Jury Decision Rules in Criminal Trials

Keywords

juries, criminal law, criminal trials, canadian criminal law, english criminal law, american criminal law, jury verdicts, verdicts, unanimous

Abstract

Discussions of juries in democratic systems often frame the jury as a symbol of democracy, an essential safeguard for an accused, and a legitimizer of state authority. However, the context in which the jury operates has evolved, and there is a widening gap between our empirical understanding of juries and our commitment to their theoretical value. Piecemeal reforms of the jury have also moved the system away from the historical model, with the consequence of undermining the remaining aspects. This paper argues one such aspect is the decision rule under which a jury renders its verdict. Canada is one of the last jurisdictions requiring juror unanimity in the criminal context. The United States of America had previously permitted nonunanimous juries but more recently declared nonunanimous verdicts unconstitutional. By contrast, in England and Wales, the birthplace of the common law jury, Parliament legislated supermajorities in 1967 and has not returned to a unanimous decision rule. This paper comparatively analyzes the evolution of the jury decision rule across these three jurisdictions to better understand whether the requirement for unanimous juries is still essential in Canada’s criminal justice system. In today’s jury context and given the content of the decision made by the jury, unanimity appears to be largely symbolic.