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The Trial: Adversarial Characteristics and Responsibilities; Pre-trial and Trial Procedures

Keith Smith

in The Oxford History of the Laws of England: Volume XIII: 1820–1914 Fields of Development

This chapter shows that throughout the 19th century, significant changes occurred in the roles and personnel of law enforcement, along with a drip feed of ameliorative state measures. Such ... More

This chapter shows that throughout the 19th century, significant changes occurred in the roles and personnel of law enforcement, along with a drip feed of ameliorative state measures. Such developments took place against a background of several decades of the steady push of reformers, successfully resisted by defenders of the status quo. Aside from a victim's personal inclination and means, the likelihood of prosecution turned substantially on the attitudes and practices of local magistrates and constabulary. The period also saw fundamental changes in criminal trials on indictment, both in respect of the roles of the dramatis personae and the rules which regulated them. This was true of the judge, prosecution, and most especially the defendant. It was a process of change, in large measure wrought by the relatively small but slowly swelling ranks of lawyers participating in trials from the early 18th century, initially almost exclusively acting for the prosecution.Less

The New Zealand Jury: Towards Reform

Neil Cameron, Susan Potter, and Warren Young

in World Jury Systems

This chapter focuses on the jury system in New Zealand. Topics discussed include the history of jury trial in New Zealand, the availability of jury trial, juror selection in criminal trials, jury ... More

This chapter focuses on the jury system in New Zealand. Topics discussed include the history of jury trial in New Zealand, the availability of jury trial, juror selection in criminal trials, jury secrecy and the inscrutability of jury verdicts, and the jury trial process.Less

The Jury Elsewhere in the World

Neil Vidmar

in World Jury Systems

This chapter considers jury systems in other parts of the world, focusing on jury systems that vest decision-making on guilt or negligence solely in the hands of the lay person members. Topics ... More

This chapter considers jury systems in other parts of the world, focusing on jury systems that vest decision-making on guilt or negligence solely in the hands of the lay person members. Topics discussed include a historical sketch of the export of the English jury to other countries, the ‘English’ jury in the continents of Europe, and jury systems at the beginning of the 21st century.Less

The Right to a Fair Trial

Brice Dickson

in The European Convention on Human Rights and the Conflict in Northern Ireland

Article 6 of the European Convention, which protects the right to a fair hearing, is the most frequently invoked Convention article, not just in the United Kingdom but in Strasbourg too. Not ... More

Article 6 of the European Convention, which protects the right to a fair hearing, is the most frequently invoked Convention article, not just in the United Kingdom but in Strasbourg too. Not surprisingly, it has featured prominently in some cases arising out of the conflict in Northern Ireland. This chapter discusses the issues that raise the risk that Article 6 was being breached, whether pre-trial or at the trial. It shows that despite alterations to the trial process being at the heart of the government's strategy for dealing with terrorist violence in Northern Ireland, the European Convention on Human Rights played a very small role in regulating those alterations.Less

Criminal Trial Juries in Australia: From Penal Colonies to a Federal Democracy

Michael Chesterman

in World Jury Systems

Along with various other English social, cultural, and legal practices, the English model of trial by jury was adopted in each of the Australian colonies at a relatively early stage of its ... More

Along with various other English social, cultural, and legal practices, the English model of trial by jury was adopted in each of the Australian colonies at a relatively early stage of its development, and remains an enduring feature of the Australian legal system. This chapter discusses the Australian jury system.Less

Reviving the Criminal Jury in Japan

Lester W. Kiss

in World Jury Systems

This chapter analyzes whether the readoption of criminal jury trials in present-day Japan would be feasible from cultural, societal, and legal viewpoints in light of Japan's prior experience with a ... More

This chapter analyzes whether the readoption of criminal jury trials in present-day Japan would be feasible from cultural, societal, and legal viewpoints in light of Japan's prior experience with a jury system. Section II considers why reversion to trial by jury is being considered by Japanese lawyers and judges. Section III describes the jury system in Japan from 1928 to 1943, and the problems with the system that caused its suspension. Section IV examines the two main types of layperson juries used in other countries. Section V considers the question of whether the adoption of one of the jury systems considered in Section IV would be feasible in Japan.Less

The Scottish Criminal Jury: A Very Peculiar Institution

Peter Duff

in World Jury Systems

This chapter focuses on the Scottish criminal jury. Specifically, it discusses the origins of the Scottish criminal jury and the incidence of jury trial. It shows that the Scottish jury has existed ... More

