Legal Methods PDF

Legal Methods Vishwas H. Devaiah | Aafreen Collaco | Daksh Aroha  1. seeks to develop skills that law students need for effectively researching and using cases, statutes and other legal materials. 2. provides f...

Legal Methods Vishwas H. Devaiah | Aafreen Collaco | Daksh Aroha  1. seeks to develop skills that law students need for effectively researching and using cases, statutes and other legal materials. 2. provides familiarity with legal structures, processes, and institutions. COURSE 3. fosters ability to identify, read, analyze OBJECTIVES and formulate substantive arguments in favor of or against a legal proposition 4. develops understanding of the processes of law-making by legislative, judicial bodies 5. Introduces court craft and legal reasoning  1. fosters ability to identify relevant information and distinguish it from irrelevant information in a legal context 2. introduces the structural hierarchy of COURSE 3. values and norms in legal systems encourages legal reading and writing in OBJECTIVES a clear, coherent and critical manner 4. develops an interdisciplinary perspective to the study of law and its role in our lives Learning Outcomes identify important features from judgments and apply principles arising in case law to Identify advise clients/ argue cases or write briefs. Demonstrate demonstrate a capacity to critically and independently evaluate primary sources of law. Conduct conduct legal analysis and develop problem-solving skills. Demonstrate demonstrate fundamental legal writing skills. Assessments 1st Assessment: 10 Marks (Sept) Surprise MCQ Test 2nd Assessment: 15 Marks (10th Oct) Case Brief Exercise 3rd Assessment: 25 Marks (15th Nov) Synthesising case law, Statute and Theory End-Term: 50 Marks (TBD) Percentage of Marks Grade Grade Value Grade Description 80 and above O 8 Outstanding – Exceptional/Original knowledge of the subject matter, thorough understanding of issues, ability to synthesise ideas, rules and principles and extraordinary critical and analytical ability 75 – 79 A+ 7 Excellent - Sound knowledge of the subject matter, thorough understanding of issues, ability to synthesise ideas, rules and principles and critical and analytical ability 70 – 74 A 6 Very Good - Sound knowledge of the subject matter, excellent organisational capacity, ability to synthesise ideas, rules and principles, critically analyse existing materials 65 – 69 B+ 5 Good - Good understanding of the subject matter, ability to identify issues and provide balanced solutions to problems and good critical and analytical skills 60 – 64 B 4 Fair - Average understanding of the subject matter, limited ability to identify issues and provide solutions to problems and reasonable critical and analytical skills 55 – 59 C+ 3 Acceptable - Adequate knowledge of the subject matter to go to the next level of study and reasonable critical and analytical skills. 50 – 54 C 2 Marginal - Limited knowledge of the subject matter and irrelevant use of materials and, poor critical and analytical skills 45-49 D+ 1 Pass - with a Basic understanding of the subject matter. 40-44 D 0.5 Rudimentary understanding of the subject matter. Below 40 F 0 Fail - Poor comprehension of the subject matter, poor critical and analytical skills and marginal use of the relevant materials. Will require repeating the course. No Bell Curve Plagiarism Concerns Plagiarism means “[t]o take the words or an idea of someone else and pass it off as one’s own.” Any idea, sentence or paragraph you cull from a web source must be credited with the original source. If you paraphrase or directly quote from a web source in the exam, presentation or essays, the source must be explicitly mentioned. You should not feel free to plagiarise content, be it from scholarly sources (i.e. books and journal articles) or from the Internet. Plagiarism is a serious offence against academic integrity and, where discovered, will result in serious sanction and fail grade. Module Lecture Topic Teaching Week 1 Understanding Law, Legal Systems & Institutions 1-2 2 Finding Law 3-5 3 Approaches to Legal Reasoning 6 -9 4 Anatomy of Statute 10-11 5 Navigating the Judicial Process 12-14 6 Judicial Law Making 14 Legal Writing 15-17 7 Understanding Law, Morality and Ethical Values Legal Systems: Evolution of Common Law | Common law v Civil law | Private Law and Institutions Public Law| International and Municipal Law| Systems & Law, Legal Criminal Justice and Jury Trial Judicial Architecture in India, UK & US Module 2: Finding Law Primary Sources of Law (Primary, Secondary, Customs, Religion) Searching / Locating Law| Exploring the Library| Exploring Digital Databases Citing Law| OSCOLA| Blue Book Avoiding Plagiarism How to Read a Case Law| Reading a