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Family law without juries.

When asked to explain and justify the use of juries to try cases, even as strong a booster of the jury system as Lord [Patrick] Devlin was notably ambivalent in his famous work, Trial by Jury. To him, trial by jury was "the lamp that shows that freedom lives". However, he also said that juries were often not as competent as judges and were unfit for certain judicial tasks, such as the resolution of family law issues. It now seems that the idea of a jury trial on a family law case would be a startling notion. Why so?

The diffidence of Devlin's endorsement of the jury trial is matched by a rather general vagueness in legal writings (including decisions of the Supreme Court of Canada and other courts) about just how reliable and beneficial the jury trial system is. To non-lawyers, this may seem bewildering, since lawyers, judges and legal writers have made such a to-do about the greatness of the jury trial for a long time. Yet most nonlawyers, if asked, would probably think that jury trials are a fine idea and a good way to conduct criminal law business. So why not matrimonial cases?

Pointed questions to the legally trained about whether a jury would be the best means for resolving facts in any form of dispute tends to be met by the grey answer "it depends".

The jury trial has been cemented not only in North American consciousness, but in North American Constitutions: see s. 11(f) of the Canadian Charter of Rights and Freedoms and the sixth Amendment to the American Constitution. But there are limits, and those rights refer only to proceedings taken by the state against individuals. Even with that, the jury trial's reputation as a bastion of freedom in a democratic society, comes despite the fact that its form has actually changed a lot from its sources in antiquity. The bottom line in Canada remains that juries are involved in only a small percentage of criminal cases. Civil jury trials are even more infrequent. And jury trials concerned with family law issues do not happen.

The history of the jury system sheds some light on this situation. The idea of using local groups to assist in adjudications of disputes may be as old as the idea of asking the King or shaman or satrap to do the same thing. Fundamentally, the job of the jury, from ancient times, has been to provide a short and credible answer to a hard question, howsoever ornately defined by the persons in dispute.

Socrates [470? - 399 B.C.E.] was tried by a jury of more than 300 persons, for behaviour said to have affronted the legal order generally. The verdict was not unanimous, and he voluntarily ended his life with hemlock. The famous Roman writer, philosopher, and lawyer, Marcus Tullius Cicero [106 - 43 B.C.E.] pleaded frequently before bodies called centumviri, which were bodies of one hundred or more citizens.

These and other sources provide some measure of precedent for the jury trial as we know it now, though the route to our system is circuitous. The concept of using juries for fact finding has survived through many centuries. It may have been fertilized by concepts held by the bygone Goths and Gauls and other Celtic groups. Britannia adapted antique notions of law and social order. One history has it that the conquering Normans under William I drew from the "group inquests" of Carolingian Kings when importing juries to England. Others have it that a Danish practice of group accusations of crime, and resolution of land disputes by the sworn verdict of neighbours, arrived in England in the 10th Century.

William used inquests by groups of neighbours for administrative purposes as in the development of the famous Domesday Book, (not unlike the census of 1,000 years earlier by Caesar Augustus). The efficiency of using local informants may well have encouraged successor monarchs to use a similar system to "out" miscreants and traitors, as well as to raise Royal revenues through itinerant Courts. By then, the blending of individual and compensatory justice with `state' or `King's peace' justice was well underway.

