Participation Of Jurors Research Articles

The Modern Institution of the Prosecutor's Refusal to File Charges against a Suspect: Crisis of Authenticity of the Russian Criminal Process

The paper examines the issues of effectiveness and viability of the modern Russian institution of prosecutor’s refusal to bring charges. The author substantiates the conclusion that it is formed to a greater extent in the spirit of Anglo-Saxon legal logic, while neither normative nor doctrinal correlation with the basic principles of domestic criminal proceedings has been implemented. The legal institution in question is a vivid example of conceptual, axiological legal contradictions in the Russian criminal process, which makes it difficult to clearly define its modern model and the vector of its further development. For methodological purposes, the modern Russian institution of the prosecutor’s refusal to charge was analyzed in relation to the trial with the participation of jurors. This made it possible to more fully identify the relevant shortcomings and identify areas for improvement. As a result, the following conclusions were substantiated: it would be advisable to deprive the prosecutor’s refusal to bring charges of binding force for the Russian court. At the same time, the adversarial foundation of the trial is not limited here in any way, since the prosecutor should have the opportunity to convey his position to the court following the results of the judicial investigation. In general, the proposed approach will act as a reliable guarantee of the rights of the victim, including access to justice, and serve to ensure the constitutional right of Russians to participate in the administration of justice, strengthen the independence and completeness of the judiciary. As a result, using the example of the institute under study, we can talk about the need to return to the authenticity of Russian criminal proceedings in the spirit of continental legal traditions.

CONDITIONALITY OF THE SUBJECT OF EVIDENCE IN A COURT WITH THE PARTICIPATION OF JURIES BY THE INDIVIDUAL PROPERTIES OF THE JURY TRIAL

The subject of proof in a jury trial has its own characteristic features. The analysis of doctrinal positions on the essence of the trial by jury allowed us to conclude that procedural and psychological elements are internal features of individual properties of the jury trial. Identified internal signs of individual properties of the jury trial, made it possible to outline the factors that determine the features of the subject of proof in a jury trial. To the procedural features the author attributes the factor of differentiation of the subject of proof. The study of evidence with the participation of jurors for the verdict (a question of fact) and the study of circumstances to be proved in the case after the verdict (a question of law). The factor of narrowing the subject of proof by excluding certain circumstances from the subject of proof in the form of the study of circumstances characterizing the defendant’s personality. Prohibitions to investigate “other data” that may cause prejudice to the jury against the defendant. The factor of expansion of the subject of proof by raising additional questions, inclusion of certain circumstances, depending on the position of the parties. To psychological signs the author includes the factor of differentiation of the subject of proof in the form of a difference in the perception of the juror and professional judge of the circumstances to be proved in the case. The factor of narrowing the subject of proof by excluding certain circumstances from the subject of proof, which entails distortion of the juror’s worldly legal consciousness.

Problematic issues related to the lawyer’s implementation of the position in the speeches of the parties during the proceedings in court with the participation of jurors

The article deals with problematic issues related to the implementation of a lawyer’s position when making an introductory statement and in the debate of the parties in court with the participation of jurors. The author analyzes the question of how the term “defense position in the case” can be defined and how the position is related to the content of speeches. In this regard, the prohibitions that are related to the content of this legal institution are considered, as well as the range of information that cannot be reported, since they are outside the positions of the parties. Based on the analysis of examples from judicial practice, the author comes to the conclusion that, based on the content of the introductory statement and its “positional” component, it is forbidden to analyze the positions of the parties in the introductory statement, to make judgments about the quality of the investigation and to evaluate the evidence. The article raises the question of what are the limits of the presentation of the factual circumstances of the case in the introductory statement and whether it is possible to refer to the norms of law in it. It is noted that the limits associated with the justification of the position in court debates are of great importance.

Генезис законодательства об организации судов с участием присяжных заседателей в постсоветской России и проблемы обеспечения его конституционности

The article examines the process of development of legislation on the organization of jury trials in post-Soviet Russia, and also touches upon the problems of ensuring compliance of this legislation with the Constitution of the country. According to the author, as a result of constitutional amendments, before the constitutional reform of 1993, the legislator thought or assumed a wider introduction into socio-political practice of the institution of trial with the participation of jurors, and civil cases were even placed in first place by the Constitution compared to criminal cases. The Constitution of the RSFSR still supported the construction of “professional justice together with people’s assessors”, but was aimed at a major transformation of democratic forms of justice in the future.