Law Review Article Module 3: Approaches to Legal Reasoning 1. Deductive and Inductive Reasoning | Analogical Reasoning 2. Non-Doctrinal forms of Reasoning (Realism| Feminist Theory| Law and Economics| Law and Society| Critical Legal Theory| Critical Race Theory) 3. Fallacies Module 4: Anatomy of Statute Reading and understanding the structure of a statute literal rule | purposive approach | mischief Interpretation of a statute rule| Drafting a statute Module 5: Navigating the Judicial Process Precedent Obiter Dicta & Ration Decidendi Limits to the binding nature of precedent Overruling Per in curium Doctrine of Stare decisis As a general principle the decision of an administratively superior court is controlling over inferior courts. This doctrine is widely called as stare decisis. Stare decisis literally means, “Stand by the decision”. Stare decisis ensures predictability, stability and consistency of results, which is an inherent feature of rule of law. Understanding stare decisis is a major element of the work of the Legal Methods course. This course will examine as to what aspects of a decision are authoritative and what aspects are persuasive. Ratio Decidendi and Obiter Dictum One of the critical skills of a lawyer is the ability to select a relevant legal authority for a particular proposition of law. Lawyers are often called upon to advise clients/courts whether the decision in a previous case lays down any authoritative precedent so as to be binding on future cases. Distinction between Ratio Decidendi and Obiter Dictum Module 6: Judicial Law Making Judicial law making is often an outcome of judicial activism; however, issues linger as to how much creative power they should have. Module 7: Legal Writing Legal Analysis Writing a Problem & Synthesising Research Solving Case Laws Paper Persuasive & Predictive Writing  Module 1 Understanding Law, Legal Systems & Institutions Content Understanding law, Legal Systems morality, ethics Jury Trial Judicial Architecture Problem 1 Shyam is driving a school bus with 40 children and he has noticed that the brakes have failed. He noticed that bus is approaching a steep descent in 1000 meters and if he reaches that point there is no way he can stop the vehicle. Prior to the steep descent, on the left side of the road there are too many people enjoying the scenic view and on the right side of the road there is a small shack wherein an old man is serving tea to a customer. Shyam has to take a call within 10 seconds, if he swerves to the left he might be seriously injuring or killing quite a few people and if he swerves to the right he might be risking the lives of just two people. If Shyam continues to move straight down the road, then he might be putting all the 40 children’s life in danger. What should he do? Problem 2 Margret is walking down the road, late in the night. Her neighborhood is sparsely populated, and her house is quite far from the bus stop she just got down. Margret was quite petrified when she saw an unknown man following her. She had heard in the local news that a young man targeted lonely woman. The news coverage had cautioned women in her neighborhood that they could be targeted by this dangerous man who is usually carrying a deadly weapon. Within 10 minutes, Margaret realizes she is in danger, and she manages to dodge him and get into a stranger’s house who is willing to help her. Within 5 minutes, a young man carrying a weapon knocks on the door of the house where Margaret is hiding, the person helping her opens the door and lies to the man that he saw a girl going in a particular direction, probably two minutes ago. Was it right to lie in this context? Problem 3 Sahib is walking down the Lake Road and he notices a person in the lake is crying for help. Sahib moves closer to the lake and notices a young man struggling to stay afloat, while Sahib wanted to help, he could not do so, as he does not know how to swim. Sahib was also in a rush as his young daughter was waiting for him in the school. Sahib could not reach out to anyone immediately as there was no one in the vicinity and there was no mobile network. If Sahib does not reach the school immediately his young daughter could be left behind in the school, so he decides to head to the school, ignoring the cry for help. Is it right on the part of Sahib not to help the drowning person? Problem 4 Nate and Steffi are avid mountain climbers and risk takers. They have summitted many 8000-meter peaks, barring the K2, which is known to be quite dangerous. Nate and Steffi decide to summit K2 in July 2022 which can be quite dangerous due to frequent bad weather. Knowing this fully well, Nate and Steffi along with a team of sherpas begin to climb K2. Nate and Steffi reach 24,000 feet