There seem to me to be a huge rift on what is considered a righteous way of exercising law in Europe and America. The choice of trial by jury is not mandated under the US Constitution and is practiced is some European countries. Yet it seems to me that, whereas Americans today consider the choice a fundamental right, Europeans still see it merely as a plausible way of doing justice. Now, IMHO, jury trials are a necessity in any modern republic since they are instrumental in countering negative elitist trends. I contend that before jury trials become an integral part of Europe’s mind frame, the European type republic, nay society, remains doomed to suffer from elitism. And thereby an inferior form of governance! Do you agree?
Personnally, I’ve a very limited confidence in jurys. I can’t see how picking some people at random would insure that justice is carried better. I don’t see why being judged by people who are specialist in legal matters would offer me less guarantees. At the contrary.
Here, there are jurys only for criminal cases. And there are no choice. There’s no guilty plea, either, hence you’re necessarily judged by a jury. And the jury decides both on the conviction and on the sentence. The net result is that there are wide (really wide) differences in the sentences depending on where you judged. If you want to murder someone, you’re strongly advised to kill him in Paris rather than in some rural regions. Not only you’re less likely to be convicted, but even if you are, you’ll be spared many years in jail, statistically. That makes no sense to me. If jurys were replaced by a panel of professionnal judges, I’m convinced that the sentences would be more consistent.
And I’m definitely not looking forward to see jurys in civil matters. The question raised are sometimes so complex that I don’t think anybody else than a professionnal can handle the case and properly say how the law should apply. I’ve a very limited confidence in random people applying the law rather than their “gut feeling”. And if the law states something there are usually good reasons for that, which aren’t necessarily easy to understand for someone who didn’t spent most of his life studying the issue.
So, I suppose you could call me “elitist”. But I prefer my car to be fixed by a professionnal, and similarily, I prefer my legal issues to be handled by professionnals.
I don’t disagree with the basic premise that, compared with the US, European societies tend to be under the thumbs of elites. The differences in positions on the death penalty and Israel are examples of how US policies reflect grassroots instinct, while in European countries, polices are more to the tastes of cultured people who went to the right universities. But I don’t think juries have anything to do with it.
First, there’s no such thing as “European Law”. If you’re referring to the Roman legal tradition as opposed to the English one, you’re right in implying that it relies less on the use of juries. It often uses a panel of judges (who, as I understand it, can to some extent get involved in questioning defenders, prosecutors and witnesses) instead.
I’m not aware of any evidence that modern W European countries that use a Roman-style legal system suffer from any more miscarriages of justice than countries that use the English system. Juries can be stupid, biased or corrupted.
Personally, I like the notion that a group of 12 ordinary people can act as a break on government. But I suspect it’s more because I was brought up to be familiar with that system. To some extent, our attachment to it is probably due to familiarity or even sentiment.
So does a system of judicial panels invite corruption?
More so than a jury system?
I think that perhaps it would. If justice is dispensed by a set panel of judges, then once they’re bought, they’re bought. It seems they would be subject to both graft and blackmail.
(How are the panels selected? Are they elected? Appointed? Are they specially appointed for each trial, or are they selected for a term of years? Is there a pool from which panelists are chosen?)
Of course, juries may also be corrupted, but it’s more difficult, since you don’t know who will be on the jury until the first stage of the trial. Furthermore, you have new jurors for each new trial. So if you are a corrupt lawyer, you have to bribe each new jury, with all the risks that entails. Not easily done, and there’s a good chance of getting caught, over time.
Aside from the risk of outright bribery, there’s a risk of a “good-old-boy” system of justice. Lawyers who frequently practice in front of a particular panel of judges might cozy up to those judges over time, and benefit from subtle favoritism. Not possible with a jury.
I’m curious what the “elitist trends” are that **ethnicallynot[/] is so worried about. The fact that educated professionals might be making decisions on law hardly sounds scary. I like the option of a trial by jury, but overall I wouldn’t say it’s always better.
