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The Trial Jury in Oregon’s
State Courts:
Where Oregonians Share the Power and Responsibility
Trial by jury is a right
established in both the
United States Constitution
and the Oregon Constitution.
Citizens who serve as jurors
bring life to the constitutional
right to trial by jury. This
pamphlet presents a very
general overview of a juror’s role in Oregon state trial
courts.
Why do we need juries?
In a “criminal” trial jurors stand between a person accused of a crime and the power of the government to convict the accused person and, as a penalty, to deprive the person of life, liberty, and/or property. In a “civil” lawsuit jurors reflect the con-science and the common sense of the community as they work to resolve disputes over such things as contracts and injuries. A juror’s public service is essential to operating the judicial branch of our govern-ment and is one of the most important functions of our democracy.
Who can be a juror?
Under Oregon law, any person is eligible to be a juror if that person is a citizen of the United States, lives in the county where called to serve as a juror, and is at least 18 years old. A person is not eligible for jury service if that person has served as a juror in a state or federal court in the previous 24 months. In a civil case no one is eligible for jury service who has been convicted of a felony and is serving a sentence for that crime. In a criminal case no person may serve as a juror if he or she (1) has been convicted of a felony or has served a sentence for a felony within the past 15 years or (2) has been convicted of a misdemeanor involving violence or dishonesty or has served a sentence for such a misdemeanor within the past five years. To learn about how jurors are selected and what to expect if you are chosen to be a juror in a trial, see the Handbook for Jurors published by the Oregon State Bar at www.osbar.org/public/jurorhandbook.htm.
What do jurors do?
Once jurors are selected, they take an oath of office, joining the judge and lawyers as “officers of the court.” Jurors listen to testimony and observe the evidence presented by the different sides during the trial. Jurors receive instructions about the law from the judge. The judge sends the jurors to meet in private to think about and to discuss the evidence they have heard and seen, in the context of the law, and to decide the outcome of the case. That process is called the jury’s “deliberations.” During their deliberations the jurors decide whether to accept as true the testimony of each witness. The jurors resolve any important conflicts in the evidence; they apply the law to the facts; and, finally, they reach a decision called the “verdict.”
What does that word mean?
The different sides in a case are called the
“parties” in the case. In a criminal case the
parties are the government (represented by
a prosecutor) and the person or persons
accused of a crime (called the “defendant(s)”). In a civil case, the parties
can include persons, corporations, organizations, or government units.
A “court” is (1) the place where a trial takes
place or (2) a judicial institution such as the
Supreme Court of Oregon. The word “court” may also refer to the judge who presides
over a trial or other court roceeding.
In a trial court, a judge is in charge of the
trial. (It is said that the judge or “the court,”
and any jury, “hear” the case.) Lawyers for
the parties introduce evidence and “argue”
the case on behalf of their clients in front of
the judge and the jury.
What kinds of courts are there in Oregon?
There are four court systems in Oregon. Each is established by a different government unit.
• State courts are funded by the State of Oregon. They hear many types of cases including traffic violations, family disputes, contract disputes, personal injury cases, landlord-tenant matters, criminal violations arising under Oregon law, and other matters. In some types of cases, the law does not allow for a jury trial.
• “Special courts” are trial courts funded by a county or city. Some, but not all, cities and counties have these courts to hear matters such as traffic violations.
• Federal courts, funded by the United States government, hear criminal and civil cases arising under federal law and some other types of cases.
• Tribal courts are funded by their Native American tribe or nation. They interpret tribal law and hear cases brought under tribal law.
What does the Oregon Constitution say about
jury trials?
The right to trial by jury in both criminal and civil cases is included
in Article I of the Oregon
Constitution, also known as
Oregon’s “Bill of Rights.”
Article I, section 11 says: “In all
criminal prosecutions, the accused
shall have the right to public trial
by an impartial jury ... .” The
accused may “waive” (give up) the
right to trial by jury.
Article I, section 17 states: “In all
civil cases the right of Trial by Jury
shall remain inviolate.” This means
the right cannot be taken away.
The drafters of Oregon’s constitution
took those provisions directly
from the Indiana Constitution of
1851. Voters adopted the Oregon Constitution in 1857. It became
effective in 1859 when Oregon was
admitted as a state.
By 1910 there was concern that Oregon’s trial courts and appellate courts were “second guessing” the decisions made by juries. For
example, sometimes the party who lost at trial felt that the jury
had awarded too much money to the winning party. Sometimes
the winning party felt the jury had not awarded enough. A party
who did not like the result of a jury trial would ask the judge to “set aside” the jury’s verdict and to grant a new trial. In response
to such a request, the trial judge would review all the evidence
presented at trial. If the judge concluded
that the jury’s verdict was
not supported by the evidence, the
judge could set aside the verdict
and grant a new trial.
In response to that practice, the
people of Oregon voted to amend
the Oregon Constitution to provide
that “no fact tried by a jury
shall be otherwise re-examined in
any court of this state, unless the
court can affirmatively say there is
no evidence to support the verdict.”
(Oregon Constitution, Article VII
(Amended), section 3.) That
amendment prevents a trial court
judge or an appellate court from reexamining
any fact decided by a
jury unless the court finds that,
considering the evidence in the
light most favorable to the winning
party, no evidence was presented at
trial to support the jury’s finding.
The amendment strengthened the power of the jury and made
the right to a jury trial more secure.
The Jury as a “Bulwark against Tyranny”
Roughly 80%, and perhaps more, of the jury trials in the world
today occur in the United States. But the jury trial system has an
important influence on government in the United States aside
from the jury’s role in resolving disputes.
