Trial by jury in Russia and international experience

Sychev Dmitry Anatol'evich PhD in Law Associate Professor; Department of Criminal Procedure and Criminalistics; St. Petersburg Law Institute (branch) University of Prosecutor's Office of the Russian Federation 12 Siqueiros Street, Saint Petersburg, 194354, Russia ds999rus@rambler.ru Other publications by this author

Quite a lot of works have been devoted to the study of the jury trial, in particular the Russian one. These are, first of all, the works of outstanding pre–revolutionary jurists - A.F. Koni, L.E. Vladimirova, N. Butskovsky, I.Ya. Foynitsky, A.M. Bobrishchev-Pushkin and others. During the Soviet period, this topic, devoid of empirical support, was developed by such prominent scientists as B.V. Vilensky, A.K. Afanasyev, M.G. Korotkov, V.A. Shuvalova, and others due to the elimination of jury trials from the Soviet judicial system. Among the foreign works, the classical studies of R. Walker, L. Winreb, Leroy D. Clark and others deserve attention. The reconstruction of the jury trial in modern Russia has led to a surge of scientific interest in it. The works of A.A. Demichev, A.M. Larin, A.A. Akimchev, S.A. Pashin, S.V. Bobotov, N.F. Chistyakov, N. Radutnaya, M.V. Nemytina and others were published.

The relevance of the chosen topic is due to the fact that despite a fairly large number of scientific papers, there is no consensus about the need and prospects for the functioning of such an institution as a jury trial. In addition, available research has traditionally focused on the organizational foundations of the jury trial, and when it comes to the trial itself, very often the adversarial process is illustrated by the skill of the defense attorney, while the prosecutor remains in the shadows. Without detracting from the professional merits of the defense, this work, in particular, focuses on the historical experience of maintaining public prosecution, which may be in demand at the present time.

The methodological basis of the research is a set of scientific methods of cognition: dialectical, systemic, concrete-historical, formal-logical, etc.

For the first time, one can begin to talk about the emergence of the jury trial as a judicial institution after the appearance of its prototype in Athens, which arose as a necessary part of the democratic Constitution by virtue of the laws of Solon. At first, the jurisdiction of this court consisted mainly in resolving cases arising from complaints against the sentences of officials, not excluding archons (the highest official in ancient Greek polis (city-states), as well as in evaluating the judicial activities of these persons after their term of service. With the enrichment of the state and the strengthening of the people, almost all cases that had previously been under the jurisdiction of various departments and colleges, not excluding the Council of Five Hundred and the Council on the Areopagus, were transferred to the jurisdiction of the jury. By the fourth century BC, the people had actually become the arbiter of all affairs in the state ^{[1, p. 128]}.

In ancient Rome, during the republican period, the experience of Athens was adopted and permanent commissions (questias) were established for the purposes of administration of justice. Their competence included, for example, the consideration of cases of official offenses, as well as serious criminal offenses. The composition was estate-based (the judicial lists could include representatives of the upper classes between the ages of 30 and 60, from whom judges were chosen by lot to resolve a specific case). The decision-making procedure was determined by secret ballot, without prior discussion ^{[2, pp. 196-204]}.

Chronologically, the next historical mention of the trial by jury is evidence of their similarity in England during the time of Louis the Pious in 829 AD and in Denmark. These courts were a consequence of the Norman expansion in 1066, and by the beginning of the 12th century, with the decline of various medieval forms of court, they had become a solid element of the English legal system. By the beginning of the 18th century in England, the jury court had formed not only as an independent judicial body independent of the will of the king and royal judges, but also as a court whose verdict could be decided solely on the evidence examined in the process, which was directly relevant to a particular case ^{[3, p. 6]}. Four knights, under oath, chose twelve of their own kind, who were directly involved in the trial.

Due to the unity of the legal system, the English version of the jury trial formed the basis of the US judicial system, and was also extended to the British colonies. In the United States, censorship restrictions on the selection of jurors have been preserved to a lesser extent, while there are a number of features inherent in each state. The main conditions for election as a juror in the United States are residency (residence in the country from 7 to 12 years), age of majority, knowledge of the language, lack of criminal record and other shortcomings that hinder the performance of duties.

In France, the jury replaced inquisitorial proceedings only by the end of the 18th century and was also formed according to the English model. The Constitution of September 3, 1791 established two types of juries: for trial (consisting of eight jurors) and for judgment (consisting of twelve jurors elected monthly on the basis of a preliminary list). The jury deliberated in the presence of the judge and the public prosecutor. A guilty verdict could be based on at least 10 votes of the jury. The censorship of the jury was maintained. The final formation of the jury trial in France was completed with the publication of the Code d'instruction criminelle, which entered into force in 1811.

The doctrinal justification for the need to introduce a jury trial in Germany was the "Patriotic Fantasies" (1776-1786) of Justus Mezer. However, the practical implementation of this institution began almost 30 years later in the Rhineland provinces; and it was only by the middle of the 19th century that the jury trial was more or less widespread throughout the German Union, with the exception of Austria and Mecklenburg. With the formation of the North German Union, the jury trial in Germany was strengthened, despite the consistent criticism of the outstanding Austrian jurist Anton Freiherr von Gie, who considered such an innovation alien to the spirit and historical past of Germany. The Franco-Prussian War (1870-1871), which ended with the defeat of France, became one of the reasons for the rejection of foreign loans, including in the field of jurisprudence. According to a significant number of German lawyers, Germany, in building a national judicial system, should rely on domestic institutions, which in the past were scheffens — elected assessors who make up the same board with judges, without distributing procedural tasks among themselves. Adopting such ideas, the German legislator established the Scheffen court in 1879, leaving only cases of major crimes under the jurisdiction of the jury.