The preparatory part of the court session in criminal proceedings in court with the participation of jurors: some problematic aspects

The preparatory part of the court session in criminal proceedings in court with the participation of jurors: some problematic aspects

Judicial investigation in a jury trial as a way of communication between participants: procedural features and modern possibilities

The Code of Criminal Procedure of the Russian Federation establishes several forms of consideration and resolution of criminal cases in the court of first instance. One of the forms of criminal proceedings is the consideration of cases with the participation of jurors. This form has its own procedural features, due to the delimitation of competence between a professional judge and a jury. Features are typical for the judicial investigation, which, as the main form of communication between the participants in the process, begins with the opening statements of the parties and has a limitation on the evidence examined in the presence of the jury. The article analyzes these features from the point of view of theory and established judicial practice, provides recommendations for successful interaction with jurors. It is stated that the procedural features entail the use of a special tactic for presenting evidence to the jury, the need to simplify, visualize evidentiary information. It is concluded that in order to simplify and visualize the available information, it is currently necessary to use modern technical developments and achievements.

COMPARATIVE ANALYSIS OF THE ACTIVITY OF COURTS WITH THE PARTICIPATION OF JURORS: ON THE EXAMPLE OF THE USA AND KAZAKHSTAN

he authors, based on a comparative analysis of the criminal procedure laws of the USA and Kazakhstan, studied the issues of the activity of courts with the participation of jurors. The choice of the US experience in considering criminal cases by a jury was not accidental, since the USA is the state to use a jury trial and already has its own legal history that is different from the UK. In the course of the analysis, the authors revealed three aspects such as the selection of jurors, the number of jurors, and the voting procedure during sentencing. The selection of jurors under US law has its advantages in comparison with the legislation of the Republic of Kazakhstan in terms of simplifying the selection and the right to refuse to participate as a juror. On the issue of the number of jurors, taking into account the US experience, we believe it is possible to reduce them from 12 to 9 and in some cases to 7 jurors. On the issue of majority voting or unanimous voting, based on the experience of the United States, we hold the opinion on the importance of voting by unanimous decision. Based on the positive experience of the USA, the authors proposed several amendments not only to the criminal procedure legislation of Kazakhstan but also to the Constitution of the Republic of Kazakhstan. Thus, the authors believe it is necessary to expand the category of criminal cases considered by a court with the participation of jurors, to improve the selection procedure and voting procedure. As well as the possibility of consideration of civil cases by a court with the participation of jurors. We believe all these amendments will have a positive effect in protecting the constitutional rights of citizens and building a rule-of-law state.

MODEL LEGISLATION OF THE CIS MEMBER STATES ON JURY TRIALS

The article considers the issue of inter-parliamentary cooperation of the member states of theCommonwealth of Independent States (CIS), formed in 1991. The main form of inter-parliamentarycooperation of the member states of the Commonwealth of Independent States is model lawmaking. As aresult of a comparative legal study, it was concluded that the model legislation of the Commonwealth ofIndependent States and the national legislation of the CIS member states, in particular the legislation ontrial with the participation of jurors, are interrelated and mutually influenced. The subject of the study wasthe norms of the “Model Criminal Procedure Code for the CIS Member States” in 1996 and the norms ofthe “Model Code on the Judicial System and the Status of Judges for the CIS Member States” in 2011. Thegeneral tendency to improve the judicial systems of the Russian Federation, the Republic of Kazakhstan, theKyrgyz Republic was revealed — the legislative consolidation of the possibility of considering criminal casesby a court with the participation of jurors. In the Russian Federation and the Republic of Kazakhstan, thecourt with the participation of jurors is successfully functioning, in the Kyrgyz Republic it will be introducedin January 2025.

CRIMINAL PROCEDURAL FEATURES OF THE APPOINTMENT OF A FAIR PUNISHMENT IN COURT WITH THE PARTICIPATION OF JURORS

The article considers the criminal procedural features of sentencing in a court with the participation of jurors, taking into account the possibility of jurors to influence the content of the sentence and the size of the punishment imposed.

Обеспечение права на защиту при производстве по уголовным делам в суде с участием присяжных заседателей: история и современность

The article is devoted to the issue of historical aspects, modern legislation and law enforcement practice, which relate to the participation of a defender in a trial conducted by a court with the participation of jurors. The features of the defense arising from the special role of jurors in establishing the actual circumstances of a criminal case are disclosed.

