Challenge.—It has always been permissible for the parties to challenge the jurors summoned to consider indictments or to try cases. Both in civil and criminal cases a challenge “for cause” is allowed; in criminal cases a peremptory challenge is also allowed. Challenge “for cause” may be either to the array, i.e. to the whole number of jurors returned, or to the polls, i.e. to the jurors individually. A challenge to the array is either a principal challenge (on the ground that the sheriff is a party to the cause, or related to one of the parties), or a challenge for favour (on the ground of circumstances implying “at least a probability of bias or favour in the sheriff”). A challenge to the polls is an exception to one or more jurymen on either of the following grounds: (1) propter honoris respectum, as when a lord of parliament is summoned; (2) propter defectum, for want of qualification; (3) propter affectum, on suspicion of bias or partiality; and (4) propter delictum, when the juror has been convicted of an infamous offence. The challenge propter affectum is, like the challenge to the array, either principal challenge or “to the favour.” In England as a general rule the juror may be interrogated to show want of qualification; but in other cases the person making the challenge must prove it without questioning the juror, and the courts do not allow the protracted examination on the voir dire which precedes every cause célèbre in the United States. On indictments for treason the accused has a right peremptorily to challenge thirty-five of the jurors on the panel; in cases of felony the number is limited to twenty, and in cases of misdemeanour there is no right of peremptory challenge. The Crown has not now the right of peremptory challenge and may challenge only for cause certain (Juries Act 1825, s. 29). In the case of felony, on the first call of the list jurors objected to by the Crown are asked to stand by, and the cause of challenge need not be assigned by the Crown until the whole list has been perused or gone through, or unless there remain no longer twelve jurors left to try the case, exclusive of those challenged. This arrangement practically amounts to giving the Crown the benefit of a peremptory challenge.
Function of Jury.—The jurors were originally the mouthpiece of local opinion on the questions submitted to them, or witnesses to fact as to such questions. They have now become the judges of fact upon the evidence laid before them. Their province is strictly limited to questions of fact, and within that province they are still further restricted to matters proved by evidence in the course of the trial and in theory must not act upon their own personal knowledge and observation except so far as it proceeds from what is called a “view” of the subject matter of the litigation. Indeed it is now well established that if a juror is acquainted with facts material to the case, he should inform the court so that he may be dismissed from the jury and called as a witness; and Lord Ellenborough ruled that a judge would misdirect the jury if he told them that they might reject the evidence and go by their own knowledge. The old decantatum assigns to judge and jury their own independent functions: Ad quaestionem legis respondent judices: ad quaestionem facti juratores (Plowden, 114). But the independence of the jurors as to matters of fact was from an early time not absolute. In certain civil cases a litigant dissatisfied by the verdict could adopt the procedure by attaint, and if the attaint jury of twenty-four found that the first jury had given a false verdict, they were fined and suffered the villainous judgment. Attaints fell into disuse on the introduction about 1665 of the practice of granting new trials when the jury found against the weight of the evidence, or upon a wrong direction as to the law of the case.
In criminal cases the courts attempted to control the verdicts by fining the jurors for returning a verdict contra plenam et manifestam evidentiam. But this practice was declared illegal in Bushell’s case (1670); and so far as criminal cases are concerned the independence of the jury as sole judges of fact is almost absolute. If they acquit, their action cannot be reviewed nor punished, except on proof of wilful and corrupt consent to “embracery” (Juries Act 1825, s. 61). If they convict no new trial can be ordered except in the rare instances of misdemeanours tried as civil cases in the High Court. In trials for various forms of libel during the 18th century, the judges restricted the powers of juries by ruling that their function was limited to finding whether the libel had in fact been published, and that it was for the court to decide whether the words published constituted an offence.[7] By Fox’s Libel Act 1792 the jurors in such cases were expressly empowered to bring in a general verdict of libel or no libel, i.e. to deal with the whole question of the meaning and extent of the incriminated publication. In other words, they were given the same independence in cases of libel as in other criminal cases. This independence has in times of public excitement operated as a kind of local option against the existing law and as an aid to procuring its amendment. Juries in Ireland in agrarian cases often acquit in the teeth of the evidence. In England the independence of the jury in criminal trials is to some extent menaced by the provisions of the Criminal Appeal Act 1907.
While the jury is in legal theory absolute as to matters of fact, it is in practice largely controlled by the judges. Not only does the judge at the trial decide as to the relevancy of the evidence tendered to the issues to be proved, and as to the admissibility of questions put to a witness, but he also advises the jury as to the logical bearing of the evidence admitted upon the matters to be found by the jury. The rules as to admissibility of evidence, largely based upon scholastic logic, sometimes difficult to apply, and almost unknown in continental jurisprudence, coupled with the right of an English judge to sum up the evidence (denied to French judges) and to express his own opinion as to its value (denied to American judges), fetter to some extent the independence or limit the chances of error of the jury.