By the end of the 19th century, a number of European countries had also introduced jury trials (in Austria after 1866, in Norway in 1887, in Spain in 1888, in Italy from 1803 to 1815, with further re—establishment in 1865).

In the 20th century, the geography of the jury trial is significantly narrowing. Currently, the jury trial operates in more than 30 countries around the world, but it is not a dominant element of the national judicial system in either continental Europe or Asian countries. In such countries, for example, as France, Austria, Belgium, Denmark, Finland, the term "jury trial" itself has lost its original meaning, and this concept has actually been extended to Sheffen courts with expanded composition ^{[4, p. 25]}.

This may be evidence that most countries focus on developing national experience in the functioning of the judicial system. In our opinion, there are several reasons for this. Firstly, the jury trial is a rather expensive institution, the financing of which is beyond everyone's power. Secondly, the product of a jury trial, a fair verdict, is extremely sensitive to the educational and cultural level of potential jurors, their ability and desire to administer justice, and their immunity to the imposition of an unfounded opinion. Not every modern society meets such requirements. Thirdly, it follows its own historical path of development and unwillingness to introduce such an alien cultural invasion as a jury trial into its state systems.

In the post-Soviet space, taking into account national peculiarities, the jury trial really operates only in Kazakhstan. The Court consists of nine jurors and two professional judges. The issues to be resolved for the verdict are resolved by them jointly through voting, the results of which are attached to the case file. If the question of the defendant's guilt is resolved positively, the judges decide whether the act is a crime. After resolving the issue of qualifications, the judges, together with the jury, decide all remaining issues of the verdict by open vote.

The Old Russian veche, which plays a special role in the mechanism of state power in the Novgorod and Pskov principalities, had a judicial function like a jury trial. As a judicial body, the Veche had universal judicial competence, but mainly dealt with cases of special importance (official offenses of Posadnikov and Tysyatsky), and was also the "supreme court for criminal cases." Being the supreme state body, the Veche did not have a well-formed judicial competence and "could judge any cases that attracted its attention" ^{[5, pp. 389,392]}.

The imperial vector of the development of the Russian state interrupted the development of democratic principles in domestic judicial proceedings for a long time. The primacy of the doctrinal formulation of the idea of creating a jury trial in Russia belongs to Professor S. E. Desnitsky of Moscow University. The latter, being a European-educated scientist, acted as one of the experts on drafting notes for the Joint Commission (1767-1768), a temporary collegial body in Russia convened to systematize laws that came into force after the adoption of the Council Code (1649). His work "The Idea of the establishment of legislative, judicial and punitive authorities in the Russian Empire" was mentioned by Catherine II in The order of the Completed commission. "For greater precaution in convicting the guilty and for the apparent fairness of the trial," he wrote, "it would be immeasurable to choose from forty outsider people fifteen witnesses to assist and acquit the judges in the investigation of criminal and litigation cases," who must "under oath say after examining the whole case whether the convicted person is guilty or not." ^{[6, p. 103]}.

Similar ideas were expressed by the outstanding statesman and jurist M. M. Speransky already addressed to Alexander I in 1809 ^{[7, pp.95-1101, 172-174]}: - "In many states, the court is revered as belonging to the people, the reason for which is the establishment of a jury" ^{[8, pp. 138-150.]}.

Later, during the reign of Nicholas I, new regulations on the judicial system and judicial proceedings, which provided for the introduction of a jury trial, prepared with the active participation of State Secretary M. A. Balugyansky, also did not receive the highest approval ^{[9, p. 222]}.

The judicial reform was launched during the reign of Alexander II with the introduction of a draft document on the reorganization of civil proceedings to the State Council on November 15, 1857. The subsequent development of a new concept of judicial reform was carried out by the most prominent lawyers and government experts of their time. The commission for the preparation of judicial reform included D. A. Rovinsky, S. I. Zarudny, N. A. Butskovsky, A. P. Plavsky and others. The procedural codes of the leading European countries were taken as a basis: France, Belgium, Italy, Austria, Saxony and Prussia, which contain the institution of trial by jury as an integral tool of modern criminal proceedings.

Despite the fact that the jury trial was obviously a borrowed legal institution, it was developed in accordance with the historical structure and national interests of Russia. The classic German lawyer K. Mittermeier, comparing the draft Russian statute of criminal procedure with European legislation, wrote that "it stands above even many of the latest legislative works" ^{[10, p. 16]}.

The need for a radical transformation of the Russian court was also indicated by the mental contradiction between the popular consciousness, which aspired to a "just court", a "court of conscience" based on the highest moral justice, and the formal one that existed, "deadening the living case of the court, killing the spirit of true truth in it and arousing disgust among the people" ^[11].

"Take Dahl's collection of Russian proverbs," wrote a retired judge, one of the leaders of Slavophilism, an outstanding Russian public figure, the poet I. S. Aksakov, "read there all the marks with which the history of our judicial institutions is carved into the national memory, look at the features that he characterized this world of judges, clerks, clerks and clerks; remember those spells and conspiracies that superstitious people resort to among the people, "so that neither the righteous nor the guilty will have to deal with the court," that's what our court meant and means to the people!"^[11].

It took almost five years to work on new bills before Alexander II approved the "Basic Provisions of Judicial Reform" on September 29, 1862; on November 20, 1864, the Judicial Statutes of the Russian Empire were issued, which included, among others, the Statute of Criminal Procedure (Criminal Code), which introduced the jury trial and the Establishment of judicial institutions. (USU), which establishes a new judicial system.

