Older and Modern Methods of Trial

CONTENTS

ACKNOWLEDGEMENTS----------------3

INTRODUCTION ---------------------------4

OLDER MODES OF TRIAL--------------------------5

TRIAL BY WITNESSES ----------------------------------6

TRIAL BY COMPURGATION---------------------------7

 TRIAL BY BATTLE -----------------------------------8

TRIAL BY ORDEAL --------------------------------------- 9

TRIAL BY JURY--------------------------------------------- 10

MIGRATION OF JURY SYSTEM IN INDIA----------------------------12

CONCLUSION: ABOLITION OF JURY SYSTEM IN INDIA-------13

BIBILOGRAPHY--------------------------------------------15

 ACKNOWLEDGEMENTS

THIS PROJECT IS THE RESULT OF NOT AN INDIVIDUAL EFFORT BUT OF COLLECTIVE WISDOM. I PROFUSELY THANK OUR HISTORY OF STATUTORY PRESUMPTIONS PROFESSOR MR.JACOB JOSEPH SIR FOR HIS TIMELY SUPPORT AND GUIDANCE.

I ALSO THANK THE LIBARARIANS OF NUALS FOR PROVIDING US ACCESS TO THE NECESSARY MATERIALS REQUIRED IN COMPLETING THIS PROJECT.

I ALSO THANK GOD FOR OUR SUCCESSFUL COMPLETION OF THIS PROJECT.

INTRODUCTION

The method of conducting trials as we see in the present day courts have evolved after much evolution in due course of time. In order to understand and appreciate the older methods of trial, one has to understand the present day concept of trial.

Modern method of trial:

There are two parties to the issue. The party which issues the complaint is the Plaintiff and the party against whom the issue is raised is the defendant.

Witnesses are presented by both the parties. If the witness is called by the prosecutor then they are addressed as prosecution witness and if the witness is called by the defense they are defense witness.

Firstly reason is given as to why the accused is there after which witness is questioned by the person who has called (i.e., prosecutor examines the prosecution witness and defence witness examines by the lawyer on the defence side).This is called chief examining i.e. the witness is examined by the called council. Here the questions and the answer types are noted. It is called as disposition of witness1. There are certain rules are present for chief examining which includes court manners like Objection your honour.

Then takes place the cross examining where the lawyer of the opposite council asks his questions for the facts. The judge also has the power to raise questions in order to clarify certain doubts in his mind. This right is given as per the criminal procedure code. So the procedure goes on where one by one of the prosecution witness is called and cross- examined and then one by one of the defense witness is also called. The accused is present in a separate box until the court dispenses and under his own discretion the accused can  also come up to the witness box to be among one of the witnesses.

A person has to be proved beyond reasonable doubt to be charged guilty. Right to legal aid and presumed innocence makes a panel of judges by the state to arrange a council for the person.

There is also a recorder recording the dispositions made by various witnesses. Then on basis of the records of evidences and personal dispositions made there will be an argument between the councils of the either side. Witnesses can be in the form of persons and also documentary evidence is accepted. Based on the arguments of the councils in the light of dispositions and evidences, the judges decide the case.

OLDER MODES OF TRIAL

The earliest form of trial was the Jury Trial. But before that the English court had certain crude trials the purpose being the same in all methods to determine the falsehood or truth of facts in issue.

There were several modes of trials followed during earlier times, the most important being Trial by compurgation, Trial by ordeal, Trial by battle. These were distinct methods and both the litigants and the court had the liberty to choose which method of proof is required.

Here an important term to be noted is of Medial Judgement which is a term used to refer to the situation wherein the court selects a method of proof. It had two implications; the method to be used and how it is to be conducted and if a consequence comes out what its meaning is. The whole case starts through the initiative of the plaintiff.

The case commences with the statement made by the plaintiff regarding his claim. Mere words were not accepted. Statement of claim was required. Also, Secta had to be produced while making a statement. The Secta was a body of witness or a group of witnesses. This body of witness would testify in front of the court only as to the ingenuity of the plaintiff’s claim and not the facts in issue. They would be testifying that the petitioner has a prima-facie case. This is a preliminary round before the trial.

Secta is normally comprised of friends and dependents of the petitioner. The consequence of testimony of the system’s perspective was it raised a slight presumption in favour of the plaintiff. Secta was never the final words for verdict. This was just to proceed the preliminary round of the trial. Its not a proof to that resolves the case.

Now it’s up to the defendant to meet these presumptions through some modes of trials.

Defendant has to make his defense for which he puts forward his first elements of defense.

