Civil Procedure 民事诉讼程序
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Civil Procedure 民事诉讼程序
Introduction to Civil Procedure
Part One:
The Course of Civil Procedure
The basic first
year civil procedure course is designed to
teach how lawyers choose a proper court and
how they frame and
present their cases
throughout the proceedings until a judgment
has been reached and all available appeals
have been pursued.
The impact of judgments on
future litigation also may be explored .
Thus
,the primary focus in this course is on the
methods and tools
available to the litigator .
This study requires an inquiry into
judicially
developed doctrines, as well as various rules and
statutes
governing the civil courts. At time
it will produce questions that are
theoretical
or constitutional; at other times issues of
careful or strict
rule interpretation will be
paramount. Throughout , it is important to
keep in mind the purpose underlying the
development of the civil
procedure rules and
doctrines --to provide a just, efficient and
economical means by which persons can resolve
their disputes.
Not always will this purpose
be met and , as we will see,some of
the
existing procedures have been used by attorneys to
thwart this
goal . Nonetheless , the desire to
achieve justice, efficiency , and
economy in
our civil dispute resolution process underlies the
way in
which the courts apply and interpret
the government rules
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In
studying the procedures by which legal rights are
vindicated,
it also is important to remember
that the Anglo-American judicial
system is
based on the adversary model . The judge sits
solely to
rule on disputed questions , as
presented by the parties , and to
apply
sanctions when they are properly requested by a
party. The
lawyers shape the contours of the
action. Issues not raised,
objections no made
, or points not challenged are ,with very few
exceptions , waived . The case moves forward
only in response to
the demands of the
parties. While modern judges have tended to
take a somewhat more active role in guiding
litigation before them,
it still remains true
that the ultimate responsibility for each case
rests with the litigants.
Finally , it
should be noted that there is a very important
aspect
to framing litigation that typically is
not taught in the basic civil
procedure
course: how to select a particular remedy as the
one
most likely to succeed or best suited to
the needs of the client. That
inquiry concerns
matters such as whether injunctive relief or
damages may be sought or whether some form of
restitutionary
relief might be most
appropriate. Historically, the question of what
type of relief was involved also dictated in
which court suit should
be filed, as there
were separate courts established --i, e.,
law
,equity , ecclesiastical - to dispense certain
types of relief or to
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hear
certain types of disputes . Modern court systems
are not so
designed . Instead , any civil
court is authorized to dispense
whatever
remedy is appropriate . Thus ,the problem of
framing a
remedy , while an essential step in
preparing your case, is not
particularly
relevant in the selection of a court and is left
to a course
in remedies.
Part Two : The
Adversary Trial System
Most knowledgeable to
observers would agree that the
Anglo-American
adversary trial system is a thing of wonder. One
wonders whether it is properly designed to
reach its announced
goal, the ascertainment of
relevant truth. Beyond that , one
wonders how
it ever works at all.
There is nothing very
scientific about the process of litigation .
As one highly experienced trial lawyer, who
believed in being frank,
once described it.
“The way we administer justice is by an
adversary proceeding , which is to say , we
set the parties fighting .”
Professor Robert E.
Keeton of the Harvard Law School he said it
less dramatically:”
“A trial is a
competition of inconsistent versions of facts and
theories of law.” defying all precepts of
scientific fact-finding , the
trial system
actually works quite well. Adversariness seems to
be
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the best method yet
devised for forcing the truth into the open.
A
few distinctive characteristics of the adversary
trial system
stand out . In the main, cases
are brought to the court by the
parties
through their legal representatives -lawyers . The
lawyers ,
guided by a judge, control the
content and flow of the evidence .
And the
litigation process is , at least theoretically ,
two-sided , not
one-sided, in the sense that
each party has an equal opportunity to
investigate the case and present his or her
side of it at trial through
evidence and
argument .
The trial judge in an American jury
case serves only as a sort
of umpire. He or
she applies the procedural rules to the lawyers
and explains the substantive principles of law
to the jurors, but
generally the jurors , and
they alone, decide what facts have been
established by the preponderant evidence.