The jury trial was the crowning achievement of all the changes affecting the Russian judicial system and judicial proceedings. He allowed his subjects to participate directly in the administration of justice, regardless of their social status, which was an independent factor in reducing social tension between different classes. Progressive contemporaries highly appreciated the innovation: "The best, noblest part of this reform, based on trust in the national spirit," wrote the outstanding Russian jurist A. F. Koni ^{[12, p.56]}; "The institution that constitutes the greatest glory of the statutes of November 20 is the jurors," echoed the professor of law at St. Petersburg State University. Foynitsky ^{[13, pp. 1-64]}; "The new court replaced the court of greed with the court of truth and conscience, the court of the right of the strong with the court of equality for all,— I. S. Aksakov agreed with them ^[11].

By the Supreme decree, the judicial statutes of 1864 were put into effect on October 19, 1865 ^[14].

What were the conditions for the functioning of the jury trial in order to achieve the noble goal set by the fathers of judicial reform? "A jury trial only achieves its purpose when it is arranged in such a way that the jury turns out to be truly representatives of the majority of well-meaning citizens, when the opinion of the jury can be recognized as the verdict of public conscience, the direct consciousness of which is therefore only preferred to considerations based on the theory of evidence, and therefore is only considered immutable and not subject to any control by way of appeal or Obviously, it presupposes the consciousness of the pure conscience of the best people in society; as truthful as conscience is, so is the verdict of such people pronounced by them, therefore, the good purpose of establishing a jury is achieved primarily by a prudent legislative decree regarding their election" (reasoning under Article 7 of the Criminal Code). As a result, the originally planned universal jurisdiction of the jury trial was eventually limited. Lengthy discussions in the State Council on the expediency of extending the jurisdiction of the jury trial to state crimes led to the fact that the relevant crimes were attributed to the jurisdiction of the court of the criminal department of the Judicial Chamber with the participation of estate representatives who, along with members of the Chamber, participated both in determining the guilt or innocence of the defendant and in passing a sentence (articles 1032, 1050, 1051 UUS) ^{[15, pp.184, 234]}.

Cases of crimes involving the deprivation of property rights were subject to consideration by a jury.

The jury courts were formed in the district courts, which are the courts of first instance in the system of general judicial institutions. The jury consisted of 12 regular jurors and two alternate jurors; all of them were sworn into court. There were usually no more than three crown judges, but this number could also be increased if necessary; one of them was the presiding judge. The jurors in the courtroom were located separately from the crown court. A representative of the prosecuting authority (prosecutor) and a sworn attorney defending the interests of the defendant were necessarily present at the trial. The course of the trial was recorded by the secretary of the court session.

The hearing of the criminal case began with the reading of the written opinion (indictment) of the prosecutor, who reviewed the preliminary investigation conducted in the case. It outlined the event of the crime to be considered by the court, indicated the person who committed it, and the article of the criminal law providing for responsibility for the deed. The indictment could be presented to the jury after its approval by a special indictment chamber, consisting exclusively of judges and located in each judicial chamber.

The court then proceeded to examine the evidence. First of all, witnesses who were invited to the courtroom and immediately sworn in were subject to interrogation, being warned about criminal liability for giving false testimony. The witnesses were subject to separate questioning by the court, the parties and the jury.

At the end of the interrogation of witnesses, the relevant inspection reports and documents were announced, and physical evidence was presented for inspection. The jurors were directly involved in their research. At the same time, the jury was forbidden to communicate with anyone during the trial under threat of a fine.

After the presiding judge declared the investigation over, the parties moved on to the debate, which began with the prosecutor's accusatory speech. It should be noted that the prosecutor's refusal to charge did not terminate the proceedings in the case until it was resolved directly by the jury. After the prosecutor, the defense attorney spoke, to whom the prosecutor could object on one condition, namely, the defendant had to have the last word.

At the end of the debate, the court proceeded to raise questions. In the questions to be resolved by the jury, the signs of the crime that were imputed to the defendant were outlined (for example, whether the defendant was guilty of stealing so-and-so from a residential building with burglary of locking devices at night). The jury had to answer the following question in monosyllables: "Yes, guilty" or "No, innocent." At the same time, qualifying signs could be excluded if they were considered unproven. The jury also had the right to find the accused deserving of leniency, which entailed a certain reduction in punishment.

After listening to the conclusion of the parties who could request a change in these issues on the issues put to the jury, the court approved the issues and spoke the final word, in which it repeated the essence of the case before the jury and explained the significance of the evidence. At the same time, neither the chairman in his speech, nor the parties, under threat of cancellation of the verdict, had the right to express their opinion on the case or talk about the punishment facing the defendant.

To reach a verdict, the jury retired to a special room, where the decision was made by a majority vote. If the votes were equally divided, the decision was made in favor of the defendant. Upon the jury's return to the courtroom and after the verdict was announced, the judge was obliged to act according to the jury's decision: release the accused if he was acquitted, or apply the punishment specified in the law to him. If the presiding judge found the jurors' answers to the questions raised contradictory, he explained to the latter the meaning of the contradiction and sent them to an additional meeting by his decision. The judge had no right to discuss the correctness of the verdict. If the crown judges came to a unanimous conclusion about the innocence of the defendant convicted by the jury, they overturned the guilty verdict, and the case was transferred to a new jury (Article 818 of the Criminal Code), whose verdict was considered final. The motive for the verdict was kept secret.

The verdict, based on the verdict of the jury, was not subject to appeal.

