Why is a jury trial more often used in criminal, rather than civil trials, in many countries? This is the case in most common law countries. What is the commonly cited justification for this? Are jury trials shown to be more accurate than bench trials (particularly for criminal cases)?
Jury trials in common law jurisdictions are simply a fact, and don't need or get justification. Jury trials are ancient. In England the Scandinavians had an assembly, the þing (&quot;thing&quot;) for deciding matters, such as guilt. Under Norman rule this became systematized, to the point that the Magna Carta Art. 39 states the law that No free man shall be captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers, and or by the law of the land There was a period subsequently where the King gained more power and trials were more arbitrary and oppressive through the Star Chamber, leading to various reforms such as the birth of the US. The right to a jury trial is for reasons of historical precedent part of the US constitution. Because of the legal right to a jury (especially in criminal cases), the only question that can reasonably come up is for a defendant to ask if they will have better chances with a bench trial versus a jury trial. All it takes is one person on a jury to not be convinced to avoid a conviction, so superficially you'd think an accused person would prefer a jury trial to increase their odds of not being convicted. This is encouraged by a mind-set &quot;the state versus the citizen&quot;, where the prosecution and the judge are both agents of the government. On the other hand, the average citizen is more likely to misunderstand the import of evidence, and be less able to disregard statements made during the trial that were held inadmissible.
Yes, such a scenario is plausible, and there are some cases where it has probably happened. But since juries do not normally give reasons for their votes, it is hard to establish when it has and when it has not happened, and I have seen no statistics on such occurrences. By the way, &quot;Jury Nullification&quot; is simply when one or more jury members vote in a particular way because of something other than the law and evidence as presented in the trial. Most often the term is used when a jury votes to acquit because they dislike or disapprove of the law involved. For example, in the 1850s a number of people accused of violating the US Fugitive Slave Law by harboring runaway slaves were acquitted, reputedly because juries who disliked the law (quite unpopular in many northern states) no matter what the evidence. Later, during Prohibition, some people charged with possessing or selling alcohol were acquitted, reputedly by juries who disapproved of Prohibition. In both cases, it is hard to get authoritative sources that specific cases were actual instances of jury nullification. Anyway, a juror need not &quot;ask&quot; for jury nullification, that juror just votes to acquit. A jury that votes to acquit (or convict) because of political or personal views about the accused might be said to be &quot;biased&quot; but I am not sure if that would be described as &quot;jury nullification&quot;.
Trials in German criminal cases are generally open to the public (subject to exceptions similar to those in the U.S.) and there is a presumption of innocence until proof beyond a reasonable doubt establishes otherwise in its criminal justice system. The authority for this and the history of this are explored below. In a criminal case in Germany, according to the German Code of Criminal Procedure, Section 261, a judge is supposed to make a decision upon guilt or innocence based upon the following standard: Section 261. [Free Evaluation of Evidence] The court shall decide on the result of the evidence taken according to its free conviction gained from the hearing as a whole. Section 263 provides that decisions regarding guilt against a defendant must be made by a two-thirds majority of the judges (typically a panel of three in felony cases). Neither the German Penal Code, nor the German Code of Criminal Procedure contain a clear articulation of a presumption of innocence or of a presumption of guilt. An arrest and certain other pre-trial remedies are allowed when someone is "seriously suspected" of a crime, and a judge may dismiss charged if they are without sufficient legal basis on their face. As explained here: If there are indications of a crime, the district attorney or the police department must initiate an official investigation. If the matter comes to a trial, it is the court's duty to pursue further official investigations. The court is obliged to look for evidence, whether or not defence counsel or the district attorney ask that evidence is heard. . . . In criminal proceedings, all evidence must be presented during the trial. Only the results of the main (oral) hearing may serve as a basis for the sentence (sections 261 and 264, Code of Criminal Procedure). Written evidence, such as documents, must be read out and witnesses must be interrogated in the presence of the court and the public. . . . Hearings and other court