The claims made by the plaintiff do not jell with that of the defendant as a result of which the conflict arises. There will be certain facts in issue that need to be checked. That is, a fact put forward by the plaintiff will e countered by the defendant.

Thus, methods to decide the facts in issue need to be decided.

The next step is of medial judgment. The methods were very different from the modern methods. In Certain methods only one person had to undergo the mode of trial. Before any side of the petitioner or defendant could undertake or discharge the obligation to prove the facts in issue. But later, by the 13^th century certain conceptions of the Roman law influenced the English legal system. From the 13^th century the person who advances the claim or the one who made a positive assertion needs to prove the facts in issue.

TRIAL BY WITNESSES

Trial by Witnesses is one of the earliest or oldest modes of trials used.

In this method of trial, the witnesses used are not analogous to the witnesses used today while the witnesses are more analogous to the Secta. 

In Trial By Witnesses, normally it would be the defendant who makes the witnesses testify under an oath after which the court would decide the fact in issue. It was a formal test. Here the qualitative nature of the testimony given by the witnesses is not looked into as the modern day trials. In this kind of a trial, importance was given not to the quality or probative value but the consistency of the testimony. The court only gave importance to the consistency of the witnesses and looked into the quantitative nature of the group of witnesses i.e. the number of witnesses on either side. The court decides on which side the witness is strong and has more number and decides the case.

Till the 13^th century this system continued but from then on only the plaintiff produced witnesses.

TRIAL BY COMPURGATION

Trial by compurgation was also known as LAW WAGER.

In this method, both the parties produce the Secta. Compurgators would be coming forward and stating before the court their belief in the claim of the defendant under an oath. Once the plaintiff has made his claims the defendant came forward and denied the claims of the plaintiff. There was a set format of words to be used by the defendant and they had to be used under all circumstances.

Thus the defended appears and uses set form of words to deny whether the claims or accusations by the plaintiff against him and if he succeeds in bringing additional persons to back his denial by their oaths then the defendant shall win his case. There was no clarity as to the number of compurgators to be produced.

In the initial stages, the same oath was taken by the compurgators and defendants but later by the 12^th century certain changes took place in procedure. The rule came to be adopted that the compurgators should be required to swear to their belief in the truth of the defendant’s assertion. It might have been the lawyers of corpus juries civil that have prompted for this refinement.

Trial by compurgation was crude and not acceptable by the educated. Changes took place since the study of common law. In the beginning there was no clarity in the number of compurgators but by the 14^th century, in the year 1342 a number of 12 compurgators was required to make a case win.

Certain minute rules were also laid down as to the manner in which compurgation had to made in particular cases. Earlier it was a uniform method.

William Holdsworth a renowned historian in his monumental work of “The History of English law” published in 12 volumes, showed certain illustrations as to how compurgation was made.

Example, a woman borrows before marriage and after her marriage how was the compurgation to be made and how she could be sued for anti-nuptial debt.

After 14^th century this method lost its importance and popularity and thus the number of cases decreased. By the 14^th century the trial by compurgation was taken over but assizes. Real action cases were taken over by assizes first. Then later assizes got importance for all. Trial by compurgation was done away with cases where involving crown or state like serious criminal offences. It was done away with actions involving trespass, deceit, and forcible injury. Gradually compurgation disappeared from English legal scenario itself. Cases where an action is bought against the executor of the deceased defendant this mode of trial was not allowed.

Holdsworth States that KING v WILLIAMS   was the last recorded case of trial by compurgation. It was in 1824.

Finally by the year 1834 this mode of trial was officially abolished.

TRIAL BY BATTLE

Trial by battle was most common among the barbarian tribes and bought to England by the Normans. It was a show of strength or show of force for deciding cases. It was said that providence will give victory to the right. The witnesses called by the adverse party or defendant had to prove their veracity by way of battle. Here it was a case even when the prosecution witness turned hostile witnesses i.e. one who takes a stand in his testimony opposite to the version of the party who called him, they had to prove veracity by battle. Initially it was a very difficult process as the witnesses were required to be skilled in the usage of war like weapons. It was a perilous process. The witnesses had to prove their veracity by themselves without including a 3^rd party or champions.

But this was not very rigid. Certain classes were exempted from this rule. Whenever a party was a woman, child, infant or clergy or a person above 60 years of age were exempted. They came as witnesses and employed champions or people to fight for them.

But later the power to employ champions was extended to able bodied persons. In 1275 a statute was passed regarding the use of champions. Feudal lords and some classes had a permanent set of champions for such purposes as they were embroiled in litigation.

