Why do juries get asked whether the defendant is guilty or not instead of simply whether certain alleged facts took place?

Say Rob is being tried for the murder of Bob, but there's also a possibility of manslaughter.

Within the existing system, the judge has to explain to the jury the difference and what facts the jurors must be sure of in order to find the defendant guilty of either.

Given that we purportedly select non-lawyers for jury, why complicate the process by getting them to understand and operate the law? Why not to only ask them whether they are sure that:

  • Rob planned to kill Bob in advance and prepared the gun specifically for the purpose; OR
  • Rob did not plan to kill Bob but Bob provoked and threatened him, so Rob killed him as a spur of the moment decision

— and then, based on their findings of fact the judge would apply the law and decide whether Rob is guilty and of what crime. Nice and clean separation.

Why do we instead keep the two roles smeared and the process complicated? Why do we risk mistrials and appeals based on the claims that the jury was wrongly instructed or misled about the law?


7 Answers 7


Sometimes, juries are asked to make pure findings of fact. These are called special verdicts, and they used to be more common, especially when juries decided civil cases.

For example, Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819) was decided in the way you have suggested. The report contains a very detailed factual history of the relevant corporate transactions, which was apparently returned by the jury as a special verdict (pp 519–550). Whether the relevant acts were "valid in law … or whether the same acts are repugnant to the constitution of the United States, and so void" was a matter reserved for the court.

Similarly, in R v Dudley and Stephens (1884) 14 QBD 273, the jury, at the suggestion of the trial judge, found the rather gruesome facts of the case in a special verdict (pp 273–275). A court of five judges then found that "upon these facts, there was no proof of any such necessity as could justify the prisoners in killing the boy, and that they were guilty of murder."

Although confining the jury strictly to the facts is conceptually appealing, requiring 12 people to agree on and express their factual findings in words greatly complicates the procedure. This may explain why special verdicts are no longer common. However, they are still theoretically available in England and Wales, as the Court of Appeal explained in R v Hopkinson [2013] EWCA Crim 795:

There will be occasions (very rare) where in the context of a trial for murder, where the alternative defences include, for example, diminished responsibility, loss of control, and lack of the necessary intent, the judge may think it advisable to seek a special verdict. But even in the context of a murder trial a special verdict should continue to be a rarity.

Without suggesting that we are entitled in this court to abolish the special verdict procedure, we have offered a shorthand way of suggesting that we do not expect special verdicts to be sought in other cases; and, at least, that the taking of special verdicts has fallen into virtual desuetude.


It's impossible to fully separate deciding the law from deciding the fact.

Without deciding what the law is, it is impossible to say what question of fact is relevant. No one can decide all possible factual questions at once.

And without deciding what the facts are, it is impossible to say what question of law is relevant. No one can decide all possible legal questions at once.

If these two parts are split and decided by separate parties, then the facts and the law must be decided one at a time. If either party wants to decide the case as a whole, then they can do that if they get to go last. They not only have to try their part, but they also get to interpret the decision from the previous decision maker and decide how it applies given the facts or law that they have decided are correct.

In many jury trial systems, the jury is seen as sufficiently important that they should have the final say of guilty or not guilty—the judge states the law, and the jury interprets that statement along with the facts as they decide them.

If the jury stated the facts first, then the judge would get to interpret that statement of facts and how it applies to the law, potentially overriding the jury's wish to convict or acquit.

  • 2
    Not sure if personal anecdotes are allowed here, but this is somewhat from experience, as I once sued the police and there was a judge and jury at the civil trial. In this case the jury was asked to decide two questions of fact, they decided one as I wanted and the other as the police wanted. But then the judge ruled the law was fully against me and I lost the case.
    – bdsl
    Commented Oct 8, 2023 at 21:46
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    "Without deciding what the law is, it would be impossible to say what question of fact is relevant" — there is no suggestion that the jury needs to decide what questions of fact are relevant. Rather, relevant questions of fact would be formulated by the judge, and put before the jury to answer. Did Rob plan to kill? The jury won't need to come up with this question, it'll be put before them.
    – Greendrake
    Commented Oct 9, 2023 at 4:21
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    @Greendrake in practice the necessary decomposition of the case into relevant factual questions would yield essentially the same de facto legal instruction to the jury but with the added complication of them having to break down their reasoning. If the jury's capacity to follow instructions on how to reach a verdict is in question then this may be justified but otherwise it plainly adds complexity.
    – Will
    Commented Oct 9, 2023 at 10:21
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    @Greendrake it also materially changes the ability of a court to convict on proven charges if a jury must find that the standard of proof has been met for specific factual version of guilt of those charges. In practice the evidence may prove to the necessary standard that if one version of events is not correct then it must have been another, and if both versions amount to guilt then a guilty verdict is justifiable, whereas a partial finding of fact may not withstand the same standard.
    – Will
    Commented Oct 9, 2023 at 10:28
  • @Greendrake: On the other hand, without deciding on some matters of fact, it may be impossible to say whether various other questions of fact are relevant. If a jury starts out believing a witness is a liar, information about a business deal that would have been undermined if the witness revealed something he knew when he knew it would be irrelevant, but if a jury would otherwise find a witness credible, such information might help establish reasonable doubt.
    – supercat
    Commented Oct 10, 2023 at 16:28