In other words, the judge is the arbiter of
the law , the jurors
are the arbiters of the
facts. The jurors, in reaching their verdict ,
apply to the facts ,as found by them, the law
as it is explained to
them by the judge in his
or her instructions (sometimes called the
judge’s “charge “ to the jury ). Of course ,
if trial by jury has been
waived , the trial
judge herself will find the facts and apply the
law to
them in what is referred to as a bench
trial. Many plaintiffs and
defendants would
like to have their cases tried by a single judge.
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Part Three : The Process of
Trial
Once a case has proceeded through
discovery and survived
any pretrial motions
that may have been made , it will be placed on
the trial docket of the court and a date for
trial assigned . At that
time , if no
continuances or postponements have occurred, the
parties and their counsel must appear to begin
the trial .
Both jury and non-jury trials
follow the same general pattern,
although the
outset of the trail differs in a jury case as time
must be
spent on choosing a jury to sit in the
case. The order of
presentation may vary
slightly from court to court,but the general
rules are as follows . Plaintiff’s counsel
followed by defendant’s
attorney each make
opening statements, explaining what they
intend to prove. The plaintiff ‘s witness and
evidence are examined
and cross -examined .
Then the defendant’s witness and evidence
are
introduced , with similar rights of examination
and
cross-examination . The plaintiff and
defendant then may be
allowed to introduce
rebuttal evidence. After at all evidence has
been submitted, each side makes closing
arguments summarizing
the evidence supporting
their respective positions . Plaintiff again
typical summarizes first, but has a right of
rebuttal after the
defendant’s closing remarks
have been made. If there is no jury,
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the jury then will evaluate the
evidence and render a judgment . If a
jury is
present, the judge instructs the jurors as to the
law to be
applied. Most commonly ,the judge
will require the parties to submit
possible
instructions and will choose from among those
submissions . In some jurisdictions , pattern
instructions have been
approved for various
types of legal issues and the parties will not
need to prepare special drafts for their
particular cases. In a few
jurisdictions the
judge also may comment on the evidence.
However , in most jurisdictions this is deemed
improper and the
judge is authorized only to
give an impartial summary of the
evidence. The
jury then retires to deliberate in order to render
its
verdict. If the jurors report that they
are deadlocked , the judge may
send them back
for additional deliberations . But if that fails
to
break the deadlock , then a mistrial will
have to be declared. If the
jury returns with
a verdict , the judge enter a judgment on it.
Part Four: The Rules of Evidence
The trial
process is governed by rules o evidence . Each
court
system has its own set of evidentiary
rules and the character of the
proceeding may
vary somewhat depending on what types f
evidence are permitted to be introduced. Most
generally , proper
evidence or testimony is
that which is relevant and not privileged or
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hearsay. Definitions of
relevance, privilege, and hearsay fill the law
book and are explored more fully in the
separate course on
evidence. A brief
description here will suffice.
The relevance
of specific evidence is determined in relation to
the scope of the issues in the case at hand.
Irrelevant evidence is
excluded in order to
aid the trier of fact in focusing on what actually
is in issue. Privileged matter is excluded to
protect the privacy of
individuals in certain
relationships (e.g., doctor-patient , lawyer
-client ) . Persons in a privileged
relationship need no reveal any
communications
that occurred between them. The law places a
greater value on preserving the sanctity of
those relationships than
on the need to find
truth based all the possible evidence . Hearsay
is defined as an out-of -court statement
offered to prove the fact or
truth of the
matter stated. The rules defining hearsay are
riddled
with exceptions. In general , the
prohibition against the use of
hearsay
evidence exists because hearsay is deemed
inherently
unreliable because there is no
opportunity to cross-examine the
actual person
who made the statement. The exceptions that are
recognized typically involve situations in
which other circumstances
appear to ensure
that the evidence is reliable (such as the
exception for the introduction fo records
created during the day to
day operation fo a
business ) or in which there does not appear to
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be other evidence that
could be used to prove the matter at issue
(such as statements by a person regarding his
motives )
Counsel must raise evidentiary
objections immediately or they
will be waived
. In addition , in the case of privileged
information ,
the parties to the relationship
can waive their right to claim privilege
by
their conduct. If an objection is sustained , the
evidence will be
stricken or the jury will be
instructed not to take it into account in
rendering the verdict . A judge trial often is
a little less rigid in
adhering strictly to
the evidence rules because it is assumed that
the judge will disregard improper evidence and
consider only
proper evidence . Thus , there
is less need for the lawyers to object
as
frequently . Similar , there is less fear that
improper evidence will
be considered if the
court sustains an objection. In the jury setting ,
there is serious question whether it is
reasonable to expect the
jurors to disregard
improper evidence that is mentioned in their
presence , even if instructed to do so , or
whether the jury has been
so prejudiced that a
mistrial should be called.