dates in criminal matters are . . . open to the public (section 169, Court Constitution Act). In some cases, confidentiality is deemed to outweigh the basic rule of public access to court proceedings, for example in matters of national security, or, more commonly, in proceedings concerning young people. . . . Juries are not used in criminal proceedings. Minor cases are tried by one career judge, and other matters are tried by a court consisting of one career judge and two lay judges (section 29, Court Constitution Act). In certain very serious matters (for example, cases involving the death of the victim), the court consists of three career judges and two lay judges (section 74, Court Constitution Act), Lay judges in criminal proceedings are meant to ensure the approval of a criminal verdict by the public. . . . In civil law cases, the burden of proof generally lies with the party asserting the claim. They must prove their case beyond reasonable doubt. The burden of proof can be shifted, for example in claims for damages due to breach of contractual obligations. The defendant's responsibility for the contractual breach is presumed by the law, and the defendant bears the burden of proving otherwise (section 280 subsection 1 second sentence, German Code of Civil Law (Bürgerliches Gesetzbuch)). As there are no disclosure-like proceedings, the party with the burden of proof may need to demonstrate a fact that they have had no chance to obtain knowledge of, while the other party can present this information easily (for example, information regarding the opposing party's assets or tax burden). In this case, the burden of proof does not shift, but the other party has a duty to provide sufficient information for the first party to substantiate their submission. This is known as the "secondary burden of proof". . . . As criminal proceedings in Germany are not adversarial, but apply the principle of official investigation (see Question 18), it is the court and the prosecutor that have to provide evidence both against and in favour of the accused. In a criminal trial the standard of proof is similar to the one in civil matters: the court must be convinced beyond reasonable doubt. The benefit of any doubt goes to the accused. The legal source this standard of proof is an international treaty, as articulated below, and this provides a legal gloss on the interpretation given to Section 261 quoted above. This is basically the same standard of proof in civil and criminal cases. The probabilistic "preponderance of the evidence" standard used in civil cases in common law systems is not used. The presumption of innocence in the German criminal justice system and its practical effects are discussed in this 2014 law review article. It explains the history of that provision in German law as well: Comparatists of criminal law and procedure like the presumption of innocence. It seems to provide a focus on which all can agree. The presumption of innocence has a rich historical heritage (see Hruschka 2000) and enjoys international acceptance, as exemplified by its recognition as a basic right in Article 14 (2) of the International Covenant on Civil and Political Rights.1 But the presumption’s aura and its effectiveness as a rhetorical device contrast with the difficulty of determining its precise meaning, especially in international discourse. The presumption of innocence, it seems, resembles a wonderfully carved and polished gem which reflects the light in various sparkling tones—but at closer inspection is nothing but a piece of glass. In what follows, I will not even begin to discuss the various meanings that the presumption of innocence has acquired in different legal systems. I will rather concentrate on the German system and will try to demonstrate the (useful but) limited reach of the presumption of innocence in the German context. In a legal system such as the German system that is solidly built on codes and statutes, one would expect that a principle as important as the presumption of innocence is enshrined in the Constitution, or at least in one of the first paragraphs of the Code of Criminal Procedure. But the presumption of innocence has not been given a prominent place in the cathedral of German law; in fact, the presumption does not appear anywhere in indigenous German legislation. It has become part of German statutory law only by the wholesale transformation, in 1952, of the European Convention on Human Rights into domestic German law.2 In spite of that less than spectacular genealogy, the presumption of innocence enjoys as high a status in German legal discourse as in any other legal system. In a 1987 decision, the Federal Constitutional Court, Germany’s highest judicial authority, declared that ‘‘the presumption of innocence is a special feature of the principle of Rechtsstaat (a state built on the rule of law) and thus has the rank of a constitutional norm.’’3 The Constitutional Court linked the presumption of innocence to other high-ranking Constitutional concepts, such as the principle of culpability as a requirement for punishment, and human dignity, which is the supreme value protected by Article 1 of the German Constitution.4 1 Article 14 (2) of the International Covenant on Civil and Political Rights of 19 December 1966 reads: ‘‘Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.’’ 