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Ivane Javakhishvili Tbilisi State University, Georgia
Davit Kekenadze, research scholar
Batumi Shota Rustaveli State University, Georgia
According to the renewed scholar Jeffrey Abramson- ‘The jury can be defined as an institution that represents both the best and the worst of democracy’.
According to the survey conducted by Social institute in the 2010 amount of citizens of Georgia possessing information on the jury trial has increased from 39.9% to 67%. It is safe to say that in the 2012 almost every Georgian is informed about the Jury trial institute. Public opinion is divided regarding the jury institution.
On October1st of 2010 the new Criminal Code of Georgia came into effect. One of its main innovations is the Jury Institution. The Jury Court will operate until July 1st of 2013 in Tbilisi only, and will cover cases of deliberate murder under aggravating circumstances. After 2012, it will cover all crimes envisaged with the suppression of liberty in the throughout the country. One part of the public is skeptical of the jury trial and considers that any dispute must be solved by a competent judge. Another part welcomes the direct inclusion of society in justice implementation and considers it a precondition for achieving objective and democratic decisions
In this article is reviewed a brief history of trial by jury. Article also reviews pros and cons of this institute as well as well-known cases.
Keywords: Jury trial; Georgia; Criminal Code; Criminal Law.
l. A brief History of a trial by jury:
The Anglo-Saxon kings who ruled England from the 6th to the 11th centuries and the Normans who conquered England in 1066 used various legal procedures that provided possible models for the jury. But the jury owes a special debt to the legal innovations of King Henry II, who ruled from 1154-1189 (1). Henry created several new legal actions to resolve disputes over land and inheritances. These actions were known as assizes. Twelve “free and lawful men” of the neighborhood were assembled to state, under oath, their knowledge of who was the true property owner or heir. These panels of twelve freemen established the basis from which the modern civil jury would grow. Unlike a modern jury, however, these panels were self-informing. This means that they were expected to come to court with preexisting knowledge of the facts. Henry also created new procedures in criminal trials. In the Assize of Clarendon, enacted in 1166, Henry introduced what became known as the grand jury. In 1215, leaders of the medieval church banned the participation of clerics in trial by ordeal. Without the clergy’s involvement, trial by ordeal–which assumed that God intervened to protect the innocent–lost its validity. At this point, England turned to the panels of “free and lawful men” it was already using in the assizes and in the presentment of criminal suspects Over the following centuries, the role of the jury shifted. By the fifteenth century, the idea of a “self-informing” jury was giving way to a jury that heard evidence presented at trial. These jurors were still not required to be “neutral” in the modern sense. They remained free to base their verdict on their own personal knowledge of the alleged crime as well as the evidence they heard in court. Courts upheld this right well into the seventeenth century. In the American colonies, the jury also demonstrated its resistance to what it perceived as unjust British laws (2). In 1735, a New York jury acquitted publisher John Peter Zenger, who was put on trial for printing articles critical of an unpopular colonial governor. The Zenger case is often cited as an early expression of the colonists’ commitment to a free press. Perhaps most significant, however, were attempts by the British crown to deny American colonists their right to trial by jury. These efforts were most vigorous with respect to the much-hated British Navigation Acts. These acts tried to secure British control over trade with the American colonies by requiring, for example, that goods going to and from the colonies be carried on British ships. Colonists viewed the Navigation Acts as harmful to their economy, and colonial juries would often refuse to convict individuals charged with violating these laws. In response, the British set up special courts that did not use trial by jury. This became one of the major complaints of the colonists against the British as America moved toward revolution. In the Declaration of Independence, we see this complaint appear as a charge against the British king “for depriving us in many cases, of the benefits of trial by jury (3). The U.S. Constitution, as it was sent to the states for ratification in 1787, preserved the right to trial by jury in criminal cases, but there was no mention of civil cases. This did not mean that Congress could not provide for trial by jury in federal cases. Indeed, supporters of the Constitution urged that Congress was likely to provide for the use of civil juries in most instances. But nothing in the Constitution required Congress to do so. Initially, service on juries was limited to white men who owned enough property to qualify for service. The right to serve on a jury was gradually extended to minorities and women, a process that lasted well into the twentieth century. When the Fourteenth Amendment to the Constitution was ratified in 1868, it promised equal protection of the laws to all United States citizens. Within a few years, the Supreme Court ruled that equal protection applied to trial by jury. In Strauder v. West Virginia (1880), the Court held that a West Virginia law restricting jury service to white men violated the equal protection rights of black men, and that service on a jury could not be restricted by race. The Strauder decision was quickly limited by another decision that came out the same year. In Virginia v. Rives (1880), the Court held that a right to be considered for jury service was not the same as a right to serve on a jury. As long as the state law did not deny blacks the right to be considered for service, the defendant would have to prove that blacks had been wrongfully excluded from service on a particular jury (4).