Question about the
text:
1. What is the purpose of the basic
first year civil procedure
course?
The
purpose is to teach how lawyers choose a proper
court
and how they frame and present their
cases throughout the
8
proceedings until a judgment has been reached
and all available
appeals have been pursued .
2. What is the purpose of the development of
the civil
procedure rules and doctrines ?
To provide a just ,efficient, and economical
means by which
persons can resolve their
disputes.
3. What were the three types of
courts in the English legal
history？
Law
court, equity court, and ecclesiastical court
4. What did Prof. Keeton say about the
adversary trial system?
say about the
adversary trial was a “ parties
fighting “ ,a
“competition of inconsistent versions of facts and
theories of law .”
5. The adversary trial
system is not a scientific method of fact
finding , is it ?
No, it isn’t
6.
What are the distinctive characteristics of the
adversary trial
system?
First , cases are
brought to the court by the parties through
their legal representatives -lawyers. Second ,
the lawyers , guided
by a judge, control the
content and flow fo the evidence . Third , the
litigation process is two-sided.
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7. Why is the trial judge in an
American jury case only a sort of
umpire?
Because the judge only applies the procedural
rules to the
lawyers and explains the
substantive principles of law to the jurors ,
while the factual issues in the case are
decided by the jurors alone.
8. What is bench
trial ?
It is judge trial ,without jury.
9. What is the order of presentation in a
civil trial ?
The order is as follows:
plaintiff ‘s counsel followed by
defendant’s
attorney each make opening statements , explaining
what they intend to prove. The plaintiff ‘s
witness and evidence are
examined and cross
-examines. Then the defendant’s witness and
evidence are introduced , with similar rights
of examination and
cross -examination. The
plaintiff and defendant then may be
allowed to
introduce rebuttal evidence . After all the
evidence has
been submitted , each side makes
closing arguments summarizing
the evidence
supporting their respective positions . Plaintiff
again
typically summarize first , but has a
right of rebuttal after the
defendant’s
closing remarks have been made.
10. Why should
hearsay evidence be excluded ?
Because hearsay
is deemed inherently unreliable because
there
is no opportunity to cross-examine the actual
person who
10
made the
statement.
P 281 courtroom English
The
court is in session now.
Order in the
courtroom.
The courtroom order!
The court
is in recess.
We will be in recess for half an
hour.
The court will resume in ten minute
Ladies and gentlemen of the jury , at this
time I am making to
you a so-called opening
statement:
Please call your first witness ,
Mr. Prosecutor.
Your Honor, we call as our
first witness Ronal Smith
Your Honor ,we call
John Petorson as our next witness .
Object ,
Your Honor, irrelevant
We object , Your
Honor. That is a leading (hearsay, etc.)
The
objection is sustained and the witness will not
answer the
question.
Sustained, Ladies and
gentlemen of the jury , disregard the
question
completely.
The objection is overruled and
witness may answer the
question
I’ll
overrule your objection
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Overruled , counsel.
Your Honor, we now
offer this into evidence ,as Defendant
Exhibit
Number 5.
Hearing no objection , it will be
received as Defendant Exhibit
Number 5.
Please read my last question back ,court
reporter
No further questions at this time,
Your Honor
Thank you so much, Your witness.
The prosecution rests.
The defense rests
its case.
I now ask that the court reporter
mark this for I
remember correctly, this
would be Prosecution Exhibit 10.
