Principles of Jury Selection and Nullification

Introduction:

Jury system was the concept that had originated in Britain after the Norman Conquest, but the functions performed by it in its early era were quite different from its role and functions in the present scenario. While comparing it, earlier jurors act only as witnesses who provide information in all local affairs. But as time changed they started working as the adjudicators in both civil as well as criminal matters.^[1] King Henry II made several changes in functions of Jury and the jury earned its importance in his guidance only, as they shifted from just reporting information about the issue to pondering the evidence that was produced by the parties involved in the disputes. And gradually with the time, there were several changes made as one of the important changes that are still applicable was, the juror must know as least as possible about the facts before the trial is being held.^[2]

Within the English legal system is considered as the most important and the fundamental part, still the use and involvement of the jury in the present scenario is seen in the minority of the cases. Point should be noted that the jury has given its best to ensure that the criminal justice system should always work to provide justice always in the favour of innocent public rather than in the favour of unjust political leaders. And hence this leads to promotion of not only a healthy criminal justice system but also towards a healthy society, where the law cannot be mould according to one’s wish and also where the criminal justice system, its process can’t be abused.

Jury has achieved the utmost level of success in its golden period as Lord Devlin in 1956 wrote about it as Trial by jury is much more to be considered than an instrument of justice; it is a lamp that keeps freedom alive. Jury has played an important role in the field of criminal justice basically in England and Wales and also considered as a pillar of justice in many other countries. But it has been said that the constitutional position was not sound enough or vulnerable because of its unwritten constitution. In England, as there is no written constitution the right to trial by the jury is not mentioned in the constitution. It is governed by the ordinary parliamentary act though can be amended anytime. So this is the possibility that the present government can abolish the right to jury trial anytime. Although there’s too much political as well as social pressure that bards the government to take any such decision. The jury of present-day is governed under Juries act, 1974 and this also termed as the main statute. Talking about the present scenario the role of jury has just left for trial in serious criminal cases, but this also a partial truth that jury often sits in civil cases as well.

Functions of Jury

Whenever the question arises about the functions of a jury it is simply to put more weightage on the evidence of the cases and to find out what were the true facts and what happened in a particular case. The judge here guides the jury by providing relevant laws on which the jury have to work and reach to the verdict in any particular case. And if a certain case has criminal nature in which the jury decides the verdict to be guilty then the judge will decide about the appropriate sentence in that. And it is well cleared that in all civil cases the jury has adjudged and decided about the amount of damages to be awarded.

Jury Selection

Jury Selection, basically the term acknowledges the selection of people who will act as the members of a jury during a trial. While talking about the methods of choosing jurors so basically they were chosen from the community using the random method. This is the rule that lists of jury members comply with their voter registrations and driving licence. They are bound to submit email ids and from them they were emailed summons and then called to the courtroom.^[3] Dealing with prospective juniors they are randomly selected to sit in a jury box. And now or at this stage they are usually questioned by judges and similarly by attorneys in the US (United States).

Here at many instances depending upon the jurisdiction arose, attorneys or judges occasion has to arrange a challenge for cause argument or could also use peremptory challenges as well. And there are several cases too where jurisdictions have the capital punishment, so in the chances like that the jury must always be death-qualified, the term means to remove all those who are in opposition to the death penalty. Voir dire, the technique for jury selection is taught to students in trial advocacy. However, this is also true that attorneys sometimes urge for expert assistance while choosing a jury. And when the jury is selected it is said to be empanelled.

Voir dire

So, here the selected jurors have a general subject exam where both defence and prosecution too can object the particular juror. And this all process in all common law countries termed as voir dire. Talking about voir dire it could have both general questions that could be asked to the entire pool, or could be answered by many means as a show of hands and also the individual questions in a verbal manner as well. In several jurisdictions this is also seen that attorneys of parties also question potential jurors as well.

