, Britain jury system It has been brought to many countries in the world, but the best operation is the United States. After the independence of the United States, the American people showed great respect for the jury system juror The practice of forming a jury to participate in the trial has always been the main trial method adopted by courts around the United States. By 2013, even when other countries have abandoned the jury system, the United States still has a strong preference for it and is unwilling to give up.

constitute

jury It can be divided into two types: deciding whether to criminal suspect mention indictment Of Grand jury (grand jury, also known as "prosecution jury"); Those who participate in the process of criminal or civil proceedings are Minor jury (Petit jury, also known as "trial jury"). The names of the grand jury and the minor jury come from both juror The number of people (traditionally, the grand jury consists of 23 people, while the minor jury consists of 12 people). Generally speaking, the "jury" refers to the small jury (hereinafter, except for the historical part, only the small jury is described).

The jurors (as mentioned above, usually 12, but see the national systems for details) are randomly selected from ordinary citizens, who participate in criminal case Or after the trial of the civil action, the case shall be reviewed and judged in the presence of only the jurors (→ see General jury procedure And national systems).

All adult citizens may be elected juror However, not all adults are qualified to serve as jurors, such as police, soldiers, professors, city (provincial) governors, and students of law department may not be qualified or can be exempted from serving as jurors. The selection of jurors must comply with certain Selection procedure 。

The number of juries is determined by local laws, and the number of juries varies from place to place. In some countries or regions, there are substitute jurors, who will produce and attend the trial together with the jurors. If the formal juror is unable to complete the work for some reason, the substitute juror shall take over and vote. In other places, if a juror withdraws halfway, the original juror needs to be dissolved jury , re elect a new jury and restart the trial procedure. If a juror tries in absentia without reasonable reasons, it is illegal, and he can be investigated by law.

In addition to the jury system, there are other systems that allow ordinary citizens to participate in trials: China's system of people's assessors , Japanese Referee system However, the biggest difference between the jury system and other systems mentioned above is that under the jury system, judges do not participate in the process of deliberation, and only juror Conduct fact finding (→ Similar system ）。

The jury system originated in ancient England and was gradually inherited by the judicial systems of the United States, Hong Kong and other countries and regions (→ history).

Both the federal and state constitutions of the United States have established criminal jury and civil jury systems (→ Criminal jury in the United States 、 Civil jury in the United States ）Although the overall proportion is not high, more than 90000 cases still use jury trial procedures every year (→ statistics). In Britain, criminal jury still exists in large numbers, but civil jury is no longer applicable (→ British Jury System ）。 Others, Australia, Canada, South Korea Denmark , New Zealand, Russia, Hong Kong and other countries and regions still use the jury system to varying degrees (→ Current situation of jury system in other regions ）。

In Japan, the implementation of criminal jury began in 1928 (Showa 3), but was stopped in 1943 (Showa 18). In 2009, Japan formulated a new law, which was reintroduced in judicial decisions Jury system (Japan calls them "referees"). （→ Jury System in Japan ）。

Trial procedures

The following mainly introduces the two main countries that implement the jury system: the United States (federal and state) and the United Kingdom (England Welsh ）General jury trial procedure.

Jury seat of a court in Nevada, United States.

Traditional jury By 12 juror Composition, but some jurisdictions (countries or states) require a smaller quota. Through ordinary citizens Jury selection After the selected jurors are sworn in the court, they sit in the jury box in the court and participate in the trial ("trial").

juror During the trial, the judge presided over the court proceedings (ruling objection, etc.) and tried to prevent the jurors from being affected by incomplete opinions or improper evidence. Then, at the end of the trial, the judge will give details to the jurors guide (instruction, charge). Thereafter, the jury deliberated in a closed room according to the evidence learned in the court and the judge's guidance Fact finding And the law applicable to the fact rule （verdict）。 In the civil jury, it is not only necessary to judge whether the defendant is responsible, but also to clarify the amount of damages in the judgment. In criminal cases, in principle jury Only responsible for determining guilt or innocent In the case of conviction, the judge decides the sentence. Judgement often requires unanimity to be effective, but in some jurisdictions, special majority voting (11 to 1 or 10 to 2, etc.) is also recognized by law. When juror When there are major differences of opinion and the conditions for unanimous or special majority voting cannot be reached, it constitutes hung jury (hung jury). In this case, many jurisdictions require re-election jury Or the entire approval process.

In case of making a judgment, the judge shall make a judgment according to the judgment conclusion. However, when the judge judges that the extent of the jurors' neglect of evidence is too obvious, the judge can make a judgment without relying on the jury's judgment (see below Civil jury in the United States "Judgment as a legal issue").

Characteristics of jury system

1. Select jury Is the right of the parties

In the United States, almost all parties have the right to a jury trial. But it is slightly different in different lawsuits. In criminal proceedings, Article 3 of the United States Federal Constitution stipulates that all criminal trials, except for impeachment cases, must be attended by a jury. The Sixth Amendment stipulates that in all criminal cases, the defendant has the right to request a prompt and public trial by a fair jury in the state or district where the case occurred. This provision applies to criminal defendants tried by federal courts. The Fourteenth Amendment provides that criminal defendants tried by state courts also enjoy this right. In civil litigation, the Seventh Amendment to the Constitution stipulates that in the federal court system, if the amount involved exceeds $20, Civil litigants You have the right to a jury trial. The federal constitution does not stipulate that civil actions accepted by state courts are jury The right to hear, but many state constitutions provide for this right. The choice of jury trial is a constitutional right of the parties, which is enough to show that the jury system is very important in the United States.