2 See Gesetz u¨ber die Konvention zum Schutz der Menschenrechte und Grundfreiheiten, II Bundesgesetzblatt p. 685 (1952). 3 Bundesverfassungsgericht, Judgment of 26 March 1987, 74 Entscheidungen des Bundesverfassungsgerichts (hereinafter: BVerfGE) 358 at 370. 4 id. at 371. The presumption of innocence was in a section numbers 6(2) in the original 1952 treaty (which contained equally authoritative English, French and German provisions) that Germany adopted, but has been renumbered in the meantime. Footnote on some assumptions in the question. Germany never followed the Napoleonic Code. It drafted its own civil and criminal codes from scratch based upon the Napoleonic Code model. Most civil codes in the world follow either the German model or the French model (e.g. South Korea's civil code is based upon Germany's while Vietnam's was based upon the French civil code). Superficially, the German model is easily distinguished by having more major subparts than the French one does. All civil and criminal codes in civil law countries have been amended many times. All countries in Continental Europe, in the pre-Napoleonic Code era, did something that is now called the "reception" of Roman law, which basically meant treating Roman legal treatises as binding legal authorities, in the "early modern" period before which personal feudal rule by aristocrats rather than the "rule of law" was the norm. But the available Roman legal treatises offered more insight to officials making judicial decisions based upon received Roman law, and were taken as more authoritative in the area of non-criminal private law, than they were in the areas of public and criminal law. In most of continental Europe (and for that matter in the U.K. as well), human rights flow mostly from international treaties (associated with the formation of the "Council of Europe" not to be confused with the E.U. organ known as the European Council), rather than from domestic constitutional rights, although some of these countries have also incorporated their treaty obligations into separate constitutional provisions or domestic statutes as a means of implementing those treaties.
The burden for proving claims in civil actions is "preponderance of evidence," i.e., merely that "more than 50% of the evidence favors a conclusion." However, the standard for conviction of any crime is "beyond a reasonable doubt." I.e., if the defense can raise reasonable doubt about one's guilt then the defendant should be acquitted. There is quite a bit of space between the two standards, which is compounded by prosecutorial discretion to even bring criminal charges.
Here are the jury instructions. These describe how to evaluate witness testimony, burdens of proof, and the four-factor fair use test, among other things. The jury had to answer yes or no to the following question: Has Google shown by a preponderance of the evidence that its use in Android of the declaring lines of code and their structure, sequence, and organization from Java 2 Standard Edition 1.4 and Java 2 Standard Edition Version 5.0 constitutes a "fair use" under the Copyright Act? They answered yes. Juries do not explain their reasoning (different jurors might even have different reasonings), but the assumption is that they followed the jury instructions to arrive at this conclusion. To be clear, the issue wasn't reimplementation of 37 Java APIs, but a more limited taking, including "the declaring code and the structure, sequence, and organization".
If no one objects to a leading question, then the judge does nothing. A judge does not generally pro-actively police the rules of evidence at trial. Also, there are circumstances when a judge has discretion to allow a leading question even when it wouldn't ordinarily be allowed to move the trial along on largely undisputed points or to allow in inarticulate witness to testify. The exception to judicial passivity in the absence of an objection at trial is "plain error" that is not "harmless error", which a judge has a duty to prevent or address even if no objection is raised by a party. But, offering a leading question when one is not allowed by the rules of evidence almost never constitutes plain error, and would almost always be considered "harmless error" even if it was objected to and the judge ruled incorrectly, unless the use of improper leading questions was pervasive and there was a contemporaneous objection by counsel. For example, allowing a prospective juror to serve as a juror, despite that juror saying in the jury selection process that he can't be impartial because the defendant committed adultery with his spouse, because neither the prosecution or the defense attorney moves to strike the juror for cause, rather than striking that juror for cause of the court's own accord, is the kind of conduct that would often be considered "plain error" that is not "harmless error."