Prior to 1275 champions were considered as witness. They had to take oath and then fight i.e. they were liable for perjury. But if in case champions were found supporting a wrong cause they were prosecuted for perjury with severe punishment. By 1275 swearing in by champions was removed. In England trial by battle went on till the 10^th century only because it appeared barbarous to people trained in civil or roman law. By the end of the 13^th century it became obsolete.

During the 13^th-19^th century it was used only in certain cases as an alternative to grand assize in real action. It had a very limited use and by 1890 it was abolished for all purposes.

TRIAL BY ORDEAL

Trial by ordeal rests on the basic principle that god will intervene by a sign or miracle to determine a question at issue between two contending parties.

Several methods were used here to decide the case like if a person could hold red hot iron in his hands without getting hurt or plunging hands into boiling hot water or even seeing if a person would sink or not were used to restore questions of facts. It was believed that if they could perform such tasks without getting hurt then it means that it was god’s miracle to prove their innocence.

Maitland could find only one case in which the accused was convicted between 1201-1219; there was a lot of foul play involved here. Latteran council officially condemned the use of trial by ordeal.

In 1219 King Henry III issued a decree to some of the judges of various courts and through this decree he prohibited trial by ordeal.

This method was very rudimentary and not very popular and thus by its abolition Trial by jury started gaining importance.

Itinerant justices who used to travel from one place to another, Justices of peace who administered justice and trial by jury gained importance due to the vacuum created by the abolishment of the older modes of trial.

TRIAL BY JURY

The jury is a body of individuals or ordinary citizens predetermined in number who are entrusted with the responsibility of deciding questions of fact.

The jury is one of the most famous of the devices by which the king introduced into the law a simpler and more rational and equitable method of administering justice than any of the methods provided by the archaic formalism of the older customary laws. The foundation of the English jury system is traceable to the French empire under the Caroligian kings. History reveals that jury system was in Athens around 5 BC and made their identity in Rome in the 5^th century AD and in France by 9^th century AD. It reached England after Norman Conquest on England. After the jury was introduced here, Normans used it to collect data in administrative arena or sphere. Subsequently they were used in the judiciary also.

Normans in England with a set of noble jury collected information and compiled THE DOOMES DAY-1086, which listed the ownership of all English land and revenue system. It resulted in the establishment of the right to obtain data of state from citizens and sowed next stage for the development of jury system. Pope Innocent III was also indirectly responsible for transforming jury to an English institution.

Jury was used to discover facts under certain writs like writ of possessory assize for disputes regarding the procession of land.

Initially jury was used only in the civil cases but later under KING HENRY II it was used in criminal cases also. It was an instrument of justice under him.

THE TYPES OF JURIES IN CRIMINAL CASES WERE:

A. GRAND JURY-   To determine whether or not sufficient evidence is assisted or brought to its notice to give justice and justify the trial. King Henry II was responsible for creation of the Grand Jury. It is also called the presenting jury.

B. PETIT JURY-    To determine whether to convict or acquit i.e. decides if the person is guilty or not. Petit jury is also called as trial jury.

THE TYPES OF JURIES IN CIVIL CASES WERE:

1) Assizes

2) The Jurata

The assizes jury was constituted to answer specific questions related to specific written laws. The various types of assizes are as follows:

a) Grand Assize- It was a special variety of jury introduced by legislative enactment to determine a question as to which of the two parties to a writ of right had the better right to land. When land was held by free tenure then the tenant could chose either trial by battle or grand assize. If tenant objected to the use of grand assize then he was expected to give valid reasons. If grand assize is chosen then the next step is obtaining a writ. 12 people have to be selected from neighborhood to say upon oath as to which of the two parties had a better right to the land which is the subject matter of the dispute.

Grand assize fell into disuse when more modern and convenient remedies emerged to settle disputes regarding ownership of property. Grand assize disappeared with the abolition of real actions in 1833.

b) Pocessory Assize- This refers to those juries which were used to determine who held the procession of a particular land. Pocessory assize were 3 in number: Assize of novel disseisin, Assize of mort d ancestor, Assize of darrein presentment. The parties had no choice as to the cases to which to which Pocessory assizes applied. This process also began with the issuing of a writ by the sheriff to summon 12 free and lawful men of the neighborhood to answer the questions as to seisin raised by the assize. Even this assize disappeared with the abolition of real actions in 1833.

c) Assize Utrum – This jury was introduced to determine the question as to whether a land was held by spiritual or lay tenure. Spiritual tenure is the land given to churches and certain concessions were given in this case. Till 1571 it was used chiefly by persons to recover land which belonged to churches.

