TRIAL. In Practice. The examine, tion before a competent tribunal, according to the laws of the land, of the facts put in issue in a cause, for the purpose of deter mining such issue. 4 Mas. C. C. 232.
Trial by certificate is a mode of trial allowed by the English law in thnse cases where the evidence of the person certifying is the only proper criterion of the point.in dispute. For, when the fact in question lies out of the cognizance of the court, the judges must rely on the solemn averments or information of persons in such station as affords them the most clear and complete knowledge of the truth.
As, therefore, such evidence, if given to a jury, must have been conclusive, the law, to save trouble and circuity, permits the fact to be determined upon such certificate merely. 3 Blackstone, Comm. 333 ; Stephen, Plead. 122.
Trial by grand assize is a peculiar mode of trial allowed in writs of right. See ASSIZE ; GRAND ASSIZE.
2. Trial by inspedion or examination is a form of trial in which the judges of the court, upon the testimony of their own senses, decide the point in dispute.
This trial takes place when, for the greater expedition of a cause, in some point or issue being either the principal question or arising collaterally out of it, being evidently the object ot' sense, the judges of the court, upon the testimony of their OPTD senses, shall de cide the point in dispute. For where the affirmative or negative of a question is mat ter of such obvious determination, it is not ihought necessary to summon a jury to de side it,—vvho are properly called in to inform she conscience of the court in respect of dubious facts; and, therefore, when the fact from its nature must he evident to the court either from ocular demonstration or other irrefragable proof, there the law departs from its usual resort, the verdict of twelve men, and relies on the judgment alone. For ex ample, if a defendant pleads in abatement of the suit that the plaintiff is dead, and one appears and calls himself the plaintiff, which the defendant denies, in this case the judges shall determine by inspection and examine tio., whether he he the plaintiff or not. 9 Coke, 30 ; 3 Blackstone, Comm. 331 ; Stephen, Plead. 123.
Judges of courts of equity frequently de cide facts upon mere inspection. The most familiar examples are those of cases where the plaintiff prays an injunction on an alle gation of piracy or infringement of a patent. or copyright. 5 Ves. Ch. 709 ; 12 id. 270, and the cases there cited. And see 2 Atk. Ch, 141; 2 Barnew. 86 C. 80; 4 Ves. Ch. 681; 2 Russ. Ch. 385 ; 1 Ves. & B. Ch. Ir. 67 ; Croke Jac. 230 ; 1 Dall. 166.
3. Trial by jury is that form of trial in which the facts are determined by twelve men impartially selected from the body of the county. See JURY.
To insure fairness, this mode of trial must be in public : it is conducted by selecting a jury in the manner prescribed by the local statutes, who must be sworn to try the matter in dispute according to law and the evidence. Evidence is then given by the party on whom rests the onus probandi or burden of the proof : as the witnesses are called by a party they are questioned by ,him, and after they have been examined, which is called an ex amination in chief, they are subject to a cross exatnination by the other party as to every part of their testimony. Having examined
all his witnfisses, the party who supports the affirmative of the issue closes ; and the other party then calls his witnesses to explain his case or support his part of the issue : these are in the same manner liable to a cross-ex amination.
4. In case the parties should differ as to what is to be given in evidence, the judge must decide the matter, and his decision is conclusive upon the parties so far as regards the trial ; but bill of exceptions maybe taken, motion in arrest of judgtnent made, or other proper means adopted, so that the matter may be examined before another tribunal. When the evidence has been closed, the coun sel for the party who supports the affirmative of the issue then addresses the jury, by recapitulating the evidence and applying the law to the facts and showing on what par ticular points he rests his case. The oppo site counsel then addresses the jury, en forcing in like manner the facts and the law as applicable to his side of the case ; to which the other counsel has a right to reply. It is then the duty of the judge to SUM up the evidence and explain to the jury the law applicable to the case : this is called his charge. See CHARGE. The jurors then re tire to deliberate upon their verdict, and, after having agreed upon it, they come into court and deliver it in public.
5. In case they cannot agree, they may, in cases of necessity, be discharged ; but it is said in capital cases they cannot be. See DISCHARGE OF A JURY. Very just and merited encotniums have been bestowed on this mode of trial, particularly in criminal cases. Liv ingston, Rep. on the Plan of a Penal Code, 13 ; 3 Story, Const. 1773.
A trial by jury in criminal cases does not essentially differ froin the trial of a civil action ; but the accused is entitled to some privileges in the selection of jurors who are to try him, in the former case, which do not exist in the latter. Of these the right of challenge, or of taking exception to the jurors, is much the most extensive. See CHALLENGE. He has a right to be distinctly informed of the nature of the charge against him, with a copy of the indictment. He is also entitled to a list of the jurors who are to pass upon his case, and of the names of the witnesses who will testify, a c,ertain number of days before the trial. And the jury must delibe rate and decide upon the principle that every man is to be presumed innocent until he is proved to be guilty; and, as a necessnry con sequence, they cannot convict him if' they have any reasonable doubt of his guilt. See Worthington, Juries ; Archbold, Nisi Prins; Graham & W. New Trials ; 3 Blackstone, Comm. c. 22 ; 15 Serg. & R. Penn. 61; DUE