Yes , this is
going to be Prosecution’s 10 (By court reporter)
Your Honor, may we now hand the exhibit,
Prosecution’s
Number10 , to the jurors for
their examination ?
Object , Your Honor.
Overruled. Your may proceed, Mr. Prosecutor
I call to the stand Dr. Prosecutor
Sir,
you said a minute ago, during your direct
examination by
defense counsel, that...
Mr. Smith , you gave us on your direct
examination just now a
detailed description of
a person...
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Now , I draw
your attention to the evening of April 1, 1994 ,
...
Object , Your Honor . What relevance
does this have ?
Oh, I’ll withdraw the
question .
I have no further questions of this
witness at this time, your
Honor.
I swear
, under the penalty of perjury, to tell the truth.
(by
witness )
I swear to tell the truth,
nothing but the truth. Please help me ,
my
God. (by witness )
I swear to well the truly
try the case, without any prejudice.(by
juror).
I swear to be justice and fair.
(by juror)
I swear , upon the Bible , to
render an impartial verdict upon
the law and
the evidence . (by juror )
ation for a trial
Step I. Knowing the case
The students
need to become familiar with every fact,
inference ,and aspect of the case of Simpson(
see “Mock Trial”in
Lesson Twenty Two ). This
knowledge will be necessary to analyze
and
select the theories of the case, establish the
overall themes,
13
plan the
trial presentation , and determine which facts
need to be
proved in the case and presented in
the opening statement.
Step II. Developing
issues and themes
The issues and central
theme of a case should be decided,
thought out
,and organized before the trial begins.
(1)
the Issues . The issues are the key or pivotal
questions of
fact raised by the contentions of
the parties. After deciding what
issues
exists, the attorney should select the issues to
be stressed
to the jury. The early
presentation of these issues may provide a
framework for the trial that focuses attention
on these issues and
away from the opponent’s
case.
(2) The Themes and Theories of the Case.
The themes of a
case are the major concepts
central to the case. The theories of a
case
consist of the legal and factual theories that
support the
themes . The opening statement is
the time to present the themes
and theories in
a comprehensive and complete way. The jury may
have some idea about the case based upon the
judge’s preliminary
instructions , statements
, and questions during jury selection. In
opening statement , the attorney explains to
the jury how the
various parts of the trial
will fit together.
The attorney should select
words which reflect and reinforce
the themes
of the case. These theme words should be used
during
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the opening
statement as the attorney describes the story of
the
events . Theme words should be
repetitively used throughout the
trial to
reinforce the theories and issues of the case.
Step III . Citing authorities
Before
going to the courtroom, the attorney also needs to
become familiar with the legal authorities
governing the case,
especially the binding
precedent. Therefore, a brief introduction to
case citations is necessary.
A typical
citation to a state court decision will look like
this :People v. Miller, 238 N.E. 2d 407 (. III
.1968 ). “People and
“Miller” are the names of
the parties to this reported criminal case:
the People , represented by the state’s
attorney , are prosecuting
the defendant,
Miller . The intervening “v” .stands for versus,
which ,
translated from the Latin, simple
means “against “---People against
Miller . The
“N.E.” refers to the geographical region covered
by the
reporter series: “2d “ indicates that
this system of regional judicial
reports has
gone into a second series of volumes , the
preceding
series having been denominated
simply “N.E.”
Other phases fo the National
Reporter System reprint
decisions from the
Pacific region (Pac . And P.2d ) , Northwestern
( N.W.2d ), Southwestern (S.W and S.W. 2d ） ，
Atlantic
(Atl. And A. 2d). Southeastern (S.E
.and S.E. 2d ) , and Southern
15
(So . and So.2d). Separate series are
published for New York
( N.Y.S.2d )and
California (.)
The number 407 in our citation
to the case of People v. Miller
refers to the
page of volume 238 of the N.E. 2d series on which
the opinion in that case begins . Within the
parentheses in the
citation to People v.
Miller are the name of the court handing down
the decision --here, the Supreme Court of
Illinois --and the year in
which decision was
announced , 1968.