2、 juror Strict composition

The number of juries may be less than 12, but at least 6. The jury is composed randomly, usually from the registration voter The selection from the list comes from all levels of the community where the parties are located. Constitution of the United States According to the regulations, jurors must be selected from all walks of life in the community where the litigant lives. The jurors should have no interest in the case, not be partial to or biased against any party. This is the first condition for serving as a juror. In addition, be able to understand the proceedings; They should also be in good health, be competent for jury work, at least have minimum education, be over 18 years old, understand English and so on. When choosing a jury, a large group needs to be determined juror Call to court. Judges and lawyers will select 12 (or less) of these persons as jurors in this case. There are two steps in selecting qualified jurors: first, pre examination, that is, judges and lawyers ask questions of juror candidates, and juror candidates answer questions to determine whether they meet the conditions of jurors. The second is the non cause exclusion, that is, on the basis of pre review, the parties can also exclude candidates without the consent of the judge without giving reasons. Each party can only use a limited chance of no cause exclusion. There is an exception to this rule, and the party concerned cannot disqualify the candidate by exclusion without cause on the basis of race, nationality or gender.

3. The jury's duty is to find facts, but it can also refuse unfair application of law

Because the common law system pursues Party doctrine In the litigation, both parties play a leading role and independently decide to call cross examination witnesses. The judge only passively presides over the trial, while the jury is more passive than the judge, so they sit quietly and listen to the debate between the prosecution and the defense. After the debate, the jury will determine the facts of the case. The jury is not only told to determine the facts, but also the judge cannot instruct the jury to make a verdict on the facts, and cannot deprive the jury of consideration of the defendant's objection. Like evidence, the jury has the right to judge the law according to its own conscience. Sometimes, the evidence is conclusive and the defendant himself admits that he should be convicted, but the jury can find the defendant innocent and invalidate the law. The judge must obey the jury Acquittal 。

the jury system

4. The jury will make an independent verdict in secret at the end of the court debate, and the judge will announce an adjournment. The jury will enter the verdict stage. The jury's verdict was conducted in secret. He was temporarily isolated and cut off any contact with the outside world until a verdict was made. The verdict of the jury is also independent, free from any influence and pressure. each juror Only vote on the case according to his own conscience. "Even if the judge is unhappy with the verdict, the jurors will never be punished." The verdict is passed by consensus. If there is no consensus, jury Will be "hung up". Usually another jury is formed to try the case again.

Similar system

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Participation system

the jury system

Under the jury system, only juror Facts can be identified, as opposed to, Participation system It refers to the trial system in which professional judges and ordinary citizens (assessors) jointly conduct trial and appraisal. This system is mainly implemented in some European countries and China. Unlike the jurors who need to be re elected in each case,^[1] The term of office system shall be implemented for the participants. In Germany, in principle, all criminal cases need to be reviewed by the examiners elected from the citizens (for a term of five years) and Professional judge (The local court has 2 assessors and 3 judges, and the district court has 2 assessors and 1 judge) to jointly review the case, determine guilt, innocence and sentencing. French felony courts（ Cour d'assises ）In the trial carried out, 9 jurors (12 in the prosecution trial) and 3 professional judges will try together. In French, this system is also called "Jury", but it is essentially a trial system. In Italy's trial system, for some serious crimes, a collegial panel consisting of six assessors with a term of three months and two professional judges is required to judge whether the defendant is guilty and to measure the sentence. Chinese People's jurors In fact, the system is also the system of participation in examination. People's assessors may participate in the basic courts and Intermediate People's Court First instance civil trial and criminal trial.

Referee system

Japan from 2009（ Heisei 21) The referee system implemented on May 21 stipulates in principle that Major criminal cases The collegial panel should be composed of 6 judges elected from the general public and 3 professional judges to conduct fact finding and sentencing, which is actually closer to the participatory system. However, the difference from the trial system is that referees do not have tenure, but are elected in each case.^[1]

Institutional history

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Formation and development in Britain

King Henry II of England, the designer of the jury prototype.

The origin of jury system can be traced back to at least the early 9th century Frankish Empire In order to confirm the rights of the king, the important local people provide testimony (Frankish Request). Charlemagne Son of Louis I In 829, it was stipulated that when judging the king's rights, the 12 most popular local figures should make statements after swearing^[2] 。 According to research, this system has Norman Conquest After the 11th century, it spread to England. In addition, there is a theory that, unlike the above system from the European continent, around 997, King of England King Aethelred II A law was also enacted, stipulating that 12 knights should face Sacred objects , swearing that "no innocent person will be prosecuted and no guilty person will be spared", which also constitutes a source of jury system.^[2]

In any case, most historians agree that during the formation of the modern jury system, the king of England in the 12th century Henry II The system of the period and 1215 great charter Played a key role. It is said that Henry II used jury system 。 At that time, Henry II founded the settlement of land and inherit Assize litigation of disputes. In this type of litigation, 12 male citizens with free status and legal qualification form a group, and after swearing, they express their views on who is the real owner or heir of the land. This is the prototype of modern civil jury system. In the criminal trial, Henry II also Assize of Clarendon China, created Grand jury The system is similar to the prosecution jury system, in which a group composed of male citizens with legal qualifications reports suspects of crimes after swearing. At that time, the defendant indicted in this way will be judgment of God 。

1215 great charter Article 39 states that jury The right to make a judgment not subject to punishment. This law was the result of the aristocrats at that time forcing King John to give recognition in order to limit the royal power. In the same year, The Fourth Grand Privy Council of Lateran The Pope innocent iii It was announced that the clergy were prohibited from participating in the divine judgment, so in order to replace the difficult divine judgment, the jury system was widely implemented.^[3]

King John of England who signed the Magna Carta

The original duty of the jury is only to state their knowledge and opinions as witnesses. The modern jury system of ascertaining facts according to evidence only appeared from the 14th century to the 15th century. However, until the 17th century, juror It is still possible to evaluate and decide on the basis of personal knowledge in addition to the evidence provided in the court, without the objective neutrality emphasized by the modern jury system.