“The whole theory of the jurisdiction of the courts to interfere with the verdict of the constitutional tribunal is that the court is satisfied that the jury have not acted reasonably upon the evidence but have been misled by prejudice or passion” (Watt v. Watt (1905), App. Cas. 118, per Lord Halsbury). In civil cases the verdict may be challenged on the ground that it is against the evidence or against the weight of the evidence, or unsupported by any evidence. It is said to be against the evidence when the jury have completely misapprehended the facts proved and have drawn an inference so wrong as to be in substance perverse. The dissatisfaction of the trial judge with the verdict is a potent but not conclusive element in determining as to the perversity of a verdict, because of his special opportunity of appreciating the evidence and the demeanour of the witnesses. But his opinion is less regarded now that new trials are granted by the court of appeal than under the old system when the new trial was sought in the court of which he was a member.
The appellate court will not upset a verdict when there is substantial and conflicting evidence before the jury. In such cases it is for the jury to say which side is to be believed, and the court will not interfere with the verdict. To upset a verdict on the ground that there is no evidence to go to the jury implies that the judge at the trial ought to have withdrawn the case from the jury. Under modern procedure, in order to avoid the risk of a new trial, it is not uncommon to take the verdict of a jury on the hypothesis that there was evidence for their consideration, and to leave the unsuccessful party to apply for judgment notwithstanding the verdict. The question whether there was any evidence proper to be submitted to the jury arises oftenest in cases involving an imputation of negligence—e.g. in an action of damages against a railway company for injuries sustained in a collision. Juries are somewhat ready to infer negligence, and the court has to say whether, on the facts proved, there was any evidence of negligence by the defendant. This is by no means the same thing as saying whether, in the opinion of the court, there was negligence. The court may be of opinion that on the facts there was none, yet the facts themselves may be of such a nature as to be evidence of negligence to go before a jury. When the facts proved are such that a reasonable man might have come to the conclusion that there was negligence, then, although the court would not have come to the same conclusion, it must admit that there is evidence to go before the jury. This statement indicates existing practice but scarcely determines what relation between the facts proved and the conclusion to be established is necessary to make the facts evidence from which a jury may infer the conclusion. The true explanation is to be found in the principle of relevancy. Any fact which is relevant to the issue constitutes evidence to go before the jury, and any fact, roughly speaking, is relevant between which and the fact to be proved there may be a connexion as cause and effect (see [Evidence]). As regards damages the court has always had wide powers, as damages are often a question of law. But when the amount of the damages awarded by a jury is challenged as excessive or inadequate, the appellate court, if it considers the amount unreasonably large or unreasonably small, must order a new trial unless both parties consent to a reduction or increase of the damages to a figure fixed by the court; see Watt v. Watt (1905), App. Cas. 115.
Value of Jury System.—The value of the jury in past history as a bulwark against aggression by the Crown or executive cannot be over-rated, but the working of the institution has not escaped criticism. Its use protracts civil trials. The jurors are usually unwilling and are insufficiently remunerated; and jury trials in civil cases often drag out much longer and at greater expense than trials by a judge alone, and the proceedings are occasionally rendered ineffective by the failure of the jurors to agree.
There is much force in the arguments of Bentham and others against the need of unanimity—the application of pressure to force conviction on the minds of jurors, the indifference to veracity which the concurrence of unconvinced minds must produce in the public mind, the probability that jurors will disagree and trials be rendered abortive, and the absence of any reasonable security in the unanimous verdict that would not exist in the verdict of a majority. All this is undeniably true, but disagreements are happily not frequent, and whatever may happen in the jury room no compulsion is now used by the court to induce agreement.
But, apart from any incidental defects, it may be doubted whether, as an instrument for the investigation of truth, the jury system deserves all the encomiums which have been passed upon it. In criminal cases, especially of the graver kind, it is perhaps the best tribunal that could be devised. There the element of moral doubt enters largely into the consideration of the case, and that can best be measured by a popular tribunal. Opinion in England has hitherto been against subjecting a man to serious punishment as a result of conviction before a judge sitting without a jury, and the judges themselves would be the first to deprecate so great a responsibility, and the Criminal Appeal Act 1907, which constituted the court of criminal appeal, recognized the responsibility by requiring a quorum of three judges in order to constitute a court. The same act, by permitting an appeal to persons convicted on indictment both on questions of fact and of law, removed to a great extent any possibility of error by a jury. But in civil causes, where the issue must be determined one way or the other on the balance of probabilities, a single judge would probably be a better tribunal than the present combination of judge and jury. Even if it be assumed that he would on the whole come to the same conclusion as a jury deliberating under his directions, he would come to it more quickly. Time would be saved in taking evidence, summing up would be unnecessary, and the addresses of counsel would inevitably be shortened and concentrated on the real points at issue. Modern legislation and practice in England have very much reduced the use of the jury both in civil and criminal cases.
In the county courts trial by jury is the exception and not the rule. In the court of chancery and the admiralty court it was never used. Under the Judicature Acts many cases which in the courts of common law would have been tried with a jury are now tried before a judge alone, or (rarely) with assessors, or before an official referee. Indeed cynics say that a jury is insisted on chiefly in cases when a jury, from prejudice or other causes, is likely to be more favourable than a judge alone.