Citations to federal cases
are similar in appearance. United
States , 403
US 。 573了（1971 ）， refers to a decision in
volume 403 of the official series that reports
decisions of the
Supreme Court of the United
States .
Step IV. Anticipating opposition’s
positions
An attorney needs to review the case
from the perspective of
the opposition and
take such matters into account when preparing
an opening statement . It is necessary to
anticipate the other side’s
position in an
attempt to defuse the opposition. The more an
attorney knows about the theories , arguments,
and positions of the
opponent the more
complete the opening preparation will be
Step
V. Writting an outline
The material for an
opening statement needs to be organized
into
an outline format. The outline should included the
introduction,
16
the body,
and the conclusion . The use of an outline helps
organize
the facts and theory of the case into
an easily usable and readily
accessible
format. As the attorney prepares other aspects of
the
trial , this outline may be modified or
altered and needs remain
flexible.
Some
attorneys will find it advantageous to write or
dictate a
complete opening statement. This
draft may then be reviewed and
improved . With
this format , the attorney will know that the
final
script of the opening statement will
contain everything that needs to
be prepared .
The drawback of using a script during an opening
statement is the temptation to read the
opening statement to the
jury. Reading a
script of the opening statement will appear dry
and
impersonal to the jury.A better approach
for the attorney who
wishes to use a script is
to prepare a key word outline of the script .
After becoming completely familiar with the
script , the attorney
should be able to
present the opening statement using only the key
word outline . When notes or outline are used,
they should be used
in a candid, forthright
fashion.
Step VI. Practicing and rehearsing
After the attorney has prepared the outline or
script , practice
and rehearsal are necessary
to be adequately prepared for the
presentation
at trial . The attorney who practices the opening
17
statement several times
prior to trial will find the time well spent.
The attorney may want to think through the
opening statement
silently and then practice
verbally concentrating on its content. As
the
content of the opening statements is mastered ,
the attorney
can work on stylistic
improvements. After this preparation the
attorney should continue practicing and
rehearsing videotape for
later review and
critique. The attorney should practice presenting
the opening statement until it can be done
without referring to
notes.
4. Examples
of jury instructions given by the trial judge
1. Basic Instruction
Members of the Jury
Now that you have heard all fo the evidence
and the argument
of counsel, it becomes my
duty to give you the instructions fo the
Court
concerning the law applicable to this case.
It
is your duty as jurors to follow the law as I
shall state it to you,
and to apply that law
to the facts as you find them from the
evidence in the case...
Regardless of any
opinion you may have as to what the law is
or
ought to be, it would be a violation of your sworn
duty to base a
verdict upon any view of the
law other than that given in the
instructions
of the Court, just as it would also be a
violation of
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your sworn
duty, as judges of the facts , to base a verdict
upon
anything other than the evidence in the
case ...
As stated earlier , it is your duty
to determine the facts, and in
so doing you
must consider only the evidences I have admitted
in
the case. The term “ evidence “ includes
the sworn testimony of the
witnesses and the
exhibits admitted in the record
2. Burden of
Proof
The burden is on the plaintiff in a
civil actions such as this to
prove every
essential element of his claims by a
“preponderance of
the evidence” A
preponderance of the evidence means such
evidence as , when considered and compared
with that opposed to
it, has more convincing
force and produces in your minds a belief
that
what is sought to be proved is more likely true
than not true. In
other words , to establish a
claim by a “preponderance of evidence
“ merely
means to prove that the claim is more likely than
not so ...
All of the questions of the special
verdict which you are to
answer, except those
relating to comparison of negligence and
damages ,are to be answered either “Yes” or
“No”. The burden of
proof as to any such
question is upon the party or parties who
contend that you should answer the question
“Yes” . Such burden
is to satisfy or convince
you, to a reasonable certainty ,by the
greater
weight of the credible evidence , that “Yes”
should be your
19
answer.
