THE NEW JURY LAW: Revisions to Jurisdiction, Criminal Offense Categories, and Jury Selection

In 2013, four laws were passed revising elements of jury selection, criminal offense classifications, and Magisterial Court jurisdiction. While not yet uniformly implemented at the time of writing, the laws are intended to have a variety of effects on the justice system.

Modifications to Criminal Offense Classifications

The law entitled, “An Act to Amend Title 26 of the Liberian Code of Laws Revised, Penal law, Chapter 50 Relating to Sentencing and Related Matters” modified the classifications of criminal offenses. Those offenses previously categorized as Third Degree Felonies were reclassified as First Degree Misdemeanors. First Degree Misdemeanors were reclassified as Second Degree Misdemeanors. Second Degree Misdemeanors were reclassified as the newly created category of Third Degree Misdemeanors. The new hierarchy of offenses and the corresponding punishment available under that offense are as follows:

Level of Offense	Punishment Available
First Degree Felony	Not more than 10 Years Imprisonment (Unless Statute states otherwise)
Second Degree Felony	Not more than 5 Years Imprisonment
First Degree Misdemeanor	Not more than One Year Imprisonment (Changed from three years)
Second Degree Misdemeanor	Not more than 4 months Imprisonment (Newly Created)
Third Degree Misdemeanor	Not more than 30 days Imprisonment

• What is the impact of Reclassifying Levels of Offenses?
  • Changes the appropriate forum to hear certain offenses (Both Civil and Criminal)
  • Changes the levels of penalties for particular offenses
  • Changes the right to Jury Trial for certain offenses
  • Changes the recommended Bail levels – though these were not previously subscribed to
  • Changes the requirement for an indictment for certain offenses

• Impact on Right to Jury Trial

The right to a Jury Trial exists for Felony Offenses only. Jury trials are not available for misdemeanor offenses. This means that offenses previously classified as third degree felonies, and which are now classified as first degree misdemeanors, no longer entitle the accused to a Jury Trial

Modifies the Jurisdiction of Magisterial Courts

The law entitled, “An Act to Amend Chapters 17 of the Liberian Code of Laws Revised, Judiciary Law, Chapter 4 Relating to the Jurisdiction of the Debt Court; Chapter 7 Relating to the Magistrates Court and Related Matters” modified the jurisdiction of Magisterial Courts. Under the new law, Magistrates may hear civil actions for: Recovery of money or chattel of less than $14,999.99; Debt of up to $2,000.01; and Recovery of real property or rent up to $14,999.99. Magistrates may hear criminal actions for: Examinations of persons charged with an offense over which a superior court has jurisdiction alleged to have been committed within magisterial areas – except cases of rape or sexual violence – and extending to contiguous areas without a magistrate or justice of the peace court; and Magistrate Courts also have exclusive original jurisdiction in criminal cases for: Petit Larceny; Misdemeanors of first, second, third degree; as well as violations of vehicle and traffic law, except when there is a traffic court in the area. In regards to Civil Cases, the new law’s effect is as follows:

Type of Civil Case	Under the Old Law	Under the New Law
Recovery of Money or Chattels (property)	$2,000.01	$14,999.99.
Real Property or Rent	$500	$14,999.99
Debt	$2,000.01	$2,000.01

In regards to Criminal Cases, the new law’s effect is as follows:

Under the Old Law	Under the New Law
Petit Larceny (thefts described as a second degree misdemeanor)	First Degree Misdemeanors
	Second Degree Misdemeanors
	Third Degree Misdemeanors

Modifications to the Jury Law

The laws entitled, “An Act to Amend Title 2 of the Liberian Code of Laws Revised, Criminal Procedure Law, and Chapter 20 Relating to the Conduct of the Trial” and “An Act to Amend Title 1 of the Liberian Code of Laws Revised, Civil Procedure Law, Chapter 22 Relating to Juries and Jurors” modify the process for Jury Selection. Under these new laws, an individual is entitled to a trial by jury in criminal matters if charged with a crime other than petit larceny, or first, second, or third degree misdemeanors. In Civil matters, an individual is entitled to trial by jury where the value of the amount in controversy exceeds US$14,999.99 or the Liberian Dollar Equivalent.

Under the new law, juries are selected by the newly created Office of Jury Management (OJM) under the Judiciary. The OJM is responsible for jury selection, organizing the central jury pool, and ordering the number of jurors necessary for the functioning of the Circuit Courts. The OJM is headed by the Jury Manager and each Circuit shall have a local office of Jury Management. The Clerk of Court provides the OJM with the number of jury trials on the docket. The Jury Rolls are prepared by OJM for each Judicial Circuit, with the source of the roles drawn from: Databases of Liberian Institute of Statistics & Geo Information Services, Civil Service Agency, Elections Commission, National Social Security and Welfare Corporation. Jury Manager will randomly select jurors for a year. OJM will prepare jury rolls for each judicial circuit and a competent authority will inquire about jurors to ensure that they have not been disqualified for some reason. The OJM will submit updated jury rolls to local OJM every year for the local OJM to determine if the individuals can be place on a jury list. The local OJM will, at the end of each term of court, prepare a Jury list for the upcoming term, which shall be kept confidential. The OJM will select 42 people from Jury list. The Judge selects 15 to serve as grand jurors. Before a trial, each of the remaining 27 receive a card w/ a number. Cards are randomly drawn, and selected jurors are subject to questions according to the Criminal Procedure Law 22.5 and 22.6 (Jury challenges).