The broader answer to the "why don't you just..." question in the US is that it would require an amendment to the constitution, because jury trials are a protected right in criminal cases, and constitutional amendments are by design very difficult to implement, the most recent of which took the entire history of the US to enact, and in general amendments are reactions to perceived fundamental crises. Politics SE is where you ask about the popular (non)belief that jury trials cause problem.

Jurors are presented with an algorithm that tells them what to do. For manslaughter in Washington this reduces to a flowchart that depends on three elements:

(1) That on or about (date), the defendant engaged in reckless conduct; (2) That (name of decedent) died as a result of defendant's reckless acts; and (3) That any of these acts occurred in the State of Washington


If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

In theory, you could leave it to the jury to provide a yes-no determination for these elements, then let the judge do the math, provided that the judge automatically verifies that there are 36 yes marks and 0 no marks, and enters a verdict of guilty or not guilty, accordingly. In fact, a computer program could do that quicker and even more infallibly.

The instructions, devised by legal experts, restate the law in a fashion that allows automatic computation of a guilt-value. You can compare the manslaugther verdict instruction with that for 2nd degree intentional homicide, and will discover a "minor" difference in wording that the defendant "acted with intent to cause the death of (name of person)" for the latter crime. These are different factual conclusions, which must be made by the "fact-finder" (jury or judge, depending on whether this is a jury trial).

As far as I know, there is no Supreme Court case testing the idea that the verdict form could merely ask the jury to check the relevant boxes and not do the "guilty", "not guilty" computation, but it is black letter law that it's the jury that decides guilt and that the judge or computer cannot "take that last logical step". Judgments of "intent" vs. "recklessness" are legally factual ones, which must be decided by the jury.

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    For one example of why it isn't simple to make a computer do that math - the level of certainty that all elements of a crime happened may often be lower than the level of certainty that any individual element happened. A juror could reasonably say "yes, part 1 is proved beyond all reasonable doubt - I have some doubt but the doubt is too small to be reasonable, same applies for 2 and 3. But when I consider all my doubts together they combine to make a reasonable doubt so I find the defendant not guilty".
    – bdsl
    Commented Oct 9, 2023 at 14:00
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    I posted a new question based on reading this: law.stackexchange.com/questions/96105/…
    – bdsl
    Commented Oct 9, 2023 at 14:19
  • Would the US constitution be relevant to the specifics of how Washington conducts its jury trials? Legitimately asking. My understanding is that the US constitution guarantees the right to a jury trial, but would having a jury decide facts and the judge extrapolate the verdict be a violation of this right? That may be a supreme court-type question.
    – PC Luddite
    Commented Oct 10, 2023 at 5:34
  • I think this needs more upvotes. 🙂 If I were to find myself as a defendant in a criminal trial, I suspect I'd be in favor of a jury deciding whether or not a law was broken, rather than just a judge.
    – Matthew
    Commented Oct 10, 2023 at 22:10

Guilty or Not Guilty is a fact

This is obvious because the law can be stated independent of the circumstances of a particular case. Whether a particular individual’s acts or omissions amount to a crime is a fact intrinsically linked with the particulars.

To take your example of murder, in the legal definition is given in s18(1)(a) of the Crimes Act 1900:

Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.

That’s the basic statement of the law. There is a lot of case law honing certain aspects, many of which are set out in the NSW Criminal Bench Book. For example, “Reckless indifference to human life is the doing of an act with the foresight of the probability of death arising from that act: The Queen v Crabbe (1985) 156 CLR 464; Royall v The Queen (1991) 172 CLR 378; Campbell v R [2014] NSWCCA 175 at [304].”

The law can be stated in the abstract - this is murder, that isn’t murder. However, whether the defendant did this or did that is a fact and is for the jury to decide.

The jury is not limited to determining simple facts, they are required to decide some facts that might be quite complicated and dependent on other facts they they need to decide.

Now, the judge will explain to the jury, based on the evidence provided (including that statement of agreed facts) what facts the jury needs to decide. So, for example, if “reckless indifference to human life” is an issue in the case, the judge will instruct the jury about what that is and is not and tell them that it’s their job to decide that if they decide the evidence supports a finding of recklessness beyond a reasonable doubt they must return a guilty verdict and if it doesn’t then they must return not guilty. But the judge does not decide if the evidence has met that standard.