That means that before you are justified in
answering the
question “Yes,”you must be
satisfied that the greater weight of the
credible evidence not only leads to the
conclusion that the question
should be
answered “Yes,” but it must also satisfy you to
the point
of reasonable certainty that “Yes”
should be your answer . If , after
a fair
consideration of all the evidences bearing upon
the question ,
you become so satisfied or
convinced that the answer should be
“Yes” ,
then it is your duty to so answer the question ,
but if you are
not so satisfied or convinced ,
you should answer the question
“No”.
3.
Action for Fraud and Deceit ----Essential Elements
Plaintiff’s claim against the defendant has
six essential
elements , as follow:
First
, that the defendant represented to the plaintiff
that (here
set forth the alleged
representation )
Second , that the
representation was false:
Third , (that the
representation was known by the defendant to
be false when it was made ) ( that the
defendant made the
representation recklessly
and without regard to its truth or falsity )
(
that defendant told the plaintiff that it had
knowledge that the
representation was true,
while not having such knowledge);
Fourth ,
that the plaintiff relied on the representation
and was
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deceived by it
Fifth , that the plaintiff acted with ordinary
prudence in relying
on the representation, and
Sixth, that the false representation was the
proximate cause of
injury to the plaintiff.
If you find that the plaintiff has established
each of these
elements by the preponderance of
the evidence , then you should
return a
verdict for the plaintiff . If on the other hand
you find that
the plaintiff has failed so to
establish any one or more of these six
elements , then you must find for the
defendant.
4. Intentional Torts --Interference
with Person or Property --
False Imprisonment
One who intentionally and without authority
detains a person
against his will and thereby
deprives him of his liberty , even
momentarily
, is guilty of false imprisonment and liable for
all
damages resulting from the detention.
Plaintiff claims that defendant arrested him
without a warrant
for the crime of [specify ]
and caused him to sustain damages .
Defendant
admits that he arrested plaintiff and that he had
no
warrant , but says that under the
circumstances confronting him the
arrest was
lawfully made.
Under Section 177 subdivision
94 ） of the Code of Criminal
21
Procedure, defendant as a police officer had
the right to arrest
without a warrant if he
had reasonable cause for believing that a
felony had been committed and that the person
arrested had
committed it. The burden is upon
defendant to satisfy you by a fair
preponderance of the evidence that he had
reasonable cause for
believing that the crime
of [specify felony for which plaintiff arrested ]
had been committed and that plaintiff was the
person who had
committed it .
Reasonable
cause existed if the facts and circumstances
known to defendant , or the information
supplied to him before
making the arrest ,
were such as to lead a reasonable and prudent
person to believe that the crime of [specify ]
had been committed
and that plaintiff was the
person who had committed it. An arrest
made
with reasonable cause is lawful even though, as it
now
appears, (the crime of [specif ] had not
been committed , though
the crime had been
committed plaintiff was not the person who
committed it ).
The elements of the crime
of [specify ] are [define ]. There was
testimony that [here marshal evidence
supporting justification and
that
controverting the defense]. Defendant contends
that at the time
he arrested plaintiff the
facts as they appeared to him were [specify
the facts which the judge find sufficient, if
believed, to constitute
22
reasonable cause; otherwise charge that as a
matter of law
reasonable cause did not exist]
. If you find that the facts appeared
to
defendant as he claims and that a reasonably
prudent person
would have believed that those
were the facts ,your finding will be
that
defendant had reasonable cause to believe that the
crime of
[specify ]had been committed and that
plaintiff had committed it,
and your verdict
will be for defendant. If you find that facts
appeared to defendant otherwise than as he
claims or that it was
not reasonable for him
to have believed that those were the facts ,
or if you find the evidence so evenly balanced
that you are unable
to say that there is a
preponderance on either side of either of those
questions , your finding will be that
defendant did not have
reasonable cause and
your verdict will be for plaintiff.
Supplementary Reading : 补充读物及参考译文
Jury
trial
1. In General
Jury trial is a
fundamental part of the Anglo-American dispute
resolution process. It was first formalized in
the Twelfth Century in
the England during the
reign of King Henry II and it fast became the
hallmark of the common law courts. The
historic jury was
composed of twelve men from
the community. These men were
asked to
determine what were the actual facts underlying a
23
controversy and the judge
then would apply the law . The jury’s
decision
had to be unanimous. Although the form of the jury
remained the same when it was transplanted to
the American
colonies , it assumed additional
meanings. Jury trial became a
symbol of
American freedom or popular justice versus the
king’s
justice. Although the need to establish
our independence has long
since passe, jury
trial remains at the core of the civil court
system.