In addition, in the early jury system juror The practice of imprisonment until a guilty verdict is reached. for example Star Room Court For jurors who refuse to make a guilty verdict, the court may impose a penalty of confiscation of land or property. The turning point that led to the transformation of this tradition was the Bushel event in 1670（ Bushel's Case ）。 At that time Quakers character William Penn The 12 jurors who were charged with inciting the assembly with William Mead, but refused to make a guilty verdict, were imprisoned for 2 nights by the court without providing any food or water. However, the judges insisted on not withdrawing the verdict of innocence and were eventually sentenced to pay fine 。 Four jurors led by Bushel refused to pay the fine and filed Habeas corpus In the end, High Court of England The President of the Imperial Court made a landmark judgment and announced that juror In the process of ascertaining the facts, they should not be interfered by the outside world, and Bushel et al. were released.

So, in the 17th century, jury Was defendant It is regarded as an important guarantee to protect them from severe punishment. According to the penal system of ancient England, if convicted in serious crimes, almost all of them will be sentenced to death. However, in the trial records from the Middle Ages to the 18th century, it can be found that in many cases, the jurors ruled the defendant in serious crimes as innocent, or downgraded it to brand or Flogging And other misdemeanors.

American Succession to Jury System

The United States has inherited the British jury system since the colonial era, and 13 states have ensured the implementation of the jury system through their constitutions.^[4] At first, the jury system did not play an important role in the American colonies. However, with the growing voice of resistance to British rule in the middle of the 18th century, the jury system as a resistance suzerain One of the means of oppression has played a positive role. In colonial trials, judges and prosecutors were appointed by the King of England juror A native from a colony. In 1735, a publisher who was charged with sedition for publishing critical articles about colonial governors John Peter Zenger In the case, although the two parties did not dispute the factual relationship jury A verdict of not guilty was still handed down. In addition, in order to control the trade of the colonies, Britain often relied on navigation acts Non British cargo ships carrying goods are banned, but juries often make opposite acquittals. For this reason, Britain set up a special court to avoid jury trial, which also became American Revolutionary War One of the inducements. stay American Declaration of Independence In particular, he accused the King of "depriving the jury of the trial benefits in many cases".

The first female juror in Los Angeles (1911).

Effective in 1788 Constitution of the United States The criminal jury was protected in writing（ 3 articles and 2 sections 3 items). At first, considering jury It will make a favorable judgment for the local parties, so it is not introduced in the civil trial procedure jury system 。 However, due to the strong demand of the states, the 1791 Constitutional Amendment (Bill of Rights) ensured the right of the parties to accept criminal and civil juries（ Amendment 6 、 7 ）。 At the same time, Grand jury The system is also guaranteed（ Amendment 5 ）。

At the beginning of the implementation of the jury system, juror Qualifications are limited to those with sufficient property White Male, with 1868 Article 14 of the Constitution Amendment Passed by, Federal Supreme Court It was found that the above restrictions violated the equal protection clause of the constitutional amendment, thus prohibiting discriminatory provisions based on ethnic differences. However, for a long period of time after that, the exclusion of blacks in the process of jury selection was still an indisputable fact. And although women had access to The right to vote However, it was not until 1975 that it won the equal jury candidacy with men.

Institutional discussion

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Significance of jury system

It is generally believed that the jury system has the following values and meanings.

Reflect citizens' common sense or values For example, many people believe that in civil cases, the judgment of whether the defendant is responsible and the amount of damages, as well as the judgment of“ Just Cause ”Or "reasonable doubt", jury system It can reflect representative social views. yes public rights The restrictive function of the jury system is as mentioned above. In history, the jury system has played a restraining role in the abuse of public power. United States Supreme Court It is also pointed out in the judgment text mentioned below: "By granting the defendant the right to accept the jury trial of his peers, it can prevent him from being unjustified or too radical inquisitor And those unfair rulings of judges who cater to (prosecutors), or are divorced from common sense or biased ". The following The jury's disregard for the law Is the most obvious example of this function. Participatory Democracy In the United States, jury system is considered to be realized democracy Important system. French thinker Alexis de Tocqueville In his works《 Democracy in the United States 》The jury system is regarded as an important way to achieve people's autonomy. For citizens educational function The jury system not only has the effect of popularizing the knowledge of the judicial system for citizens participating in the process, but also improves the understanding of the judicial system by ordinary citizens through TV programs or movies that reflect the subject matter of jury trials. As a secondary role of the jury system, improving the trial efficiency avoids the long-term trial process by focusing on trials and drawing conclusions in a short time.^[5]

Criticism of jury system

On the other hand, the jury tries more serious criminal cases, and ordinary criminal and civil cases generally do not apply to the jury. This is because the jury trial will consume a lot of manpower and material resources, and the procedure is complex and tedious, and the trial time is lengthy and tardy, which is not conducive to the rapid and timely settlement of disputes. At the same time, it is criticized that the jury system will increase judicial process Cost of. At the same time, because the jury does not have legal expertise and cannot guarantee that their determination of evidence and facts can conform to the provisions and spirit of the law, there are also views that doubt the jury's ability to determine facts and apply the law. For the shortcomings of the jury system, the Anglo American countries jury The question of whether to retain or abolish the concept of human rights has always been a topic of heated debate. The current trend is to impose strict restrictions on the applicable conditions for jury trials to ensure that such limited Judicial resources Play a role where it is most needed.