The resolution of procedural issues remained the responsibility of professional judges.

Complaints and protests against the verdicts of the district court, based on the verdict of the jury, were considered by the Senate exclusively in cassation and only because of procedural violations, due to which the jury could receive an incomplete or incorrect understanding of the case.

The legislator emphasized the importance of forming the personnel base of the jury trial, for which a number of requirements were developed in the Institution of judicial regulations on the procedure for forming the composition and organization of the jury trial.

So, the opportunity to be elected a juror was: a man, a Russian citizen, aged from 25 to 70 years. Without taking into account the level of salary or income, the lists of jurors included all civil officials from grades 5 to 14, all elected employees of urban and noble institutions, and peasants who had held elected positions of village elders, foremen, etc. for at least three years. Persons who held general positions, employees of the court and prosecutor's office, military personnel, police officials, clerics, persons in service, convicted and on trial, excluded by their society or class, wastrels, insolvent debtors and some others were not subject to inclusion in the jury lists. In this regard, it should be noted that the official qualification for candidates for jurors, according to the general opinion of the scientific community, is considered a domestic invention, whereas the use of other types of censorship, in particular property, to include persons in candidates for jurors was a common European practice.

For the election of jurors, a general list (which was supposed to include a property qualification) and regular lists were drawn up (Article 84 of the Criminal Code). The formation of the general list was put under double control: on the one hand, there was control of the governor as "the first guardian of the benefits of the state and public order in the province", on the other hand, society represented by local residents "are the most competent judges in this matter, who are most interested in it by force of things" ^[16]. The temporary commission, reinforced by the participation of the leader of the nobility and the justice of the peace, was charged with the duty of drawing up regular and backup lists from general lists, which recorded "to what extent each person who met the conditions (Articles 81-88 of the USU — D. S.) was capable of fulfilling his moral qualities and other reasons known to the commission. duties of a juror" (Article 99 of the Criminal Code).

In a qualitatively new court, the prosecutor has also become qualitatively new. After the reform, the Prosecutor's Office was relieved of the functions of general supervision, focusing entirely on maintaining public prosecution and overseeing the investigation and inquiry. The new Prosecutor's Office functioned at the courts. The positions of prosecutors of judicial chambers, district court prosecutors and their associates were established. The prosecutors of the district courts were subordinate to the prosecutors of the Judicial Chambers. The prosecutors of the Judicial Chambers and the Chief Prosecutors of the Senate were directly subordinate to the Prosecutor General.

Analyzing the processes of the past, researchers, as a rule, pay attention to the skill of the defense, citing as an example the speeches of such sworn attorneys as D. V. Stasov, A. I. Urusov, M. I. Dobrokhotov, F. N. Plevako, V. D. Spasovich and others, or the phenomenon of the "court of the street", ready to go against the "the spirit of clerical formalism that permeates our government institutions" ^{[17, p. 407]}, which issues acquittals where professional lawyers have no doubts about the guilt of the defendant. However, the author, for obvious reasons, will focus on the skill of one of the representatives of the prosecution.

The Moscow District Court heard the case on February 14-15, 1867. A former student, Alexei Mikhailovich Danilov, appeared before the jury, accused of murder, fraud and calling himself by false surnames. The case was heard under the chairmanship of the head of the District Court, E. E. Luminarsky, with the participation of State Prosecutor M. F. Gromnitsky and defense attorney M. I. Dobrokhotov. The plot of the case is as follows: Danilov was accused of the murder of retired Captain Popov and his maid Maria Nordman on January 12, 1866. Before his murder, Popov was engaged in lending money at an interest rate. The capital of the latter was about 50 thousand rubles. Most of the money and some of the items left on bail were stolen. The suspect in the commission of this crime, Danilov, neither admitted guilt at the preliminary investigation nor in court and did not repent of committing the crime.

The state Prosecutor tactically decided that it was necessary to begin a speech before the jury by presenting evidence of the defendant's main and most serious crime, murder, which we will limit ourselves to describing. Having briefly outlined the essence of the charge, M. F. Gromnitsky began with a story about the material basis of usury, which the victim was engaged in upon arrival in Moscow. The basis of the future business was the money earned by Captain Popov from the sale of his estate in Finland in 1865 for the amount of 23 thousand rubles. The basis of the relevant allegations was an inspection of the scene, where a list of bank notes and correspondence between the deceased and his family were found. Further, the state prosecutor presented to the jury the facts of the death of both victims, namely the retired captain and his housekeeper Nordman, who lived with him. The evidence included medical examinations of the corpses and numerous traces of blood found at the victims' residential address. Based on the fact that no cash or bank notes were found during the inspection, and the portable property was in an indescribable mess in the apartment, the mercenary motive of the crime was determined. The following circumstances indicated the time of the crime: the calendar indicating January 12, the readings of the water carrier and the stopped wall clock (6:43), the movement of which was quite sensitive to mechanical influences. A study of documents found at the crime scene helped to track down the killer: a mortgage stating that someone Grigoriev had pawned a ring to Popov (during further verification, the address, as well as the person hiding behind the surname Grigoriev, turned out to be fake), and letters from Popov to someone Feller, which indicated the features of a mysterious stranger who had pawned The ring. The feller turned out to be the owner of the store, who, along with his clerk Shokhin, easily identified one of his visitors by these features, explaining that he called himself not Grigoriev, but Vsevolozhsky. One day, Shokhin saw a gentleman coming to them on the street and pointed him out to police agents. The detainee was a student named Danilov, who had a fresh injury on his left arm. By comparing the handwriting, it was established that the notes on behalf of Grigoriev were written by Danilov. It was also established that on January 8, Danilov consulted with the pawnbroker Ramikh about the value of the ring, and also bought from him a previously mortgaged bank note No. 09828, which he subsequently re-mortgaged from Popov on the eve of the murder. Completing the list of evidence presented by the prosecution was the testimony of Dolzhikov, a deputy from the university, about Danilov's request to prepare witnesses for him about January 12, and the testimony of Trusov, a student who reported stains on Danilov's coat and how they sold diamonds together. The defendant's alibi about being at home at the time of the crime was not confirmed by either the latter's relatives, the Schwalinger girl, or Malyshev, to whom he specifically referred in his testimony.

