ASA University Bangladesh

Prepared For:
Barrister Nahid Sultana Jenny Senior Lecturer, ASAUB

Prepared By:
Scholar Group
01. Arifuzzaman 23-2-12-0016 02. Najmul Hasan 23-2-12-0017 03. 04. 05. 06. LL.M Program, Faculty of Law, ASAUB

PRESENTATION ON

TRIAL BY JURY SYSTEM

What Is a Jury System?

One of the most recognized legal institutions is trial by jury". Most common in jurisdictions with an adversarial legal system, the jury system provides for a decision made by an unbiasedjury of one's peers. The jury is a body of people, known as jurors, who are sworn to hear the evidence in a legal matter, determine what they believe to be fact and thereby render an impartial verdict.

The role of the jury is to act as "triers of fact." This means that as evidence is presented, the jury is tasked with the job of extracting the bits of truth out of all of the evidence presented. The jurors must decide what they believe to be true based on physical evidence, testimony and perceived credibility of witnesses, then render a verdict to settle the matter. Judges serve the role of legal interpreters by answering questions of law, such as what evidence is admissible, what lines of questioning are relevant and what procedures are appropriate.

What Is a Jury System?...

After the jury has determined the facts of the case, it sometimes is asked to set or suggest a judgment or a penalty. In criminal cases, a jury's job is to determine whether a defendant is guilty or not guilty and, in some jurisdictions, to recommend or pronounce a sentence for those found guilty. A jury's job in a civil case is to determine whether a party was harmed as alleged in a lawsuit and, if so, to set a judgment, which most often is monetary. The jury is selected from a pool of randomly selected people from within a jurisdiction. Potential jurors from this pool are questioned in a process called voir dire. The judge and attorneys are allowed to remove potential jurors in certain circumstances and accept those whom they deem to be fair and impartial. In almost every jury system, service is compulsory. If a person is called to serve, he or she must do so under penalty of law.

ORIGINS AND HISTORY OF THE JURY

Historians are unsure whether the jury system existed in England prior to 1066. It is well established that William the Conqueror brought to England from Normandy a system of having witnesses who knew about a matter to tell a court of law what they knew (to "swear" under oath). The English word juror comes from the Old French jurer which means to swear. However and wherever the jury system began, it has now spread from the British Isles to the United States, Africa and Asia. In 12th Century England, juries were a tool for the king; the earliest recorded juries were employed to discover and present facts in answer to questions addressed to them directly by the king. The jury gave evidence, but only the king or his ministers made the final decision.

ORIGINS AND HISTORY OF THE JURY

During the next two centuries, English juries moved from this advisory role to their current role as the decider of facts. By the end of the 15th century, the jury system had come to be regarded as the most valuable feature of English common law. Courts at that time began to allow parties to object to certain persons being seated on a jury, usually because they were personal enemies. It was not until the late 17th century that a jury could return a verdict of not guilty and not be in fear of fines and/or imprisonment for themselves. Hardly the impartial jury we now rely upon! In the United States, the jury system became more important than ever after the Revolutionary War. The right to trial by a jury of one's peers became a symbol of the overthrown power of the king. From that time to this, the jury has become the central tenet of American law. Our ideal of equal justice for all probably could not have evolved without this strong belief in the wisdom of the jury.

ORIGINS AND HISTORY OF THE JURY

The jury system combines together the rules of law with the common sense of the private citizen. Both the law and the community benefit from this interaction.

In present time some countries follow the Jury system

1. Greece 2.Rome 3. Australia
4. Austria 5. Canada 6. France 7. Germany 8. Greece 9. Gibraltar 10. Hong-Kong 11. Ireland 12. Italy 13. Japan 14. New Zealand 15. Russia

16. Singapore 17. South Africa 18. Switzerland

19. United Kingdom 20. United States

THE TRIAL BY JURY SYSTEM (BANGLADESH)

In present time the trial by jury system is acceptable in Bangladesh. But there have Main four advantage & disadvantage.
04 Advantages of trial by jury: 01.As there are many persons from different background, the individual prejudices are likely to cancels out. 02.Juries represent the common public and therefore are more likely to judge in line with generally accepted values of the society.

