The recent reintroduction of trial by jury in criminal cases in Russia (l993) and Spain (1995), and the introduction of the jury for the first time in Venezuela (1998), constitutes a surprising reversal in a long-term trend towards elimination of the classic jury in favor of courts composed either exclusively of professional judges, or of so-called Amixed ccourts,@ inwhich professional judges and lay assessors collegially decide all questions of fact, law and sentence. In both new systems, an old dispute as to whether juries would merely be factfinders, or whether they would, as is the case in England and the United States, also apply the law to the facts, has been rekindled.

Both before and after the October Revolution, the Russian legislators rejected the Anglo-American general verdict of "guilty" or "not-guilty," in favor of a list of questions or propositions, following the French model, which was adopted by most Continental European countries in the 19th Century. Yet as will be apparent from the language of the two statutes, both legislators equivocated as to whether they actually wished to limit the jury to deciding mere "naked historical facts" by allowing the jury to make a finding of "guilt" or lack thereof as to each charged offense.

The jury in English and American cases is really a "procedural Sphinx" [25], inasmuch as its laconic "guilty" or "not-guilty" reveals none of the logic or thought-processes which led to the verdict. At most when the jury in a murder case finds the defendant guilty of a lesser-included offense of, say, involuntary manslaughter, one could say that they found that the defendant had no intent to kill, a necessary element of most murders. In Continental European trials "(t)he trial judge is obligated in a written opinion to make clear not only what items of evidence support each finding and what chains of inference lead from these items to specific factual determinations." [26] Russian criminal judgments must be reasoned [27] as is the case in most Continental European countries and special verdicts in the form of "question lists" were introduced in France, and followed in European jury systems in the 19th Century for this reason. The three-pronged guilt question in both the old and the new Russian legislations allows the sentencing judge to know, in the case of an acquittal, whether the jury found that the corpus delicti of the charged offense was simply not proved, whether they had doubts as to the defendant's authorship of the crime, or whether guilt could not be assigned due to an excuse (such as duress or insanity), a justification (such as self-defense) or due to some other reason. [28]

In the majority of the cases heard in the first year of modern Russian jury trials, the court has asked the three basic questions as to each charged offense. I analyzed the question lists from 80 cases of murder or attempted murder. In 59 of these all three questions were asked. [29]

The formulation of questions related to affirmative defenses or lesserincluded offenses raised problems in the first trials under the 1993 law. The Moscow and Ivanovo courts treated lesser homicides in the heat of passion, or using excessive force in self-defense [54] as full-blown crimes with constituent elements which had to be proved by the jury just like the charged capital crimes. Question lists first addressed the basic three questions relevant to an intentional homicide, and then asked those questions relating to the elements of the lesser homicide offenses, or justifiable homicide in self-defense. Questions relating to defenses were formulated requiring positive proof that the victim committed an act upon which self-defense or heat of passion could be predicated, in the form of, for instance : "has it been proved that the victim attacked the defendant ?", etc. [55] In the first Saratov cases, questions related to affirmative defenses were framed in the following manner : "Is it probable that the acts of Artur Martynov were carried out in self-defense ?" This form was also used in relation to defenses of alibi, accident and heat of passion in later cases. If the jury answered in the affirmative, then the judge following the verdict qualified the crime as a lesser offense or an acquittal in the event of justifiable self-defense. [56]

This brings us to the last and most important problem area, the question of division of labor between judge and jury in determination of the guilt question. The Russian Supreme Court=s pedantic interpretation of "other questions requiring strict juridical evaluation in the jury’s rendering of the verdict" (§ 449(4) UPK RSFSR) in Decision No. 9 [68] has signalled a return to the separation of powers between jury and court inherent in the French Code d'Instruction Criminelle of l808, in which, following Montesequieu, the jurors :

The SCRF’s dogma limiting the competence of the jury is critically important when it comes to the aggravating circumstances that turn an intentional killing into capital murder and the possible imposition of the death penalty. This can first be illustrated by examining how questions relating to two of the most common aggravating circumstances in modern Russian capital murder cases have been handled, those of "hooliganistic motivation" and "exceptional cruelty." [89] In the first year of jury trials, the majority of judges formulated the questions relative to these aggravating circumstances so as to allow the jury to either directly or indirectly decide whether the conduct of the defendant fell within the statutory definition. In some cases the jury was first asked whether it had been proved that defendant committed the charged homicides, listing the precise acts perpetrated and injuries inflicted, and then whether the murder was committed out of "hooliganistic motivation" or with "exceptional cruelty." The definitions of these crimes, usually drawn from opinions of the Supreme Court or UPK commentaries, were then read to the jury during the judge's summation. [90] Other judges allowed the jury to indirectly determine the aggravating circumstances by formulating the questions in cases of "hooliganistic motivation" in relation to the alleged lack of motive (or insignificant one), which accompanied the killing. For example : "Has it been proved, that Kashuba committed the above-described acts (including shooting the victim to death) in the absence of any provocation from Vorozhbet or his friends ? [91] Or : "Has it been proved, that Brazhin killed the victims using the insignificant reason of their just demands that he leave their apartment (after he had broken in in order to drink vodka)?" [92] In cases of alleged exceptional cruelty, questions were asked in relation to whether the defendant, in inflicting the bodily injuries which led to the victim's death, harbored the intent to "inflict exceptional pain and suffering" on the victim. Finally, other judges have held that the jury must answer only factual questions related to the precise manner in which a murder was committed, and it is for the judge to decide whether it was a murder out of hooliganistic motivation or with exceptional cruelty. For instance : "Is Bortsov guilty, that on May 23, l993 at about midnight near the cultural palace "Peace" in the city of Saratov, following Zakopaylo's refusal to engage in sexual intercourse with him, he dealt her a multitude of blows with his hands and feet and with an empty bottle on different parts of her body, crushed the organs in her neck, hit her with a wooden object in the area of her eyes, with the intent to kill her, causing the bodily injuries described in Question l, which led to the death of Zakopaylo ? Upon an affirmative answer, the judge decided that fact situation constituted exceptional cruelty, but not hooliganistic motivation. [93]

