Section 4 The Tradition of the Jury

 

Another important concept in American law is the jury system. This concept also belongs to the Common Law tradition. The jury plays an important part in both American and British law. The Sixth Amendment of the United States Constitution provides that people involved in criminal cases have a right to request a trial by jury.

       

The jury has a long history in the West. As early as the Greek city states, the jury system was already established and popular. The juries mentioned in Aristotle's famous "Athens Political System" are actually very similar to the jury system we have today. This is very surprising to people now. At that time there were no lawyers in Greece.  People represented themselves. The jurors were also from the general public. So it was a truly people's court. At that time the jury was composed of two hundred to five hundred jurors. In the trial of the famous philosopher Socrates, the jury was composed of five-hundred and one jurors. In the end, a majority of jurors found him guilty. Before the trial began, each juror was given two small metal plates. One plate was engraved “guilty’ while the other plate was engraved “not guilty”. After the prosecution and defense presented their evidence, the jury would make their own judgment and put one of his plates into a copper can. Finally the plates were counted to determine whether or not the defendant was found guilty.

 

The American jury today has twelve jurors. This was initiated in England in 1166 by King Henry the Second and firmly established in 1367. The jurors are ordinary people. They had to take an oath to maintain a fair and objective approach during hearings. The judge presided and gave instructions on the relevant law. Then a collective decision was made. The jury system for criminal and civil cases is generally the same, but the standard of making decision is different.

 

In criminal cases, according to the federal government and most states systems, the twelve jurors must reach a unanimous decision. (States have their own laws. In criminal cases in Oregon, a ten to two vote is enough to reach a verdict. This is rare in criminal law). In civil cases, a majority of jurors on a civil case can make a decision. Every state’s jury law in civil cases may be different. For example, in California, to reach a verdict, the vote needs to be nine to three while in Oregon it needs to be ten to two.

 

Another difference between the criminal jury system and civil jury system is that the jurors in civil cases often have to decide each specific question presented in the case. This is called a special verdict. For example, in a case where the defendant is sued to compensate the plaintiff, the jury may find for the plaintiff on one issue but may find in another issue that the defendant needs to make partial compensation or no compensation at all.

 

Whether its a criminal case or a civil case, what happens when the jury is in a stalemate and cannot make a decision? This type of situation already appeared during the Greek city states era. At that time, the system provided that if the jury was equally divided, the defendant was acquitted. Today if the jury cannot reach a consensus, it becomes a hung jury or "deadlocked jury”. In criminal cases, as long as there is one juror in the jury who finds the defendant not guilty, it will create a hung jury. In civil cases, according to the laws of different states, if the majority of jurors cannot reach a consensus, there will be a hung jury. When the judge announces that the case has a hung jury, the trial is declared invalid. This is commonly known as a mistrial. Then another date is set to select a new jury to re-try the case. 

 

Why are the demands for a criminal case held to a much higher standard? And why must jurors in a criminal case reach a unanimous decision before there can be a conviction? The spirit of law behind the unanimous standard is the consideration that if the defendant is convicted in a criminal case, a criminal punishment is imposed. In other words, after a conviction the defendant will go to jail and lose his personal freedom. Major cases will even involve the death penalty; life and death will be at stake. We can say that the fate of the accused lies in the hands of the jury, so the jury must reach a unanimous decision that without doubt he is guilty before the conviction is found to be fair. This spirit is consistent with the standard requiring "guilty beyond reasonable doubt".

 

The principle of the jury system is quite ideal, but there have been a lot of controversial questions. After 1850, most European countries had already abolished the jury system. During World War II in 1943, Japan also canceled this system. The jury system exists mostly in the United Kingdom and the United States, but 90% of jury trial cases occur in the United States.

 

Britain, the United States and Hong Kong have a jury system. Jurors are selected at random from the general public and residents must attend the jury to fulfill their civic obligations. Employers have a legal responsibility to let employees leave work for their jury duty. Even so, jury duty takes a lot of time and interferes with work, so not every resident is enthusiastic to become a juror.

 

The American jury selection process is very complex and takes a lot of manpower, time and resources. The preliminarily selected residents are summoned to the court pending their selection for the jury. During the selection process, the lawyers of both sides and the judge have the right to ask questions involving the candidate's background and  his view of affairs to decide whether he is selected as juror. The lawyers from both parties have two ways to exclude candidates that they may not like or may be unfavorable for their position. First, if there is "exclude for a reason" (Challenge For Cause). In other words, as long as it is for a good reason and the judge agrees, the lawyer can exclude that candidate. The second is "exclude without any reason" (Peremptory Challenge) where a certain number of candidates can be excluded but the number of such candidates is not fixed and is decided by the judge based on the circumstances of the case.  

 

To understand the American jury selection system, we will use a fictional scenario to illustrate: In a San Francisco superior court, two lawyers are selecting the jurors for a sexual harassment case. The plaintiff’s lawyer asks the number 30 candidate some questions, "According to the personal background questionnaire you filled out, you immigrated to the United States from Hong Kong, correct?”

 

Number 30 Candidate: “Yes!"

 

Plaintiffs' lawyer: “Did you know that this case involves a white woman as the plaintiff, and a man

                                from Hong Kong as the defendant?”

 

Number 30 Candidate: “Yes I know. The judge just explained it.”

