The purpose of an inquest is to determine the four statutory questions: who, when, where and how. This chapter also looks at the difference between a traditional inquest (‘Jamieson Inquest’ or ‘Non-Article 2 Inquest’) and an Article 2 inquest (also known as a ‘Middleton Inquest’), the conclusions available to the coroner and when a jury is required.

An inquest is an inquisitorial process, and this has an impact on the roles of the advocates and the jury, if there is one. This chapter explains their roles, and also when a professional may require separate legal representation, with some further tips on giving evidence from the perspective of an advocate.

In human–robot interactions in legal proceedings, human responses to robot-generated evidence will present unique challenges to the accuracy of litigation as well as ancillary goals such as fairness and transparency, though it may also enhance accuracy in other respects. The most important feature of human–robot interactions is the human tendency to anthropomorphize robots, which can generate misleading impressions and be manipulated by designing robots to make them appear more trustworthy and believable. Although robot-generated evidence may also offer unique advantages, there are concerns about the degree to which the traditional methods of testing the accuracy of evidence, particularly cross-examination, will be effective. We explore these phenomena in the autonomous vehicles context, comparing the forums of litigation, alternative dispute resolution, and the National Transportation Safety Board. We suggest that the presence of expert decision-makers might help mitigate some of the problems with human–robot interactions, though other aspects of the procedures in each of the forums still raise concerns.

Chapter 3 analyzes freedom as doing “whatever one wishes” in fourth-century oratory. As several scholars have noted, doing “whatever one wishes” appears ambivalent in forensic speeches. They argue that, since Athens was not an anarchic state, extreme freedom could be glossed as a threat to sociopolitical stability. In contrast to prevailing scholarship, however, I argue that the most dominant principle, even in these texts, is the preservation of positive freedom as justification for the litigant’s position. While acting “however one wishes” may be presented as objectionable, the rhetoric of that assessment emphasizes who is doing “whatever they wish” and whom they affect by doing so. Bad characters, whether a criminals, oligarchs, or metics, can be rebuked as undeserving of positive freedom and abusing the power that attends it. The limitation of another citizen’s ability to do what he wishes can also condemn the action. Doing “what one wishes” is not a byword for antidemocratic action, but can have such a connotation because of the particular actors or victims of the actions. It is the misuse of the natural qualities of a citizen that leads to censure.

In Chapter 4, I offer a new theory of citizen power. Every adult male citizen would have been free, but this also made him kurios, or empowered, as opposed to ceding his power to a slave master. When substantivized, kurios indicated a male citizen’s institutionalized role as the head of a household. The lens of the household kurios generates an understanding of citizen power that encompasses both private and public domains. Not simply power as domination, kurios also indicated a shared power to act. As a conceptual metaphor, kurios was applied to the political sphere and structured thought across these different domains. Thus, qualities of the term kurios in its original domain, the household, corresponded systemically in the applied domain, the city. The laws and the corporate citizen body, too, were understood as kurioi. While there may be competing claims to power, the identification of the citizen as sharing in power with and through the laws and the dēmos is distinct from the modern conception of the individual versus the state. The negotiation of power in this way has repercussions for debates regarding sovereignty and the rule of law.

This chapter takes a psychological perspective on tort law decision-making, drawing on psychological theory, empirical research, and legal practices in tort litigation to assess the state of knowledge about decision-making in tort cases. It examines how plaintiffs decide to bring a lawsuit, how defendants respond, and the process of dispute resolution in tort cases. Most tort cases do not go to trial, but trial decisions remain significant as a framework for negotiations. The chapter also draws on psychological theory and research to describe how the judge and the jury as decision-makers resolve legal issues and reach liability verdicts and damage awards in tort cases. Psychological heuristics, biases, and other psychological phenomena affect decision-making in intentional tort, negligence, and strict liability cases, and judgments about liability and damages. The chapter closes with suggestions for further investigations of understudied topics in tort law decision-making.

Judiciaries in England emerged from four interacting historical sources. At the foundation lay the authority of monarchs empowered to judge their subjects’ rights, duties and status by virtue of the regal office. The second form of judiciary arose by royal delegation of decisional power to dedicated judges sitting in permanent courts of common law, or to executive courts with a more political mandate. A third source of judicial power was local and widely distributed, whereby groups or associations or sub-units of government solved disputes and allocated rights and duties as a process of self-direction, taking place for example in manors, boroughs, guilds, and church assemblies.

Many countries around the globe rely on ordinary citizens, untrained in the law, to decide the guilt or innocence of their fellow citizens. Some countries use all-layperson juries, while others use mixed tribunals or mixed courts in which professional judges and lay citizens work together to decide a case. Still other countries use lay magistrates or lay judges working alone or on panels. This book provides a view of the different forms of lay participation and the ways in which they are evolving. It offers a comprehensive picture of how some countries have made recent and remarkable advances toward lay decision-making, while others have a long-standing form of lay participation that is well accepted in that country. Still other countries have faced challenges with lay participation and have opted for limiting the scope of lay legal decision-making or even abolishing it. The organization of this book illustrates that lay participation in a country is not fixed in stone; lay participation is being advanced, reinforced, or replaced in countries around the world. These shifting responses to lay participation suggest the prime importance of stepping back and taking a global perspective.

This chapter provides a snapshot view of the different ways that 195 countries around the world use lay participation in legal decision-making. We collected information from a variety of sources, including new expert surveys, legal research, and existing empirical evidence, to determine which countries use lay citizens as legal decision-makers in criminal cases and how they use them. Approximately two-thirds of the world’s countries use some form of lay participation, and the most commonly used forms are juries and mixed tribunals. The use and form of lay participation vary by geography and by the legal tradition of the country. The majority of countries in Africa, Australia and Oceania, Europe, and North America use some form of lay participation in their legal systems. Countries with common-law or customary-law legal traditions are most likely to rely on lay citizens as legal decision-makers. The widespread use of lay participants around the globe underscores the importance of studying this phenomenon. This chapter provides a baseline against which future studies in lay participation can be measured.