Path dependence

The reason why the common law has a jury system and why they decide facts and the judge decides law has a very simple answer. It is what it is because of a series of historical accidents and radically changing it now would be too disruptive.

There is no reason for the jury system to exist at all: Civil, Sharia, and Chinese legal systems all operate perfectly fine without it. In the sense that they have functioning societies even if some of them are not societies I would be happy to live in - that just makes me prejudiced, it doesn’t make them wrong.

That’s not to say that the jury system can’t be changed or doesn’t change, but it does so incrementally rather than radically. For example, outside the United States, the right to a jury trial is limited to what the US would call felonies - there is no such right in misdemeanour or civil cases and these are heard by a judge alone. This has been a change since the American Revolution; the reason it hasn’t changes in the US is a historical accident - the founders of the US decided to enshrine jury trials in the Constitution, other common-law countries didn’t do that. So one stays the same while the other changes.

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    The headline is a sophism. Naturally, when someone wins or loses a case (civil or criminal), the state of winning/losing it becomes a fact. This is true even in those civil cases where all the questions that needed to be decided were pure law questions. That said, the fact that the result (guilty or not guilty) is a fact does not mean that there were no questions of law to resolve in reaching it.
    – Greendrake
    Commented Oct 9, 2023 at 3:25
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    @Greendrake juries don't answer questions of law. They answer questions of fact, which may be framed in terms of law. Any question about the law a jury is asked to apply ought to have a settled answer which is explained to them
    – Will
    Commented Oct 9, 2023 at 11:22
  • @Will I mean that the jury has to know a little bit of law (as instructed by the judge) to deliver their verdict, so they do apply it (which, strictly speaking, doesn't qualify to be called "resolving questions of law" I admit).
    – Greendrake
    Commented Oct 9, 2023 at 11:57
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    @Greendrake "strictly speaking" is a pretty load-bearing qualifier here; if it applies to the question of whether juries resolve questions of law or not, it would likewise only be "strictly speaking" that a jury could be said not to be asked to apply the law if asked only to return verdicts on factual questions carefully engineered to align to the applicable application of the law.
    – Will
    Commented Oct 9, 2023 at 13:56
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    @Greendrake thee is no sophistry. Whether the defendant is guilty is a fact in dispute, just like whether he fired a gun might be, or whether he was at the convenience store when the clerk was shot. Facts are statements about the world. In science they are objectively true statements. In law, they are what the parties agree and, where they don’t what the jury decides. That may or may not correspond with a scientific fact. If the parties agree (or the jury decides) that the sky is green (assuming that’s relevant somehow) then the sky is green for the purposes of this case.
    – Dale M
    Commented Oct 9, 2023 at 21:53

See R. v. Abdullahi, 2023 SCC 19 at para 31:

The jury is the sole trier of fact. But a jury is not presumed to know the law that it must apply when reaching its verdict. The judge regulates and orders the proceedings, including any legal rulings needed during the trial, and instructs the jury as to the law.

The jury is required to return a verdict (rather than a list of factual findings) because of the Criminal Code and also by Section 11(f) of the Canadian Charter of Rights and Freedoms. Where there is a jury, the jury is the ultimate arbiter of guilt, not the judge. See R. v. Krieger, 2006 SCC 47, especially paras. 17-18:

[18] ... And in a trial by judge and jury, the verdict must be that of the jury, not the judge — unless the judge finds the evidence insufficient and directs a verdict of acquittal on that ground.

You suggest that we could segregate the determination of guilt at some "final" step where the judge only has to mechanically aggregate the factual findings of the jury in order to produce a verdict. I will present some complications to this approach.

First, there is no requirement in law that the jury produce a coherent theory among the twelve as to how they arrive at the verdict. For instance, "a jury need not be unanimous on the nature of the accused’s participation in the offence, so long as it is satisfied that the accused either committed the offence personally or, alternatively, aided and abetted another to commit the offence, provided the jury is satisfied beyond a reasonable doubt that the accused did one or the other" (R. v. Pickton, 2010 SCC 32, para. 58). There will often not be a clean set of "facts" or "findings" that the judge can simply aggregate.

Second, even if you can conceive of some final aggregation step, we trust juries to do this step of analysis themselves as instructed by the judge: "Jurors are sophisticated persons who are instructed to listen to and follow the entirety of the judge’s charge to them" (R. v. Starr, 2000 SCC 40). See also R. v. Corbett, [1988] 1 SCR 670, where the Chief Justice of Canada wrote:

The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense. The jury is, of course, bound to follow the law as it is explained by the trial judge. Jury directions are often long and difficult, but the experience of trial judges is that juries do perform their duty according to the law. ... the fundamental right to a jury trial has recently been underscored by s. 11(f) of the Charter. If that right is so important, it is logically incoherent to hold that juries are incapable of following the explicit instructions of a judge.

