• The study of comparative law makes us sensitive to features of a foreign system that might seem perfectly normal to a practitioner living within the system.

• Three distinctive features of the common law system come to attention in the case for this chapter:

  • The jury system

  • The institution of criminal contempt

  • The incorporation of the Bill of Rights in the due process clause.

• The jury is one of the hallmarks of the American system.

  • The common law jury consists of twelve laypersons (this is the usual number), untrained in the law, who have the power to deliberate on the evidence and decide the liability of the parties in a civil suit or the guilt or innocence of a criminal defendant.

  • Juries in criminal cases do not decide the sentence, with the exception of the power of juries to decide whether the accused deserves the death penalty.

  • In civil cases, juries decide not only the question of liability but also the amount of damages the defendant must pay.

  • The common law jury is not to be confused with bodies of lay people (assessors) that deliberate together with judges in deciding cases. The latter form of mixed tribunals is common on the European continent.

• The jury as we know it exists as well in Belgium for the most serious cases and used to exist in France. The Belgians add the unusual rule that the verdict of the jury of twelve jurors is the final word. There is no appeal.

  • Americans recognize the right of the accused to appeal.

  • In Canada, both the prosecution and the defense may appeal on questions of law, that is, mistaken instructions by the judge to the jury or other errors by the judge, lawyers, or others in conducting the trial.

• Some people think that the jury system is an expression of democracy, and some newly democratic states like Spain and Russia are experimenting with the jury. The fact is that the jury is much older than democracy in the West (with the potential exception, of course, of democratic Athens, where the people served on democratic juries).

• Elements of the jury are as old as the common law.

• A form of civil jury was recognizable by 1179, when Henry II allowed trials to resolve issues of disputed land, to be decided either by combat or by a hearing before twelve knights who lived near the land.

• The jury was thus an established concept when it was mentioned in the negotiations between the English barons and King John in the famous Magna Carta (1215). This is the origin of the famous phrase “jury of one’s peers,” which contrary to popular belief does not appear in the U.S. Constitution.

  • In that same year of 1215, the jury became significantly more important in English law.

• The modern jury originated, as it were, as a polling of the people who were likely to know the truth in a local dispute.

• By the seventeenth century, the institution became transformed into a group of laypeople who were supposed to know nothing about the facts of the case.

• Jurors are supposed to judge the case in a neutral and detached way, as judges supposedly do, without bias toward the parties and without being influenced by loyalties toward ethnic, political, or economic groups.

  • Any evidence of bias and extrinsic loyalty provides a sufficient ground to disqualify the juror from being chosen to sit on the jury.

Unanimity

• Common law juries must render their verdict unanimously—at least in criminal cases.

  • The required verdict in England and in some U.S. states is 10–2.

• Why should jury verdicts require unanimity or near-unanimity? Unfortunately, no one has offered a convincing reason for this principle.

  • The best guess is that the principle is based on the idea that the jury is supposed to discover the truth of the matter. Truth is not a function of majority vote. If there is no clear consensus on the matter, the object of belief cannot be considered the truth.

  • If the criminal jury cannot agree on a verdict, they are called a “hung jury” and the case is dismissed, with the possibility of reprosecuting the defendant.

Contempt Proceedings

• Contempt proceedings are a peculiar institution of the common law. The original idea was that certain unruly and disobedient behaviors expressed “contempt” for the court.

• The judge should respond to these signs of contempt in the court by sentencing the suspect immediately, without trial.

• The use of the contempt power was considered to be an inherent feature of judicial power. It did not have to be granted by statute or any other written source. It simply inhered in the common law conception of a court.

• In a case of civil contempt, the judge sentences a contumacious litigant or lawyer to pay a daily or hourly fine or to stay in jail until such time as the person complies with a judicial order.

  • For example, if a defendant has lost a case and been ordered to pay money to the plaintiff but has inexcusably refused to do so, the court may order an additional fine to accrue until the money is paid or, in extreme cases, jail for defendants until they pay.

• Criminal contempt is imposed retrospectively for “contemptuous behavior” that interferes with the administration of justice, such as when a witness refuses to answer a question (and there is no privilege justifying the refusal) or a lawyer or litigant disrupts the courtroom.

• The judge can order the witness to sit in jail until such time as he or she is willing to answer or punish the litigant or lawyer after the fact.

  • Typically, the judge warns the party, “If you do not stop screaming, I will hold you in contempt.”

• Continental judges do not have the contempt power. In most countries, the most they can do is to cite a lawyer for disobedience to the bar association or to report criminal conduct to the prosecutor’s office.