03.Discussions among juries is likely to lead to more thorough consideration of all aspects of the case.
04.It is more difficult to corrupt 12 juries through than just one judge.

THE TRIAL BY JURY SYSTEM (BANGLADESH)

04 Disadvantages of trial by jury 01. The juries are not knowledgeable about the law.

02. Juries do not have any special skill in giving judging cases.
03. Since the decision by jury is a group decision, individual members of the jury may not feel that responsible about their duties and therefore neglect it. 04. Juries may be swayed by the current prejudices in the society, which are not supported by law

THE TRIAL BY JURY SYSTEM (BANGLADESH)

Now I discuss Some other advantage & disadvantage of trial by jury: 1. Advantages are

Provides certainty, no retrial (subject to recent reforms but only for serious crimes). Prosecution and defence "challenges" correct the problems caused by random selection. 95% of cases dealt with by magistrates, so not a great cost as a percentage spent of the CJ system.

Public acceptability of jury decisions.

Perverse verdicts enjoy public respect. Avoiding unjust law or precedents without breaking them.

THE TRIAL BY JURY SYSTEM (BANGLADESH)

Perverse jury verdicts can provide a "criminal equity".
Involvement of lay people. Trial by peers. uries include many ethnic minorities as a percentage of the whole population (11.5% are nonwhite, British - 2001 census), which is wrongly thought to be higher.

Independent of the executive and the judiciary.

With 12 people any bias is likely to be cancelled out Common sense; judge strength of witnesses' evidence themselves.

Apply common values, e.g. what is "dishonest"

Majority verdicts allow justice when there is a 'rogue' juror. Many judges believe jurors usually return the right verdict, very few appeals from jury verdicts.

THE TRIAL BY JURY SYSTEM (BANGLADESH)

High correlation in USA studies of jury/judge verdicts. Judge can correct any unfairness of the array. Provide a barometer of public opinion. Ordinary honest citizens applying local knowledge and values. Reputed to do their best according to the law. Civic duty a rare opportunity for citizenship Efficient system, with 800 years of success. Character and honesty can be judged by ordinary persons, it does not require legal skills.

Public confidence.
Defendants can elect jury trial. Juries do understand the burden of proof, and lower it in paedophile cases and child murders.

THE TRIAL BY JURY SYSTEM (BANGLADESH)

02. Disadvantage are 01. On acquittal there can be no retrial (subject to recent reforms but only for serious crimes). 02. Jury nobbling believed to be frequent resulting in wrongful acquittals. 03. No enquiry allowed into jury deliberations after verdict, even if juror alleges racial or any other type of bias or wrongdoing by the jury. 04. Jury vetting is against the principle of random selection. 05. Expense of jury trial. 06. Defendants manipulate the system.

THE TRIAL BY JURY SYSTEM (BANGLADESH)

07. Perverse verdicts undermine the principle of justice, and the rule of law. (and are actually very rare) 08. Defying the will of the democratically elected legislature. 09. Juries return the wrong verdict - series of miscarriages of justice undermine confidence.

10. Jurors may be tempted to reach a quick verdict in order to get it over with and go home.
11. Law on jury secrecy could allow the innocent to remain convicted rather than make reasonable enquiries into how verdict was obtained (R v Mirza) 12. Selection of juries to obtain racial mix not allowed. 13. Ethnic minorities often do not register to vote. 14. Ethnic minorities do not have the language skills to be effective jurors. 15. Can be biased against one party or the other.

THE TRIAL BY JURY SYSTEM (BANGLADESH)

16. Local prejudice can be a problem in particularly emotive cases Litchfieldmoved to Exeter for this reason. 17. Are mislead by barristers' techniques as to strength of evidence. 18. Judge has to explain legal matters. 19. Majority verdicts can convict when there is doubt which should have been given to the defendant. 20. Easily influenced by impressive barristers, or the judge. 21. Juries not required to give reasons for verdicts. 22. Insufficient intellect. Cannot follow complicated tax or fraud cases. Note: can be judgeonly trial in some cases.

THE TRIAL BY JURY SYSTEM (BANGLADESH)

Grounds the trial by jury system acceptable in Bangladesh.

GROUNDS THE TRIAL BY JURY SYSTEM ACCEPTABLE IN BANGLADESH .

