Trial procedures

Australia [edit]States Each state may determine the extent to which the use of a jury is used. The use of a jury is optional for civil trials in any Australian state.[citation needed] The use of a jury in criminal trials is generally by unanimous verdict of 12 lay members of the public. Some States provide exceptions such as majority (11-to-1 or 10-to-2) verdicts where a jury cannot otherwise reach a verdict. Sometimes a state law may allow an accused person to elect to use a judge-only trial rather than the default jury provision. [edit]Commonwealth (Federal) The Constitution of Australia provides in section 80 that 'the trial on indictment of any offence against any law of the Commonwealth shall be by jury'. The Commonwealth can determine which offences are 'on indictment': Cheng v The Queen (2000) 203 CLR 248 (McHugh and Callinan JJ, Kirby J dissenting). It would be entirely consistent with the Constitution that a Homicide offence could be tried not 'on indictment,' or conversely that a simple Assault could be tried 'on indictment.' This interpretation has been criticised a 'mockery' of the section, rendering it useless: R v Federal Court of Bankruptcy; Ex parte Lowenstein (1939) 59 CLR 556 (Dixon and Evatt JJ dissenting). Where a trial 'on indictment' has been prescribed, it is an essential element that it be found by a unanimous verdict of guilty by 12 lay members of the public. This requirement stems from the (historical) meaning of 'jury' at the time that the Constitution was written and is (in principle) thus an integral element of trial by jury:Cheatle v The Queen (1993) 177 CLR 541 (per curiam). Unlike States, an accused person cannot elect a Judge-only trial. [edit]Belgium The Belgian Constitution provides that all cases involving the most serious crimes be judged by juries. As a safeguard against libel cases, press crimes can also only be tried by jury. Racism is excluded from this safeguard. Twelve jurors decide by majority whether the defendant is guilty or not. A tied vote results in 'not guilty'; a '7 guilty - 5 not guilty' vote is transferred to the 3 professional judges who can, by unanimity, reverse the majority to 'not guilty'. The sentence is delivered by a majority of the 12 jurors and the 3 professional judges. As a result of the Taxquet ruling the juries give nowadays the most important motives that lead them to their verdict. The procedural codification has been altered to meet the demands formulated by the European Co rt of Human Rights. [edit]Brazil The Constitution of Brazil provides that only willful crimes against life, namely full or attempted murder, abortion, infanticide and suicide instigation, be judged by juries. Seven jurors vote in secret to decide whether the defendant is guilty or not, and decisions are taken by majority. Manslaughter and other crimes in which the killing was committed without intent, however, are judged by a professional judge instead. [edit]Canada In Canada, juries are used for some criminal trials but not others. For summary conviction offences or offences found under section 553 of the Criminal Code of Canada, the trial is before a judge alone. For most indictable offences, the accused person can elect to be tried by either a judge alone or a judge and jury. In the most serious offences, found in section 469 of the Criminal Code of Canada (such as murder or treason), a judge and a jury are always used, unless both the accused and the prosecutor agree that the trial should not be in front of a jury. The jury's verdict on the ultimate disposition of guilt or innocence must be unanimous, but can disagree on the evidentiary route that leads to that disposition. Juries do not make a recommendation as to the length of sentence, except for parole ineligibility for second-degree murder (but the judge is not bound by the jury's recommendation, and the jury is not required to make a recommendation). Jury selection is in accordance with specific criteria. Prospective jurors may only be asked certain questions, selected for direct pertinence to impartiality or other relevant matters. Any other questions must be approved by the judge. A jury in a criminal trial is initially composed of 12 jurors. There are no substitute jurors. Instead, if a juror is discharged during the course of the trial, the trial will continue unless the number of jurors goes below 10. The Canadian constitution guarantees that anyone tried for an offence that has a maximum sentence of five or more years has the right to be tried by a jury (except for an offence under military law). The names of jurors are protected by a publication ban. There is a specific criminal offence for disclosing anything that takes place during jury deliberations. Juries are infrequently used in civil trials in Canada. Because juries have no power to award damages, as they do in the United States, there is less incentive to call for a trial with a jury.