Editing Jury trial (section)

==History==
{{See also|Jury#Historical roots}}

===Greece===
[[History of Athens|Ancient Athens]] had a mechanism, called ''dikastaí'', to assure that no one could select jurors for their own trial. For normal cases, the courts were made up of ''dikastai'' of up to 500 citizens.<ref>{{cite book|last=Samons|first=Loren J.|title=The Cambridge companion to the Age of Pericles|url=https://books.google.com/books?id=QAePZ_Z1WkC&pg=PA244 |access-date=2010-12-08|year=2007|publisher=Cambridge University Press|pages=244, 246|isbn=978-0-521-80793-7}}</ref> For capital cases—those that involved death, loss of liberty, exile, loss of civil rights, or seizure of property—the trial was before a jury of 1,001 to 1,501 ''[[Dikastes|dikastai]]''. In such large juries, they rule by majority. Juries were appointed by lot. Jurists cast a ceramic disk with an axle in its middle: the axle was either hollow or solid. Thus the way they voted was kept secret because the jurists would hold their disk by the axle by thumb and forefinger, thus hiding whether its axle was hollow or solid. Since Periclean times, jurists were compensated for their sitting in court, with the amount of one day's wages.

The institution of trial by jury was ritually depicted by [[Aeschylus]] in ''[[The Eumenides]]'', the third and final play of his ''[[Oresteia]]'' trilogy. In the play, the innovation is brought about by the goddess [[Athena]], who summons twelve citizens to sit as jury. The god [[Apollo]] takes part in the trial as the advocate for the defendant [[Orestes]] and the [[Erinyes|Furies]] as prosecutors for the slain [[Clytemnestra]]. In the event the jury is [[hung jury|split six to six]], Athena dictates that the verdict should henceforth be for acquittal.

===Roman Republic and Empire===
From the beginning of the republic and in the majority of civil cases towards the end of the empire, there were tribunals with the characteristics of the jury in the sense that Roman judges were civilian, lay and not professionals. Capital trials were held in front of hundreds or thousands of 'juries' in the commitias or centuries, the same as in Athenian  trials. Roman law provided for the yearly selection of judices, who would be responsible for resolving disputes by acting as jurors, with a [[praetor]] performing many of the duties of a judge. High government officials and their relatives were barred from acting as judices, due to conflicts of interest. Those previously found guilty of serious crimes (felonies) were also barred as were gladiators for hire, who likely were hired to resolve disputes through [[trial by combat]]. The law was as follows:

{{Blockquote|The peregrine praetor (literally, traveling judge) within the next ten days after this law is passed by the people or plebs shall provide for the selection of 450 persons in this State who have or have had a knight's census&nbsp;... provided that he does not select a person who is or has been plebeian tribune, quaestor, triumvir capitalis, military tribune in any of the first four legions, or triumvir for granting and assigning lands, or who is or has been in the Senate, or who has fought or shall fight as a gladiator for hire&nbsp;... or who has been condemned by the judicial process and a public trial whereby he cannot be enrolled in the Senate, or who is less than thirty or more than sixty years of age, or who does not have his residence in the city of Rome or within one mile of it, or who is the father, brother, or son of any above-described magistrate, or who is the father, brother, or son of a person who is or has been a member of the Senate, or who is overseas.<ref>Acilian Law on the Right to Recovery of Property Officially Extorted, 122&nbsp;B.C. http://avalon.law.yale.edu/ancient/acilian_law.asp</ref>}}