on 23rd July and setup a base there along with the Sherpas. They receive news through their receivers that the weather would turn worse for the next seven days due to a storm. They only have a short window of 8 hrs within which they have to summit K2 and also return to the base setup at 24,000 feet. The Sherpas are informed about Nate and Steffi’s decision to go for the summit immediately. The Sherpas refuse to join them as its too risky to climb K2 during night-times and they also warn Nate and Steffi that nobody has ever tried to summit K2 at such an unearthly hour as its freezing cold and people end up using more oxygen. Nate and Steffi ignore the Sherpas and begin to summit thinking that it will take them 4 hrs to climb up and reach the top and another 3 hrs to come back to the base set up at 24,000 feet. Problem 4 Nate and Steffi carry one oxygen cylinder each and it took them 6 hours to summit K2. It took them longer than usual due to the inclement weather and heavy storm that had arrived earlier than anticipated. Due to heavy breathing, Nate had used up all the oxygen and he had a few episodes of hallucination, Steffi tried to help Nate descend to lower altitude, but she could only succeed in getting him to move 500 feet below the summit. At this point Nate was hallucinating and imagining that he had multiple friends at the summit and was having coffee with them. Steffi had to make a call as she was running out of oxygen and Nate was too heavy to haul down and he was out of control due to those hallucination episodes. She decided to descend on her own and possibly seek help once she reaches the base at 24000 feet. Steffi clearly knew that she was abandoning Nate in the death-zone and his life could be in danger. Do you think, Steffi is morally right in doing so?  Problem 5 People of Timbaktu decided to embrace direct democracy and set up their own government. They never had any rules relating to movement of vehicles which resulted in utter chaos, accidents, and loss of life. They decide to come together and vote on certain rules related to movement of vehicles which also include traffic signals and quite a few other rules. Why do you think societies have embraced these rules? Natural Law | Positivist Abortion: Can be allowed on reasonable grounds| Some countries do not allow for it Services of Airhostess terminated on first pregnancy: Arbitrary and unreasonable-moral grounds | Was implemented by Air India as a rule Refusing to grant passport to someone without out explanation Hitler’s directives and regulations discriminating against Jews Speluncean Explorers  WHOEVER SHALL WILLFULLY TAKE THE LIFE OF ANOTHER SHALL BE PUNISHED BY DEATH Speluncean Five judges-five opinions-five ways of thinking about how to apply this Explorer law to this case Case What happened? Chief Justice Truepenny Uphold Conviction Letter of law clear Allows for no exception-must convict Executive clemency His philosophy- Positivist STRICT STATUTORY CONSTRUCTION Justice Foster Overturn conviction on two grounds LOOSE STATUTORY CONSTRUCTION Go behind words, look for legislative intent NATURAL LAW Outside the physical boundaries of the jurisdiction, positive law does not apply Would reverse. The statute is inapplicable for two separate reasons (1) Once the explorers were cut off from society, they returned to a state of nature and society's laws did not apply to them. This stems from the proposition that our law is predicated on the possibility of men's coexistence in society. Our law functions to facilitate and improve men's coexistence. When the assumption that men may live together loses its truth, as it obviously did in this situation where life only became possible by the taking of life, then the basic premises underlying our whole legal order have lost their meaning and force. Foster would say cessante ratione legis, cessat et lipsa lex - ‘the reason for the law ceases, the law also ceases'. Justice Foster (2) The statute can be applied to the men but the purpose of the statute would not be served by applying it in this case. This is because a man may break the letter of the law without breaking the law itself, as in the case of Commonwealth v. Staymore. The statute should not be taken literally. This is because self-defence should be considered; although self-defence cannot be reconciled with the words of the statute it can be reconciled with the purpose of the statute, that is, to deter men from killing one another. Indeed, if killing in self-defence is to be considered murder then the defence no longer works as a deterrent. Thus, the literal meaning of the statute should not be applied to cases of self-defence. Justice Tatting Withdraws- Irresolvable contradiction between his legal philosophy that