And the method of rejections depends upon different countries and their scopes

• So, some jurisdictions like Australia, France, Canada, New Zealand, Ireland and the United States usually give to both defences as well as prosecution some amount of challenges termed as peremptory. And to exclude a specific juror this process doesn’t need to include any sort of justifications. And generally these decisions used to be taken by the defence attorneys as if they feel any sort of emotional link or if they are having any similar profession or background that the victim has or while the case if attorneys find that due to some reasons there could be chances of empathy or harmony towards a victim by a juror.^[4] However, in the United States if any one party excludes the member from the minority group and other party challenges, so in this under Batson rules the party which exercise peremptory strike and they have to provide a reason for the exclusion as well.
• In many jurisdictions, attorneys have the right to prepare a challenge for the cause argument to the judge. This argument is about showing that because of certain backgrounds of jurors, this makes them biased as well as unsuitable for the amenity or service.
• While stating about England it is said that these objections should be well based and thus affect a defendant knowing the potential juror to be allowed.

About United States of America

In the United States of America, the process named voir dire is used in much more depth when compared to other countries in some ways its practical performance is controversial as well. The question when asked to jurors about privacy the question raises the simple definition of “impartial jury”.^[5] Some people are curious to know whether the intensive interrogation of jurors was done or not. And while comparing it an opponent argues this as both sides get confidence in the verdict.

Death Qualification terminology, so basically speaking about the United States of America in capital cases where the punishment given is a death penalty, it is important that jury must be death qualified. So basically in the jury which is death qualified what happens is persons who are against capital punishments are removed. And this ensures that in a particular case where lawful facts and circumstances states or guides or issues criminal warrants, the jury will issue such guidance for the case as well.^[6] And though the particular practice was held unconstitutional by the Supreme Court. But the death qualification is always challenged and termed by various critics as the jurors of death qualification more likely convicts defendants of crime while compared to general jurors.

Jury Nullification

Jury Nullification the term used only when the jury in council returns the verdict as not guilty, in spite that the defendant could be or is guilty of violation that has been charged on him. Basically by these actions discussed above the jury mainly nullifies or invalidates the law that if applied would be unjust or wrong against the defendant whose life and freedom are in their hands. This basic set of principle originated from the theory that says or initiates the idea and philosophy that we live in a free nation that is being governed under the Bill of Rights by our ancestors to protect us from the substandard norms like abuse of power.

The concept has been added through an amendment and though helps in all types of criminal prosecutions as through this there is a chance or we should say the full possibility of having fair as well as speedy trials that without a doubt consists of biased jury. Thomas Jefferson, one of the famous spokesperson of democracy, was also an American Founding father quoted it as “ I consider this provision as the only way through which the government can hold with the principles and laws of the Constitution” and without this our freedom is unimaginable.

So, Jury Nullification, Jury equity or a perverse verdict this all usually occurs when all the members in the jury found that the defendant is guilty but still exculpates him because jurors consider the laws as unjust in which he or she bard guilty, basically the question raises in front of the petitioner with the acknowledgement that they applied those particular laws wrongfully in case of the defendant. This could also be the possibility that the act committed was not worth it to be punishable with such rigorous punishments. And in some cases the jury also refuses to convict someone due to some basic reasons as their influence was in the favour of the defendant.^[7]

While considering Nullification it doesn’t carry any official part of the criminal process but on factual aspect, this is a mere consequence of 2 rules governing the systems in which it exists:

1. Jurors cannot be punished basically for reaching out to a wrong decision.
2. This is a basic rule that the defendant who has been exculpated in many of the jurisdictions cannot be tried for the second time in the same offences.

The jury’s verdict that is contrary to the letter of law functions only in the particular case before it. However, there could be exceptions as if a particular offence has been recorded by the prosecution by various attempts then this will have de facto effects and then it will be functioned as invalidating the law. But the effect of this could be as it would have public opposition and the enactment needs to be made.^[8] There could also be cases where a jury could hold a person liable even if no law has been broken but there are certain provisions against it as overturned appeals can be filed there. In the earlier period, this was also the biggest problem or the perception of people has been set that the judge or the panel of officials might be unduly influenced by particular law and even after that law has been drifted that will be followed.