Presumption of Innocence and Trial by Jury

The paper examines the Anglo-Saxon and continental approaches to understanding the principle of the presumption of innocence. It is concluded that in Russia this principle was established and implemented in the spirit of continental legal logic. The effect of the presumption of innocence and the provisions arising from it (the principle of in dubio pro reo, the rule that the accused is not obliged to prove his innocence, etc.) when considering a criminal case by a Russian court with the participation of jurors is examined. The features of evidence in this form of legal proceedings, the relationship of the presumption of innocence with the right of jurors to find the defendant innocent if it is fully proven that they committed a criminal act (criminal law nullification) are considered. The conclusion is substantiated that it is in a trial with a jury that the presumption of innocence is most fully realized; it contains additional guarantees of its strict observance.

Conceptual Foundations of Positive Responsibility: Legal Aspect

The paper examines the main theoretical approaches to understanding the phenomenon of the rule of law and determining its essential characteristics, identifies the advantages and disadvantages of the most common points of view of scientists within the framework of scientific discourse devoted to the idea of building a rule of law and the possibility of its real implementation. The author concludes that in a state governed by the rule of law, the binding of power by legislative prescriptions cannot and should not be an end in itself, such a restriction is necessary to fully ensure the rights and freedoms of a citizen, when the state itself really recognizes the highest value of human rights, recognizes their priority. At the same time, attention is drawn to the fact that even the availability of the widest possible range of opportunities for a person to exercise his rights and freedoms does not guarantee the emergence of a desire, an aspiration to actually implement them, is not a guarantee of proactive, responsible legal behavior of citizens.The author proposes to introduce another essential characteristic of the rule of law: its citizens are self-determined, aware of themselves as bearers of positive legal responsibility. The main aspects of the scientific discussion about its essential characteristics and place both within the framework of legal responsibility and in the legal plane as a whole are investigated. The point of view is substantiated, according to which its positive component occupies a rightful place in the structure of legal responsibility: this is the driving force for bona fide participants in legal relations, while it is tied to the legal plane through legal awareness, it relies on it here. It is proposed to consider positive legal responsibility as a form of realization of a developed, mature legal consciousness of a person and its practical significance is shown by the example of a trial with the participation of jurors.

Positions of the Supreme Court of the Russian Federation on the Issue of Assessing the Sufficiency of Evidence When Sentencing Based on the Results of Examining Criminal Cases with the Participation of Jurors

This article draws attention to the problems associated with assessing the sufficiency of evidence in sentencing in criminal cases involving jurors. The main attention is paid to the position of the Supreme Court of the Russian Federation on the issue of assessing the sufficiency of evidence in a trial involving jurors. The author notes that the Judicial board for Criminal Cases of the Supreme Court of the Russian Federation in one of its decisions noted that the issue of evaluating evidence, including from the point of view of their sufficiency, belongs to the competence of jurors. Meanwhile, the Criminal Procedure Code of the Russian Federation actually prohibits the presiding judge from evaluating evidence from the point of view of their sufficiency when passing an acquittal verdict of the jury. The guilty verdict of the jury does not prevent the acquittal if the presiding judge recognizes that there are no signs of a crime in the actions of the accused (part 4 of Article 348 of the Code of Criminal Procedure). An acquittal in this situation should be based on sufficient evidence indicating that there are no signs of a crime imputed to him in the actions of the accused. The Chairman, conducting his own assessment of the sufficiency of evidence, may recognize the absence of signs of a crime in this act and pass an acquittal, including contrary to the guilty verdict of the jury. Thus, the consideration of a criminal case in Court with the participation of jurors may end with the approval of the acquittal of the presiding judge, even if he admitted the absence of signs of a crime in what he had done (paragraph 2, paragraph 1 of Article 350 of the Code of Criminal Procedure of the Russian Federation). However, the author notes that art. 302 The Code of Criminal Procedure of the Russian Federation does not provide for such justification as “the absence of signs of a crime in the act”.