===Islamic law===
In classical [[fiqh|Islamic jurisprudence]], litigants in court may obtain [[notarized]] statements from between three and twelve witnesses. When the statements of all witnesses are consistent, the notaries will certify their unanimous testimony in a legal document, which may be used to support the litigant's claim.<ref>{{cite book|title=The Justice of Islam|pages=7–9|author=Lawrence Rosen|publisher=Oxford University Press|year=2000|isbn=9780198298847}}</ref> The notaries serve to free the [[qadi|judge]] from the time-consuming task of hearing the testimony of each eyewitness himself, and their documents serve to legally authenticate each oral testimony.<ref>{{cite book|title=The Expert Witness in Islamic Courts|year=2010|publisher=University of Chicago Press|author=Ron Shaham|pages=4–8|isbn=9780226749358}}</ref> The [[Maliki]] school of Islamic jurisprudence requires two notaries to collect a minimum of twelve eyewitness statements in certain legal cases, including those involving unregistered marriages and land disputes.<ref>{{cite book|title=Positive Law from the Muslim World|author=Baudouin Dupret|year=2021|isbn=9781108960137|pages=205–210|publisher=Cambridge University Press}}</ref><ref>{{cite book|title=Property, Social Structure, and Law in the Modern Middle East|year=1985|pages=54–64|editor=Ann Elizabeth Mayer|publisher=[[SUNY]] Press|isbn=9780873959889}}</ref> John Makdisi has compared this to [[English Common Law]] jury trials under King [[Henry II of England|Henry II]], surmising a link between the king’s reforms and the legal system of the [[Kingdom of Sicily]].<ref name="Rodhan">{{cite book|last1=Al-Rodhan |first1=Nayef R. F. |title=The Role of the Arab-Islamic World in the Rise of the West: Implications for Contemporary Trans-Cultural Relations |date=2012 |publisher=Palgrave Macmillan |isbn=978-0-230-39320-2 |page=73 |url=https://books.google.com/books?id=n4OpT4ZP278C |access-date=25 May 2020 |language=en}}</ref><ref name="Makdisi">{{cite journal |last1=Makdisi |first1=John |title=The Islamic Origins of the Common Law |journal=North Carolina Law Review |date=1 June 1999 |volume=77 |issue=5 |pages=1635 |url=https://scholarship.law.unc.edu/nclr/vol77/iss5/2/ |access-date=25 May 2020}}</ref>

=== Holy Roman Empire and modern Germany ===
A [[Swabia]]n ordinance of 1562 called for the summons of jurymen (''{{lang|de|urtheiler}}''), and various methods were in use in [[Emmendingen]], [[Oppenau]], and [[Oberkirch (Baden)|Oberkirch]].{{sfn|Forsyth|1852|p=369}} [[Hauenstein]]'s charter of 1442 secured the right to be tried in all cases by 24 fellow equals, and in [[Freiburg im Breisgau|Freiburg]] the jury was composed of 30 citizens and councilors.{{sfn|Forsyth|1852|p=370}} The modern jury trial was first introduced in the [[Rhineland|Rhenish provinces]] in 1798, with a court consisting most commonly of 12 citizens (''{{lang|de|[[:wiktionary:Bürger|Bürger]]}}'').{{sfn|Forsyth|1852|p=369}}

The system whereby citizens were tried by their peers chosen from the entire community in open court was gradually superseded by a system of professional judges<ref>{{Cite book|title=History of Trial by Jury|last=Forsyth|first=William|publisher=Nabu Press|year=2010|isbn=978-1141968268}}</ref>{{citation needed|date=August 2016}} in Germany, in which the process of investigation was more or less confidential and judgements were issued by judges appointed by the state.{{sfn|Forsyth|1852|p=371}} In [[Konstanz|Constance]] the jury trial was suppressed by decree of the [[Habsburg monarchy]] in 1786.{{sfn|Forsyth|1852|p=370}} The [[Frankfurt Constitution]] of the failed [[German revolutions of 1848–49|Revolutions of 1848]] called for jury trials for "the more serious crimes and all political offenses",{{sfn|Casper|Zeisel|1972|p=137}} but was never implemented after the [[Frankfurt Parliament]] was dissolved by [[Württemberg]] [[dragoon]]s. An 1873 draft on criminal procedure produced by the [[Prussia]]n Ministry of Justice proposed to abolish the jury and replace it with the mixed system, causing a significant political debate.{{sfn|Casper|Zeisel|1972|p=139}} In the [[Weimar Republic]] the jury was abolished by the [[Emminger Reform]] of 4 January 1924.{{sfn|Kahn-Freund|1974|loc=footnote 73, p. 18}}

Between 1948 and 1950 in [[Allied-occupied Germany|American-occupied Germany]] and the [[West Germany|Federal Republic of Germany]], [[Bavaria]] returned to the jury trial as it had existed before the 1933 emergency decrees,{{sfn|Casper|Zeisel|1972|p=141}}{{sfn|Vogler|2005|p=245}} but they were again abolished by the 1950 Unification Act (''{{lang|de|Vereinheitlichungsgesetz}}'') for the Federal Republic. In 1979, the United States tried the East German [[LOT Polish Airlines Flight 165 hijacking|LOT Flight 165 hijacking]] suspects in the [[United States Court for Berlin]] in West Berlin, which declared the defendants had the right to a jury trial under the [[United States Constitution]], and hence were tried by a West German jury.