the letter of the law should apply (STRICT CONSTRUCTIONIST) and his moral view that this would lead to unjust result Justice Keen Uphold Conviction-Strict Statutory Constructionist Inappropriate to call for Executive Clemency (pardon) Judge’s job is to apply to letter of the law to the facts-to read the statute literally  Overturn Conviction Philosophy of Legal Realism- Justice thinks of the political and social Handy context of law Relevance of Public Opinion  Appellate judges-job is to interpret and apply past law Judges Law is either Case law-common law Statutory law-legislative enactments  Objectively and neutrally Is this possible? Judges How does subjectivity present itself reason  Judge’s opinions are grappling with Dissonance between law and morality The legal idea of necessity Mens Rea Rational choice Social contract How Legal Philosophy Shapes Judicial Decision-Making What about Judicial Discretion? How to account for Judges’ subjectivity Jerome Frank argues that judging is a psychological process-that judges reason from an intuition, a hunch. Subjectivity most vividly expressed in “sentencing.”  You’re representing a doctor, charged with murder under a similar statute, because she, at the request of her patient, suffering from early stages of Alzheimer's, helped him How would you commit suicide by injecting choose? him with cyanide What if the doctor was charged with murder under this statute because she performed an abortion on a patient who was 16 weeks pregnant? What is Law? law is a system of rules laid down by a body or person with the power and authority to make law; law is what legislators, judges, and lawyers ‘do’; law is a tool of oppression used by the ruling class to advance its own interests; and law is a system of rules grounded on fundamental principles of morality. Question A and B enter into a rental agreement. A, the lessor, wants B not to store substances that are dangerous or hazardous. B violates his commitment made in the rental agreement by storing gelatin sticks that are used in mining and quarrying operations. Is it violating the contractual terms? If so, who can seek remedy? Can third parties bring action against A or B? Functions of Law Maintenance of Protection of Organisation and Public Order and individual rights and control of the Safety liberties political sphere Regulation of the Regulation of human The Preservation of a economic activity relationships moral order Regulation of International Relations 2. Legal Institutions and processes Topics Covered Legal Systems Alternative Dispute Resolution  The three major legal systems of the world today consist of Continental legal system (civil law) Three major Anglo-American legal system (common law) legal systems Religious legal systems Each country often develops variations on each system or incorporates many other features into the system. Common Law System Anglo-American legal system Common law legal systems are in Common law is law developed by judges widespread use, particularly in England through decisions of courts and similar where it originated in the Middle Ages, tribunals (called case law), rather than and in nations that trace their legal through legislative statutes or executive heritage to England as former colonies of action, and to corresponding legal the British Empire, including the United systems that rely on precedential case States, Singapore, Pakistan, India, Ghana, law. Cameroon, Canada, Ireland, New Zealand, South Africa, Hong Kong and Australia History of the common law The term "common law" originally developed after the Norman Conquest of England Prior to that local courts applied local traditional customs If unable to decide, then crude methods were employed to determine guilt. Local person is local courts, applied local customs to decide issues, multiple counties had multiple systems. Nothing recorded Henry II 1154, institutionalized common law through a unified court system common to the entire British Isles. Ended local control, eliminated arbitrariness, brought in travelling judges who would move in circuits and decide cases in different parts of the country History of the common law Started recording judgments and giving reasons, became a practice wherein important judgements were referred to in the subsequent cases, called later as precedent. Resulted in the common law system. Stare decisis meaning ‘let the decision stand’, meaning once a decision is made by a higher court, it should be followed by lower courts in future cases. History of the common law A hierarchy of courts Precedent system relies on three Binding decisions elements Reliable law reporting The "common law" was the law that the whole country had in common, rather than particular tribal laws that might