The Jury Trial in Spain: How It Works, What Offences It Tries and Keys to the Defence

The Jury Trial is the form of criminal proceedings in which lay citizens, rather than professional judges, decide whether the facts are proven and whether the accused is guilty. It is governed by Organic Law 5/1995, on the Jury Trial (LOTJ), and is reserved for a closed list of offences. Defending before a jury calls for a different technique to that of an ordinary trial: the audience for the case is not a technical judge but nine people with no legal training. As criminal defence lawyers specialising in the Jury Trial, in this guide we explain how it is composed, what it tries, how the trial unfolds and where the keys to the defence lie.

Composition: Nine Jurors, Two Substitutes and a Presiding Magistrate

The Jury Trial is made up of nine sitting jurors and two substitutes, all of them adult citizens selected by lot from the electoral roll. To them is added a Presiding Magistrate, a professional judge who conducts the proceedings but does not vote on the facts or on guilt.

• Sitting jurors (9): deliberate and deliver the verdict.
• Substitutes (2): replace a sitting juror who cannot continue (illness, a supervening ground for abstention, etc.).
• Presiding Magistrate: conducts the trial, rules on the legal questions, drafts the object of the verdict and imposes the sentence in line with what the jury has decided.

Serving as a juror is, as a rule, a civic duty from which one may be excused only on the grounds set out in the law. A person who is designated has rights (such as compensation for taking part) and duties, above all those of remaining impartial and keeping the deliberation confidential.

What Offences the Jury Tries

The LOTJ does not hand the jury just any matter: it fixes a closed list of offences. In general terms, the jury hears certain offences against persons — notably homicide and murder — and certain offences committed by public officials in the course of their duties, such as bribery or embezzlement of public funds, among others expressly enumerated in the law.

Many important matters fall outside its competence: most complex economic offences, sexual offences and offences against public health are tried before professional courts. Determining whether a matter does or does not belong to the jury is a technical question of the first order, because it conditions the entire procedure, from the investigation to the way the evidence is taken.

How the Jury Trial Unfolds

The jury trial resembles the ordinary criminal trial — opening submissions by the parties, the taking of evidence, closing arguments and the accused's last word — but with features designed so that citizens without legal training can decide:

• Jury selection: before it begins, the panel of nine sitting jurors and two substitutes is formed; the parties may question the candidates and challenge them.
• Reinforced immediacy: the jurors witness directly all the evidence taken at the trial, on which they will base their decision.
• Instructions from the Presiding Magistrate: before deliberation, the judge explains to the jury the legal rules they must observe (presumption of innocence, burden of proof, assessment) and hands them the object of the verdict.

The narrative must be built in clear and persuasive language, without unnecessary jargon, because the decision-makers are not technical judges but a group of citizens who also weigh the credibility of what they see and hear in the courtroom.

The Object of the Verdict and the Majorities

The centrepiece of the jury trial is the object of the verdict: a document drafted by the Presiding Magistrate, after hearing the parties, that breaks down the facts the jury must declare proven or not proven and the pronouncement on the guilt or no guilt of the accused for each offence.

The jury votes on each of those points by reinforced majorities, not unanimously. The law distinguishes:

• Facts adverse to the accused and a finding of guilt: require a wider majority.
• Facts favourable to the accused and a finding of no guilt: are reached with a smaller majority.

This asymmetry is no accident: it reflects the presumption of innocence. Convicting requires firmer backing from the jury than acquitting. In addition, the verdict must contain a brief explanation of the reasons why the facts have been declared proven or not proven: the reasoning of the verdict is required, and its absence or insufficiency is one of the most effective grounds of challenge.

What Happens if the Jury Cannot Agree

The jury does not always reach the necessary majorities at the first attempt. The law provides several outcomes:

• Return of the verdict form: if the verdict is incomplete, contradictory or fails to follow the instructions, the Presiding Magistrate returns it for fresh deliberation.
• Dissolution of the jury: if, after the attempts provided for, it remains impossible to reach the majorities, the jury is dissolved and a fresh trial is convened with a different jury.

The essential point is that a deadlocked jury never amounts to a conviction: if the majorities needed to convict are not reached, the accused is not convicted in that trial.

The Role of the Presiding Magistrate

Although the decision on the facts and on guilt belongs to the jurors, the Presiding Magistrate has decisive functions: conducting the trial, ruling on questions of law and of evidence, instructing the jury on the applicable law, drafting the object of the verdict and, once it is delivered, handing down the judgment and imposing the sentence in accordance with what the jury has decided.

This dual nature — jurors who assess the facts and a technical judge who applies the law — means that scrutinising the instructions and the correct drafting of the object of the verdict is as important as the evidence itself: many nullities arise from a poorly framed object of the verdict or from biased instructions.

Keys to the Defence before a Jury

Defending before a jury combines legal technique with communication. These are the lines on which we focus the work:

1. Selection and challenge of jurors. The make-up of the panel can tip the trial. We take part in questioning the candidates and exercise the challenges — for cause where there is a lack of impartiality or prejudice, and the peremptory ones the law allows without a stated reason — to seek an impartial jury.

2. Control of the evidence and of immediacy. Because the jury decides on the basis of what it witnesses, we take care over how and when each item of evidence is introduced and we challenge evidence obtained in breach of rights.

3. Instructions to the jury. We watch that the Presiding Magistrate correctly instructs on the presumption of innocence, the burden of proof and the in dubio pro reo principle, and we propose the clarifications that prevent a tainted verdict.

4. Object of the verdict. We take part in its drafting so that the propositions of fact are clear, do not lead to particular answers and contemplate the alternatives favourable to the defence (complete defences, mitigating circumstances, less serious classifications).

5. Reasoning and appeals. We examine whether the verdict sufficiently explains its reasons. An unreasoned verdict or a defective object of the verdict opens the way to an appeal and, where appropriate, to cassation.

The settled case law of the Spanish Supreme Court and of the Constitutional Court has insisted that the jury's verdict must be reasoned and that the Presiding Magistrate's instructions cannot condition the decision, which makes the scrutiny of these aspects a central pillar of the defence.