Lecture 14: Trial by Jury Flashcards
legal transplant definition
the common phenomenon of one country adopting, in whole or in part, another country’s established law, legal procedure, legal institution, or legal system
critique of legal transplant
several scholars argue that the term legal translation would be better suited
what is a trial by jury?
A legal proceeding in which a group of lay people (citizens) decide the facts of a case and determine a verdict
value of trial by jury
- It acts as a protection of the individual against the power of the state
- Trial by jury contributes to public confidence in the judicial system and strengthens the rule of law
A note on representation in trial by jury
The ideal jury is a representation of a cross-section of the community
trial by jury in Canada
the right to a jury trial existed prior to the coutnry’s unification
trial by jury in the US
trial by jury was enshrined in the 6th and 7th amendments of the constitution
trial by jury in Argentina
a national context in which trial by jury was introduced in the Argentine Constitutions of 1853. According to Hans (2017), it is assumed that the constitution articles that referred to trial were influenced by the US
trial by jury as a legal transplant
The legal transplant of trial by jury is normally accompanied by political and legal reforms as well as aspirations
a consideration of trust for including lay people in trials
The implementation of juries is dependent upon the extent to which lay people will understand and lawfully execute certain rules and traditions and by extension, the degree to which they can be trusted
legal consciousness
- Encompasses a person’s attitudes toward, willingness ot mobilize, suppositions about and experiences of the law
- One’s common sense understanding of the law
- Traces how legality is experienced and interpreted by specific individuals as they engage, avoid, and resist the law and legal meanings
jury selection
- the process in which individuals from a given community are considered and chosen to be on the jury panel for a given case
- In the contexts of Canada and the US, it is assumed that every citizen has the right to participate in court as a juror
2 ways for the court to remove a juror
challenge for cause & preemptory challenge
Challenge for cause
there is evidence for a juror’s lack of impartiality
Peremptory challenge
- There is no relevant justification required
- Can enable a litigant’s possible bias
jury deliberation
the conversations and debates engaged in by jury members for the purpose of determining a verdict
legal consciousness and jury deliberation
- Jurors employ their everyday legal consciousness to assess the facts they are provided with in trial
- Establish relations of superiority and inferirority of individuals’ perceptions of the law
Habermas’ theory of deliberate democracy
A political perspective which argues that political decisions should be determined via the deliberation of citizens of the relevant certain state
the role of the media in trial by jury
- Published research and scholarship has linked news media coverage of crimes and the criminal prcoess to notions of pre-trial jury bias
- “Reserach has shown that exposure to local news media stories about particiular crimes, especially those containing confessions and information about the accused’s criminal record, biases potential jurors.”
- It is important to note that legal systems employing the process aim to eliminate individuals with fixed opinions from the jury pool
- “Therefore, the right of a criminal defendant have a fair trial heard by an impartial jury is threatned whenever substantial medai publicity accompanies a case,” (Wright & Ross, 1997)
the role of social media in trial by jury
- Similar to news and print media sources, social media may contain potentially prejudicial news posted by users
- The use of soical media has the potential to complicate a juror’s ability to keep all information protected during a trial
- “Another problematic development is jurors’ use of social media, including Facebook, Instagram, and Twitter during the trial and deliberation process”
the role of publicity in trial by jury
“In high-profile cases, where there has been extensive media coverage nationally or in a particular community, finding ‘disinterested’ jurors may be quite difficult” (Ryan, 1999)
