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Joseph W. McKnight

JURY TRIAL. The petit (petty or small) jury is distinguished from the grand jury in Anglo-American law both by its name and by its function. Both are groups of local citizens who perform their responsibilities under oath in accordance with traditions derived from the continental inquest. The concept of jury trial is ancient, but its origins are obscure. The English trial jury dates from the early thirteenth century and was used initially in criminal cases. This common law jury consisted of adult males of the vicinity from whence the accusation or dispute arose, and a verdict of twelve was necessary to determine guilt of an accused person or to determine civil liability. A verdict was reached in large measure by the jurymen's own knowledge of the law and facts. From the fifteenth century juries were instructed in the law by the judge, and it was not until the seventeenth century that juries tended to become impartial finders of fact. In English America the jury in some civil matters consisted of less than twelve members, but for criminal purposes the number was twelve. Through the eighteenth century in English America, in many criminal cases the jury found both fact and law. Although trial jury is one of the principal hallmarks of the Anglo-American legal system, in England it has virtually disappeared for civil purposes.

Stephen F. Austin's Anglo-American colonists in Texas used the jury for both civil and criminal purposes, but the jury ordinarily did not consist of twelve men. The Anglo Texans were instrumental in having a provision included in the Constitution of Coahuila and Texas (1827) that allowed the legislature to provide for jury trial of criminal matters and eventually in civil cases. The state's judiciary act of 1827 did not so provide, however, and jury trials were therefore discontinued among the Anglo Texans. In 1830 the state legislature passed a bill for jury trial by seven jurors in Texas criminal cases, but the bill was effectively vetoed by the governor when he returned it to the legislature with recommendations for revision. At least one jury trial was, nevertheless, held in Texas on the assumption that the bill had been enacted. A jury of twelve with eight votes necessary for a verdict was instituted for Texas in 1834, and for criminal cases a verdict of twelve was provided by the Constitution of the Republic of Texas. In 1843 Texas extended jury trial to matters of equity to which it did not apply at common law. For matters of common law the jury of twelve became a matter of right under the Constitution of 1845. That constitutional rule was construed to mean that a jury trial of twelve was required only in those situations when required under Anglo-American common law. Thus, for some purposes for which a jury trial was not required at common law, a smaller jury may be used (as in the case of the jury of six in the probate courts) or jury trial may be statutorily forbidden (as in certain instances of determining the validity of marriage of minors).

When trial by jury is appropriate, it may be demanded in a civil case by either party or it may be waived by both parties. In criminal cases a jury trial is automatically accorded to the accused. A jury of twelve is impaneled in the district courts, while a jury of six is used ordinarily in county and other inferior courts. Though Texas juries were once impaneled from a body of free, male citizens over twenty-one years of age, with certain other restrictions with respect to literacy, character, interest in the dispute, and property holding, many of these limitations have been abandoned. Women have sat on juries since 1955 and property qualifications were removed in 1969. Release from jury duty for broad categories of persons (such as clergy, public officeholders, physicians, and lawyers) was significantly limited in 1971, and the minimum age for jurors was reduced to eighteen in 1973.

In selecting a jury of twelve from the panel called by lot, each party to a civil trial is allowed six challenges without cause and an unlimited number of challenges for cause. In criminal trials the number of challenges without cause are generally more numerous and depend on the seriousness of the offense charged, but challenges cannot be made on the ground of race or sex. The most common challenge is one for biased views with respect to the facts or the parties. In the course of the trial and in charging the jury, the judge may not comment on the evidence. In civil cases the judge charges the jury to find the facts in dispute based on the evidence presented, and according to the facts found by the jury the court renders judgment. As an aid to understanding testimony, juries elsewhere are sometimes allowed to leave the courtroom to view a scene or some object that cannot be brought into the courtroom, but this procedure of juryviews is not allowed in Texas.

In criminal trials the jury is charged to find a verdict of guilty or not guilty, and all verdicts of guilty in felony cases must be unanimous. A jury that cannot achieve unanimity is termed a "hung jury," and a new trial may be had. Whereas in English law sentencing was always left to the judge, a Texas statute of 1846 allowed the jury to sentence except in capital cases or if the penalty was fixed by law. In 1857 the first of these restrictions was removed, and the jury was also allowed to suspend sentence. With the revision of the Code of Criminal Procedure in 1965, a two stage procedure was instituted for criminal trials under which the questions of guilt and punishment (in the event of a verdict of guilty) are presented to the jury at two separate hearings. In a misdemeanor case if no more than three jurors have been discharged, a guilty verdict may be delivered by as few as nine members. In civil cases since 1973 a verdict may be rendered by ten members of the jury.

Jack Pope, "The Jury," Texas Law Review 39 (1961). Charles S. Potts, "Early Criminal Law in Texas: From Civil Law to Common Law, to Code," Texas Law Review 21 (April 1943).

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The following, adapted from the Chicago Manual of Style, 15th edition, is the preferred citation for this article.

Handbook of Texas Online, Joseph W. McKnight, "JURY TRIAL," accessed August 10, 2020, http://www.tshaonline.org/handbook/online/articles/jzj02.

Uploaded on June 15, 2010. Published by the Texas State Historical Association.
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