The New Student's Reference Work/Jury, Trial by

Jury, Trial by, is a form of trial of very ancient origin, in which a body of sworn men, generally 12 in number, are called upon to judge of the truth of the facts of a civil or criminal case. In England, even under the Saxons, it was the custom for 12 thanes to be chosen to prosecute malefactors in the county court. But this was rather like a grand jury, such as still meets in England to judge whether a prosecution is justified. It would seem that trial by jury in criminal cases only gradually came to supplant the curious practice of trial by ordeal. A jury has nothing to do with the sentence conferred, but only with the judgment of the facts submitted in evidence and summed up for them by the judge.

A jury is summoned by a writ, the jurymen being taken by chance from among such citizens as are eligible for the office. The final selection of 12 is made by lot under the direction of the presiding officer. As the clerk of the court calls the names, the jurors take their seats, but it is permitted that the prosecutor and defendant or their counsel may challenge undesirable jurors, who then are excluded and their places filled. The prosecutor or plaintiff or his lawyer addresses the jury and brings forth his witnesses. These witnesses are cross-examined by the other side; which then presents its case and its witnesses. All this procedure and the final summing up by the judge are addressed chiefly to the jury, which is the sole judge of questions of fact. The chief objections to trial by jury are the difficulty in getting all the jurors to agree, without which result there can be no verdict, and the danger of prejudice on the part of some of the jurors. The latter defect may be disregarded, or perhaps it is less to be feared in case of a jury of 12 than of a single judge. The jury may be locked up until they agree, or until the judge decides that an agreement is not likely to be reached. In the case of a disagreement a new trial may be ordered. Probably trial by jury is much more suitable for criminal than for civil cases, in the latter of which one has to decide by probabilities rather than rely, as in criminal cases, upon proof positive.