juror The biased jury trial is often vulnerable to the influence of jurors' emotional factors or inherent prejudice. Through regional factors or historical factors, it will often cause adverse results to certain specific groups. For this criticism, there are also arguments that jurors are not more vulnerable to prejudice than judges. In addition, a large-scale investigation published in 1966 showed that when the judge was asked whether he or she agreed with the jury's verdict, in more than 75% of the cases, the judge's heart was consistent with the jury's judgment. When there is disagreement between the two jury Most of them hold the view of innocence (the opposite is true for judges), and civil cases cannot show specific tendencies. One view is that jurors are not suitable to participate in the application of law, which requires a high degree of legal expertise. For example, in Tortious conduct Medium, judge whether it exists fault It is supposed to measure the costs required to prevent accidents and the benefits from preventive measures (possible losses or probability of accidents), but juror They often don't understand this, especially in individual infringement lawsuits against enterprises, they often only focus on the damage suffered by the plaintiff and the defendant's resources, thus often making a decision to compensate the plaintiff for all losses. In the dramatic jury process of the trial, lawyers often have dramatic debates in order to win the sympathy of the jurors to reach a verdict in their own favor, which is also criticized as leading to the dramatic lawyers. In this regard, there are also opponents who believe that dramatization is not necessarily equivalent to the performative behavior in TV dramas or movies. In order to make debate more understandable, debate skills can be valued. In addition, there are also empirical studies that show that in only 0.25% of cases at most, jury judgments will change depending on the level of lawyers. The economic costs incurred by the jury trial shall be paid on a daily basis juror In addition to the allowance and transportation fees, from the summoning and appointment procedures of jurors to the trial and verdict, the jury process will incur high costs. In particular, when it is necessary to have a retrial due to the failure to reach an agreement on the award, the economic burden borne by the parties should not be underestimated. In addition, for jurors, it also affects their work or study to some extent. Despite the above criticisms of the jury system in the United States, American citizens still have more trust in the jury system than in lawyers, judges, the United States Congress United States Supreme Court So far, the argument of abolishing jury system has never occupied the mainstream.

However, in Britain, although the jury system has many positive meanings, such as protecting freedom and democracy, reflecting the common sense of citizens, it has constituted a burden on the people, and has also been abused by "skilled" criminals, so it has been widely criticized. In the 20th century, its scope of application and jurisdiction were greatly restricted.

The jury's disregard for the law

When the jury finds the facts and applies the law, it must follow the law prompted by the judge. However, in principle, the verdict of the jury only indicates the conclusion, and it is not necessary to state the reasons leading to the conclusion (this is called general verdict , but there are also individual cases where there will be individual decisions), so in fact the jury may still deliberately make decisions that ignore the provisions of the law. This phenomenon is theoretically called“ jury Disregard for the law (Also translated as "invalidation of law". jury nullification）。 The typical case is that although there is sufficient evidence to prove the defendant's guilt, when the jury collectively believes that the law itself that punishes this kind of behavior violates natural justice, a verdict of innocence may appear. For example, the John Peter Zenger case mentioned above Prohibition law Numerous cases were prosecuted for violation of drinking restriction laws in the era, but were found innocent, and were prosecuted for killing blacks or civil rights activists White racist By all white people juror Cases of acquittal, etc.

The jury's disregard of the law may occur in both civil and criminal proceedings, but its role is particularly obvious in criminal cases. Since the principle of "one crime without two prosecutions" is implemented in the Anglo American law, the law does not allow prosecutors to protest against the case in which the evidence is conclusive but the case is ruled innocent, so it cannot be remedied by a retrial order from a higher court.

For this phenomenon, one view holds that it is an improper interference of the jury in legal issues, which should not be recognized, but another view holds that the view of embodying the values of ordinary citizens has a positive side for the improvement of the law and reform and development. Among them, there are also some groups based on jury Can be ignored Evil law This effect, and actively promote juror Take similar actions.

stay United States Supreme Court In the judgment of, there are also views that "the jury has achieved a higher level of justice by refusing to enforce too harsh laws", which is also considered to imply "the jury's disregard of the law". On the other hand, the judgment of the Federal Court of Complaints also pointed out that "the jury's disregard of the law violates the oath that jurors only apply the law explained". In this case, the judge can discharge the duties of relevant jurors according to the circumstances. The general view is that when a judge explains the law, he or she cannot at least make it clear that the jury can ignore the law.

Jury and News Report

Different from the early jury system that uses personal knowledge to make decisions, the modern jury system requires juror The judgment shall be based only on the evidence that has been cross examined in court, and shall be neutral and fair as far as possible. However, the news report before or during the trial may have an impact on the people who are about to or have become jurors, leading them to have some prejudice and unable to conduct a fair trial. Therefore, how to prevent the improper impact of news reports on jurors has become a major topic in judicial practice.