===England and Wales===
{{main|Juries in England and Wales}}
[[File:Trial by Jury Usher.jpg|thumb|Drawing from a 1920 edition of [[W. S. Gilbert]]'s ''[[Bab Ballads]]'']]

According to [[G. M. Trevelyan|George Macaulay Trevelyan]] in ''A Shortened History of England'', during the [[Vikings|Viking]] occupation:

{{quote|"The Scandinavians, when not on the Viking warpath, were a litigious people and loved to get together in the ''[[Thing (assembly)|thing]]'' [governing assembly] to hear legal argument. They had no professional lawyers, but many of their farmer-warriors, like [[Njáll Þorgeirsson]], the truth-teller, were learned in folk custom and in its intricate judicial procedure. A Danish town in England often had, as its main officers, twelve hereditary 'law men.' The Danes introduced the habit of making committees among the free men in court, which perhaps made England favorable ground for the future growth of the jury system out of a Frankish custom later introduced by the Normans."}}

The English king [[Æthelred the Unready]] set up an early legal system through the [[Wantage Code]] of Ethelred, one provision of which stated that the twelve leading [[thegn]]s (minor nobles) of each [[Hundred (county division)|wapentake]] (a small district) were required to swear that they would investigate crimes without a bias. These juries differed from the modern sort by being self-informing; instead of getting information through a trial, the jurors were required to investigate the case themselves.<ref>{{cite web|url=http://www.britannia.com/history/narsaxhist2.html |title=Narrative History of England |publisher=Britannia.com |access-date=2008-09-06}}</ref>

In the 12th century, [[Henry II of England|Henry II]] took a major step in developing the jury system. Henry II set up a system to resolve land disputes using juries. A jury of twelve free men were assigned to arbitrate in these disputes. As with the Saxon system, these men were charged with uncovering the facts of the case on their own rather than listening to arguments in court. Henry II also introduced what is now known as the "[[grand jury]]" through his [[Assize of Clarendon]]. Under the assize, a jury of free men was charged with reporting any crimes that they knew of in their [[Hundred (county division)|hundred]] to a "justice in eyre", a judge who moved between hundreds on a circuit. A criminal accused by this jury was given a [[trial by ordeal]].

The Church banned participation of clergy in trial by ordeal in 1215. Without the legitimacy of religion, trial by ordeal collapsed.<ref>{{Cite news |date=2019-02-09 |title=Trial by ordeal: When fire and water determined guilt |language=en-GB |work=BBC News |url=https://www.bbc.com/news/uk-45799443 |access-date=2022-06-07}}</ref> The juries under the assizes began deciding guilt as well as providing accusations. The same year, trial by jury became an explicit right in one of the most influential clauses of [[Magna Carta]]. Article 39 of Magna Carta read:

{{blockquote|{{Lang|la|Nullus liber homo capiatur, vel imprisonetur, aut desseisetur de libero tenemento, vel libertatibus, vel liberis consuetudinibus suis, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae.}}}}

It is translated thus by [[Lysander Spooner]] in his ''Essay on the Trial by Jury'':

{{blockquote|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.}}

Although it says "and or by the law of the land", this in no manner can be interpreted as if it were enough to have a positive law, made by the king, to be able to proceed legally against a citizen. The law of the land was the [[Custom (law)|consuetudinary law]], based on the customs and consent of John's subjects, and since they did not have Parliament in those times, this meant that neither the king nor the barons could make a law without the consent of the people.

According to some sources,{{who|date=April 2021}} in the time of Edward III, "by the law of the land" had been substituted "by due process of law", which in those times was a trial by twelve peers.

In 1215, Magna Carta<ref>[http://www.fordham.edu/halsall/source/magnacarta.html Magna Carta of 1215]</ref> further secured defendants the right to a judgement of "reputable men of the neighbourhood"/"their equals" by stating that

{{Blockquote|For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a husbandman the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood.

Earls and barons shall be fined only by their equals, and in proportion to the gravity of their offence.

To any man whom we have deprived or dispossessed of lands, castles, liberties, or rights, without the lawful judgement of his equals, we will at once restore these.

