Jury is a group that judges facts in court, which is very common in common law countries. At present, the judicial systems in the United States, Britain and Hong Kong all adopt the jury system.
Determining the facts of a case is an important task of the court of first instance. In the jury trial system, a jury composed of ordinary people usually determines pure objective facts. The result found by the jury is called a verdict in common law, which only has the effect of fact finding and informal judgment, and the judge will make a judgment according to the legal judgment. If the jury finds that the verdict is unreasonable or violates the judge's legal instructions, the judge can exclude the jury's conclusion and make it a verdict (known as JNOV in common law).
Draw lessons from the American jury system;
(A) the jury system to protect the political function of civil liberties
Jury is regarded as a bastion of freedom by the United States, and the jury system defends civil liberties in two ways:
On the one hand, the jury system shares judicial power through the people, restricts power with power, and guarantees civil liberties. The fundamental feature of modern democratic politics is that all power belongs to the people. However, due to the vast territory, large population and political and economic separation of modern countries, modern democracy is indirect democracy or representative democracy, that is, people do not exercise power directly and often, but elect their own representatives to directly manage state and social affairs. This means that there is some separation between the subject of political power and the subject exercising political power. This separation may be out of control-political power runs not according to the overall will of the power owner, but according to the will and emotions of the power exerciser, and even political alienation may occur-political power changes in operation, and the exercise of power is not conducive to the power owner or some owners.
The state is the executor of power. In order to prevent political power from getting out of control, it is necessary to establish various systems or mechanisms to restrict the exercise of power and effectively protect people's freedom rights. The bourgeois enlightenment thinkers put forward "restricting power by power", that is, in the country where power is exercised, power is divided into legislative, administrative and judicial powers, and the three powers are mutually restricted. This is the restriction of the power exerciser on the power exerciser. Under the premise that all the ambassadors of ownership can do their duty, this restriction system can prevent political alienation, which is obviously just an ideal. Among the three powers, judicial power is regarded as the last barrier for a country and a society to ensure justice, a yardstick for ordinary citizens to test whether they have confidence in a country, and a thermometer for social stability. Therefore, compared with other government departments, the judiciary has its inherent particularity, and it is based on this that its impartiality must be ensured.
Once the power is out of control, the consequences are unimaginable. Bacon pointed out: "An unjust judicial decision is more disastrous than many other unjust acts. Because these unjust acts only pollute the water flow, and unfair judgments corrode the water source. "
Therefore, the people cannot directly participate in the exercise of legislation and administrative power, but it is of special significance for the people to directly participate in the exercise of judicial power. Jury system means that jurors, as representatives of the public, participate in litigation activities. The owner of power shares judicial power with professional judges, and the people or some people directly participate in the exercise of power. Tocqueville, a famous French political thinker, commented: "The implementation of the jury system can put the people themselves, or at least some citizens, in the position of judges, which is actually to put the jury system and the power to lead society in the hands of the people or some citizens."
Power owners exercise power directly, and power owners and power exercisers are unified. Compared with other power exercisers, they are least prone to abuse of power and corruption. They share judicial power, so that one part of judicial power can restrict the power of another part, that is, professional judges, which is power restricting power. Thereby effectively preventing the arbitrariness and arbitrariness of the judiciary and protecting citizens' freedom and democracy.
On the other hand, the United States believes that the jury not only protects civil liberties by restricting power, but also protects civil liberties by restricting power. After the jury system was introduced into the United States, it was further influenced by the bourgeois enlightenment thinkers' ideas that everyone has the right to be tried by the same kind of people and that people's representatives participate in the trial, which made the jury system have a new meaning. Jury system is not only a weapon against kingship and power groups, but also a form of democracy. As a non-governmental legal organization and another non-governmental legal organization, the lawyer professional group is the two pillars of democratic trial, which produces rights, justice and fairness.
Therefore, the Declaration of Independence of 1776 accused the British king of depriving the colonial jury system of benefits in many cases.
As one of the important rights to be fought for in the American War of Independence, the jury system was written into the US Constitution in 1787 and became a constitutional right (the US Supreme Court ruled that the jury was not a constitutional right in 1975). Therefore, citizens can ask the jury to hear cases according to their constitutional rights, exclude the arbitrariness of professional judges, restrict the power of professional judges with rights, and protect citizens' freedom and democracy. However, in Britain, jury trial does not explicitly give citizens a right. On the contrary, it is the judge's discretion whether to use a jury in other cases, except in cases clearly stipulated by the law 1933.