In the UK (England and Welsh ）， jury Before the verdict is made, the report on the case is strictly limited, so as to prevent the jury from being affected. Statutory law or Common law It is stipulated that the media reporting the case can be fined or detained at a high level. Before the trial, only minimal information such as the name of the party concerned or the time and place of the preparatory interrogation is allowed to be reported. Although the preparatory interrogation should be conducted openly in principle, the relevant laws and regulations prohibit its content from being widely disseminated. After the trial begins, the news report must also correctly convey the information about the procedure, without any content that may damage the ongoing or upcoming procedure. Violation of the above prohibition will result in a penalty Crime of insulting the court (In fact, only those reports that will have a serious impact on the trial will be punished.). In Scotland and Ireland There are similar restrictions, but in Australia, New Zealand, Canada and other places, such restrictions are relatively loose.

In contrast, in the United States, Article 1 of the Constitutional Amendment expressly stipulates that Freedom of reporting Therefore, the restrictions on media are restricted by law. Of course, in the United States, the impact of the media on jurors is also a real problem. The Federal Supreme Court has judged that this infringed the defendant's fair trial in a series of cases in which the parties disclosed the relevant information of the case through the media due process Right that judges should take corresponding measures. However, the Federal Supreme Court, in its decision in the Nebraska Press case in 1976, pointed out that the prohibition of media reporting was a prior restriction on freedom of expression and should be strictly enforced Unconstitutional review 。。 Therefore, in fact, the prohibition of reporting is almost impossible to be passed in the Constitution. In addition, for the defendant criminal record Or it cannot be determined Evidential capacity Report of the defendant's statement Criminal punishment The restriction policy of the "" has also been subject to strict unconstitutional review. Even to prevent the future juror The practice of not disclosing pretrial procedures, such as preparatory interrogation, which has caused undue influence, is also mostly not recognized by law.

Therefore, in the United States Judicial practice The effect of preventing the media from reporting cases in a biased way is to restrict lawyers or inquisitor This is accomplished by disclosing information to the media. Most states have adopted American Bar Association One of the three ethical model regulations made by Fa Cao. These regulations strictly restrict lawyers from attending press conferences or accepting interviews and other out of court remarks, and provide for punishment measures. The federal judiciary has also made the same restrictive provisions for staff, including prosecutors.

In addition, if there are reports that may lead to prejudice, in order not to affect the fair judgment of the jury, the following measures are often taken to remedy.

The change of venue will transfer the case to the area not affected by the report. However, in some smaller states, news coverage may rapidly expand to statewide coverage, so this approach may not work. Change Candidate juror In some states, the members of the jury have also stipulated the practice of selecting jurors from other regions without changing the venue. When the impact of the report may weaken after a certain period of time, the court can postpone the proceedings. stay Juror selection procedure The preliminary inquiry of the review in the process of juror selection can also play a role in screening jurors who may be affected by the report. See: obstruction of justice Prohibit jurors from contacting and reporting. Generally, jurors are required not to contact the report content of relevant cases as much as possible after being appointed until making a verdict. Anyone who attempts to influence the decisions of jurors outside the court, such as privately contacting jurors, or publishing some information not disclosed in the trial in the mass media, may also violate the law. juror When the verdict cannot be made within one day, and the case is hot reported, the court may order the jurors to be isolated, requiring them to stay in a hotel or not contact with other people. There is almost no isolation during the fact hearing, but there will be examples of isolation during the adjudication. In the case of O. J. Simpson case In extremely rare cases, jurors were isolated for 8.5 months.

Secret adjudication

according to Article 1 of the United States Constitution Amendment The protection of juror They can also freely express their opinions on the adjudication process, and there may even be jurors who provide inside information to the media for compensation afterwards. Therefore, in some high-profile cases, jurors may take abnormal actions in order to sell the verdict, or journalists may harass jurors. For this reason, part of United States Courts It is specially stipulated that the reporting department shall not interview the jurors, but there is almost no provision to restrict the jurors themselves.

In contrast, England Welsh 、 Northern Ireland And Canada and other places strictly prohibit jurors from disclosing information in the adjudication process. Article 8 of the Crimes of Insult to the Court Act 1981 in England and Wales expressly stipulates the punishment for the act of prying or leaking the contents of the verdict, but there are some opposing views that this is not conducive to jury system Conduct academic research. In Australia, the act of approaching the juror after the trial by the reporting authority will also be regarded as a crime of insulting the court, but the juror is allowed to voluntarily provide information for free. Same as New Zealand case law It also stipulates that the act of reporting agencies interviewing jurors will be sentenced to the crime of insulting the court.

Impact on common law

British jury system and Common law (British and American law) The legal system developed together has a great impact on the common law. Some of the main impacts are listed below.

In order for jurors to understand the law, the legal provisions should not be too obscure. To mitigate juror Burden, more centralized trials. In order to prevent the sudden attack in the centralized trial, the evidence prompt procedure is very developed. The interrogation skills in court have been developed. Evidence law rules such as the principle of prohibiting hearsay evidence have developed. Secondly, the jury system also has the following impact on the field of contract law:

The UK Fraud Prevention Act stipulates that a certain type of contract will not be protected by law if it is not in written form or the debtor's signature, which was specially formulated in the 17th century to prevent jurors from being deceived by perjury.. The Exclusion Rule of Oral Evidence in Anglo American Law（ Parol evidence rule ）It stipulates that the content of the contract should be determined through a written contract, and other evidence (such as oral agreement, etc.) should be excluded. This provision is also to prevent the jury from more easily accepting the statement of the party with an economic advantage over time, so as to make a verdict against the weak.. In the field of criminal proceedings, it is precisely because the jury trial is too complex and costly, which has contributed to the development of litigation transactions.