3) The Jurata :

Jurata is a body of persons summoned by a public authority to answer some disputed questions of fact. Earlier writers like Glavil have used the terms jurata and assisa convertibly. But the two terms have different meaning. The broad difference was that the assisa was a body of jurors summoned to answer certain questions in accordance with a positive law which enacted that such questions should be answered in this particular.

MIGRATION OF THE JURY SYSTEM IN INDIA

The East India Company charter of 1661 envisaged jury trial for European colonists while the native residents of the Bengal presidency were subject to summary jurisdiction at the hands of the Collector, or Zamindar, an English officer empowered to impose sentences including flogging and execution. Universal jury trial first appeared in India in 1774 but Bengal already enjoyed very developed forms of Islamic and indigenous justice. Some attempt was therefore required to capitalize on legitimacy of these procedures whilst responding to European demands for jury trial. European judges typically had a little understanding of local customs and languages and needed the authority of local religious leaders particularly the Moslem imams to validate their judgments by Fatwa. The 1774 statute accordingly confined jury trial to the presidency town of Calcutta the centre of British rule and it was not until 1832 that there was sufficient confidence to extend it, even in an attenuated form, to the remainder of Bengal. Lord Bentinck’s Bengal regulation VI of that year is important since it laid the foundation for the imperial policy on criminal trial in India. No longer was it necessary for East India Company to be confirmed by the Fatwa. The legislation enabled the European judges at their complete discretion to call on three possible forms of lay assistance. The first was the formulation of a panchayat which was a traditional council of five nominated advisors. The second was by the appointment of two native assessors who were frequently religious or political leaders who sit with the judge. The final was the appointment of a jury of unspecified size or composition. The procedure to be adopted in each case was entirely a matter for the judge who could disregard the verdict by the jury or the other advisors at his will. Several unsuccessful attempts were nevertheless made to establish a more regular form of jury trial in order to encourage European British subjects to accept the jurisdiction of the District Courts.

Finally in 1861, the legislative council established a general system of jury trial in sessions courts throughout Bengal but exercisable only with the consent of the state government, which was to specify the classes of offences which would qualify. This enabled the courts to offer European Jury trial in the Calcutta supreme court for serious offences, while denying it to Indians.

This position was confirmed by the Indian Criminal Procedure Code 1882. Even in 1923 when act XII placed all the accused persons of whatever race on an equal footing, anyone charged with a serious offence which raised a conflict between a European British subject and an Indian British Subject, could claim jury trial before a panel comprising a majority of their own race. Unsurprisingly the jury trial was abolished shortly after independence.

CONCLUSION

ABOLITION OF JURY TRIAL IN INDIA

Juries were formerly used in India until the famous case of K M NANAVATI v STATE OF MAHARASHTRA which led to the abolition of jury trials, although minor issues in rural areas are still handled by the panchayathi raj system of village assemblies. In the 1959 Nanavati case, Kawas Manekshaw Nanavati was tried for the murder of his wife Sylvia’s paramour, Prem Ahuja. The incident shocked the nation, got unprecedented media coverage, and inspired several books and movies. The case was the last jury trial held in India. The central question of the case was whether the gun went off accidentally or whether it was a premeditated murder. In the former scenario, Nanavati would be charged under the Indian Penal Code, for culpable homicide with a maximum punishment of 10years. In the latter, he would be charged with murder, with the sentence being death or life imprisonment. Nanavati pleaded not guilty. His defence team argued

It was a case of culpable homicide not amounting to murder, while the prosecution argued that it was premeditated murder. The jury in the Greater Bombay Sessions court pronounced Nanavati not guilty with an 8-1 verdict.

The sessions judge considered the acquittal as perverse and referred the case to the high court. The prosecution argued that the jury had been misled by the presiding judge in 4 crucial points.

One, the onus of proving that it was an accident and not premeditated murder was on Nanavati. Secondly, Sylvia’s confession of the grave provocation for Nanavathi or any specific incident in Ahuja’s bedroom or both; Thirdly, the judge wrongly told the jury that provocation can also come from third party. Fourthly, the jury was not instructed that Nanavati’s defence had to be proved, to the extent that there is no reasonable doubt in the mind of a reasonable person. The court accepted the arguments, dismissed the jury’s verdict and the case was freshly heard in the high court.

Since the jury has also been influenced by media and public support for Nanavati and was also open to being misled, the Indian government abolished the jury trials after the case.

BIBILOGRAPHY

(i) Trial by Jury BY  Sir Patrick Devlin

(ii) Potter’s Historical Introduction To English Law

(iii) www.google.com

(iv) www.law.jrank.com

(v) www.legaldictionary.thefreedictionary.com

(vi) www.languageinindia.com

(vii) www.cairn.info

(viii) Forums.bharat-rakshak.com