If we have deprived or dispossessed any Welshmen of lands, liberties, or anything else in England or in Wales, without the lawful judgement of their equals, these are at once to be returned to them. A dispute on this point shall be determined in the Marches by the judgement of equals. English law shall apply to holdings of land in England, Welsh law to those in Wales, and the law of the Marches to those in the Marches. The Welsh shall treat us and ours in the same way.}}

During the mid-14th century, persons who had sat on the [[presenting jury]] (i.e., in modern parlance, the [[grand jury]]) were forbidden to sit on the trial jury for that crime. ([[25 Edw. 3]]. Stat 5. c. 3) (1353). Medieval juries were self-informing, in that individuals were chosen as jurors because they either knew the parties and the facts, or they had the duty to discover them. This spared the government the cost of fact-finding.<ref>{{citation|url=http://works.bepress.com/cgi/viewcontent.cgi?article=1013&context=nancy_marder |title=Juries and Technology: Equipping Jurors for the Twenty-First Century |first=N. S. |last=Marder |publisher=Brooklyn Law Review |year=2000}}</ref> Over time, English juries became less self-informing and relied more on the trial itself for information on the case. Jurors remained free to investigate cases on their own until the 17th century. Magna Carta being forgotten after a succession of benevolent reigns (or, more probably, reigns limited by the jury and the barons, and only under the rule of laws that the juries and barons found acceptable), the kings, through the royal judges, began to extend their control over the jury and the kingdom. In [[David Hume]]'s ''History of England'', he tells something of the powers that the kings had accumulated in the times after Magna Carta, the prerogatives of the crown and the sources of great power with which these monarchs counted:

{{Blockquote|One of the most ancient and most established instruments of power was the court of [[Star Chamber]], which possessed an unlimited discretionary authority of fining, imprisoning, and inflicting corporal punishment, and whose jurisdiction extended to all sorts of offenses, contempts, and disorders, that lay not within reach of the common law. The members of this court consisted of the privy council and the judges; men who all of them enjoyed their offices during pleasure:  And when the prince himself was present, he was the sole judge, and all the others could only interpose with their advice. There needed but this one court in any government, to put an end to all regular, legal, and exact plans of liberty. For who durst set himself in opposition to the crown and ministry, or aspire to the character of being a patron of freedom, while exposed to so arbitrary a jurisdiction? I much question, whether any of the absolute monarchies in Europe contain, at present, so illegal and despotic a tribunal. While so many terrors hung over the people, no jury durst have acquitted a man, when the court was resolved to have him condemned. The practice also, of not confronting witnesses to the prisoner, gave the crown lawyers all imaginable advantage against him. And, indeed, there scarcely occurs an instance, during all these reigns, that the sovereign, or the ministers, were ever disappointed in the issue of a prosecution. Timid juries, and judges who held their offices during pleasure, never failed to second all the views of the crown. And as the practice was anciently common of fining, imprisoning, or otherwise punishing the jurors, merely at the discretion of the court, for finding a verdict contrary to the direction of these dependent judges; it is obvious, that juries were then no manner of security to the liberty of the subject.}}

The first paragraph of the act that abolished the Star Chamber repeats the clause on the right of a citizen to be judged by his peers:

{{Blockquote|WHEREAS by the great charter many times confirmed in parliament, it is enacted, That no freeman shall be taken or imprisoned, or disseised of his freehold or liberties, or free customs, or be outlawed or exiled or otherwise destroyed, and that the King will not pass upon him, or condemn him; but by lawful judgment of his peers, or by the law of the land&nbsp;...}}

In 1670 two [[Quakers]] charged with [[unlawful assembly]], [[William Penn]] and [[William Mead (merchant)|William Mead]], were found not guilty by a jury. The judge then fined the jury for [[contempt of court]] for returning a verdict contrary to their own findings of fact and removed them to prison until the fine was paid. Edward Bushel, a member of the jury, nonetheless refused to pay the fine. Bushel petitioned the [[Court of Common Pleas (England)|Court of Common Pleas]] for a writ of ''[[habeas corpus]]''. The ruling in the ''[[Bushel's Case]]'' was that a jury could not be punished simply on account of the verdict it returned.

Many [[British Empire|British]] colonies, including the [[Juries in the United States|United States]], adopted the [[England|English]] [[common law]] system in which trial by jury is an important part. Jury trials in criminal cases were a protected right in the original [[United States Constitution]] and the [[Fifth Amendment to the United States Constitution|Fifth]], [[Sixth Amendment to the United States Constitution|Sixth]], and [[Seventh Amendment to the United States Constitution|Seventh Amendment]]s of the U.S. Constitution extend the right to a jury trial for both criminal and civil matters and a grand jury for serious cases.