Characteristics of jury trial system

the jury system

1. The system of participation in trial is widely used in Germany to deal with cases more widely than in any European continent country. In all German states Lower court In China, ordinary citizens have the right to participate in the judgment process of some types of cases; Ordinary German citizens control business criminal Most of the three members in the labor and social insurance court Voting rights 。 In addition, in agricultural cases and most disciplinary and personal disputes involving public officials, soldiers and non-governmental professionals, jurors have the majority vote in the lower courts of all states. Even in tax and administrative law matters and in most of the most serious criminal cases, jurors participate in their adjudication process, although they are a minority of the five members. The German judicial system is full of an atmosphere of massive public participation.

2. The selection of jurors is somewhat arbitrary

The term of office of jurors in Germany is four years. Each juror attends several days of trial every year - the standard of legal advice is once a month. The procedure of selecting jurors every four years is divided into two stages: nomination and selection. Nomination mainly follows the qualification requirements (capacity, age, public office) stipulated by relevant laws. In addition, the law also gives local authorities great nomination rights. However, the nomination practices of local authorities vary greatly. Some local authorities make nominations by compiling a basically random list of residents. Other local authorities actually entrust this task to the political parties with seats in the city council. In Berlin, the authorities allowed the police to veto the provisional list.

In the selection stage, the selection committee selects jurors from the nominees. The selection committee is chaired by a judge. In addition to one administrator and jury system member of the state government, it also includes 10 citizens selected by the elected local government in the judicial region. The working methods of the selection committee are also very different in different places. They believe that, juror It is very important to come from a wide range of professional groups, but in practice, the implementation of this idea is casual. Their preferred occupational groups are: teachers, civilian officials Social Welfare Workers Management personnel. As a result, civilian officials and other white-collar staff are relatively overrepresented, while housewives and blue collar employees are relatively underrepresented. The challenge rule can be applied to jurors, but there is no United States in Germany jury A similar system such as pre qualification. Although the law stipulates that the list of nominees should be representatives of "all sectors of society", the actual practice does not seem to try to achieve that goal. This selection system has a randomness, which makes it form a strange contrast with the carefully designed court system it serves. The goodwill efforts to select citizens who are interested in the trial and feel suitable for the job may be reduced juror The diversity of groups weakens the effect of their roles. 3. Jurors have the same duties as judges

Jurors and judges in Germany have the same responsibilities, and they have the right to independently decide the determination of facts and the application of law. Jury can only be held in court Hearing Only then can they be recalled. It is impossible to be "hung up" like the United States. After they are sworn in, they must uphold justice and strictly abide by judicial process Keep judicial secrets and adjudicate cases according to law. Germany's system of participation in trial actually excludes the function of "missing trial" from its system. Judges have the obligation to point out the reasons for wrong decisions in their written judgments for the trial participation system. Therefore, jurors who attempt to distort or ignore the law will be challenged by the judge: "This will be overturned on appeal."

4. Jurors are susceptible to the influence of judges

Although jurors' independence is guaranteed by law, they may still be affected by judges. Unlike the United States, jurors and judges make decisions together and cannot make decisions alone. In terms of the number of jurors, the number of jurors participating in the trial system is smaller than that of the jury system Continental law system pursue ex officio litigation system , take the judge as the center, and the judge regulates the court trial process and plays a leading role. The judge has always participated in the whole process of the lawsuit, and the juror only intervened in the case at the beginning of the trial. Naturally, the case information obtained by him and the judge is asymmetric, coupled with the lack of expertise and judicial experience, so he is very vulnerable to the influence of the judge, thus losing his independence.

Chinese jury system

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The Evolution of Jury System in Old China

The first proponent was the law minister in the late Qing Dynasty Shen Jiaben , which was drafted and implemented in the Civil and Criminal Procedure Law of the Qing Dynasty in 1906 The Jury System But not yet implemented.

In 1927, wuhan government In the judicial system, it proposed to establish the system of participation in trial and the system of jury. In 1929, the Provisional Law on Jury in Counterrevolutionary Cases was promulgated, aiming to suppress Communists and revolutionaries. The Act was repealed in 1931.

Chinese traditional courts are dignified and mysterious, and ordinary people keep them at a distance. As revolutionaries, the Chinese Communists hope to completely change this situation, build the people's own courts, enable ordinary people to get close to and participate in trials, and let the people become masters of their own affairs. The people's assessor is such a system design.

As early as in the Soviet period, the judicial system of the Communist Party of China partially implemented the jury system, employing jurors to participate in the trial of cases. In 1931, the Central Soviet Region promulgated the Provisional Regulations on the Organization and Judgment of the Ministry of Justice of the Soviet Republic of China.

People's Jury System in New China

After the founding of New China, the people's courts followed the practice of the justice in the liberated areas, and learned from the Soviet Union's system of people's assessors On the basis of this, it has established its own people's assessor system.

On September 29, 1949, Chinese People's Political Consultative Conference Adopted at the plenary meeting《 Common Program of the Chinese People's Political Consultative Conference 》Provisions: "The people's courts shall try cases in accordance with the law jury system ”And laid a constitutional foundation for the people's assessor system in New China.

In September 1951, Central People's Government The Provisional Regulations of the People's Republic of China on the Organization of Courts was promulgated. Article 6 of the Regulations stipulates: "In order to facilitate the people's participation in trials, the people's courts shall, depending on the nature of the cases, implement the people's jury system. The jurors have the right to assist in the investigation, participate in the trials, and put forward opinions on the cases of the jurors.". For the first time, the rights and responsibilities of the people's assessors were clarified in legislation.