Its always the simple questions that have complicated answers. In this case its because both Common Law and Civil Law have several different meanings. Civil Law v Criminal Law In this context, civil law means the ability of people to seek redress for wrongs from other people. These people may be individuals (natural persons) or legal persons (corporations, government etc.). When someone sues someone else they are using civil law. In contrast, criminal law is where a government prosecutes (not sues) a person (again natural or legal) who is alleged to have committed an offence. To illustrate the difference, if a person murders another person the government will use criminal law to prosecute the murder and the family of the victim will use civil law to pursue a wrongful death suit. Common Law v Civil Law In this context, common law and civil law refer to two of the major legal systems in use on Earth: By Maximilian Dörrbecker (Chumwa) - Own work, using World map by Canuckguy and others UNESCO World Heritage map by NNW The data sources are:University of Ottawa: JuriGlobe – World Legal Systems Research Group Wikipedia: List of national legal systems European legal systems map by Ain92 and others (which seems to be based on this map by C.Löser and others) World legal systems map by Robinkissac, CC BY-SA 2.5, https://commons.wikimedia.org/w/index.php?curid=40154967 Common Law is derived from the law of England and is used in areas colonized by the English - the UK, Canada, the USA, Australia and New Zealand. Civil Law is derived from continental European law and ultimately from Roman law. The primary contrast between the two systems is the role of written decisions and precedent. In common law jurisdictions, nearly every case that presents a bona fide disagreement on the law is resolved in a written opinion. In contrast, civil law decisions typically do not include explanatory opinions. In common law systems, a single decided case is binding law to the same extent as statute or regulation, under the principle of stare decisis. In contrast, in civil law systems, individual decisions have only advisory, not binding effect. In civil law systems, case law only acquires weight when a long series of cases use consistent reasoning, called jurisprudence constante. Civil law lawyers consult case law to obtain their best prediction of how a court will rule, but comparatively, civil law judges are less bound to follow it. For that reason, statutes in civil law systems are more comprehensive, detailed, and continuously updated, covering all matters capable of being brought before a court. The United States and 49 of the states are Common Law jurisdictions, the exception is Louisiana which is a Civil Law jurisdiction (specifically the Napoleonic subset of Civil Law) as, unlike the rest of the country, it was initially a French possession. Common Law v Common Law In addition to the way the term is used above, &quot;common law&quot; can be used within a Common Law jurisdiction to distinguish that part of the law which arises from judicial precedent from that part which arises from legislative statute or administrative regulation. Further, within legal argument, the term may be used to distinguish &quot;common law&quot; (or just &quot;law&quot;) from equity. Before 1873, England had two parallel court systems: courts of &quot;law&quot; which could only award money damages and recognized only the legal owner of property, and courts of &quot;equity&quot; (courts of chancery) that could issue injunctive relief (that is, a court order to a party to do something, give something to someone, or stop doing something) and recognized trusts of property.
Because it's explicitly a jury of your peers That is, every person is entitled to have their guilt or innocence decided by people &quot;like them&quot; - not kings, lords or, heaven forbid, lawyers. The jury doesn't need to know the law and indeed, in many jurisdictions, lawyers are explicitly disqualified from jury service (hint: if you want to avoid jury service, get a law degree). The role of the jury is to decide the facts - what happened and whether that meets the prosecution's burden of proof. The jury is told what the law is by the judge - that's their job. Most law shows on TV skip over the very important role of the judge's instructions to the jury. These usually go along the lines of (greatly abridged and paraphrased) &quot;If you decide that X, Y &amp; Z are true then you must return a guilty verdict but if any of them are not true you must return not guilty.&quot; A very brief potted history of the jury system is contained in this answer: Why 12 Jurors, why not 11, 10, 9, 1? Now, this is, according to those from common law traditions, the great truth and beauty of the jury system. To those from civil, sharia and other legal traditions: it's just stupid.