The Jury

The jury

In this second part of my attempt to describe and compare the U.S. and the Italian legal systems, I will try to analyze a typical institute of the common law countries, the jury, for all the trials I have observed so far were jury trials. To be honest, one was a “voir dire”, i.e. the procedure by which the future jurors are asked about their background before being chosen to sit on a jury. Despite the fact that this procedure has been declared open to the public since 2010 by the Supreme Court, it was still awkward being in court while they were selecting the jury without being a juror!

That being said, here's a little legal background.

Jury trials are significantly used in a high number of criminal cases in almost all the common law legal systems; among them, Canada and United States are the only ones to use this kind of trial also in non-criminal cases. Other common law jurisdiction use jury trials in a small and selected share of civil cases, while the use of a jury in a civil case is almost entirely absent in civil law legal systems. Nevertheless, in these countries (such as Italy, as we will see later) juries or lay judges have been incorporated into the legal systems and are currently used in some specific proceedings.

The idea of being judged by a panel of peers dates back to 12^th century England, although traces of this institute can be found in ancient Greece and Roman society. Anyway, as previously mentioned, this practice has evolved in common law systems rather than in the civil ones. Developing during the centuries hand-in-hand with the English common law system (in which it plays an important role) the jury was gradually adopted by many British colonies, U.S. included.

In general we can say that in most of the common law countries, a jury trial is a legal proceeding in which a jury finds the facts of the case while the judge determines the applicable law. The peers of the accused are responsible for hearing the dispute, evaluating the evidence and deciding on the facts in accordance with the law and their jury instructions. In practice, the jury only decides if the defendant is either guilty or not guilty, while the actual punishment in sentenced by the judge.

As for the U.S.A., this institution is expressly mentioned in the U.S. Constitution itself, where article III establishes that “The Trial of all Crimes...shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed”. This right was extended with the Sixth Amendment of the Constitution, which states that “"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed”. Both provisions were made applicable to the states by the Fourteenth Amendment of the Constitution. Setting a general frame, the Supreme Court has ruled that for crime punishable with less than six months of imprisonment the jury is not required, meaning that a state can decide wether or not to permit trial by jury for such cases. Also, under the Federal Rules of Criminal Procedure, the defendant, if entitled to a jury trial, may waive his right to a jury, but both the prosecutor and the court have to agree with the waiver.

As for the civil trial procedure, the right to trial by jury is mentioned in the Seventh Amendment of the Constitution which, by the way, does not guarantee a right to a civil jury trial in State Courts nor creates it. Nevertheless, in practice, almost every state except Luisiana (which has a civil law tradition linked to the French domination) permits jury trials in state courts on the same basis they are allowed by the Seventh Amendment. Anyway, the majority of the States do not provide for a jury trial for family law actions and only eleven States allow juries in any aspect of divorce litigation (Colorado, Georgia, Illinois, Louisiana, Maine, Nevada, New York, North Carolina, Tennessee, Texas and Wisconsin). However, anyone who is charged with a criminal offense (in the terms we said above), breach of contract or federal offense has right to a trial by jury, for this is recognized by both English common law and the U.S. Constitution to be a fundamental civil liberty.

As I could personally see, the jury in a civil procedure is generally composed of 6 to 12 persons (in criminal procedure the number is 12), selected by a procedure known as “voir dire”. The prospective jurors are firstly picked from the community and then have to undergo a procedure in which they are questioned in court by the judge and\or the attorneys in order to avoid any possible bias or background that may conflict with the case.

In the particular case of those states that have capital punishment, the jury in a criminal case in which death is a perspective sentence must be death-qualified, which means that there cannot be jurors that are categorically opposed to the death penalty. The jury (in both civil and criminal cases) deliberates in private, away from sight or hearing of the judge, litigants, witnesses or any other person. The verdict in criminal cases must be unanimous, while in civil law cases the law or the agreement between the parties may allow a non-unanimous verdict.

Although not being common, Italy has jury trials too. Untrained and lay judges are present only in the Corte d'Assise, a particular type of criminal court. Any italian citizen between 30 and 65 can be appointed as a lay judge, although a minimum education level is required: scuola media license (the equivalent of junior high school) or, for the appeal level of the Corte d'Assise, a judge must have completed his\her education at scuola superiore (i.e . senior high school).

In the Corte d'Assise, decisions concerning both facts and law are taken by the judge and the jurors together at a special meeting behind closed doors, known as Camera di Consiglio, and the court is then required a written explanation of the decisions taken, to be published within 90 days after the verdict.

To an outsider, the procedure of selecting a jury may seem long and complex, especially if one thinks about the number of possible civil cases in a State (let's say Illinois). But what you have to look at is not the entire number of cases, but only the amount of cases that actually go to trial. And that number is surprisingly low! Analyzing different statistics, both state and federal, I could see how the average number of civil cases that go to the trial is just 2% of the total, the rest being settled outside of the court via arbitration, mediation or agreements. If you add the fact that only a half of those cases require a jury, you can see how infrequent the procedure so far described in this report actually is. What is the main reason behind this? Money! Cost in fact plays a significant role: people usually do not want to go to a trial because it is hugely expensive (the American rule says that each party has to pay its own attorney's fee) nor do they want to go into a situation wherein the outcome is so unpredictable. It's simply not worth the hassle.

Studies show that in the U.S. settling is better than going to trial. In fact, in the majority of cases, most plaintiffs who passed up settlement and go to trial end up with less than if they would have settled. This marks a significant difference with the Italian system, where going to trial does not expose the litigants to any particular extra risk, so finding an agreement outside of the court is often seen as settling for something less. Appealing to a court is never inconvenient, due to a combination of loopholes that allow the temerarious litigant to exploit the long-term journey which is the average Italian civil trial without the risk of paying more than what is due. Settling outside of the court or plea bargain are simply not incentivized by the system. Going to court is like a chance that isworth taking. This type of approach does not stop those who know they are guilty but want to undergo the justice apparatus anyway. This is one of many factors that makes our justice so slow, muddled and complex.