As a practical matter, this meant that blacks were routinely excluded from actual service on juries. The systematic exclusion of blacks from juries in many parts of the United States did not begin to weaken until the civil rights struggles of the 1960s and beyond. Women also faced a long struggle for their right to serve on a jury. Although women in the United States gained the right to vote in 1920, it was not until 1975 that their ability to serve on juries on equal terms with men was finally secured (5).
II. History of a trial by Jury in Georgia
It is safe to say that Georgia isn’t unfamiliar with such kind of institute as a Jury trial. On May 26, 1918 Georgia declared its’ independence. In 1919 government of Georgia adopted law on jury trials. According to the lawthe Jury Court consisted of 12 basic and 2 substitute judges. The law stated that the jury had to posses Georgian language and be no less than 25 years old. It was also stated that jury must live in the territory which belongs to the jurisdiction of the court where the process is taking place.The institution was enshrined in the Constitution of the (first) Republic of Georgia (1918-1921). Because the Constitution was adopted on February 21, 1921--just three days prior to the Soviet occupation, the document was never put into practice.. Article 81 stated that ‘All serious matters belong to the penal jurisdiction, as well as political matters, and offences of the press are submitted to a jury’. It is noteworthy that before the occupation of Georgia some well-know cases were heard by the jury trial. For instance, case of Lavrenti Saakadze who was sentenced to death as well as a case of Shalva Maglakelidze. (6)
III. Jury trial in Georgia
On October 1st of 2010 the new Criminal Code of Georgia came into effect. One of its main innovations is the Jury Institution. The Jury Court will operate until July 1st of 2013 in Tbilisi only, and will cover cases of deliberate murder under aggravating circumstances. After two years, it will cover all crimes envisaged with the suppression of liberty in the throughout the country.
According to the Criminal procedure code of Georgia the Jury Court consists of 12 basic and 2 substitute judges. They are selected at a jury session from the common list of voters. According to the new code, the jury must possess the language of the criminal proceedings. This means they must possess the state language and live in the territory which belongs to the jurisdiction of the court where the process is taking place. In addition, people with limited physical and intellectual abilities will automatically be excluded from consideration. (1)
According to the new Criminal Code of Georgia, an individual will not be able to participate in the criminal proceeding if he/she is a state official, an investigator, policeman, is a member of Georgian armed forces, a religious figure, a participant in the criminal proceeding in the corresponding case, a defendant, or anyone who has been assessed with an administrative fine due to minor drug use. Lawyers, psychologists and others who are potentially able to utilize their professional experience or views are also not obligated to serve on the jury.
Except for the above mentioned incompatibility that gives rise to the preclusion of an individual from being a jury participant, the parties by their initiative and with the consent of the court may preclude a concrete jury. The jury member can also preclude himself/herself if: a) he/she has been on the jury for the past year b) fulfils work- changing of which will cause significant damage; g) because of his/her state of health d) has been abroad for a long time or is leaving Georgia; and e) is older than 70 years of age.
In case the jury (jury candidate) does not fulfill his/her duty, the responsibility will be imposed according to Georgian legislation.(8)
One part of the public is skeptical of the jury trial and considers that any dispute must be solved by a competent judge. Another part welcomes the direct inclusion of society in justice implementation and considers it a precondition for achieving objective and democratic decisions.