All principals of the trial by jury system disclose the Bangladesh perspective. So in present time the trial by jury system acceptable in Bangladesh.

Now I discuss the grounds the trial system acceptable in Bangladesh:

GROUNDS THE TRIAL BY JURY SYSTEM ACCEPTABLE IN BANGLADESH .

1. THE RIGHT TO JURY TRIAL SHALL BE PRESERVED:
A. Parties in civil matters have the right to a fair, accurate and timely jury trial in accordance with law.
B. Parties, including the state, have the right to a fair, accurate and timely jury trial in criminal prosecutions in which confinement in jail or prison may be imposed. C. In civil cases the right to jury trial may be waived as provided by applicable law, but waiver should neither be presumed nor required where the interests of justice demand otherwise. D. A quality and accessible jury system should be maintained with budget procedures that will ensure adequate, stable, long-term funding under all economic conditions.

GROUNDS THE TRIAL BY JURY SYSTEM ACCEPTABLE IN BANGLADESH .

02. CITIZENS HAVE THE RIGHT TO PARTICIPATE IN JURY SERVICE AND THEIR SERVICE SHOULD BE FACILITATED: All persons should be eligible for jury service except those who: 1. Are less than eighteen years of age; or 2. Are not citizens of the United States; or 3. Are not residents of the jurisdiction in which they have been summoned to serve; or 4. Are not able to communicate in the English language and the court is unable to provide a satisfactory interpreter; or 5. Have been convicted of a felony and are in actual confinement or on probation, parole or other court supervision.

GROUNDS THE TRIAL BY JURY SYSTEM ACCEPTABLE IN BANGLADESH .

03. JURIES SHOULD HAVE 12 MEMBERS :

A. Juries in civil cases should be constituted of 12 members wherever feasible and under no circumstances fewer than six members. B. Juries in criminal cases should consist of:
1. Twelve persons if a penalty of confinement for more than six months may be imposed upon conviction; 2. At least six persons if the maximum period of confinement that may be imposed upon conviction is six months or less.

GROUNDS THE TRIAL BY JURY SYSTEM ACCEPTABLE IN BANGLADESH .

04. JURY DECISIONS SHOULD BE UNANIMOUS: A. In civil cases, jury decisions should be unanimous wherever feasible. A less-than-unanimous decision should be accepted only after jurors have deliberated for a reasonable period of time and if concurred in by at least five-sixths of the jurors. In no civil case should a decision concurred in by fewer than six jurors be accepted. B. A unanimous decision should be required in all criminal cases heard by a jury.

GROUNDS THE TRIAL BY JURY SYSTEM ACCEPTABLE IN BANGLADESH .

05. IT IS THE DUTY OF THE COURTS TO ENFORCE AND PROTECT THE RIGHTS TO JURY TRIAL AND JURY SERVICE The responsibility for administration of the jury system should be vested exclusively in the judicial branch of government. 1. All procedures concerning jury selection and service should be governed by rules and regulations promulgated by the states highest court or judicial council. 2. A unified jury system should be established wherever feasible in areas that have two or more courts conducting jury trials. This applies whether the courts are of the same or of differing subject matter or geographic jurisdiction. 3. Responsibility for administering the jury system should be vested in a single administrator or clerk acting under the supervision of a presiding judge of the court.

GROUNDS THE TRIAL BY JURY SYSTEM ACCEPTABLE IN BANGLADESH .

06. COURTS SHOULD EDUCATE JURORS REGARDING THE ESSENTIAL ASPECTS OF A JURY TRIAL: A. Courts should provide orientation and preliminary information to persons called for jury service:
1. Upon initial contact prior to service; 2. Upon first appearance at the courthouse; and 3. Upon reporting to a courtroom for juror voir dire.

B. Orientation programs should be:

1. Designed to increase jurors understanding of the judicial system and prepare them to serve competently as jurors; 2. Presented in a uniform and efficient manner using a combination of written, oral and audiovisual materials; and 3. Presented, at least in part, by a judge.

GROUNDS THE TRIAL BY JURY SYSTEM ACCEPTABLE IN BANGLADESH .