apply between smaller communities The doctrine of precedent developed in England during the 12th and 13th centuries Basic principles of common law The common law is more flexible than statutory law Common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy The common law evolves through a series of gradual steps, that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects Interaction of statutory and case law In almost all areas of the law (even those where there is a statutory framework, such as contracts for the sale of goods or the criminal law), legislature-enacted statutes, which generally gives only terse statements of general principle, and the fine boundaries and definitions exist only in the common law In common law jurisdictions, legislatures operate under the assumption that statutes will be interpreted against the backdrop of the pre-existing common law and custom Continental Legal System Continental legal system Derived from the word jus civile, meaning the laws that only the Roman citizens were originally privileged to enjoy. It is a legal system inspired by Roman law, the primary feature of which is that laws are written into a collection, codified, and not determined, as in common law, by judges. The principle of this system is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow. It is the most prevalent and oldest surviving legal system in the world. Continental legal system is sometimes inappropriately referred to as Roman law or otherwise called Romano-Germanic law, especially by people under its jurisdiction.  History The concept of codification dates back to the Code of Hammurabi in ancient Babylon. Jus civile was interpreted strictly and it barely covered all aspects of life. If jus civile did not cover a particular act then justice was rendered by Roman Magistrates who would interpret liberal values to deliver justice.  Subsequently, Emperor Justinian during the Middle Ages attempted to compile all the laws and decisions into a codified set of laws The acceptance of Roman law had different characteristics in different countries. In some of them its effect resulted from legislative act - it became positive law, whereas in other ones it became accepted by way of its processing by legal theorists. Pope Gregory Receiving Canon Law (Stanza della Segnatura)  Codification The concept of codification was further developed during the 17th and 18th century, as an expression of both Natural Law and the ideas of the Enlightenment. The political ideal of that era was expressed by the concepts of democracy, protection of property and the rule of law. That ideal required the creation of certainty of law, through the recording of law and through its uniformity. So, the mix of Roman law and customary (local) law ceased to exist, and the road opened for law codification, which could contribute to the aims of the above mentioned political ideal. The French Napoleonic Code of 1804, Austrian civil code of 1811 and the German civil code of 1900 were the most influential national civil codes. Subgroups However, since continental European traditions are by no means uniform, scholars of comparative law usually subdivide civil law into four distinct groups: French civil law – in France, Belgium, Luxembourg, Quebec (Canada), Louisiana (USA), Italy, Spain and former colonies of those countries German civil law – in Germany, Switzerland, Brazil, Portugal, Turkey, Japan, South Korea, China Austrian civil law – in Austria, Czech republic, Slovakia, Greece, Serbia, Romania Scandinavian civil law – in Sweden, Denmark, Finland, Iceland, Norway Religious legal systems Religious law refers to The main kinds of the notion of a religious religious law are Sharia system or document in Islam, Halakha in being used as a legal Judaism, and Canon law source in some Christian groups  Mixed legal systems Mixed legal systems Israel's legal system are mostly defined as combines English the combination of Examples - Israel common law, civil law, civil law and common and Jewish law law Compare common law /civil law Civil Law Common Law a. Code as the basis of civil law. Not a. Judicial decision (precedent) bound by precedent. b. Statutes as particular rules b. Statutes as general principles c. Adversarial c. Inquisitorial difference Civil law Common law a. Judges through training a. Judges through appointment b. Searches for the general principle b. From Precedent to facts of the enshrined in the statute and case. applies it to the specific facts of the c. Common law jury trial: facts to be case determined by the jury, while judge c. No jury trial determines the law.  