Don’t know for other countries, but in France, they do to a large extent. Actually, the court’s president is the main questionner, and the prosecutor/lawyers only secondary so. But the questionning is much more informal that what seem to be the rule in the US system. More like a debate, sort of, with the court president acting as the main interviewer. The defender can be asked question while a witness is questionned, he can react to what the witness say,…etc… It’s not unusual for a witness to directly adress the defender (or the other way around), for instance…
The US has more lawyers per capita than any other country in the world. The fact that anybody can get his day in court with stupid law suits is hampering some evolution in the country. Fear of law suits make things really strange sometimes. “Warm apple pie - cuation - filling is hot - Cuidad - esta caliente” - anyone?
So anyway - having a jury is, as I see it, no guarantee for a free society, with justice for all. Freedom of speech and press is.
I was born in Sweden, grew up in France, came of age in Germany and now live in the US. Therefore, unlike Hemlock I was not “brought up to be familiar” with the American legal system. Yet, I am a staunch supporter of the idea that We the People should actively participate in the execution of our laws. As a community, we must carry the burden of the legislation that our elected representatives have decreed.
Granted, there is no “European law” since the legal systems of the EU member states are not yet integrally tied together. However, we need to realize that law, even legal practice, varies from state to state in the U.S. as well. For example Louisiana practices civil rather than common law! Yet the division “Roman vs. English” or “civil vs. common” is not by in itself entirely useful. Even where common law is practiced in Europe, there doesn’t seem to be this ingrained feeling that, for example, “trial by peers” is a fundamental right. In the UK, the Labor Party wanted to limit the choice of jury trials recently to save the country some money. Fortunately, they eventually backed out after realizing that it would be quite bad for the party’s popularity. I couldn’t imagine someone with the caliber of Tony Blair here in the U.S. suggesting anything like it! May be I’m wrong and there are politicians seriously debating it somewhere in the dark corners of Albany, New York or Boston, Massachusetts.
Clairobscure comments that jury trials lead to a variation in how law is exercised. Personally, I don’t see this as a detriment. Rather, it reflects an acceptable variation in the ethics from one community to another. And a person must bare the brunt of committing a crime within the ethical framework of the community that suffered the harm. Only those who reside in the region where a criminal act was committed can be the judges of what, within the limits of a wider constitutional framework, is considered harmful to their common wealth.
Saying “I want to be tried by professionals” is indeed elitist and presumes that it requires some higher educational degree to serve justice. Note though, that the legal system in the US is not run by laymen. Juries are “handheld” through the whole ordeal by men and women who have long and expensive careers behind them. But, if you believe in the fundamentals of a modern governance by the People for the People, you should be for a choice between “trial by jury” or “trial by judge”.
ETHIC
I disagree. Even if you discard my arguments about the difference in convictions, sentences, etc… and about professionnals being more able to handle legal cases, and believe that governance by the people includes justice carried by the people :
In what way this little sample randomly chosen and sorted out by the lawyers represent “the people”? They just represent themselves. I didn’t give them any mandate to represent me. There can well be a majority of jurees who held a very different view about the issue at hand than the wide majority of the population… Actually, with such a limited sample, it will necessarily happen during some trials. One defender will most probably end up with a jury much more lenient than another. How could both of them be “the people”.
If you want a jury which represents anything significant, either you’ll have to pick a sample of the population large enough to be deemed representative (and carefully selected… X % living in the countryside, X % blue collars, x% with a master’s degree, whatever…) like in the opinion pools. Which would mean perhaps 1000 jurees or so for each trial hence would be totally impractical, either they must be elected (and in this case, they aren’t very different from professionnal judges).
I definitely don’t think a jury has any legitimate claim to be “the people”. Being judged by your peers possibly made sense in an absolute monarchy, but in a modern democracy, a professionnal judge is as much my “peer” as any random guy…
ethnicallynot - Do you have statistical evidence that there are more miscarriages of justice or flawed verdicts in 1st world jurisdictions where judges deliver the verdict than where juries do so?
Do Swedes get wrongly convicted more (or less) often than Texans? Do guilty people walk free to commit further crimes more (or less) often in Spain than in England? [assuming judges are delivering the verdicts in Sweden/Spain and juries in Texas/England.]