07. COURTS SHOULD PROTECT JUROR PRIVACY INSOFAR AS CONSISTENT WITH THE REQUIREMENTS OF JUSTICE AND THE PUBLIC INTEREST:

A. Juror interest in privacy must be balanced against party and public interest in court proceedings. B. Without express court permission, surveillance of jurors and prospective jurors outside the courtroom by or on behalf of a party should be prohibited. C. If cameras are permitted to be used in the courtroom, they should not be allowed to record or transmit images of the jurors faces.

GROUNDS THE TRIAL BY JURY SYSTEM ACCEPTABLE IN BANGLADESH .

08. INDIVIDUALS SELECTED TO SERVE ON A JURY HAVE AN ONGOING INTEREST IN COMPLETING THEIR SERVICE: During trial and deliberations, a juror should be removed only for a compelling reason. The determination that a juror should be removed should be made by the court, on the record, after an appropriate hearing.

GROUNDS THE TRIAL BY JURY SYSTEM ACCEPTABLE IN BANGLADESH .

09. COURTS SHOULD CONDUCT JURY TRIALS IN THE VENUE REQUIRED BY APPLICABLE LAW OR THE INTERESTS OF JUSTICE:
A. In civil cases where a jury demand has been made, a change of venue may be granted as required by applicable law or in the interest of justice. B. In criminal cases, a change of venue or continuance should be granted whenever there is a substantial likelihood that, in the absence of such relief, a fair trial by an impartial jury cannot be had. A showing of actual prejudice should not be required. C. Courts should consider the option of trying the case in the original venue but selecting the jury from a new venue. In addition to all other considerations relevant to the selection of the new venue, consideration should be given to whether the original venue would be a better location to conduct the trial due to facilities, security, and the convenience of the victims, court staff, and parties. This should be balanced against the possible inconvenience to the jurors.

GROUNDS THE TRIAL BY JURY SYSTEM ACCEPTABLE IN BANGLADESH .

10. COURTS SHOULD USE OPEN, FAIR AND FLEXIBLE PROCEDURES TO SELECT A REPRESENTATIVE POOL OF PROSPECTIVE JURORS: Courts should use random selection procedures in:
a. Selecting persons to be summoned for jury service; b. Assigning jurors to panels; c. Calling jurors for voir dire; and d. Designating, at the outset of jury deliberations, those jurors who will serve as regular and as alternate jurors.

GROUNDS THE TRIAL BY JURY SYSTEM ACCEPTABLE IN BANGLADESH .

11. COURTS SHOULD ENSURE THAT THE PROCESS USED TO EMPANEL JURORS EFFECTIVELY SERVES THE GOAL OF ASSEMBLING A FAIR AND IMPARTIAL JURY: 1. In appropriate cases, the court should consider using a specialized questionnaire addressing particular issues that may arise. The court should permit the parties to submit a proposed juror questionnaire. The parties should be required to confer on the form and content of the questionnaire. If the parties cannot agree, each party should be afforded the opportunity to submit a proposed questionnaire and to comment upon any proposal submitted by another party. 2. Jurors should be advised of the purpose of any questionnaire, how it will be used and who will have access to the information. 3. All completed questionnaires should be provided to the parties in sufficient time before the start of voir dire to enable the parties to adequately review them before the start of that examination.

GROUNDS THE TRIAL BY JURY SYSTEM ACCEPTABLE IN BANGLADESH .

12. COURTS SHOULD LIMIT THE LENGTH OF JURY TRIALS INSOFAR AS JUSTICE ALLOWS AND JURORS SHOULD BE FULLY INFORMED OF THE TRIAL SCHEDULE ESTABLISHED:
A. The court, after conferring with the parties, should impose and enforce reasonable time limits on the trial or portions thereof. B. Trial judges should use modern trial management techniques that eliminate unnecessary trial delay and disruption. Once begun, jury trial proceedings with jurors present should take precedence over all other court proceedings except those given priority by a specific law and those of an emergency nature. C. Jurors should be informed of the trial schedule and of any necessary changes to the trial schedule at the earliest practicable time.

GROUNDS THE TRIAL BY JURY SYSTEM ACCEPTABLE IN BANGLADESH .