This chapter focuses on the Scottish criminal jury. Specifically, it discusses the origins of the Scottish criminal jury and the incidence of jury trial. It shows that the Scottish jury has existed for a long time and without serious challenge, despite the absence of such features which are often considered elsewhere as integral parts of a jury trial.Less

Providing Cheaper Paths to Court

Steven P. Croley

in Civil Justice Reconsidered: Toward a Less Costly, More Accessible Litigation System

This chapter focuses on reforms that seek to make litigation more accessible by lowering its "price." After explaining the promises and limits of familiar alternatives to traditional litigation, such ... More

This chapter focuses on reforms that seek to make litigation more accessible by lowering its "price." After explaining the promises and limits of familiar alternatives to traditional litigation, such as alternative dispute resolution and health courts, the chapter proposes the establishment of new forms of civil proceeding. In particular, it proposes a new "medium claims court" that has some, but fewer, of the features of traditional litigation. A medium claims court should be designed for cases in which the stakes are too great for small claims court but too small for ordinary litigation. In this same vein, this chapter also proposes adoption of expedited jury trials and experimentation with small claims juries. More generally, it argues that parties should be incentivized, and judges should affirmatively be encouraged, to adopt tailored litigation processes according to the needs and stakes of all civil cases, in order to ensure that civil procedure better aligns litigation costs to the size of a given case.Less

From Transparency to Darkness: Justice and Publicity in the Mirror of Criminal Juries

Pablo Piccato

in History of Infamy: Crime, Truth, and Justice in Mexico

This chapter follows the history of criminal jury trials in Mexico City from their establishment in the late nineteenth century until their abolition in 1929. It focuses on the organization, ... More

This chapter follows the history of criminal jury trials in Mexico City from their establishment in the late nineteenth century until their abolition in 1929. It focuses on the organization, legislation, and operation of the institution. It examines closely the trials of María del Pilar Moreno and José de León Toral, the murderer of president-elect Alvaro Obregón, and it places both in the context of contemporary politics.Less

Trial by Jury Involving Persons Accused of Terrorism or Supporting Terrorism

Neil Vidmar

in Law and Psychology: Current Legal Issues Volume 9

This chapter explores issues in jury trials involving persons accused of committing acts of international terrorism or financially or otherwise supporting those who do or may commit such acts. It ... More

This chapter explores issues in jury trials involving persons accused of committing acts of international terrorism or financially or otherwise supporting those who do or may commit such acts. It raises issues about jurors' assumptions of innocence in the aftermath of terrorist bombings in the United States, England, Bali, Spain, and elsewhere when persons are accused of committing acts of terrorism or indirectly supporting terrorists through financing organizations associated with terrorism. A study of a US trial involving charges of supporting terrorism is used to illustrate the problem, but the thesis of the chapter is that the basic issues apply to trials that might be held in England, Australia, Canada, or other countries with jury systems.Less

Burning Down the House: Gender and Jury in a Tokyo Courtroom, 1928

Darryl Flaherty

in Gender and Law in the Japanese Imperium

This chapter explores the trial of Yamafuji Kanko, a wife, mother, and small-business owner who was charged with arson. It argues that while Yamafuji's crime was commonplace, her trial attracted the ... More

This chapter explores the trial of Yamafuji Kanko, a wife, mother, and small-business owner who was charged with arson. It argues that while Yamafuji's crime was commonplace, her trial attracted the attention of the public, legal officials, intellectuals, and politicians, as well as the press, because Yamafuji was the first defendant to be judged by a jury during Japan's brief experiment with jury trials between 1928 and 1943. Because women were excluded from jury service and male jurors were subject to age, tax, and residency restrictions, her case was adjudicated by twelve men who were representatives of Tokyo's old and new middle classes. This chapter argues that these jurors came to stand in for the (male) public, with the result that ideas about women, their place in society, and their potential for criminality came into play in Yamafuji's trial.Less

The Memory of Jurors: Enhancing Trial Performance

Anders Sandberg, Walter P. Sinnott-Armstrong, and Julian Savulescu

in Memory and Law

Cognitive performance of the participants has crucial significance for legal trials, sometimes making the difference between fair and unfair verdicts. Jury members are expected to passively listen to ... More

Cognitive performance of the participants has crucial significance for legal trials, sometimes making the difference between fair and unfair verdicts. Jury members are expected to passively listen to long arguments, often about unfamiliar subjects, retain that information and then perform an unbiased deliberation to reach a just verdict. There are many natural cognitive limitations that impair this process: inattention, sleepiness, stress, the fallibility of human memory and our cognitive biases. Could juror cognition be improved, and would this improve the legal process? This chapter compares external aids such as notetaking with biomedical aids such as cognition enhancement drugs. It appears likely that enhancement drugs might improve juror cognition if used well, and in any case at least some jurors are likely already using them. There is also the possibility that some of them might introduce cognitive biases. However, given the low bar required for juror competence these biases might be regarded as acceptable, especially compared to the biases inherent in the deliberation process itself.Less