This chapter provides historical and contemporary perspectives on two long-standing systems of trial by jury in France and in Belgium. It begins with a brief history of the French criminal jury and describes its recent reforms, including a significant pilot program that extended lay participation. This chapter then turns to the history of the Belgian criminal jury, recent reforms which almost abolished it, and countervailing forces to resurrect and strengthen the jury. It explores how political and economic struggles in both countries have influenced the ebb and flow of lay citizen participation, combined with underlying tension between professional judges and lay citizen judges. The chapter concludes with observations about the future for lay participation in these two countries.

Edward Andrew discusses Pierre Bayle, who held that conscience was the “voice of God,” but that humans can still err. Enlightenment thinkers increasingly insisted that social approval, not God’s voice, guided conscience. Thus, conscience became not about certainty concerning the right course of action, but rather about alignment with social forces that might create stability. Bayle maintained that conscience was a faculty of the person, although subject to error. This distinguished him from Locke, who referenced conscience in his political writings. However, in his Essay concerning Human Understanding, Locke asserted that conscience was only one’s abiding beliefs. Bayle, however, proposed that conscience was the development of applications of natural law and Scripture. Harold Schulweis and Harold Berman are conversation partners for Bayle. Schulweis sees conscience as a force of judgment outside law. Morality is not fixed; rather, the person with an active conscience constantly recalibrates her actions and judges the right thing to do. Berman, however, thought conscience as a force beside law, like a jury that renders its judgment about the right decision under the circumstances.

American Indians, Crime, and the Law: looks at criminal justice in Indian country not from the perspective of Indian law and policy but through the lens of criminal law and policy. It recognizes that criminal jurisdiction in Indian country places a disproportionate weight on federal prosecution of on-reservation crime because the state lacks the authority to enforce laws, and tribes have limited criminal powers over non-Indians. Washburn questions whether prosecutorial discretion can be appropriately exercised when outsiders prosecute local crimes in Indian country and when juries often fail to include tribal members.

Chapter 7 turns to the broader issue of felony judging. Methodologically, the chapter relies more heavily on extra-legal sources, both religious and more purely literary, due to the limited discussion of approaches to decision-making by justices and juries within legal records. The chapter emphasizes the dangers involved in the act of judging but also suggests that emphasis on the dangers can obscure the prosaic nature of judging in medieval England. Despite concerns with the Last Judgment, medieval culture embraced prudential judgment as a routine fact of life. One finds medieval English men comfortably handing down verdicts in a wide range of disputes, felony cases being only the most extreme example due to the blood sanctions attached to them. The chapter considers how individuals reconciled their fear of judging with the expectation that they issue verdicts in routine and extreme cases alike, calling attention both to the ubiquity of judging in daily life and concerns over recidivism and crime that helped counterbalance fears of the Last Judgment.

Chapter 8 opens with the story of Erkenwald and the righteous pagan judge, inviting the reader to consider not only the complexities of defendants’ mental state, but also the mental state of persons engaged in the act of judging; this, too, would be subject to scrutiny at the Last Judgment. The chapter argues that medieval English felony law was based upon the equitable balancing of harsh justice and mercy; for a justice or jurors to stray too far in either direction could be condemnable. Drawing upon cautionary tales about judging, the chapter highlights themes that appear in medieval English literary and religious sources, including the notion that justices should not waver too greatly in decision-making, being swayed by money or ill advice; that justices should also not be too inflexible, but should rather reconsider a judgment that in hindsight appeared to be mistaken; and that justices and jurors should beware lest their decisions be informed by anger rather than measured consideration of the facts. The chapter illuminates the ways in which mind mattered not just for determining the culpability of criminal defendants, but also for assessing the culpability of individuals tasked with sending felons to the gallows.

The book’s conclusion opens with Thomas Smith’s late sixteenth-century description of a judge’s instruction to the jury and returns to the question of how jurors’ roles were understood at the time that England abandoned trial by ordeal in favor of jury trial for felonies. It returns to the questions that opened the book, including how one might explain the high felony acquittal rate and how central the issue of mind was to the determination of guilt and innocence in medieval English felony cases. Looking ahead to later treatise literature, the conclusion then considers how later treatise writers, namely Coke, Hale, and Blackstone, would describe mens rea in subsequent centuries as the common law of felony came to be articulated in writing. Returning to questions of methodology, the conclusion emphasizes again the intertwining of the legal and the literary in medieval English culture, focusing on a sermon that employed a defendant choosing a defense strategy as a metaphor for the importance of confession and contrition. The book concludes with a restatement of its core claim: that issues of mind pervaded medieval English jurors’ understandings of the nature of guilt and innocence.

The introduction opens with the plaintive cry of a medieval English outlaw bemoaning the uncertainty of the common law. It then situates the book within the broader history of the concept of mens rea and describes the methodology to follow, with a particular emphasis on the juxtaposition of legal and literary texts. A summary of sources is followed by a brief introduction to the Anglo-Saxon and Angevin antecedents to jury trial for felony and a description of the shift from ordeal to jury trial. After a brief chapter summary, the introduction provides a primer in medieval English felony procedure geared toward readers not already familiar with medieval English criminal law. Using an invented homicide narrative, the introduction outlines the various paths a person accused of felony might choose in the aftermath of an alleged crime, as well as the different avenues open to those inclined to prosecute. While some of this introductory material will be too rudimentary for experienced historians of the common law, this basic foundation makes the book accessible to a broader audience.