Adversarial Inquisitorial 1. The responsibility for The typical proceeding is divided into 3 phases: gathering evidence rests the investigation phase, the examining phase, and the trial. with the parties (the In the investigative phase, a government official Police and the defence). (generally the public prosecutor) collects evidence and decides whether to press charges. Prosecutors carry out investigations themselves or request Police to do so. The prosecution can give general instructions to the Police regarding how particular cases are to be handled and can set areas of priority for investigations. In some inquisitorial systems, a Judge may carry out or oversee the investigative phase. Adv…. Inq… There is no The examining phase is usually conducted in examination phase, writing. An examining Judge completes and reviews the written record and decides so an independent whether the case should proceed to trial. evaluation of the evidence collected The examining Judge plays an active role in the collection of evidence and interrogation during investigation is of witnesses. In some inquisitorial systems, left to the trial. the “legality principle” dictates that prosecution must take place in all cases in which sufficient evidence exists (ie, the prosecutor or Judge has limited discretion as to whether or not charges will be brought). Trial Phase Adv… Inq…. An adversarial system requires the As a result of the thoroughness of the prosecutor, acting on behalf of the examining phase, a record of evidence has State, and the defence lawyer, acting already been made and is equally available to on behalf of the accused, to offer their the prosecution and defence well in advance version of events and argue their case before an impartial adjudicator (a of the trial. Judge and/or jury). The main function of a trial is to present the Each witness gives their evidence-in- case to the trial Judge chief (orally) and may be cross- While there is no cross- and re-examination of examined by opposing counsel and re- examined. witnesses, witnesses are still questioned and challenged. In Germany there is a preference for narrative testimony, in which the witness gives their version of events without shaping by questions from the prosecution or defence. Role of Judges Adv.. Inq… The Judge is a referee at the Judges are required to direct the courtroom debate hearing. It is the Judge’s function and to come to a final decision. to ensure that the court case is conducted in a manner that The Judge assumes the role of principal interrogator of observes due process. The Judge witnesses and the defendant, and is under an decides whether the defendant is obligation to take evidence until he or she ascertains guilty beyond reasonable doubt. the truth. except in jury trials where the It is the Judge that carries out most of the jury performs that role) and examination of witnesses, arising from their obligation determines the sentence. to inquire into the charges and to evaluate all relevant Lawyers are primarily responsible evidence in reaching their decision. for introducing evidence and questioning witnesses. However, it is now accepted that the defence should have the right to confront each witness during at least one stage in the proceedings. Rules of Evidence Adv… Inq…. Evidence which is The rules around admissibility of prejudicial is more likely evidence are significantly more lenient. The absence of juries in many to be withheld from cases alleviates the need for many juries (who don’t have formal rules of evidence. More training on the weight evidence is likely to be admitted, that should be given to regardless of its reliability or certain evidence). prejudicial effect. Evidence is admitted if the Judge decides it is relevant. Hearsay not allowed In many inquisitorial systems, there is no hearsay rule (eg, France, Belgium and Germany). It is up to the Judge to decide the value of such testimony.  Role of the victim Adv.. Inq… The victim generally has a more recognised role in inquisitorial systems – they usually have the status of a party to proceedings. Victims are not a party to In some jurisdictions, victims have a formal proceedings. role in the pre-trial investigative stage, including a recognised right to request particular lines of inquiry or to participate in interviews by the investigating authority. Prosecutors act on behalf At the trial, they generally have of the State and do not independent standing and some represent the victim. jurisdictions allow victims to be represented by their own lawyer. Private Law v Public Law Private Law Public Law Law that applies to people in Areas of law involving public their relations with each other bodies or public officials are required to do something that cannot be done or executed by a Example: Contract Law private person. Essential Commodities Act Licensing Music, patents, Constitution