Ones arguing against the jury trial state that a jury, an ordinary person can’t handle case as good as professional judge does. Also it is safe to say that jury is affected by media more than a Judge. For instance, as in a case Nanavati V state of Maharashta. K. M. Nanavati vs. State of Maharashtra was a 1959 Indian court case where Kawas Manekshaw Nanavati, a Naval Commander, was tried for the murder of Prem Ahuja, his wife's lover. The incident received unprecedented media coverage and inspired several books and movies. Nanavati was initially declared not guilty by a jury, but the verdict was dismissed by the Bombay High Court and the case was retried as a bench trial. The case was the last to be heard as a jury trial in India, as the government abolished jury trials as a result of thecase. (9)
Ones arguing in a favor of Jury trial state that the criminal procedure code of Georgia art. 226 regulate such cases and in case there is an extreme coverage of a case by media or a public interest which may affect objective ruling, the case may be heard in a different territory. It is also noteworthy that despite the negative attitude of US. Citizens as well as a media towards Floridav. Casey Anthony case. Jury maintained impartiality and reached not guilty verdict (3). The case attracted a significant amount of national media attention, and was regularly the main topic of many TV talk shows, including those hosted by Greta Van Susteren, Nancy Grace, Geraldo Rivera, and others. It has been featured on Fox's America's Most Wanted,] NBC's Dateline, and ABC's 20/20. E-Poll Market Research conducted a survey about the most hated persons of America according to which Anthony was chosen as a leader of survey and gained 94% of votes.
One of the major concerns cited by skeptics is that the public is not yet ready. Skeptics argue that Georgian society has neither the memory nor the tradition of a civic responsibility of this sort and lacks a clear understanding of the institution itself. They argue that the consciousness of justice and law, and awareness of civic responsibility, are quite low in Georgia and these are among the principle preconditions for the effectiveness of a jury system. But this point of view has been strongly disputed Contrary to this opinion, scholars’ state that after 3 jury trials held throughout these two years in Georgia it’s clear that the jury can handle their duties and reach the verdict without hesitation. On November 17 a 12-member jury delivered a guilty verdict into a murder case in a court proceeding, which the first jury trial was ever held in Georgia. Regarding the desirability of a jury system at this stage, the experience of Russia is cited in support of jury system adoption. It is argued that Russian society was no more equipped than Georgian society today when trial by jury was introduced there in 1993.
The case heard in the Tbilisi City Court from November 9 involved the murder case of three people, all from the same family, committed back in 1994 in Tbilisi.The law enforcement agencies announced about solving the 17-year-old case in September. Two of three arrested suspects pled guilty; one of them claimed innocence and eventually faced jury trial in which jurors found him guilty of “aggregated murder and assisting in burglary committed by a group”
Another argument against this institution was the specific of a Country itself: small amount of residents, having strong bonds between each other and that is why ‘everybody knows each other and it will be very hard to find 12 objective jury members’ and etc. The territorial jurisdiction of the jury trials will make the situation even more complicated. Scotland is cited as an example to prove the opposite. There, in a country of similar size and strong traditional loyalty to clans and community, the jury trial system functions effectively.
According to scholars the main merit of Jury trial is its’ democratic importance. A Constitution of Georgia article 5 states that ‘The people shall be the source of state authority in Georgia’. The state authority shall be exercised within the framework established by the Constitution. The people shall exercise their authority through referendum, other forms of democracy’. It is safe to say that one of the most important principles of the democratic state is the protection of human rights. This principle cannot be realized without an impartial and independent judiciary. The composition of courts is of high importance in terms of ensuring effective justice. By adopting amendments to the Georgian Constitution, namely paragraph 5 of Article 82 (the Jury hears the cases in the common courts according to the law) the state authority clearly expressed its political will of establishing the jury institution. It should be noted that the jury trial is that ‘other form of democracy’ through which the people of Georgia exercises its’ authority.
Another criticism pertains to the absence of effective data protection systems in the country, including witness protection programmes. The argument is that jurors may become targets for revenge if an unpopular or undesirable verdict is passed. Proponents of the jury trial dismiss these reservations, countering that given the territorial jurisdiction principle; the problem of impartiality may arise anywhere, since close-knit communities are not unique to Georgia. In the U.S., for example, small communities have not proven to be a hindrance to effective use of the jury system. In addition, judges in Georgia do not have specific protections either. If a threat is made against a judge, juror, or any other person, the police must take the same measures.
According to the above mentioned it can be concluded, that the jury trial has been effectively functioning these two years in Georgia. Although occasionally subjected to criticism by contrarian scholars Jury trial is applauded as an exemplar of the virtues of democratic governance.