However, the defendant Danilov, under the weight of overwhelming evidence, did not confess, but put forward a version of the concealment of the crime. His meticulous knowledge of the case and skilful handling of established facts, based, among other things, on the public prosecutor's personal perception of the crime scene, allowed Gromnitsky to convincingly disavow the story invented by the defendant. Thus, to cast doubt on Danilov's testimony that Feller advised him to identify himself as Grigoriev at Popov's, it was possible to indicate that the latter had no motive for such behavior, coupled with numerous facts not included in the indictment, but established by the investigation, when Danilov himself was called by other people's surnames. The defendant's reference to the fact that on January 8 he requested Feller's mediation in pawning a five percent bank note from Popov was refuted by the absence of a corresponding entry in the guest book of the club, and the indication of the absence of his receipt (by analogy with a pawned ring) Popov's statement was refuted by the prosecutor with reference to the fact that all records of the pawning of bank notes by the captain were recorded in a special book, where opposite ticket No. 09828 there was a victim's handwritten entry "Grigoriev".

According to the defendant's testimony, on January 12, upon arrival, he found the door of Popov's apartment open, saw the corpse of a woman on the floor; then the murderers attacked him. Breaking down these untenable statements, Gromnitsky pointed out the following. Firstly, it is inconceivable that the murderer, while committing his "dark deed", left all the doors open, and secondly, the corpse of housekeeper Nordman could not have been noticed while still on the stairs.

About the wound on his arm, the defendant testified that he received it from a man who ran out of Popov's bedroom with a dagger and chased him down the stairs. He also explained the traces of blood found on the stairs. The prosecution countered this attack with the judgment that it is more convenient to attack a fleeing person with a dagger in the hand last, and the abundant traces of blood on the stairs in the places indicated by the former student indicate that the person had been there for some time, which in no way agrees with the version of the chase. And no less important is how he, the only eyewitness, was able to escape from the killers under such circumstances.

Later in court, Danilov, correcting his testimony in weak points, referred to forgetfulness and other things, in particular, he said that the dagger struck the back of his coat in addition to his hand, which was immediately refuted by an immediate examination of the physical evidence. Other similar arguments of the defense invariably broke down against the iron logic of the prosecution. The prosecutor did not ignore the fact that the defendants had given their constantly corrected testimony for a long time, and he characterized it as a confession.

Concluding his speech, Gromnitsky summarized: "Gentlemen of the jury! My accusation is over...remember how the murder was committed, the number of wounds inflicted by the murdered man, remember the purpose of the crime and how he went out to Popov under the guise of a good friend; finally, remember how he behaved at the preliminary and here at the judicial investigation! Until extenuating circumstances are indicated, I will maintain that the defendant does not deserve your leniency" ^{[18, p. 103]}.

With the permission of the jury, questions were raised about the defendant's guilt.:

1) in the commission of murder with a mercenary purpose;

2) harboring a kidnapped person;

3) fraud;

4) in non-communication;

5) naming himself with surnames that do not belong to him.

The jury found Danilov guilty on points 1 and 5, but deserving of leniency.

Based on the verdict of the jury, the court sentenced Danilov to deprivation of all property rights, exile, 9 years of hard labor in the mines and further eternal settlement in Siberia. By the decision of the Senate, the cassation appeal of the convict was left without consequences.

Many years of experience in maintaining public prosecution by M. F. Gromnitsky formed the basis of his work "The Role of the prosecutor in criminal cases." What did one of his luminaries see as the key to the successful maintenance of public prosecution? Here are some of his recommendations:

a careful study of the case itself, since "the most insignificant paper can unexpectedly serve as material in explaining the circumstances of the case, may give an indication of the strengths or weaknesses of the defense, and may finally give a different light to the facts relevant in the case" ^{[19, p. 2]};

"God, spare every accuser who enters the judicial arena from writing accusatory speeches in advance. Anyone who writes several such speeches and speaks them verbatim in court runs the risk of never speaking real, unwritten speeches in advance" ^{[19, p. 8]};

before operating on evidence in court, it is necessary to bring all ambiguities to the attention: to make sure that the witnesses did not forget the testimony given at the preliminary investigation, to read something on forensic medical issues, and indeed any special, little or no lawyer unfamiliar with in order to verify other types of evidence.;

effectively conduct a judicial investigation, supplement, and often correct a preliminary investigation. It is not speeches, no matter how good they may be, that decide the case, but the judicial investigation ^{[19, p. 22]}.

The equally renowned representative of the prosecution, A.M. Bobrishchev-Pushkin, warned his colleagues against mistakes of a slightly different nature.:

the jury is focused on the fact, therefore, the event of the crime must be established with all certainty, the victim and the witness must be present and give their testimony orally, red-handed must be presented in kind.;

the absence of a victim, even in the event of death, is always a significant gap in the jury trial, even more decisively affected by the absence of an eyewitness in court, indicated in the indictment or finding him in a lie.;

the evidence should be clear, and everything that contributes to it is useful for the case (drawings, plans, maps);

in addition to the logical proof of the accusation, an impression is necessary, an effect on the feeling is necessary, without which the will does not awaken, the inner conviction of guilt required by jurors and others does not form ^{[20, pp. 326, 350, 353, 563.]}

The periodization of the formation of the pre-revolutionary jury trial covers four time intervals.