merchandise Civil Law v Criminal Law Civil Law Criminal Law Civil laws in a generic Criminal law is the law that sense mean an injury or relates to crime and its related punishments. Criminal law deals harm caused to an with offences that are against individual or any other conventional society. It is a private property crime against the state because (corporation) by the act of the evil nature of the crime and every member of society or the behaviour of any must know the heinous crime other person. committed and the equivalent punishment given to the accused. Civil Law v Criminal Law Civil Law Criminal Law It creates a private liability against It creates a liability for the an individual or an organisation. preparator against society and the victim. Monetary Relief punishment is meted out as per the seriousness of the criminal offence Example: Negligence, Accident, committed or a fine could Trespass, breach of contract be imposed. Example: Assault, Murder Substantive Law v Procedural Law Substantive Law Procedural Law Matters of Substance, Substantive Law Matters of procedure. deals with is a Statutory Law that defines and the enforcement of law that is determines the rights and obligations guided and regulated by the of the citizens to be protected by law practice, procedure and machinery. This law is very important in Example: Law of Contract, Law of administration of justice. Property, Specific Relief Act Example: The Code of Civil Procedure, 1908; Code of Criminal Procedure, 1973;Indian Evidence Act, 1872; Limitation Act, 1963 Substantive Law v Procedural Law Substantive Law Procedural Law The Substantive law defines and Procedural law lays down the determines the obligations and method of aiding, the steps and rights of people and legal entities procedures for enforcement of Law- Civil and Criminal. International Law v Municipal Law International Law Municipal Law Laws that binds countries and individuals through treaties. Laws of a particular country Treaties are agreements between two or more states. Some countries have a system wherein the moment it ratifies an Drafting international treaty, it becomes a law within that country (Monism) Signature Other countries require a separate Ratification (approval at home) law to be passed within that country for the treaty to come into Reservation (CEDAW, UK succession to throne) force in that country (Dualism). 3. Role of Juries THE JURY SYSTEM What is a jury? JURY- is a panel of everyday citizens that are summoned by a court to determine the verdict of a case in which one of their peers from society is on trial. Jury duty- is part of the responsibility as citizens & are fined if they do not attend when you are called for duty. Before there were juries, there were three general methods of “trial…” Wager of Law Accused person took an oath, swearing to a fact If someone with a good reputation swore they were innocent, they were acquitted! (found not guilty)  Compurgation If others swore against the accused, the accused had to bring in 11 supporters (compurgators) These 12 people (including the accused) took an oath as character witnesses. If accused was found guilty, compurgators could also be punished! Trial by Ordeal Used primarily in criminal cases in offenses against the king, state or church Repeat offenders, or an accused who could not get 11 compurgators, had to endure some sort of physical test to determine guilt or innocence Problem – usually, innocence resulted in bodily harm or even death Development of Trial by Jury After trials by ordeal Juries were used primarily in civil cases Juries could be manipulated by rulers, so… The church supported impartiality of jurors Example: Composition of the Jury in US Criminal there are 12 jurors Civil there are 6 jurors, however they are optional in a civil case, either the defendant or plaintiff must request to have their case heard by a jury. The cost of the jury is borne by the parties in the case, not taxpayers like in a criminal case. Role of the jury The main role of the jury is to hear ALL the evidence presented from both parties within the courtroom and come to either a majority** or unanimous decision regarding the guilt/liability of the defendant on trial. They DO NOT decide on the sanction given if found guilty in a criminal trial, however they can determine the amount of damages awarded if present in a civil case. *Majority decisions are not accepted in murder trials and some drug offences unless after 6 hours the jury cannot reach a unanimous decision. Jury Selection Stage 1: Jury districts & the jury list roll The names of potential jurors are selected from the register of electors for the jury district in which the case is being held. The juries commissioner estimates the number of jurors required in each of the jury districts and informs the Electoral Commissioner.  