Crowd-Judging on Two-Sided Platforms: An Analysis of In-Group Bias

Disputes over transactions on two-sided platforms are common and usually arbitrated through platforms’ customer service departments or third-party service providers. This paper studies crowd-judging, a novel crowdsourcing mechanism whereby users (buyers and sellers) volunteer as jurors to decide disputes arising from the platform. Using a rich data set from the dispute resolution center at Taobao, a leading Chinese e-commerce platform, we aim to understand this innovation and propose and analyze potential operational improvements with a focus on in-group bias (buyer jurors favor the buyer, likewise for sellers). Platform users, especially sellers, share the perception that in-group bias is prevalent and systematically sways case outcomes as the majority of users on such platforms are buyers, undermining the legitimacy of crowd-judging. Our empirical findings suggest that such concern is not completely unfounded: on average, a seller juror is approximately 10% likelier (than a buyer juror) to vote for a seller. Such bias is aggravated among cases that are decided by a thin margin and when jurors perceive that their in-group’s interests are threatened. However, the bias diminishes as jurors gain experience: a user’s bias reduces by nearly 95% as experience grows from zero to the sample median level. Incorporating these findings and juror participation dynamics in a simulation study, the paper delivers three managerial insights. First, under the existing voting policy, in-group bias influences the outcomes of no more than 2% of cases. Second, simply increasing crowd size through either a larger case panel or aggressively recruiting new jurors may not be efficient in reducing the adverse effect of in-group bias. Finally, policies that allocate cases dynamically could simultaneously mitigate the impact of in-group bias and nurture a more sustainable juror pool. This paper was accepted by Vishal Gaur, operations management. Funding: S. A. Yang and A. Zhang acknowledge the support of the Hong Kong General Research Fund [Grant “Decentralizing Platform Governance: Innovations from China; Project 17614921]. Supplemental Material: The online appendix and data are available at https://doi.org/10.1287/mnsc.2023.4818 .

Problems of prosecutorial strategy in jury trials: A situational approach

The article reveals the problems of enhancement of efficiency of prosecutor’s activity during court with participation of jurors and offers the ways of their solution on the basis of development of the strategy of state charge maintenance. The notion of strategy of maintaining state charge in a jury trial has been developed and the essence of its applied meaning has been revealed. The structure of strategy has been determined and the contents of its elements depending on the emerging judicial situations. Familiarization with the pre-trial investigation materials by prosecutor as a basis for building the strategy of state charge maintenance has been proposed to divide into two stages: initial information review and building the evidentiary basis. Judicial situations depending on the existing informational and psychological context of court proceedings with the participation of jurors were singled out and characterized as well as the ways of their solution were worked out. The most effective procedure of evidence presentation during the jury trial according to the chronology of crime development has been determined on the basis of modeling; the problem of surprise factor has been considered and the ways of its solution from the situational approach have been suggested; a number of tactical and psychological techniques of presenting indirect or contradictory evidence during the jury trial have been suggested. The typical models of behavior of the defense during the jury trial, illegal and acceptable ways of psychological influence of the defense have been identified. The analysis of defense lawyer’s activity aimed at “scandalization of justice” has been performed on the basis of the judicial practice study. On the example of typical situations arising during the formation of the jury panel the role of realization of the state prosecutor’s strategy in the situational model of court proceedings with the participation of jurors is shown.

Peculiarities of judicial proceedings with the participation of jurors in some foreign countries

Peculiarities of judicial proceedings with the participation of jurors in some foreign countries

О чем говорит высокая доля оправданий по уголовным делам, рассмотренным с участием присяжных заседателей

Различия между соотношением оправдательных и обвинительных приговоров, постановленных на основании вердикта коллегии присяжных заседателей, и соотношением оправдательных и обвинительных приговоров, постановленных в ординарном порядке, имеют множество детерминант, которые кроются как в судебном, так и в досудебном производстве. В статье подвергаются критике существующие критерии оценки деятельности следственных органов и широкое применение особого порядка судебного разбирательства, как одни из причин снижения качества предварительного расследования, что, в свою очередь, сказывается на вынесении итоговых судебных решений по рассматриваемым уголовным делам. Так, своевременное, законное и обоснованное прекращение следователем уголовного дела позволяет избежать направления уголовных дел в суд с перспективой вынесения оправдательного приговора, способствует защите личности от необоснованного преследования. Кроме этого, своевременное прекращение следователем уголовного дела, имеющего перспективу его рассмотрения в суде присяжных, позволяет снизить необоснованную нагрузку на государственных обвинителей путем освобождения их от обязанности поддерживать обвинение по уголовным делам, имеющим слабую доказательственную базу и иные существенные недостатки, препятствующие рассмотрению дела в суде. Стабильно высокая и значительная доля уголовных дел, рассмотренных в бесспорном, т.е. в особом, порядке, ложно ориентирует органы расследования на направление в суд уголовных дел, не имеющих достаточной доказательной базы. The difference between the ratio of acquittals and convictions based on the verdict of a jury, and the ratio of acquittals and convictions in the ordinary order has many determinants that lie both in court and in pre-trial proceedings. The article criticizes the existing criteria for evaluating the activities of the investigating authorities and the widespread use of a special procedure for judicial proceedings, as one of the reasons for the decrease in the quality of the preliminary investigation, which, in turn, affects the issuance of final court decisions on criminal cases under consideration. Thus, the timely, legal and justified termination of the criminal case by the investigator avoids sending criminal cases to court with the prospect of an acquittal, and helps protect the individual from unreasonable prosecution. In addition, the timely termination by the investigator of a criminal case, which has the prospect of being considered in a jury trial, reduces the unreasonable burden on public prosecutors by relieving them of the obligation to support prosecution in criminal cases that have a weak evidence base and other significant shortcomings, preventing the case from going to trial. A consistently high and significant proportion of criminal cases considered in the indisputable, i.e. in a special manner, falsely orients the investigating authorities towards sending criminal cases to court that do not have sufficient evidence base.