Also, are you implying that in some cases flawed verdicts by “non-elitist” juries might be a good thing (eg refusal to convict someone who is clearly guilty on the grounds that “we would have done the same under the circumstances, and the law is wrong”) - in which case, I agree.
A jury “of the people” does not mean a statistically representitive sample of the population. Freedom is not garanteed by a marketing focus group. “Of the people” means that you have a right to be judged by a group of your peers, not some elite group of lawmakers.
The problem I see with the system is that a jury trial requires jury members to have intelligence and critical thinking ability.
Msmith,
Sure, but ethnical states he believes in “a modern governance by the people”
Either you can’t apply this principle to a trial by jury, either “modern governance by the people” actually means “modern governance by 9 guys picked at random in the street”.
Personnally, I’m not particulary interested in this kind of governance.
In the USA, how are minor criminal law infractions dealt with? As ethicallynot said, the Labour government in the UK recently discussed the possibility of limiting the right to trial by jury. However, there is already an extensive list of minor “summary offences” which are tried in magistrates’ courts without a jury. Their status depends on the available punishment: magistrates are restricted in the size of fines or length of prison terms they can hand down.
The problem, as the government saw it, was that for charges of medium seriousness (called “either way offences”), the defendant can choose either to go before a magistrate, or to be tried in the Crown Court before a jury. It’s a bit of a gamble of course, as the Crown Court has greater sentencing powers if you plead not guilty but are found guilty. What a lot of people (“a lot” being the standard measurement for figures pulled out of my ear) do is choose a jury trial, and then plead guilty. Kerpow! Greater expense but effectively the same result as a magistrate trial. The government essentially wanted to remove the “either way” category and therefore increase the number of offences without a jury trial option. They underestimated the gut popularity of the jury trial in this country.
How are minor offences dealt with in the US? If there is a difference between the treatment of minor and major offences, where is the line drawn? Do you get a full jury trial if charged with a bit of graffitti-tagging?
Personally I don’t think that countries with a tradition of non-jury trials are any more likely to have a record of miscarriages of justice. Juries have contributed to some pretty spectacular miscarriages of justice in England over the years.
I wonder whether the attachment to the jury trial in this country (the UK) has something to do with the lack of a written constitution? Is there a feeling that the jury trial is necessary as a tool for keeping an eye on the establishment?
Embra
Misdemeanors (max one year in jail) are usually handled by a judge or magistrate. I think it depends on the state. That would include crimes like vandelism. The reason being that jury selection is a lengthy process.
We had a little thing here in the US called the OJ trials.
Clairosbcur, the idea of governance by the People for the People is not to have a “tyranny of the masses” where everything is decided by a majority. The modern republic is merely a system of checks and balance where the common [wo]man does not rule but has the ultimate power to choose by whom he or she is governed. And has the power to oust those who abuse the authority vested in them. In fact, although our representatives are democratically elected, we (if you’re not Swiss) are not democracies per se.
The idea of the trial by jury is more than to let 12 arbitrarily selected representative of the People who are impartial decide whether a crime was been committed or not. If the discussion was simply whether a jury is more likely to come out with a flawed verdict than a panel of professional judges, I would as Hemlock defies me to do, pull out statistics and begin the numbers game. But it’s not.
The reason most countries have adapted governance in the form of a republic is that it’s an extremely effective way of ensuring stability and prosperity in the long run. It combines “authority from below” with “authority from above”. My belief is that the “jury of peers” closes the circle of governance by the People for the People. We the People elect our representatives who legislate and manage the judicial branch. The judicial branch prosecutes. But it’s We the People that must hand down the final verdict. Members of our group must personally carry the burden of making life altering decisions for members of our community based on the laws our representatives have decreed.
Every one of us risks sitting in that court room having to make up our mind about what is fare and what is not. In the jury of 12, we can’t hide behind the mass. We can’t say “it’s not me, it’s the foolish mob”. Suddenly, we can personally be held accountable for carrying out the justice of our government. Sometimes that means a jury defies the strict word of the penal code. But the fact that juries sometimes act on gut instinct rather than the strict textual interpretation of the law guarantees that our laws are not applied ad absurdum. Judges can be unusually cruel (and foolish) in their attempts to apply law by principal.