In the early 1830’s Alexis de Tocqueville, a young Frenchman,
toured the United States and observed the people and the operation
of government at all levels. He saw the United States as an
example of a government that preserved the liberty of its people
within a democratic society. De Tocqueville hoped his observations
of the United States would influence the new government in
France. In Volume I of his Democracy in America,* he included a
discussion of the jury, of which he said:
“It would be a very narrow view to look upon the jury as a mere
judicial institution; for however great its influence may be upon
the decisions of the courts, it is still greater on the destinies of
society at large. The jury is, above all, a political institution, and it
must be regarded in this light in order to be duly ppreciated.”
De Tocqueville believed that the jury, whether sitting in a criminal
or a civil case,“cannot fail to exercise a powerful influence upon
the national character.” The jury, he said,“invests each citizen with
a kind of magistracy; it makes them all feel the duties which they
are bound to discharge towards society and the part which they
take in its government. By obliging men to turn their attention to
other affairs than their own, it rubs off that private selfishness
which is the rust of society.”
Speaking of British monarchs of past centuries whose desires
were frustrated by juries, de Tocqueville said: “All the sovereigns
who have chosen to govern by their own authority, and to direct society instead of obeying its directions, have destroyed or enfeebled
the institution of the jury.”
History supports de Tocqueville’s observations about the influence
of the jury on government.
In 12th century England early jury trials began to replace the barbaric
and senseless “trial by ordeal” and “trial by battle” that had
been used to determine guilt or innocence of an accused. By the
15th century England had developed its Common Law (judgemade
law that was consistent all over the land) and a jury fairly
similar to ours. However, during the same period of time, English
kings introduced the “Star Chamber,” a court without a jury. It
was the court where judges appointed by the king or queen exercised
arbitrary power resulting in the torture and execution of
those who challenged the king or queen. England’s Parliament
abolished the Star Chamber in 1641. Trial by jury survived.
Yet another product of the times was the practice of punishing
jurors for a “wrong” verdict. In 1670 William Penn (later, the
founder of Pennsylvania) and a small group of Quakers held a public meeting in a London street. They had been shut out of
their meeting house under a law that outlawed any meeting for
worship other than according to the practices of the Church of
England. It was a time of religious repression for those who did
not worship in the Church of England and, particularly, for Quakers. Penn and his friend William Mead were charged with
disturbing the peace. Four jurors at the trial refused to convict
Penn and Mead. The judge threatened the leader of the four,
Edward Bushel, with “branding” with a hot iron in the way that
we brand cattle. After further deliberation, the jurors gave a
unanimous “not guilty” verdict. The judge ordered Bushel and the
other jurors to be locked in prison without food or water. After
four days and the jury’s continued refusal to change their verdict,
the judge ended the trial, fined the jurors “40 marks,” and ordered
them held in prison until they paid the fine.Bushel and his fellow
jurors filed with the Court of Common Pleas a request to be
let out of prison. They won. That decision, it is said, established the independence of the jury. It ended the practice in English
courts of ressuring jurors to decide a case a certain way and ofpunishing jurors for verdicts the judges considered to be wrong.
In America, colonists rebelled against similar efforts by the British
to manipulate juries. The colonies adopted their own laws to
allow for trial by jury. Nonetheless, it was often the local sheriff
who drew up the list of possible jurors. He selected those who
were sympathetic to the King’s interests. Also, the British
Parliament required more and more disputes to be tried in the
Court of Admiralty without a jury, rather than in colonial courts.
At the beginning of the American Revolution, Thomas Jefferson
wrote in the Declaration of Independence that “The History of
the present King of Great-Britain is a History of repeated Injuries
and Usurpations, all having in direct Object the Establishment of
an absolute Tyranny over these States.” Among a list of those acts
Jefferson included a complaint against the King for “depriving us, in many Cases, of the Benefits of Trial by Jury.”
Some delegates to the Constitutional Convention refused to sign
the Constitution because it did not contain a guarantee of trial by
jury in civil cases. With the approval of the Bill of Rights by the
last of the 13 states in 1791, the right to trial by jury in criminal
cases (Sixth Amendment) and in civil cases (Seventh
Amendment) was assured.
More recently, Justice (later Chief Justice) William H. Rehnquist
of the United States Supreme Court said: “The founders of our
nation considered the right of trial by jury in civil cases an important
bulwark against tyranny and corruption, a safeguard too precious
to be left to the whim of the sovereign ... .” Parklane Hosiery
Co. v. Shore, 439 U.S. 322, 343, 99 S.Ct. 645, 657-58, 58 L.Ed.2d
552 (1979) (dissenting).
In this pamphlet the League ofWomen Voters of Oregon Education Fund, the Program on Law & Society, the Open Society
Institute, Community Newspapers, Inc., and the individuals listed below do not intend to, nor do they, offer any legal advice.
Anyone who wants legal advice on any of the issues discussed in this pamphlet should consult a knowledgeable lawyer.
Published by the League of Women Voters® of Oregon Education Fund Chair: Margaret Noel Executive Administrator: Rebecca Smith
Office Assistant: Suzie Torre
Researcher/writer: Barbara Fredericks
Editing Committee: Walter Barkan, Sandra Gangle, Jean Milgram, Kathleen Shelley, Elsa Struble
Design, typesetting and printing: Community Newspapers, Inc.
©2005 League of Women Voters® of Oregon Education Fund
2659 Commercial St. SE Suite 260 • Salem Oregon 97302 • Phone 503.581.5722 Fax 503.581.9403 • Email: lwvor@lwvor.org • www.lwvor.org
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