The period of formation (1866-1878)

For just over a decade, the trial by jury in the Russian Empire has been tested. During this period, the highly approved charters did not undergo any major changes. There was a process of accumulation of initial experience, both positive and negative.

In order to implement the new legislation in Russia, two judicial districts were initially created: Moscow (consisting of 10 provinces) and St. Petersburg (consisting of 3 provinces). Later, the Kharkov, Odessa, Kazan and Saratov districts were formed. In total, the created judicial districts accounted for 51 district courts ^{[21, pp.16-29]}. However, the Caucasus, a number of provinces of Central Asia and Siberia remained without the establishment of a jury trial.

The meaning of the phased introduction of the jury trial was obvious: the gradual development and further dissemination of experience in this case from advanced provinces to more remote and backward ones, both methodically and through the delegation of judicial personnel who had gained experience in judicial proceedings in a jury trial. At the same time, the experience had to be positive, "so that the case of judicial transformation, starting from these localities, would be subjected to the beneficial publicity that is so necessary for the first time for general instruction, so that the new court order would be fully and thoroughly assimilated by the public consciousness" ^{[22, pp. 485-488]}. In other words, the idea and practice of jury trials should be instilled on fertile ground. The Russian Empire, due to its heterogeneity, did not meet this task. "There are areas in Russia that no amount of publicity can penetrate (even if it's the same, for example, Tambov, as well as some others), where not only judicial reform, but even the end of the world would not be able to summon local residents to messages and correspondence" ^{[22, pp. 485-488]}.

One of the indicators characterizing the activities of any court, the jury trial in particular, is the number of acquittals. And if in the case of an ordinary court, the reasons for acquittals are primarily attributed to the unsatisfactory quality of the preliminary investigation, then in the case of a jury trial, if the acquittal rate exceeds the usual value, the reasons are usually attributed to the weakness of the jury itself, which is unable to correctly assess the evidence gathered.

History has preserved very selectively statistical data on the verdicts of acquittal issued by pre-revolutionary juries. So, in 1874, this figure was 32.8% of the total number of defendants (whose figure in Russia averaged about 30,000 people), in 1875 — 36.3%, in 1876 — 36.86%, in 1877 — 37.25%. But for the entire period of the existence of the pre-revolutionary jury trial, the average number of persons acquitted from the number of persons tried by a jury did not exceed 40%. And this is provided that up to three quarters of the cases under the jurisdiction of the district courts were tried by juries.

The structural composition of the cases considered by the jurors was as follows: up to 75% — crimes against property, up to 15% — crimes against life and health, up to 8% — crimes in the service, other crimes accounted for less than 2% ^{[23, 24]}.

What is the whole complex of reasons noted by contemporaries that prevented the effective functioning of the jury trial? One of the main ones, of course, should be recognized as the "poor quality" of the jurors themselves.

Despite the ideological precision of the legal norms related to the selection of candidates for jurors, law enforcement officials noted the unwillingness and inability of most temporary commissions to faithfully fulfill their duty to select candidates for jurors. This was expressed primarily in the formal approach, which did not take into account the social representation of a particular county when forming lists. The representation of estates other than peasants in the compiled lists hardly reached 1/6, which led to the formation of a court consisting, at best, of advanced representatives of one estate. "If one or the other composition of the jury had been purely noble or merchant, rather than peasant, the essence of the issue would not have changed; the court would have remained the same one-sided court, the verdicts could not have been considered fully sentences of public conscience, the legislator's thought would not have been fulfilled" ^{[25, p. 192]}.

We see the consequences of this approach in the verdicts of peasant juries, which bear the stamp of the way of life of a certain class. It is easier for a peasant to condescend to a crime committed by another person against a person, unless, of course, it is a serious injury that deprives the ability to work, or murder, than to a crime against property that is so hard earned.

A serious obstacle to the development of the institution of the jury trial was the actual lack of public control over the proper formation of lists of jurors before sending them to the governor. The very locals who were to serve as jurors in the future did not have the opportunity to verify the correctness of this list.

A significant problem of the initial stage of the jury trial was the inability of the prosecution to ask the right questions to the jurors. Thus, of the 590 sentences overturned by the Senate of Cassation in the period from 1866 to 1873, almost a quarter (144) of the sentences were overturned due to incorrect questions.

Among other reasons cited by contemporaries for the delay in the development of the jury trial were: 1) improper and inappropriate jurisdiction; 2) shortcomings of the current Code of Criminal and Correctional Punishments (Code of Punishments); 3) the desire to conceal from the jury the result of their conviction ^{[26, p. 107]}.

There were also technical reasons: not every peasant elected as a juror could afford the daily cost of living and eating in a provincial capital city; he was forced to lead an almost impoverished existence. It was hardly necessary to talk about the quality of sentences handed down by such people ^{[27, pp.114-115]}.

The period of the jury trial crisis

(from May 9, 1878 to July 7, 1889)

Most procedural scientists identify political, mental and legal factors among the most important reasons for reviewing the current procedure for the jury trial. Thus, the unpredictability of the decisions made by jurors in political cases obviously ran counter to the Government's attempts to ensure order in the country. On the one hand, the majority of jurors, due to their total illiteracy, could not competently understand cases requiring special education, which, coupled with their religious consciousness, guided them to justify the defendants so as not to "inadvertently take a sin on their soul," on the other hand, the inertia of the life order formed on the basis of serfdom made the will of the peasant jurors easy. led by powerful or at least educated people (prosecutor, lawyer, judge).