An immutable tenet of the criminal law, accepted in all Common Law or civil law jurisdictions, is that actus not facit reum nisi mens sit rea (an act does not make one guilty unless his mind is guilty). [96] Thus, the definition of any criminal offense must include the prohibited acts (actus reus) or omissions, and the mental state or mens rea which makes the acts criminal. The Model Penal Code has tried to harmonize the sometimes archaic and confused descriptions of mental state in the Common Law and settled on four classic types of mens rea which will make an act criminal : purposiveness (intentionality); knowledge (of the nature of one’s acts or of the existence of attendant circumstances); recklessness (consciousness of a risk); and negligence (failure to appreciate a risk). [97] These mental states are also typical in Continental European descriptions of criminal offenses.

The "sphinxlike" general verdict of "guilty" or "not guilty" in American and British jury trials and the non-appealability of acquittals, enables juries to sometimes render a verdict contrary to the facts and the law. But it must be remembered that juries are by and large not instructed as to their power to nullify the law. The trifurcation of the guilt question in Russian special jury verdicts was criticized by Foynitskiy as being French legalistic casuistry, rejected by Germany, which allowed the jury to acquit even when all elements of the crime were proved. [113] Such so-called "jury nullification," which made the acquittal of Vera Zasulich in l878 possible, was welcomed, however, by the judge in that case, A.F. Koni:

Just as colonial American juries nullified the effect of British tax, customs and seditious libel laws, Russian juries refused to enforce the repressive passport laws. [116] Juries also often refused to convict in minor cases of bribery or public corruption, because they saw the entire system as corrupt and knew it was difficult to be honest in such a system. [117] Acquittals were also often forthcoming in cases of passing forged money, because the jury viewed the defendant as himself being a victim, as having paid good money for bad, and that he was only trying to break even. [118]

The following description of the relation of drunkenness to criminality in Tsarist Russia could just as well apply to the social situation in today’s Russian Federation :

Tsarist juries often acquitted because they felt the sentencing provisions of the Sentencing Code were too severe. The law tried to prevent the jury from knowing the possible punishments but the juries always included people who knew the provisions of the code. Theft by force, for instance, was punished much more severely than secret theft, yet many jurors saw the sneak thief as a more dangerous social menace. They would therefore often acquit the strong arm robber. The same was true of burglary and theft when only something of insignificant value was stolen. [132]

Juries in Tsarist Russia often acquitted in cases in which the defendant had spent a long time in pre-trial detention, due to the snail’s pace of criminal investigations at the time. [133] The "premature doing of time" was considered, in the eyes of the jury, to be a completely adequate basis for acquitting defendants who, under other conditions, would be found guilty. [134]

Simple Russian peasant juries would invariably acquit defendants in the first and fourth weeks, and in the Passion Week of the Great Fast, for these are times when they would ask forgiveness for their sins and could not be expected to convict others. [140] They would also acquit on days when the dead were remembered or in August, when the winter grain was planted. At the latter time they could not have arguments or anger, or God would not deliver a good harvest. Defendants knew this and would do anything to get their cases heard in August. [141] At times of extremely hot weather, when the unventilated courtrooms would sometimes reach a temperature of 40 degrees Celsius, jurors would usually acquit. In one session, four trials in one day ended in acquittals, and, after the sitting jurors were challenged by the prosecutor, 11 of 16 subsequent cases still ended in acquittal. [142]

What is first apparent in investigating the jurisprudence of the Cassational Panel of the SCRF is the zeal with which they reverse jury acquittals. The following statistics are informative : in 1994 173 cases were tried by the jury courts in relation to 241 defendants. 18.2% ended in acquittal, in comparison to an only 1% acquittal rate in trials without juries. Yet according to the author=s investigation, of the 19 judgments reversed by the Cassational Panel, 9 were acquittals, and only one acquittal that was appealed by the public prosecutor was not overturned. [143] In 1995 305 cases were tried with respect to 544 defendants and the acquittal rate fell to 14.3%. In 1996 336 cases were tried in relation to 622 defendants and the acquittal rate rose to 19.1% (80 acquittals as to 118 defendants). The Supreme Court reversed 55 acquittals, that is, 34.2% of all that were challenged on appeal. In 1997,419 cases were tried in the nine regions/territories as to 825 defendants. The acquittal rate rose to 22.9% (109 acquittals as to 189 defendants). The Supreme Court reversed 50 acquittals, 48.6% of all those appealed. [144] Finally, in 1998,406 cases were tried in relation to 800 defendants, and the acquittal rate was 20.6%, 86 cases involving 165 defendants. Acquittals were reversed by the Cassational Panel in 50 of the 86 cases in relation to 57 individuals. [145]