 

Plaintiffs' Lawyer: "Do you know either the defendant or plaintiff ?"

 

Number 30 Candidate: “I do not know.”

 

Plaintiffs' Lawyer: "Do you know anyone in their families or among their friends?"

 

Number 30 Candidate: “I do not know anyone."

 

Plaintiffs' Lawyer: "You are from Hong Kong. Do you believe you will favor the defendant more                                          because you have the same homeland?”

 

Number 30 Candidate: "It's hard to say. It is possible, because we are all Chinese."

 

Plaintiffs' lawyer turns to the judge and says, "Your Honor, I use my 'exclude with reason' right to reject Number 30 as a juror on the ground that he might be biased in favor of the defendant”.

 

The judge approves the plaintiff lawyer’s request to exclude the juror since the  lawyer uses his right to "exclude with reason".

 

The plaintiff’s lawyer asks candidate Number 50 some questions: "According to your personal background questionnaire, you are a Catholic, correct?"

 

Number 50 Candidate: “Yes!"

 

Plaintiff’s Lawyer: “According to Catholic doctrines, Christians are not allowed to get a divorce,

                                  correct?” 

 

Number 50 Candidate: “Yes!"

 

Plaintiffs' lawyer: "In this case of sexual harassment, the plaintiff is a Catholic, but she has had

                               four divorces. Will her history of divorce affect your decision as a juror because

                               you oppose divorces?”

 

Number 50 Candidate: "Her history of divorces will not affect my objective judgment."

 

At this time, the plaintiff’s lawyer may think that the candidate is a conservative and will not sympathize with the plaintiff. So the lawyer says to the judge, "Your Honor, I use my last  'exclude without reason' right to exclude Number 50 Candidate as a juror”. The Judge agrees.

 

Although the above story is fictional, the process is very real. Of course, the attorneys from both sides will use their right to eliminate unfavorable jurors. Since both sides have this right, the plaintiff and the defendant are equal. However, with this kind of selection system, the consumption of time and energy is easy to contemplate. Thus, in recent years, many people have criticized the jury selection system for hindering the efficiency of  the law.

 

In recent years, the decisions of many jury trial in America have made the public skeptical.  Some may even point out that the jury system is out of control. Americans, however, still have a more idealistic tendency and believe in the spirit and principles underlying the law. American liberal judges would say, “The decision of twelve ordinary people may have a lower probability of error than the decision of a single professional. Although the juries may make mistakes in their decisions, the judge’s decision is not necessarily risk free either!”

 

  Section 5. Finding the Truth through Contest--The Adversarial System

 

In Western Countries, including the United States, the emblem of law is a goddess whose eyes are blindfolded and holding a scale, representing the ideal of "justice" that is blind and fair.  Indeed the statue of such as goddess can be found at the top of the rotunda in the district superior court in Hong Kong. American law emphasizes fairness. The Sixth Amendment of the Constitution clearly states that all criminals should receive a fair trial decided by an impartial jury after hearing. The Amendment also prohibits the government from conduct that violates the due process of law. All these mandates are directed towards the concept of "fairness". 

 

When it comes to political organizations in the United States, the basic principle is to prevent the government’s power from becoming too strong, leading to a centralized, autocratic ruler. This is why the Constitution established the system of separation of powers with checks and balances. In criminal matters the American tradition is similarly concerned with the judicial power of the government becoming too strong and oppresses or even strangles the rights and liberty of the individual.

 

When Americans describe a person who acts without regard for anything else, they often say, “this person is acting as the prosecutor, judge and jury". This statement is quite meaningful.  Imagine a person accused of a crime faces a government that combines the power of  prosecutor, judge, and jury as one body. Would he not feel intimidated? Even if he were truly innocent, would he have the opportunity to be acquitted? To protect an individual's personal security and rights, America’s penal system is similar to its political structure in the sense that the prosecutor, judge, jurors, and defense attorney are separate and independent. (when the defendants cannot afford the legal costs for an attorney, they have the right to request the court to give them a free lawyer). They also have a system of checks and balances, known as an "Adversarial System". To all that the American law adds the concept that “the defendant is presumed innocent”; the prosecution must present sufficient “beyond reasonable doubt” evidence to reach a conviction. 

 

What are the reasons for all these layers of restrictions? The simplest analysis is that the United States system limits the power of the government so that the powerless citizens have a chance to stand up to the government as equals. At a minimum the government must provide a fair trial under due process of law before the crime of a defendant is established. The fair trial principle forms a part of the so called "Adversarial System".

 

According to the "adversarial system” theory, the best way to find the truth in a criminal or civil litigation is to allow the prosecution and defense in an adversarial manner challenge each other , cast doubt, and interrogate. Otherwise, how can we determine the credibility of a one sided story (for example a criminal prosecution by the Government)? In the end, it is not only the prosecution, the judge, the defense, and the jurors form a system of check and balance, the contest between the prosecution and defense is also extremely combative and adversarial. After the reader appreciates fully the American tradition of fearing an overly powerful central government and the basic principles underlying the "adversarial system" and fair trial, will the reader have a comprehensive feel for the American law and legal system. As for the questions whether this system is too inefficient or impractical, or overly complicated and consume too many resources, those issues will be discussed in the latter part of this book.