The legal reasons were the usual experience of testing new legislation, which revealed the shortcomings of its functioning.: This includes the revealed inconsistency of the Statute of Criminal Procedure (1864) with the Code of Criminal and Correctional Punishments (1845), the inefficiency of work on compiling lists of candidates for jurors, and the vagueness of prescribing a number of procedural aspects of legal proceedings in the law. For these reasons, countermeasures were also taken.

Shortly after Vera Zasulich was acquitted by the jury, cases of crimes provided for in chapters 1, 2 and 5 of section 4 of the Penal Code were withdrawn from the jurisdiction of the jury.: on resisting orders from the Government and authorities established by it, on insulting and blatant disrespect for offices and officials in the exercise of office, on breaking into prisons, release and escape from custody; cases of murders and attempted murders of officials, mutilation in the performance of official duties, and the commission of crimes by mentally ill persons were also seized. people. The first law limiting the jurisdiction of the jury was passed on May 9, 1878. In addition, jurors should no longer be called up to the Senate to consider cases of official offenses, cases of violations of passport regulations, press regulations, minor burglaries, a number of particularly socially dangerous crimes in railway and maritime transport, etc. were withdrawn from the jurisdiction of the jury court.

Also, when approving the new rules for compiling lists of jurors, the legislator emphasized a more attentive approach to the social and educational quality of candidates for jurors, revised the system of property and official qualifications towards greater flexibility in order to release low-income persons from the duties of jurors and increase the number of people with a more or less independent position. in society. The number of jurors that each side could have unreasonably dismissed was reduced from six to three. The jurors were also allowed to participate in the preparation of the questionnaire, to make appropriate statements about the need to correct or supplement them. It was forbidden to hold court sessions at night. A new Code of Criminal and Correctional Punishments was issued (1885), which had a positive impact on the activities of the jury.

The result of the legislative adjustments was the emergence of a new jury trial, different from the one envisioned by the drafters of the 1864 statutes, which was more in line with the realities of life.

The Russian jury trial in the late 19th — early 20th century. Further evolution of the jury trial

The new version of the Russian jury trial mostly satisfied the domestic law enforcement officer. Thus, most of the members of the meeting of senior chairmen and prosecutors of the Judicial Chambers, held in December 1894 in St. Petersburg, spoke in favor of the fact that the jury's activities meet the goals of justice ^{[28, pp. 47-48]}.

Since 1883, there has been a gradual but steady increase in the number of convictions decided by jurors. So, in 1883, for the whole of Russia, this number was 56%, in 1889 — 63%, and in 1890, 1891 — 66% ^{[29, pp. 190-191]}.

Systematic work continued to improve the jury trial. The Minister of Justice, Count N. V. Muravyov, speaking at the Commission for the Revision of existing judicial regulations created by the supreme command on April 7, 1894, noted that the task "is not to tendentiously break down the existing and not to deliberately reform the foundations of the judicial reform of 1864, but to carefully coordinate the contradictions contained in them, together with careful correction of the discovered shortcomings and filling of the undoubted gaps of the judicial system" ^[30]. In particular, the law of June 3, 1894 simplified the procedures for assessors to take the oath, as well as for the court to explain to them their rights, duties and responsibilities, and the law of March 2, 1910 allowed jurors to explain the punishment threatening the defendant and other legitimate consequences of their decision.

The final period of activity of the pre-revolutionary jury court (March 4, 1917 to November 22, 1917)

The Provisional Government, in modernizing the jury trial, followed the path of radical democratization, which did not draw its foundation either in the public life of the people or in the practice of applying the law and was primarily dictated by the political conjuncture. In this regard, it was quite correctly noted by V. A. Bukovov that the trial by jury "had practically no points of contact with the everyday legal experience of the masses... he had very little chance of surviving the revolution" ^{[31, p. 200]}. Special courts (the Supreme Criminal Court and the special presence of the Senate, judicial chambers and district courts with the participation of estate representatives) were abolished, and cases under the jurisdiction of these judicial bodies were transferred to courts with the participation of jurors.

All restrictions imposed during the crisis of 1878-1889 on the consideration of criminal cases with the participation of juries are excluded.

Jurors were given the right to participate in the proceedings of the Judicial Chambers and the Criminal Cassation Department of the Senate. Moreover, for the first time in the history of Russia, they were given the opportunity to investigate state and war crimes. The property qualification and a number of other restrictions (national, religious, etc.) that affected the opportunity to become a juror were abolished.

After the October Revolution of 1917, the courts with the participation of jurors were abolished along with other judicial bodies by the decision of the Council of People's Commissars of November 22, 1917. At the same time, the jury trials in a number of provinces, in particular in Nizhny Novgorod, Kostroma and some others, continued to exist for some time and tried cases on behalf of the Provisional Government. This state of affairs became possible due to both the slow formation of new local judicial authorities and the inertia of the old law enforcement officer, which the new government had to put up with due to the unprecedented increase in crime.

The institution of trial by jury in modern Russia

Under the conditions of the new statehood, the legislator decided not to develop such a Soviet institution of direct participation of representatives of the people in the administration of justice as lay judges, but to return to the experience of functioning of the court with the participation of jurors in pre-revolutionary Russia. The prerequisite for this was the Fundamentals of Legislation on the Judicial system of the USSR and the Union Republics (1990), which gave the latter the right to provide for the functioning of courts with the participation of jurors in their legislation to resolve issues of guilt of defendants in cases of crimes for which the law provides for the death penalty or imprisonment for more than 10 years; and the Concept of judicial reform in the RSFSR (1991), which provided for a trial by jury as one of the central elements of the new judicial system.