The juries commissioner then prepares a draft jury roll from the people listed on the register of electors (electoral roll) Stage 2: Pre-selection of jurors Juries commissioner sends a “Notice of Jury Selection” & questionnaire to all people who have been randomly selected from the electoral roll. Must be answered & returned within 14 days. Questionnaire helps determine eligibility for jury service. Who is eligible to serve on a jury panel? Many individuals are not able to serve on a jury because they are either considered to be; INELIGIBLE DISQUALIFIED or EXCUSED Ineligible... People who are too closely related or involved in the court process. Eg: police, lawyers, court reporters or judges. ALSO People who have a disability which would render them incapable of jury service eg: intellectual disability, people who are deaf or blind, and people that cannot speak English. Disqualified... Individual who has been sentenced to at least 3 years imprisonment as a result of committing an offence. People on remand at the time of call for jury duty. A person who has been declared bankrupt. Excused... Excused for good reason: a person can apply to juries commissioner to be excused for jury service for a good reason; -Illness/poor health -Incapacity -Substantial hardship would result -Substantial financial hardship -Advanced age -Substantial inconvenience to public would result.  Excused permanently: person can apply to juries commissioner to be permanently excused due to; Continued poor health Disability Advanced age Stage 3: Panel preparation Responses to questionnaires are screened for those who are eligible for jury service. A list of potential jurors is drawn up. Stage 4: Summoning the jurors Individuals receive a summons not less than 10 days before they are required to appear in court. Not all people summoned at this stage will actually serve on a jury panel.  Jury pool Members of the jury pool are selected for every case at random through a ballot. The name and occupation of every potential juror is written onto the card. A card for each juror is placed in the ballot box, and when the jurors name is read out, are allocated to the relevant courtroom. THE INDIVIDUAL IS STILL NOT A MEMBER OF THE JURY AT THIS STAGE! Jury Panel After members have been allocated courtrooms, a card for each juror is again placed into a ballot box. Members will be told: Type of action Name of the accused Names of the principal witnesses Estimated length of the trial Any other relevant information.  The judge’s associate then draws out a card and states the jurors name and occupation. The selected juror is asked to walk across the courtroom, pass the defendant in the dock and take their place in the jury box. This will continue until the required number of jurors are selected.  Challenging a juror Both the defendant and the prosecution in a criminal case can challenge a potential juror. Both sides have the ability to challenge 6 individuals & can challenge a potential juror with cause unlimited times. Challenge with cause. Either party may challenge a potential juror with a good reason as to why they don’t feel as though that individual should serve on the jury. These challenges are RARE. Peremptory Challenge. Either party can Each side is able to challenge or strike do this 6 times for a out a potential juror criminal case & 3 for no reason at all. times for a civil case. Evaluating the effectiveness of the jury Strengths Weaknesses Encourages contemporary values in the Can be influenced by bias or prejudice or open courtroom to manipulation by barristers Encourages less legal jargon, easier for parties May not understand complex evidence or legal & public to understand arguments Regular people may experience & learn about May be influenced by the media, bring the legal system assumptions or inadmissible evidence Check on the power of the government so they Untrained and unqualified people making protect the people important decisions Using 12/6 peers spreads responsibility of No guarantee that jury will be true peers, esp if decision-making accused is in the minority Jurors represent cross-section of the True cross-section not present due to excused, community ineligible, disqualified etc Majority verdict in most cases, shows Lack of unanimous decision shows doubt, confidence in decision & efficient undermines standard of proof Deliberate in secret so are not subject to No reasons so no way of knowing whether it influence or bribery was fair and correct Verdicts may contradict the law or facts if it is Verdicts not subject to precedent, hard to the most fair decision appeal so shows lack of consistency & accountability