Therefore, Lord Devlin, a British judge, praised: "Jury trial is not only a means to achieve justice, ... but also a beacon symbolizing eternal freedom."
Paine praised: "The jury committee, which occupies the highest position here, is a republic and a group of judges elected by the people." The jury system is a great and almost the only bastion of human rights.
The jury system truly makes the people the final judges, and only when the people become their own judges can democracy and freedom of the people be guaranteed.
(B) the judicial function of jury trial enhances the credibility of the trial.
American scholars believe that the negative effect of jury trial is that it may be the receiver of some hidden social prejudices, so it may also bring prejudice to the judgment of specific cases. However, as far as social justice is concerned, the jury itself can be regarded as an important balancer, that is to say, the popularity of the jury enables it to explain from the perspective required by the police or the public through witness evidence and its own subconscious and sometimes conscious observation of the world.
1, the people's nature of the members
Jury in old English means that there are at least a group of people with the same status, so in the 17, 18 and 19 centuries, British people were tried by people of the same class. If a person with a hereditary title is accused of a crime, he has the right to be tried by a jury composed of people elected from the upper house, otherwise he will not be tried by a jury. However, the United States is regarded as a classless society, and there is no hereditary title and exclusive qualification for jury members. Therefore, if the British jury is still class-oriented, then since the independence of the United States, the American jury has been people-oriented beyond class. Modern American law stipulates that jurors should be American citizens aged 2 1 to 70; Jurors should be rich people who pay more than $250 a year in taxes; Also required to be able to read and write English; There are also people who are not allowed to serve as jurors. Early women could not serve as jurors, and now women can also serve as jurors. Some scholars in the United States argue that the choice of jurors should not be influenced by wealth, economic status and nationality.
Therefore, the popularity of the jury is determined by law.
At the same time, in order to ensure the popularity of the jury, the jury convening system was established. Juror selection in the United States is convened by judges, and jury selection officers or court clerks are responsible. Generally speaking, jurors are selected within the jurisdiction of the court that accepts the case. At first, jurors were selected from the telephone book. This practice has been accused by some people of unfairly selecting the jury list, excluding those who can't afford a telephone. In recent years, voter lists, telephone directory lists, car registration lists and other procedures are usually used for selection. The purpose is to enable the jury to transcend racial and economic prejudice, make the trial fair, and let more people have the opportunity to participate in judicial democracy.
2, the number of people.
In terms of quantity, the people always represent the majority, and only the majority can represent the people. However, the number of collegiate panels is generally small. For example, in China, civil litigation is generally composed of three people, criminal litigation is composed of three people, five or seven people, and judicial practice is composed of three people. Juries in the United States are generally composed of 12, which is twice or even four times that of the collegiate bench in China. As Kevin said, it is much more difficult to influence or even buy 12 people than to influence or even buy 1 people. The popularity of the number of people is the fundamental guarantee to judge the popularity.
3. People's judgment.
Juries in the United States are responsible for finding the facts, and the verdict is based on the majority consent system, that is, the majority opinion of 12 jurors is taken as the verdict of the jury, which is more popular than the judge's verdict. This is because the jury's judgment is the judgment of a large number of people, and jurors reach a consensus by comprehensively judging the credibility and reliability of witness testimony, which is more stable than the judge's own judgment; Secondly, because the jury's verdict comes from ordinary people, the United States believes that judges must be out of touch with the chaotic society to some extent. They often mistakenly think that all people are as logical as they are, while jurors come from ordinary people, and they often understand the confusion and fallacies of ordinary people. Therefore, it is likely that the jury will conduct a factual trial, the judge will conduct a legal trial, and the judge and the jury will interact and communicate with each other, which will achieve more sound results than the judge working alone.
Make the judiciary closer to social life and reflect public opinion.
In order to ensure the popularity of jury verdict, firstly, a jury review system is established to exclude those who have obvious or perceived prejudice against specific cases as much as possible. In the United States, inquireism is adopted, that is, from the moment the candidate jurors are sworn in, the court will ask them their names, occupations, whether they are interested in the case, whether they have a special understanding of the case that may affect their judgment, whether they are biased against one party in the lawsuit, whether they know witnesses and any other reasons why they cannot serve as jurors. Second, the judge does not interfere with the jury's judgment, but only tells the jurors how to vote, how to choose the foreman to preside over the deliberation, how to treat witnesses and analyze evidence, does not express opinions on evidence, and does not announce the applicable laws and regulations. Although some states, such as California, have constitutions that allow judges to comment on evidence, they never do so. The American system is very neutral, and the task of judges is strictly limited to the responsibility of referees or arbitrators. They just told the jury the basic principles and encouraged them to use them for themselves.