On November 1, 1991, the Constitution of the RSFSR was supplemented with article 166 on the possibility of considering criminal cases involving a jury trial. The provisions of this article were expanded in the Law of the Russian Federation of July 16, 1993 No. 5451-1 "On Amendments and Additions to the Law of the RSFSR "On the Judicial System in the RSFSR", the Code of Criminal Procedure of the RSFSR, the Criminal Code of the RSFSR and the Code of Administrative Offences of the RSFSR", which initiated the introduction of the jury trial in the Russian Federation. "Until its abolition, the death penalty may be applied as an exceptional measure of punishment for particularly serious crimes only by a verdict of a jury," article 7 of the Declaration of Human and Civil Rights and Freedoms, adopted on November 22, 1991, declares.

The Constitution of the Russian Federation, adopted by popular vote on December 12, 1993, contains article 123, which provides for judicial proceedings involving jurors, and article 20, which establishes the right of citizens to participate directly in the administration of justice by participating in court proceedings as jurors. The relevant norms were included in the Criminal Procedure Code of the Russian Federation in 2001.

Using the experience of the past, the legislator followed the path of gradually introducing a jury trial. The Stavropol Territory, the Ivanovo, Moscow, Ryazan, and Saratov regions became experimental regions, and a little later the Altai and Krasnodar Territories, the Ulyanovsk and Rostov regions. By the beginning of 2007, the provisions of the Criminal Procedure Code of the Russian Federation providing for the operation of the jury trial had been extended to all subjects of the Russian Federation. Since June 1, 2018, the jury has been operating at the district (city) level.

A significant invasion into the activities of the Russian jury court was a change in jurisdiction. Thus, since 2001, the courts of the constituent entities of the Russian Federation have completely lost the ability to consider terrorist-related cases with the participation of jurors, as well as cases against persons who cannot be sentenced to life imprisonment or the death penalty as the highest penalty, and other cases. And since 2008, crimes against public safety, the foundations of the constitutional order and state security, criminal cases against members of the Federation Council, deputies of the State Duma, judges of federal courts and courts of constituent entities of the Russian Federation (paragraph 2 of part 3 of Article 31 of the Code of Criminal Procedure of the Russian Federation), criminal cases, the materials of which contain information constituting a state secret (paragraph 3 of part 3 of Article 31 of the Code of Criminal Procedure of the Russian Federation), cases concerning the sexual integrity of minors.

Federal Law No. 216-FZ of June 13, 2023 "On Amendments to Article 30 of the Criminal Procedure Code of the Russian Federation" excluded criminal cases of responsibility for organizing or participating in a criminal community (criminal organization) from the jurisdiction of the jury if these acts were committed by a person in a senior position. in the criminal hierarchy, and occupying the highest position in the criminal hierarchy (part 4 of Articles 210 and 210.1 of the Criminal Code of the Russian Federation).

In order to ensure the correct and uniform application of the criminal procedure law, the Plenum of the Supreme Court of the Russian Federation adopted Resolution No. 23 dated November 22, 2005 "On the application by Courts of the norms of the Criminal Procedure Code of the Russian Federation Governing judicial proceedings involving jurors."

The jury trial has become firmly embedded in our lives and has even become something commonplace. More and more of the accused are opting for their case to be tried by a jury, which is as consistent as possible with the manifestation of democratic principles in the criminal process. According to judicial statistics, an average of more than 600 cases per year were tried with the participation of jurors from 2018 to 2023 (according to the main article of the indictment) with sentencing. (2018 — 280; 2019 — 717; 2020 — 675; 2021 — 870; 2022 — 987; 2023 — 960) ^[32]. Jurors do not get acquainted in advance with the materials of the criminal case, they are protected from information characterizing the personality of the defendant (including information about his criminal record), which is not essential for them. Their decision is based on an analysis of the factual circumstances of the case, recreated by the parties to the prosecution and defense during the trial.

Criticism of the jury trial in the scientific field has shifted from the point of "to be or not to be a jury trial in Russia" to the point of "what to be a jury trial in Russia."

This conclusion is indirectly confirmed by the fact that the trial by jury as a widely publicized phenomenon has long disappeared from the front pages of the media. Surprisingly, the fact is that popular coverage of the court's activities with the participation of jurors — a kind of drama theater and legal eloquence — can now be found more often in books or feature films than in modern media. Although information "stuffing" into the media field periodically accompanies "high—profile" trials, on the one hand, they are a kind of report from law enforcement agencies and courts on the work done, on the other hand, for the sake of their own rating, they fuel the interest of the sophisticated layman in sensationalism, and on the third, they serve the interests of the defense side trying to influence in this way. the opinion of the jurors.

The history of the Russian jury trial is a more than seventy—year milestone in Russian legal history, divided by the experience of building a socialist state. The new Russian jury trial is firmly based on the invaluable experience of the past. A number of features of the formation of the pre-revolutionary jury trial are still visible today.: This includes its phased introduction, narrowing of jurisdiction, criticism of the relatively low level of repression compared to ordinary courts, and much more. All the more valuable, along with the study of everyday practice, is the extensive use of the experience of outstanding pre-revolutionary legal practitioners, in particular public prosecutors, which will make it possible to look more confidently into the future of the Russian jury trial.