In March 1953, as Political and Legal Committee of the Government Council Party Secretary's later chaired the People's Congress When making a report to Mao Zedong and the Central Committee, he pointed out that "in the first instance cases, it is not only easy to clarify the case in a relatively short period of time, so that the case can be handled correctly, but also can close the relationship between the court and the masses, so that the masses really feel that they are the masters of the country and enhance their sense of responsibility for the country."

Both the May 4th Constitution and the Organic Law of the People's Court formulated by the first National People's Congress in 1954 system of people's assessors Provisions are made. With the exception of simple civil cases, minor criminal cases and cases otherwise stipulated by law, people's courts try cases of first instance by a collegial panel composed of judges and people's assessors, and the people's assessor system in New China has been formally established. （《 May 4th Constitution 》It is clearly stipulated that the people's court shall implement the system of people's assessors according to law when trying cases. jury system Therefore, it has become the principle of our constitution. The Organic Law of the People's Court stipulates that "the people's jury system shall be applied in the trial of cases of first instance by the people's courts, except for simple civil cases, minor criminal cases and cases otherwise provided by law.")

Before liberation, people's jurors were invited temporarily. After the implementation of the May 4th Constitution and the Organic Law of the Court, they were mostly elected. In the 1950s, the jury system was implemented in most basic courts.

During the Cultural Revolution, Public procuratorate law Was smashed, system of people's assessors It was also abandoned.

After the Cultural Revolution, July 8th Constitution And formulated in 1979《 Organic Law of the People's Court 》、《 criminal procedure law 》The system of people's assessors has been stipulated in all regions, and a number of new people's assessors have been appointed through election. (Article 105, paragraph 1, of the 1979 Code of Criminal Procedure provides that:“ Grassroots People's Courts The Intermediate People's Court shall try cases of first instance by one judge, except for cases of private prosecution and other minor criminal cases that can be tried by one judge alone, People's jurors Two persons shall form a collegial panel to conduct. " Therefore, the jury in this period was mainly in criminal cases.)

In some professional cases, the jury has also been used to a certain extent. In 1985, the Supreme People's Court proposed that the court could invite experts and scholars from scientific research institutions and production departments to serve as people's jurors to directly participate in patent trials.

1980-1990s system of people's assessors Due to the high cost of implementation, difficulty in finding jurors and other factors, the requirements for the participation of jurors in court trials are flexible. Article 35 of the Civil Procedure Law for Trial Implementation, enacted in March 1982, stipulates that "when people's courts try civil cases of first instance, a collegial panel shall be composed of judges and jurors or judges".

The 1982 Constitution no longer stipulates the jury system as a basic system. Revised in September 1983《 Organic Law of the People's Court 》It stipulates the optional nature of jury system. (Note: Deputy Director of the Legislative Affairs Committee of the National People's Congress Wang Hanbin explain jury system Why is it not stipulated in the Constitution again: "Many courts have proposed that jurors should participate in the first instance, and there are many difficulties in practice, especially the difficulty of inviting jurors with legal knowledge, which seriously affects the progress of trial work, and require more flexible provisions. According to this situation, the Civil Procedure Law has stipulated that the new Constitution has also deleted the provisions of the original Constitution on the implementation of the jury system. ")

1989《 Administrative Procedure Law 》Civil Procedure Law of 1991, 1996《 criminal procedure law 》The jury system is flexible. It is up to the court to decide whether to adopt the jury system.

After 2000, with the proposition of the concept of justice for the people, the value of some traditional concepts and technologies of people's justice was rediscovered and implemented.

On August 28, 2004, the 11th Session of the 10th National People's Congress passed the Decision on Improving the People's Jury System, which is the first time that our country has passed the system of people's assessors Part 1 of Separate law It provides a strong legal guarantee for the implementation of the people's assessor system. The decision has been implemented since May 1, 2005.

Since then, in order to ensure the implementation of the people's assessor system, on April 15, 2005, treasury department And the Supreme People's Court jointly issued the Notice on Issues Related to the Management of People's Jury Funds.

Through the efforts of all parties, there were 45697 people nationwide in 2005 People's jurors We have participated in 164630 trials of various cases, expanded judicial democracy and enhanced trial transparency. (According to Xiao Yang's 2006 Report on the Work of the Supreme Court)

World jury system

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In addition to the United States and Britain, many countries and regions in the world have jury systems centering on the old British colonies. In 2000, the jury system was implemented in the following countries and regions. However, among them, especially for civil cases, although the jury system is still maintained in the system, there are no few countries and regions that have basically not implemented it in practice (hereinafter indicated according to civil and criminal law in brackets).

Europe

Britain (criminal, civil) Ireland (criminal and civil) Isle of Man (criminal and civil) Jersey (Criminal) Austria (punishment), Belgium (punishment), Denmark (punishment), Norway (punishment), Switzerland (punishment), Russia (punishment), Spain (punishment)

Africa

Ghana Malawi St. Helena ([Punishment]) Gibraltar (Penalty)

Asia and South Pacific

Australia (criminal), New Zealand (criminal), Sri Lanka (criminal) Tonga (criminal, [civil]) Cook Islands Marshall Islands American Samoa (Criminal) Guam (criminal, civil), Northern Mariana Islands (criminal, civil), Hong Kong (criminal, civil)