Third, the jury is inefficient, and the United States believes that the jury is an important balancer of social justice, so even if it takes time and money, it is also the cost that must be paid to realize social justice. Social justice is more important than time and money.
It is precisely because of the popularity of jury trial that compared with the collegiate bench system, that is, the court is completely composed of professional judges, and its members are not ordinary people, but also social managers, as opposed to ordinary people. This inconsistency in identity makes people feel very uncomfortable about their own trial. Juries are made up of ordinary people, who identify with the people being tried and the public, and are their own trials, and there are many people. Therefore, jury trial has stronger public credibility than the trial of full-time professional judges, which can promote public confidence in the judicial process.
The jury system makes the people become real judges, and only the people's trial will gain the people's trust.
(C) the jury to promote the law-making function of legislation
The jury system in Britain and France, as judicial systems, only has judicial functions, but in the United States, the jury system has law-making functions in addition to judicial functions. Both the United States and the United States admit that juries are easily moved by the words of the parties and sometimes make judgments regardless of the law. In this regard, British judges sometimes deny the jury's verdict on the grounds that it is illegal and conduct new trials. In the United States, there are many cases in which juries knowingly commit fewer crimes, but they are more hidden and unconscious. Although the laws of some states in the United States stipulate that when the jury does not have enough evidence to make such a decision, the judge can make a judgment that ignores the jury's decision, but the judge generally does not do so, but recognizes the jury's decision and tries to find a reasonable explanation for this judgment. For example, in some cases, the jury ignored the contributory fault that the victim should have prevented the plaintiff from obtaining relief, and only considered the plaintiff's damages. This principle was later adopted by the court. American scholars explain that since the jury has made a verdict of ignoring the law, it should investigate whether the law needs to be amended, and it should doubt whether the law is fair. Jury is sometimes the key and indirect legal reformer of formal law.
This idea was highlighted in Singh's trial. The colonial jury ignored the law and found John Petro Singh not guilty. At this time, the idea of the First Amendment came into being, mainly because the jury wanted it to be their law. So juries have amazing power to obey the law or go beyond it.
The jury system realizes that the people are the ultimate judges, not only the judges of the case, but also the judges of the law itself.
(d) The jury system promotes the educational function of legal education.
There are various forms of legal education, which leads to different modes of legal education. One is the curriculum education mode, which takes legal education as a course and brings it into the teaching plan. This model focuses on theoretical system education, but it is far from the reality of social life. The other mode is life education mode, that is, legal education is carried out through various life practices. This kind of education is more vivid, concrete and profound than curriculum education, closely related to social life, and more easily accepted by the educated. Jury system is a kind of life education.
Although the number of jurors is only 12, they are selected from thousands of people, and this selection process itself is the process of legal education; In the process of trial, ordinary citizens are often influenced by the way of thinking, methods and language of lawyers to analyze problems; Moreover, ordinary citizens participate in trials and judgments and directly experience the relationship between law and life and legal thinking. Therefore, jury trial is unlikely to turn the law into a mysterious and abstract thing that is divorced from life.
But to turn the law into real life. Therefore, jury trial is also an important channel for the spirit of rule of law to penetrate into society, which invisibly improves the legal consciousness of the whole society and expands the political and social effects of judicial trial.
Moreover, compared with the curriculum-based legal education, participating in this judicial activity (jury trial) is more important than any other activity in cultivating people's law-abiding habits. A great historian once described it as "the most powerful force conducive to the peaceful development and progress of the country."
The shortcomings of the jury
Most of the cases tried by the jury are serious criminal cases, and ordinary criminal and civil cases are generally not applicable to the jury. This is because jury trial consumes a lot of manpower and material resources, and the procedure is complicated and tedious, and the trial time is long and protracted, which is not conducive to the rapid and timely settlement of disputes. At the same time, because the jury does not have legal professional knowledge, it cannot be guaranteed that its determination of evidence and facts can conform to the provisions and spirit of the law. Therefore, the retention or abolition of juries in common law countries has always been a hot topic. The current trend is to strictly limit the applicable conditions of jury trial to ensure that this limited judicial resource can play its role where it is most needed.