CIVIL LAWSUITS FOR DAMAGES DUE TO CRIMINAL MISCONDUCT

The purpose of this overview is to show that under the Liberian Justice System, contrary to popular belief even within the legal profession, it is possible to sue someone civilly as a result of a criminal misconduct based on the same set of facts. We even go further by saying that one can sue civilly and criminally concomitantly (at the same time) based on the same set of facts.

1. Criminal misconduct giving rise to civil lawsuits

When a crime is committed, it almost always has a civil aspect as well. Therefore a crime can also be a civil wrong. That type of civil wrong is called tort (Tort is an injury to one person for which the person who caused the injury is legally responsible- the injury can be death, injury to a person, damage to or loss of property, or any other injury that a person may suffer to his person, reputation, character, feelings or estate). However, crime is different from tort. The Supreme Court has stated that: “As to the… choice of civil action instead of a criminal one, we will observe that crime is to be distinguished from tort.”[1]

Theft is a crime; the civil wrong (tort) for theft is called conversion

Murder is a crime; the civil wrong for murder is wrongful death

Burglary is a crime; the civil wrong for burglary is trespass

Assault, simple or aggravated is a crime but it is also the civil wrong of battery.

These are just few examples to demonstrate that a criminal misconduct can give rise to a civil lawsuit.

2.     Crimes and civil wrongs: two different parties, two different issues

The caption of a criminal case always appears like this: Republic of Liberia v. the defendant. On the other hand, the caption of a civil case will be for e.g. John Doe v. Jane Doe. This means that if someone is accused of stealing something, that person does not go up in a criminal trial against the victim of the theft but rather against the State/Republic of Liberia. However, the victim of the theft can take the same defendant to the civil law court for the civil wrong of conversion. In this case, the government is no longer a party but rather the case will be directly between the victim of the theft and the perpetrator of the theft. The function of the first case that is the one between the Government and the defendant (the criminal case) is to punish the defendant for the crime of theft. The purpose of the second case that is the one between the victim and the perpetrator is to compensate the victim for the loss suffered as a result of the crime of theft.

The issues are also different in criminal and civil proceedings. In a criminal case, the issue is whether the elements of the crime charged are established while in a civil case the issue is whether the elements of a civil wrong exist.

If the issues/parties were the same, then the sacrosanct principles of res judicata (the thing that has been judicially determined) and double jeopardy would have been violated inevitably.

3.     Choosing between criminal and civil proceedings

There is no need to choose between criminal proceedings and civil proceedings even when the facts are the same. If someone is assaulted, the criminal trial for assault will be proceeding in the criminal court while the victim may choose at the same time to sue the defendant for damages in an action of battery in the civil law court without having to wait for the outcome of the criminal trial for assault. This means that the defendant in the assault case may be found not guilty in his criminal trial but liable in the civil trial. The Supreme Court has upheld this principle in many opinions. The court said that a criminal prosecution, even if properly conducted, does not necessarily excuse one from civil liability growing out of the same set of facts and circumstances. This is an elementary principle of Law.”[2] This means that one can be not guilty in a criminal trial but liable in a civil trial based on the same set of facts.

In addition, the Supreme Court, in 1987 repeated the same principle and even when farther by saying that for the same set of facts, one does not need to wait for a criminal trial to finish before starting a civil trial. The court said that the institution of a civil action is not contingent upon the pendency or termination of a criminal prosecution.[3] So if someone steal a goat for example and eat the goat, the owner of the goat can, while the government is prosecuting the thief for theft, sue the thief in the civil law court at the same time for him to pay for the goat he stole.

4.     How can one be not guilty in a criminal trial but liable in a civil trial?

It is very simple. There are basically two reasons: the issues are not the same in a criminal and civil proceedings and the standard of proof is equally different.

• As mentioned above, in a criminal case, the issue is whether the elements of the crime charged are established to warrant the conviction of the defendant while in a civil case the issue is whether the elements of a civil wrong exist that may entitle the plaintiff to recover from the defendant.

• The standard of proof is not the same in criminal and civil proceedings. In criminal law, the standard of proof is “beyond a reasonable doubt” (Article 21h of the Constitution) which is the highest evidentiary standard in law. While in civil law the standard of proof is the “preponderance of the evidence”. It is therefore natural that in applying two different standards that one obtains two different results.