North America, Caribbean

United States (criminal, civil), Canada (criminal, civil) Anguilla (criminal, [civil]), Tortola (criminal), Dominican Republic (criminal), Montserrat (criminal, [civil]) Antigua and Barbuda (Criminal), Saint Lucia (Criminal), Saint Vincent and Grenadine (Criminal, [Civil]) Grenada (Criminal) Virgin Islands (criminal and civil) Bermuda (criminal and civil) Cayman Islands (criminal, [civil]) Turks and Caicos Islands (criminal and civil) Bahamas (Criminal) Babedo (Criminal) Saint Kitts and Nevis (criminal, [civil]) Jamaica (criminal, [civil]), Trinidad (criminal) Puerto Rico (Criminal and civil)

South America, Central America

Guyana (Criminal) Belize (criminal, civil), Panama (criminal) Nicaragua Brazil Venezuela ([punishment])

The following are selected from several countries and regions jury system example.

the jury system

Hong Kong

Hong Kong was one of the British overseas colonies for about 150 years, so its litigation system was also deeply influenced by the common law system. The jury system is also an important litigation system inherited from English law, which has been retained after returning to Chinese jurisdiction. The jury system in Hong Kong is mainly regulated by the Jury Ordinance, the Criminal Procedure Ordinance, the Coroners Ordinance and other laws.^[6]

juror Hong Kong residents who have reached the age of 21 but not the age of 65 may participate in the trial of criminal cases and some civil cases, and review and adjudicate the cases. In the cause of death judgment, jury It is necessary to determine the cause of death of the deceased and other relevant circumstances. The number of juries varies according to the case. In some serious criminal trials, one judge of the Court of First Instance and seven jurors will participate in the hearing. Only 5 jurors are needed in the cause of death judgment. During the hearing, jurors are entitled to receive subsidies paid by the government.

Australia

Australia from the 19th century British colonies The era began to implement the jury system.

The majority of criminal cases in Australia are intra state crimes, and their prosecution procedures can be divided into independent prosecution and summary prosecution. When the state's Supreme Court (Supreme Court) or Intermediate Court (District Court or County Court) initiates formal proceedings (in the name of the King) jury Review. Whether a crime belongs to a formally prosecuted crime or a simply prosecuted crime is regulated by law (if there is no explicit regulation, the upper limit of sentencing is generally more than one year Freedom penalty However, even if a crime is formally prosecuted, a simple prosecution can be conducted by the public security court after considering the seriousness of the circumstances, the requirements of the suspect, the opinions of the prosecutor or the public security judge and other factors. In this case, no jury trial will be held. stay NSW 、 South Australia , Western Australia, the Australian Capital Special Region and other regions, even the defendant formally indicted can choose to be tried by the judge alone. In recent years, with the increase of the proportion of simple prosecution cases, the number of cases tried by the jury is decreasing year by year.

Secondly, according to the The Constitution of the Commonwealth of Australia If a crime within the Federation (such as illegal import of prohibited drugs) is formally prosecuted, a jury trial shall be conducted. However, the power to judge which kind of crime belongs to the scope of formal prosecution lies in the Federal Parliament, so no matter how many crimes are committed, they may be simply prosecuted to avoid jury trial. According to the case law, in the case of formal prosecution, the defendant did not waive the right to trial by jury.

Canada

Canada became British colonies Later, the jury system was introduced. In the Criminal Code formulated in 1892, the jury trial system for major cases was recognized [188]. Established in 1982 Written constitution (Charter of Rights and Freedoms) also stipulates certain major crimes, and the defendant has the right to request a jury trial. However, for many optional formally prosecuted crimes, the prosecutor (Crown attorney) can request not to use jury trial, so in recent years, the number of cases tried by jury has also decreased.

the republic of korea

Since 2008, the Republic of Korea has implemented a system of national participation in adjudication, which combines the characteristics of jury system and trial participation system, for the cases in which the defendants put forward requests in major crimes. The review is only conducted by juror In principle, the ruling can only be passed if all the people reach consensus. However, if there are differences of opinion, the ruling can be made based on the majority opinion through consultation with the judge. Another feature is that the judge can make a decision with jury A verdict that is not unanimous.

Denmark

Denmark is characterized by the integration of jury system and trial participation system. Three judges and juror 12 people will be tried by jury, while one judge will be responsible for self confessed cases in misdemeanor cases, and one judge and two trial participants will be responsible for innocent defense cases.

New Zealand

Since colonial times, New Zealand has inherited the jury system from Britain according to the 1841 legislation [192].

Now, New Zealand is not Written constitution , but according to Common law The jury system is implemented in accordance with the practice of and the provisions of the Bill of Rights Act of 1990. The maximum punishment is more than 14 years Freedom penalty A jury trial must be carried out for crimes committed by, defendant Jury trial is optional. However, in the case of Crime of assaulting a policeman In some specific types of crimes, jury trial is excluded.

In civil litigation cases, in some cases such as the High Court requesting the return of creditor's rights or monetary compensation, one party can request a jury trial. However, it is not an absolute right to accept a jury trial. In some cases involving complex legal issues, or where it is inconvenient to implement a jury due to scientific, technological, commercial and other factors, the trial can be conducted only by a judge. At present, the number of civil cases subject to jury is only about 1 to 2 per year.

Norway

Norway, like Denmark, uses both the jury system and the trial system. In the local court of the first instance, the judge trial system or the trial participation system is implemented. In the high court of the second instance, three judges and ten jurors are used to try cases in which the defendant who has been sentenced to more than six years of the statutory sentence defends his innocence, while in other cases, the trial participation system or the judge trial system is implemented.

Russia

Russia since 1864 alexander ii The jury system was introduced, but in 1917 October Revolution Later, it was abolished and evolved into the system of people's participation in trial. In 1993, some regions began to restore the jury system. By 2003, the jury system had expanded to the whole country, and the trial system had disappeared.

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