Trial by Jury

Sir John Baker

in The Oxford History of the Laws of England: Volume VI 1483–1558

This chapter examines the practice of trial by jury in the judicial system in England during the Tudor period. During this period, almost all issues of fact in the common-law courts were tried by a ... More

This chapter examines the practice of trial by jury in the judicial system in England during the Tudor period. During this period, almost all issues of fact in the common-law courts were tried by a jury of twelve men. Trial by battle was occasionally proffered but the practice was virtually obsolete by this time and almost certainly no combat was won during this period. The only principal exception to trial by jury was wager of law because it was still commonly available in legal actions of detinue and dent.Less

The Meanings of the Trial's Death

in The Death of the American Trial

This chapter determines the significance of the death of the trial in the United States for its people. It identifies the consequences of the death of the trial for our national life, explores some ... More

This chapter determines the significance of the death of the trial in the United States for its people. It identifies the consequences of the death of the trial for our national life, explores some of the alternative methods of social ordering that are replacing the trial, and asks what difference these alternative methods make. The chapter also argues that assumptions about the nature of the American jury trial animating at least some critics are wrong.Less

The FSM: A Movement Lawyer’s Perspective

Malcolm Burnstein

in The Free Speech Movement: Reflections on Berkeley in the 1960s

This chapter offers a lawyer's perspective on the Free Speech Movement (FSM). It relates the author's experience in counselling and later participating in the criminal defense of the participants in ... More

This chapter offers a lawyer's perspective on the Free Speech Movement (FSM). It relates the author's experience in counselling and later participating in the criminal defense of the participants in the FSM. It suggests that the FSM defense offered many opportunities for socially conscious lawyers to put their skills and professional training to work for principles in which they believed. It explains that the principal reason for the convictions of the FSM defendants was the waiver of jury trials, a decision based on the felt need to expedite the proceedings and free the defendants for academic and other endeavors.Less

Trial by Jury

Gayden Wren

in A Most Ingenious Paradox: The Art of Gilbert and Sullivan

The Trial by Jury began as an isolated project for Gilbert and Sullivan, but after it notched 300 performances, both men were thinking in terms of sustained partnership. The opera is a single-scene ... More

The Trial by Jury began as an isolated project for Gilbert and Sullivan, but after it notched 300 performances, both men were thinking in terms of sustained partnership. The opera is a single-scene show with a small cast and music that, while sophisticated, is largely accessible and easily sung. It has no grand artistic scheme, no attempt to make its characters and situations “believable”, and it is pure fun. Their delight in the form comes through clearly, as does their irreverent attitude toward its many constraining conventions—an attitude that soon led them to begin a wholesale reshaping of the genre.Less

Adjudication

Samuel M. Davis

in Children's Rights Under and the Law

This chapter discusses the adjudicatory process in juvenile court. It covers the adjudicatory hearing, right to counsel, right to jury trial, burden of proof, rules of evidence, confrontation and ... More

This chapter discusses the adjudicatory process in juvenile court. It covers the adjudicatory hearing, right to counsel, right to jury trial, burden of proof, rules of evidence, confrontation and cross-examination, corroboration of confessions, mental capacity, double jeopardy, and discovery. The chapter also describes waiver of jurisdiction, or certification, whereby the juvenile court waives its jurisdiction over a particular case and transfers, or certifies, the case for criminal prosecution; transfer hearing and requirements of due process; and waiver criteria.Less

Introduction: Invisible Innocence

Daniel Givelber and Amy Farrell

in Not Guilty: Are the Acquitted Innocent?

This introductory chapter provides an overview of people's understanding of acquittals. One of the sources of this understanding comes from a study of nearly four thousand mid-twentieth-century ... More

This introductory chapter provides an overview of people's understanding of acquittals. One of the sources of this understanding comes from a study of nearly four thousand mid-twentieth-century criminal jury trials by University of Chicago law professors Harry Kalven and Han Zeisel—considered the seminal study of judge-jury decision making—and a handful of studies conducted to attempt to replicate its conclusions. Although Kalven and Zeisel provided an in-depth analysis of the trial judge's explanation for the reasons why the jury acquitted when the judge would have convicted, they were not able to provide any direct information about what the people who decided the case—the jurors themselves—thought or believed.Less