Last, there is no clean break justifying a division between the jury's preliminary reasoning and some "final step" of aggregating together the elements of the offence. Reasonable doubt is assessed against the totality of the evidence. For example, consider the offence of assault under s. 265(1) of the Criminal Code. There are three pathways to this offence. The jury need not be unanimous on which pathway it is convinced of. Even for the first pathway, in s. 265(1)(a) ("without the consent of another person, he applies force intentionally to that other person, directly or indirectly"), this breaks down into sub-elements such as lack of consent, and intentional application of force. I do not see any limiting principle to your position that the jury should provide to the judge their factual findings on lack of consent and intention. Why not further: have the jury present to the judge their factual findings on whether the person had capacity to consent, whether the kind of force applied was the kind that cannot be consented to, and whether consent was vitiated due to fraud. And why not further still: have the jury present to the judge their factual findings about the premises on which the consent was based and the way that the accused misled the complainant about those premises.

  • The question is why it has happened so that juries are required to return a verdict (vs factual findings), not which law stipulates it. It may be somewhat political question, but not to a bigger extent than the question why the jurors aren't lawyers.
    – Greendrake
    Commented Oct 8, 2023 at 10:22
  • 1
    @Greendrake: They do address that in this answer - the "Clean set of facts or findings" may not be as clean as one would expect. If a case does seem to be clean and dry, a jury trial may find itself settling in a civil court case (Because the side that is clearly going to lose will pay a settlement to get the other side to drop the case), or the accused in a criminal trial may plead guilty in a guilty plea mid-trial,. If it gets to a jury decision on the facts and findings, it's likely not 100% clear. Commented Oct 9, 2023 at 1:38

Many questions decided by juries apply a legal standard that inherently mixes questions and fact and law.

For example, in the U.S., about 75% of civil jury trials are in personal injury cases where the operative question is "did the defendant act as a reasonable person under the circumstances?" And, even if you have a 100% perfect account of the facts with completely truthful testimony and authentic audio-video evidence that captures all of the relevant facts, this doesn't answer the question of "what is reasonable?"

Similarly, in fraud cases, one of the questions that a jury answer is "was the plaintiff's reliance upon a misrepresentation reasonable under the circumstances?"

The jury in those civil cases must also quantify the non-economic and/or punitive damages that should be awarded which no finding of fact can tell you.

Issues like reasonableness that require jurors to contribute the context of their life experiences to apply a legal standard apply in criminal cases as well.

Was an attempt to use self-defense reasonably proportionate to the threat?

Was the defendant's conduct criminally negligent?

Was the misrepresentation in a fraud case about something that would be material to a reasonable investor?

Should the words used by an alleged victim in a rape case have been interpreted in the overall context of the communication to have been consent or non-consent if the words were not simply "yes" or "no"? For example, depending upon the context and character of how it is said, the word "please" could mean "yes" or could mean "no".

Was a bodily injury in a case of an assault "serious" or not?

In some cases, these vague legal standards can only be resolved in one way by a reasonable juror and if the jury fails to do so, and convicts someone as a result, the verdict can be reversed by the trial judge after the verdict is entered, or on appeal. But much of the time, a case that goes to trial before a jury will present an edge case where one or more legal standards can be found by a reasonable jury to go either way.

Keep in mind that only 2%-10% of civil and criminal cases started where there is a jury trial demand actually go to trial. The cases that go to trial are disproportionately the edge cases with messy facts that prevent the case from having an easy answer.

The bottom line is that a jury brings the wisdom of the community to the decision-making process to inform vague legal standards in light of their experiences and good judgment. They don't resolve these questions merely based upon the facts presented at trial, but also from the context in which those facts arise that comes from their experiences as ordinary members of the community in which the events took place.


Guilt in it's the legal context differs from guilt in it's colloquial context.

When we talk about guilt in our everyday lives we can do so with absolute certainty. When it comes to guilt from a law perspective the standard is not just one of mere fact, but one of justice.

This concept of Justice for all includes the victim just as much as the accused. The guilt standard that the justice system uses is whether the case has been proven beyond a reasonable doubt.

People also have rights. These need to be respected. There are rules as to how evidence can be entered into trials. The breaking of which may mean that evidence that clearly shows that a person did something gets excluded. This may then it turn mean that the government fails the guilt standard the justice system uses (the one of reasonable doubt). The concept of justice comprises more than just a conviction rate.

It is also worth noting that jurors find the accused not guilty not innocent. This is again subtly alluding to the fact that the verdict is not one of a truth statement, but only one specific to the guilt standard the justice system uses (reasonable doubt)

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