This has been seen in various western legal systems that judge has guided the jury to only act as the finder of the facts and according to this role will be defined as to determine the veracity or the accuracy of the evidence, and to apply those evidences in the cases by the terminology or methods explained by the judge and in a strict sense never to question the law itself. Juries have been regularly cautioned or guided by the court as well as attorneys to never allow sympathy or condolences like terms for a party or other persons involved in a case and with this compromising the fair evaluation of evidence. Although these instructions are in serious manners criticized by Advocates of Jury nullification. But these laws are right in their place as there were many cases recorded in the past where jury not held liable defendants due to Fugitive Slave Act or they being fugitive slaves.

Jury nullification has a vast scope and that’s why it’s a reason for many debates. Some people say that it is one of the most important features and a safeguard against the wrongful imprisonment and the government absolutism. And on the other hand, it is also termed as violation of the right to jury trial. And also people regard it as a violation of the oath taken by jurors. Speaking about the United States, some people regard the oath taken by jurors as unlawful while some find the oath’s connection or reference towards deliverance that is much required in nullification of unjust law. It termed as: “Will well and truly try and a true deliverance make between the United States and the defendant present at the bar and a true verdict render according to evidence so help me god” this was cited in United States v. Green. Some also regard nullification as the unjust process which permits violence against socially disliked division. People have this fear in mind that a jury could choose a convict from the one who has not even violated the law. However judges are supreme they have both powers as to decide the sentences and also to disregard the jury on their guilty verdicts, and by this judges act as a check against all the jury activities done or performed maliciously.^[9]

Nonetheless, there are always some repercussions about the ability of the jury to nullify the specific law. Comparing it with present scenario there are many issues as:

1. Whether the juries be informed about their powers to nullify.
2. Whether a judge has the authority to remove a certain juror from the panel if they are not applying the laws as instructed.
3. Whether the nullification by jury should be punished by a judge.

Jury Nullification in reference of Germany and Canada

In Germany, basically in the timeline of 1921, Armenian Genocide (deliberate killing of a large number of people) survivor was assassinated Talat Pasha in Berlin and survivor considered as main man beside the assassination. But the survivor’s lawyer contested in front of the jury that their client was not guilty and the jury held him with the verdict ‘not guilty’.^[10]

In Canada, there is very less count of Jury nullification encountered in Canada. As their prosecution always has the provision to appeal for the resulting acquittal, unlike United Nations. However this is well cleared that the Crown can never appeal on grounds of unreasonable conviction but yes there are provisions to appeal on matters like errors of law. This was well discussed in the case of R. v. Latimer^[11] in 2001 when the apex court said in brief about jury nullification and made clear that all presiding justices have to let it prevent from recurring.

Conclusion

Jury selection and Jury nullification both were regarded as important principles in our history and that would be an indeed stated that the process of having justice started from these provisions only although this is a universal truth that things need to be amended with time as also discussed in aforementioned research work. Still, some changes and provisions need to be amended as well as to be omitted with the development world attained.

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References:

^[1] “Current Grand Jury Reports – Miami Dade Office of the State Attorney”. Miamisao.com. January, 2014.

^[2] “An Act for consolidating and amending the Laws’ relative to Jurors and Juries”, June 22, 1825.

^[3] The Journal of Legal History, 1973.

^[4] The Law: Women, Gimps, Blacks, Hippies Need Not Apply, Time, June 4, 1973.

^[5] R v Williams, [1998] 1 SCR 1128.

^[6] Samuel Gross (1996), The Risks of Death: Why Erroneous Convictions Are Common in Capital Cases.

^[7] The Place of the Explained Verdict in the English Criminal Justice System: Decision-making and Criminal Trials. Universal-Publishers.

^[8] Simon Stern, “Between Local Knowledge and National Politics: Debating Rationales for Jury Nullification after Bushell’s Case” Archived June 24, 2016.

^[9] Judgments of the Supreme Court of Canada. R. v. Mergenthaler 1988-01-28.  April 06, 2014.

^[10] Reflections on Justice and Revenge in the Osama Bin Laden Killing”. Law, Culture and the Humanities, Berkowitz, Roger (2011).

^[11] R. v. Latimer, 2001 SCC 1.