In recent years several state and
federal courts have modified
the original
character of the jury so that juries have been
composed
of less than twelve members and non-
unanimous verdicts have
been permitted. These
changes have been in an effort to reduce
the
costliness of jury trials . Smaller juries should
be selected more
rapidly, and their
deliberations should be shorter simply because
there are fewer individual opinions to
consider. Non-unanimous
verdicts lessen the
possibility of a deadlock, with its attendant need
for a new trial. The United States Supreme
Court has approved the
use of six member
juries in civil cases. Colgrove v. Battin
(1973 ),and non-unanimous verdicts in criminal
cases, Apodaca v .
Oregon （1970 ）. It has not
yet ruled on non-unanimous civil
verdicts ,
but its reasoning in the criminal field suggests
that they
may be upheld in the future. The
Court ruled that the character of
the jury
trial was not part of the historic or
constitutional right and
24
that , based on the studies to date, it could
find no proof of a
qualitative difference
between verdicts rendered under either
system.
Thus, the lower courts are left to decide for
themselves
whether to modify the twelve person
, unanimous jury, and the
character of the
jury may vary depending on the court in which suit
is brought.
The role of the jury remains
unchanged , however. The jury is
to decided
questions of fact the judge determines issues of
law.
This distribution of responsibility
recognizes the special qualities of
the jury
the judge. The jury is present to conform legal
standards to
current experience. For example ,
if a case involves the
interpretation of a
contract , a question of fact is presented and a
jury decision on the meaning of certain
contract language relies on
community
experiences as to common practices persons enter
into
a contracts . The judge’s role is to
provide rules to bind litigants in
the future
so that the community can know how to conduct
future
dealings. In contract disputes the
judge decides whether a legally
binding or
valid contract has been made. The jury decides all
issues of credibility since those are
questions of fact, but the judge
determines if
the law allows relief under the facts as
determined by
the jury.
The line between
issues of fact and of law is not always easy
25
to ascertain and the case
reports are filled with cases in which
judges
improperly have removed issues from the jury. The
appropriate delineation of the jury’s
improperly have removed
issues from the jury.
The appropriate delineation of the jury’s role is
clouded further because of the jury
nullification process. Most
often , the judge
instructs the jury on the law applicable to a
given
set of facts and the jury not only
determines the facts , but also
applies the
law to those facts . In areas where the law has
been
slow to develop , the jury may decide to
dispense justice , ignoring
the law .
Illustratively ,there ae negligence cases in which
it its quite
that the jury ignored rules of
contributory negligence that would bar
plaintiff’s recovery and simply took the
plaintiff ‘s negligence into
account in
assessing the damages --utilizing a comparative
negligences standard before it was adopted by
the courts. Jury
proponents argue that this is
one of the special functions of the jury
and
is simply a means of modernizing the law in light
of current
community mores. However, allowing
the jury to tamper with the
law presents
potential dangers in situations ,such as in the
civil
rights field, in which local community
standards are inconsistent
with more general ,
indeed constitutional , national standards . For
these reasons , all judicial systems contain
some devices by which
the judge is given power
to control the jury and prevent it from
26
acting improperly . These devices
are explored in later sections.
2. Scope of
Jury Trial Rights
The authority for demanding
a jury trial in a civil action may
derive
from one of three sources. The first, and broadest
, is
constitutional . Federal and state
constitutions set the minimal
standards for
jury trial in their respective judicial systems.
The
legislature has the power to authorize
jury trial in cases not within
the
constitutional guarantee. Thus , the second jury
trial source is
statutory and represents those
situations in which the legislature in
establishing a particular cause of action has
granted a right to a jury
trial. Finally , the
trial court always has the equitable power to
impanel a jury, although in those instances
the jury will be advisory
only and the judge
may accept or disregard its findings.