 

[1] See the case, ALBERT DONDO WARE V. REPUBLIC OF LIBERIA 5 LLR 380, 394 (1937),

[2] See the case THOMAS JOHNSON V. MATTER BROTHERS 20 LLR 425, 431-432 (1971)

[3] See the case JACK OSABUTY V. LIBERIA PORT STORAGE COMPANY 34 LLR 283, 289 (1987)

Sassywood: A Legal Perspective

1. Definition

Sassywood is the bark of a leguminous African tree (Erythrophleum guineense) yielding an alkaloid, used as a substitute for digitalis, and a poison used in trial by ordeal

Sassywood also refers to the tree itself.

Sassywood has been defined by Kirk and Greene as a “method of invoking the aid of supernatural powers to settle disputes or to test the truth of accusation” to adjudge the accused’s guilt or innocence (Kirk-Greene 1955: 44).

Sassywood in Liberia is mostly known for its role/use in the criminal justice system; especially in the rural areas. When someone is accused of whatsoever crime, he is made to drink the liquid from the bark of the sassywood tree; if the accused is injured or dies as a result of the ordeal, then he is deemed guilty; however, if he/she does not suffer any injury or if the wound heals quickly then he is pronounced innocent

2. The illegality of Sassywood in Liberia.

Sassywood has been outlawed since 1916 in a famous Supreme Court opinion JEDAH V. HORACE (1916) cited in the case POSUM V. PARDEE 4 L.L.R 299, 304-305 (1935). The Supreme Court opined that: “With regard to the administration of sassy-wood which is in some cases an ordeal dangerous to life, we are of the opinion that while it is provided that the native and district courts shall administer the native customary law, we cannot admit the legality of a proceeding which is evidently intended to extort a confession from the accused, and which is in conflict with the organic law of the state, which declares that no one shall be compelled to give evidence against himself. Mr. Bouvier defines an ordeal to be an ancient superstitious mode of trial. 3 B.L.D., ‘Ordeal.’ Any custom which panders to the superstition of the natives of the country is, in our opinion, contrary to the genius of our institutions and should therefore be discouraged.’’ ‘’On the whole we are of the opinion that the Travelling Commissioner had no jurisdiction over the persons of appellant or the crime with which they were charged; that the administration of sassy-wood in any case is illegal and that the judgment of the court below should be reversed and the injunction perpetuated; and it is so ordered.’’

The Supreme Court continues with the same language in the case DEAH v. REPUBLIC OF LIBERIA 41 L.L.R 3 (2007) when it said: “Sassywood or other forms of trial by ordeal or any traditional/cultural practice or custom inconsistent with the Constitution is totally forbidden and illegal.”

3. The administration of sassywood as a criminal offense

Sassywood has not only been outlawed but it has also been made a crime punishable under the Law. The Supreme Court in the case WION v. REPUBLIC OF LIBERIA 29 L.L.R 71, 89 (1982) decided that: “Trials by native ordeal in which the bark sassywood is administered internally is forbidden. Any person who administers, authorizes, permits, orders, aids, promotes or otherwise participates in the administration of such an ordeal shall be deemed guilty of a misdemeanor and shall be fined an amount not exceeding $200.00, and if death occurs as a result of the ordeal, all such persons shall be prosecuted under the appropriate provisions of the Penal Law.

The doing of an act forbidden by Law is in itself criminal and so if death ensues by the doing of such act, even though there was no intent to kill, the doer of such act will be guilty of murder.”

4. Sassywood and the Constitution

The Constitution at its Article 5 (b) protects positive Liberian cultural values but frowns at traditions incompatible with public policy in the following terms: “The Republic shall: preserve, protect and promote positive Liberian culture, ensuring that traditional values which are compatible with public policy and national progress are adopted and developed as an integral part of the growing needs of the Liberian society;” More simply, Liberian Cultural values are accepted and protected under the Law; however, any culture that violates the Constitution will not be acknowledged. Sassywood is one of those practices that the Constitution does not recognize. A practice in which guilt is determined by exposing the suspects to acute pain and interpreting their reaction is simply not acceptable.

In addition, the administration of Sassywood to determine guilt or innocence violates the well settled constitutional principle that no one shall be made to furnish evidence against himself enshrined in Article 21(h) of the 1986 Constitution which reads: In all criminal cases, the accused shall have the right to be represented by counsel of his choice, to confront witnesses against him and to have compulsory process for obtaining witnesses in his favor. He shall not be compelled to furnish evidence against himself and he shall be presumed innocent until the contrary is proved beyond a reasonable doubt.”

5. Sassywood: a nut hard to crack

Sassywood is part and parcel of many traditions across Liberia and is still widely practiced despite it being outlawed. However, several factors contribute to insuring the survival of sassywood.

Among these factors is the inaccessibility and ineffectiveness of formal justice mechanisms.

What do you expect a resident of an area where there is no police presence and no court established to do? He will turn to sassywood which seems more accessible.

To be effective, criminal justice institutions must satisfy three conditions: they must be accessible to citizens, incentivize (i.e. give incentives) judicial administrators to pursue justice instead of private ends, and generate useful information about accused criminals’ guilt or innocence. Liberia’s formal criminal justice institutions fail to satisfy these conditions.

The first battle to entirely eradicate sassywood from our society is the strengthening of our justice system so that it effectively meets the needs of the population.