The Legal Status of Jurors in the Administration of Justice in Criminal Cases

The article provides an overview of modern Russian legislation regulating the legal status of a juror. The comparative analysis of normative acts regulating the activities of judges and jurors allows us to conclude that there are inconsistent legal norms that significantly complicate modern law enforcement practice. A number of problems related to the procedural regulation of the procedure for the formation of a legal panel of jurors have been identified, namely: dual citizenship of a candidate for jurors; the procedure for identifying circumstances that prevent a citizen from participating in a criminal case; the age of a juror, etc. In addition, the article presents judicial practice in criminal cases considered in 2018–2020 by the Irkutsk Regional Court and district (city) courts of the Irkutsk region with the participation of jurors, confirming the need to edit and amend certain provisions of the federal law “On jurors of Federal courts of general jurisdiction in the Russian Federation”. New versions of these provisions of the law have been proposed. Examples of restrictions for candidates for jurors and people’s assessors (sheffen) in the legislation of other countries (the Kingdom of Spain, the Republic of Austria, Georgia), such as age, profession, official position, education, are given. At the same time, attention is drawn to the fact that for foreign practice, these circumstances are a direct ban on participation in the process, and not the basis for unconditional recusal. It is concluded that bringing the norms regulating the position of jurors to uniformity will eliminate the discrepancy between the law by law enforcers, facilitate the work of the courts on the formation of the collegium and, in general, will contribute to increasing the authority of jurors and the judiciary.

Jurisdiction in Criminal Cases and Materials of Criminal Proceedings: Problematic Issues

In accordance with Article 47 of the Constitution of the Russian Federation, no one can be deprived of the right to have his case heard in that court and by that judge to whose jurisdiction it is attributed by law, the accused of committing a crime has the right to have his case heard by a court with the participation of jurors in cases provided for by federal law. The issue of changing the territorial jurisdiction is also connected with the issue of the impossibility of considering the case by that court or by those courts, the consideration of a criminal case or material in which may call into question the objectivity and impartiality of the court. The Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation have repeatedly addressed this problem, but practice constantly reveals more and more problematic issues. The authors offer their vision for the resolution of some problematic issues in the presence of disputed jurisdiction when considering a criminal case in court. The issues of jurisdiction in criminal proceedings are quite complicated, and, at the same time, not fully investigated. This article is an attempt to consider in more detail a number of issues that arise when determining jurisdiction in criminal cases considered by courts, as well as materials, including materials considered by courts on the election of preventive measures, and within the framework of procedural control over the preliminary investigation in accordance with Article 125 of the Criminal Procedure Code of the Russian Federation, and at the stage of execution of the sentence, when resolving issues related to its execution.

The consequences of a conviction deserving of leniency in the criminal legislation of the Russian Empire

This article is devoted to the specifics of sentencing when the jury verdicts condescension under the legislation of the Russian Empire from 1864 to 1917, as well as the limits of the jury’s influence on possible punishment.
 The author comes to the conclusion that the development of the institution of jurors in Russia in terms of sentencing has no historical continuity. The modern Russian court considering cases with the participation of jurors has fewer rights in its competence and rules of sentencing compared to the corresponding powers in sentencing in pre-October Russia, which indicates the need to expand the competence of jurors in the current domestic legal model.
 Keywords: punishment, jurors, verdict, lad