Henry II [Plantagenet], is credited with more formally incorporating two forms of juries into the administration of Royal justice in England. Henry's use of the "jury of presentment" or "grand" with the duty of seeking out and exposing wrongdoers for proceedings in the Norman courts of the King's justiciars was one form of jury. The presenting jury was to have at least twelve men of the village and at least four thegns [knights]. The "petit" jury as a trial body of twelve people who would know nothing about the case beforehand and assist the court in reaching final verdicts evolved considerably later - in part due to disaffection towards the "ordeal" and "battle" as mechanics of adjudication by such as Pope Innocent III. The number twelve and the tradition of unanimous decisions seems to have arisen from an English practice of having to have twelve oaths in favour of one side before victory was declared and also so the body of favourable opinion would be large enough to discourage further dispute. (Scots juries of fifteen with majority decisions did not catch on in North America. Northwest Territories' juries of six, and early Australian juries of four, came to be replaced by this standard twelve.) An effort to suppress the Quakers through prosecution in the 17th century established the authority of the jury to independently decide questions of guilt or innocence. The threat of punishment of resistant jurors by the Crown or the presiding judge through contempt of court proceedings was ended and jurors were given general judicial immunity. However, this did not necessarily improve the reputation of juries or their decisions, in an era of two hundred felonies punished by death or deportation, and trials where the unrepresented accused was not allowed to testify. By 1853, a Royal Commission in England suggested that juries were generally composed of unintelligent people!

Though oversimplified, this history of the jury trial suggests that its best function has been in connection with state justice, and, more modernly, criminal justice. Even where the jury was used in a civil context in earlier times, it would appear to have been in situations where the jury's involvement avoided the substitute of individual vengeance or blood feuds over personal or property complaints. Even family law was essentially a matter of property and inheritance in light of the status of wives and children. In any event, the jury was best suited to making decisions which prevented people from disorderly and violent reactions to compensable disputes, thus keeping the King's peace, directly or indirectly. Conviction and punishment of malefactors had an analogous purpose and effect, so even what might be said to be "civil" applications of the jury trial might be seen as state justice. In other words, the imagery of the "lamp" and the "little Parliament" that has been given to the jury trial has mainly arisen because of the utility of the jury trial as an acceptably independent means of deciding if a state law should be enforced against an individual. Twelve people not in the employ of the state seem more likely to look at a case brought by the state against the individual in a fair manner.

So we come back to the original ambivalence. Some suggest that ignorance of the refinements of law, and even some democratic resistance to its specific application, might be aspects to the credit of the jury trial, at least in the criminal law context. On the other hand, in Canada juries are told to decide issues of fact without fear or favour or the influence of outside considerations -- and to not act as a capricious rabble. Numerous courts have held that a group of jurors, once selected and duly warned, can be trusted to resolve issues of credibility, reliability and weight of evidence. Yet Canadian law also assumes that the risks of racial and other stereotypical thinking is so prevalent that prospective jurors should be questioned about such matters before being allowed to take part in the trial.

Have these forms of ambivalence caused the end of the use of jury trials in family law cases? It does not seem so. There is no reason to think that a civil jury would be dumber than the same people composed as a criminal jury. However, what the jury is assigned to decide in "fault" cases [including criminal cases] is something amenable to committee resolution leading to final decision. Modern civil jury trials seem to have generally involved a rather focused assignment of deciding if someone did something wrong, as in tort cases (including defamation) or property disputes, or divorce when the key to such proceedings was fault. When England moved in the early 20th century to allowing divorces in Court and not limiting them to Acts of Parliament, juries were sometimes used abusively to delay proceedings, increase costs, or to aid in frivolous causes. By 1933, judges had to approve the use of a jury. So cost was a key factor in the decline of family law jury cases.

However, there is a more modern reason not to have a jury in family law cases. Family law cases are no longer focused on fault, but on fairness of property distribution and on the protection and well-being of children. In family law cases where social factors must apply and where room for reconciliation and adjustment must be left, an up or down fault finding or an explanation-free (juries give no reasons) cash calculation is simply not apt. Moreover, no such verdict can really be final, as the lives of any party to family law litigation may involve much change.

So the decline of jury trials in family law cases was probably inevitable. It is not that jurors cannot resolve past facts in such cases as they do in criminal trials. It is, fundamentally, that past facts do not really matter that much in family law cases. In such cases, what is important is an equitable and forward looking reconciliation of present and future needs and aspirations amongst parties who will all be at liberty when the trial is over.
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Author:Watson, Jack
Date:Apr 1, 2000
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