The
major problems in determining the scope jury trial
rights
have been in the constitutional area.
It should be noted that the
federal
constitutional jury provision (Seventh Amendment
)is not
binding on the states so that they
have been free to develope their
own scheme of
civil jury trial rights for their courts. All but
four of the
states (Colorado , Utah,
Louisiana, and Wyoming ) have
constitutional
provisional similar to the federal and in those
four
states statutory jury trial rights exist.
Further , with the exception of
four other
states (Georgia, North Carolina, Tennessee, and
Texas),
27
which provide a
jury trial in equity ,all the states appear to
interpret
their constitutional and statutory
provisions similarly to the federal
courts in
that they determine the right to jury trial based
on whether
that right would have existed at
the time the governing
constitutional
provision was adopted.
3. Means of
Controlling the Jury
There various methods or
procedures designed to ensure that
the jury
performs its proper role. The evidentiary rules
,for
example ,limit the jury to considering
only legally relevant and
generally reliable
evidence in determining the facts. When the
judge sustains objections to proposed
evidence or testimony, he
protects the jury
from considering possibly irrelevant and
prejudicial
matters. Similarly, the judge’s
instructions to the jury describe and
define
the proper scope of its inquiry , prescribing who
has the
burden of persuasion on the facts in
issue . Of course , the
effectiveness of this
control depends totally on whether the jury
follows the judges’s charges . However, the
attorney may ask the
judge to poll the jury
after a verdict has been announced to make
certain that each of the jurors is in
agreement with and understands
the verdict .
Alternatively ,the judge has the power to select
the type
of verdict that should be rended ,
which may limit the juror’s ability
to ignore
the controlling law.
28
Even
though the actual jury selection process varies
from court
to court , a few generalized
statements can be made . The process
begins by
notices sent to community members by the court
clerk
requesting them to appear and be placed
in the jury pool (called the
array ).Some
potential jurors may exclude themselves if they
fit
under statutory exceptions. Excuses from
jury service usually are
limited to vocational
categories (e.g., firemen or doctors ), to health
reasons or to incompetence ( speak English ).
Jurors
also may be excused if they can show
that it would be an undue
hardship for them to
have to serve . Under the federal jury selection
statutes , the procedures used to create the
jury pool are designed
to obtain a broad cross
-section of the community. Although state
jury
systems are not required constitutionally to
develope
processes fostering this cross-
section concept, it is common to
most systems.
States are limited by the Fourteenth Amendment in
designing their methods of jury selection,
however. This means that
no particular group
can be systematically excluded , and that
litigants must be afforded procedures within
the selection process
consistent with
fundamental fairness.
Individual jurors from
the array are selected to sit on a specific
case of (panel ) after being examined before
the court. That
screening is called voir dire.
In some courts the judge asks the
29
jurors all questions the
attorneys submits in advance any
questions
they would like answered . In other courts the
attorneys
themselves conduct voir dire. The
purpose in either situation is to
determine if
any of the prospective jurors is likely to be so
biased or
prejudiced in the case that he or
she could not reach an
independent judgment
based on the facts presented . If so, the
attorney may challenge for cause and , if the
judge agrees, that
person will be disqualified
. If the judge permits the juror to remain ,
the same challenge can be raise on appeal from
the final judgment
and the verdict will be
overturned if the trial court’s decision was an
abuse of discretion. Attorneys also are given
a limited number of
peremptory challenges by
which they can reject a potential juror
without stating the reason . This device
allows the attorney to try to
select those
persons he feels are most likely to be sympathetic
to
his client or to the type of evidence that
will be presented. He can
reject persons who
do not reveal enough bias for merit a challenge
for cause , but he feels will be prejudiced
against the client or case.
Further , although
a few state courts have ruled that their state
constitutions prohibit an attorney from using
the peremptory
challenge to exclude certain
groups, in general the courts have
allowed
attorneys to exercise chose challenge without any
limitations imposed . Thus ,by careful use of
their challenges, the
30
attorneys shape the character of each jury.
31