13. THE COURT SHOULD INSTRUCT THE JURY IN PLAIN AND UNDERSTANDABLE LANGUAGE REGARDING THE APPLICABLE LAW AND THE CONDUCT OF DELIBERATIONS: A. All instructions to the jury should be in plain and understandable language. B. Jurors should be instructed with respect to the applicable law before or after the parties final argument. Each juror should be provided with a written copy of instructions for use while the jury is being instructed and during deliberations. C. Instructions for reporting the results of deliberations should be given following final argument in all cases. At that time, the court should also provide the jury with appropriate suggestions regarding the process of selecting a presiding juror and the conduct of its deliberations. D. The jurors alone should select the foreperson and determine how to conduct jury deliberations.

GROUNDS THE TRIAL BY JURY SYSTEM ACCEPTABLE IN BANGLADESH .

13. THE COURT SHOULD INSTRUCT THE JURY IN PLAIN AND UNDERSTANDABLE LANGUAGE REGARDING THE APPLICABLE LAW AND THE CONDUCT OF DELIBERATIONS: A. All instructions to the jury should be in plain and understandable language. B. Jurors should be instructed with respect to the applicable law before or after the parties final argument. Each juror should be provided with a written copy of instructions for use while the jury is being instructed and during deliberations. C. Instructions for reporting the results of deliberations should be given following final argument in all cases. At that time, the court should also provide the jury with appropriate suggestions regarding the process of selecting a presiding juror and the conduct of its deliberations. D. The jurors alone should select the foreperson and determine how to conduct jury deliberations.

GROUNDS THE TRIAL BY JURY SYSTEM ACCEPTABLE IN BANGLADESH .

14. COURTS AND PARTIES HAVE A DUTY TO FACILITATE EFFECTIVE AND IMPARTIAL DELIBERATIONS: Jury deliberations should take place under conditions and pursuant to procedures that are designed to ensure impartiality and to enhance rational decision-making. 1. The court should instruct the jury on the appropriate method for asking questions during deliberations and reporting the results of its deliberations. 2. A jury should not be required to deliberate after normal working hours unless the court after consultation with the parties and the jurors determines that evening or weekend deliberations would not impose an undue hardship upon the jurors and are required in the interest of justice.

GROUNDS THE TRIAL BY JURY SYSTEM ACCEPTABLE IN BANGLADESH .

15. TRIAL AND APPELLATE COURTS SHOULD AFFORD JURY DECISIONS THE GREATEST DEFERENCE CONSISTENT WITH LAW: Trial and appellate courts should afford jury decisions the greatest deference consistent with law.

GROUNDS THE TRIAL BY JURY SYSTEM ACCEPTABLE IN BANGLADESH .

16. COURTS SHOULD GIVE JURORS LEGALLY PERMISSIBLE POST-VERDICT ADVICE AND INFORMATION: After the conclusion of the trial and the completion of the jurors service, the court is encouraged to engage in discussions with the jurors. Such discussions should occur on the record and in open court with the parties having the opportunity to be present, unless all the parties agree to the court conducting these discussions differently. This standard does not prohibit incidental contact between the court and jurors after the conclusion of the trial.

GROUNDS THE TRIAL BY JURY SYSTEM ACCEPTABLE IN BANGLADESH .

17. APPROPRIATE INQUIRIES INTO ALLEGATIONS OF JUROR MISCONDUCT SHOULD BE PROMPTLY UNDERTAKEN BY THE TRIAL COURT:
The court should take prompt action in response to an allegation of juror misconduct. 1. Upon receipt of an allegation of juror misconduct, the court should promptly inform the parties and afford them the opportunity to be heard as to whether the allegation warrants further enquiry or other judicial action. 2. Parties should promptly refer an allegation of juror misconduct to the court and to all other parties in the proceeding. 3. If the court determines that the allegation of juror misconduct warrants further inquiry, it should consult with the parties concerning the nature and scope of the inquiry, including: a. Which jurors should be questioned; b. Whether the court or the parties should ask the questions; and c. The substance of the questions. 4. If the court ascertains that juror misconduct has occurred, it should afford the parties the opportunity to be heard as to an appropriate remedy. 5. If the allegation of juror misconduct is received while the jury is deliberating, the recipient must ensure as quickly as possible that the court and counsel are informed of it, and the court should proceed as promptly as practicable to ascertain the facts and to fashion an appropriate remedy.