I must say I don’t think debates like this are answered with appeals to heroic rhetoric like “bulwark against tyranny”. Mobs are not bulwarks against tyrrany, and juries can all too frequently simply be representatives of mobs, notwithstanding the generally curative effects of a courtroom. This man (a nationally famous child molester where I come from who has the misfortune to have an appearance unlikely to endear him to a jury) might be expected to stand little chance in front of a jury.
In determining the issue of whether judge or jury trials are “better”, the obvious first thought is to measure the reliability of outcome of jury trials versus judge trials, and the obvious second thought is to recognise that there is no way to reliably do this empirically. If we had a metasystem that could do a better job at determining the reliability of results, we would be using it in the first place.
That said, non-empirical experience suggests that juries, brought in for relatively short periods and generally unfamiliar with processes as they are, tend to err in predictable ways. In the first trials any particular jury panel does, they are highly anxious about the result, are too readily impressed by the well-developed “reasonable doubt” rhetoric, and acquit at a far higher rate than they do after they have some experience on board. This effect is so marked that I recall a prominent criminal defence lawyer (now judge) once facetiously commenting that it was probably professional negligence not to do your best to try to put your client on as the first trial before a new panel.
There is a rebound effect to this - by the end of a panel’s sittings, they seem to overcompensate for what they now think was excessive timidity at first with possibly excessive willingness to convict. They have heard all the reasonable doubt rhetoric several times now, figure it is just rhetoric, and ignore it.
Cutting across that is an observation that juries tend to be excessively forgiving of offences perceived to be of modest seriousness, and excessively unforgiving of serious or high profile offences (of course, there are famous exceptions to these general propositions, and this effect may be jurisdiction specific).
All the above considerations, can, of course, conflict.
If all jury trials were now converted overnight to bench trials, then I would think that in the short term there would be generally more reliable results, and results which better conformed to the parties’ expectations at the outset. However, that won’t happen, and would only last in the short term for the following reasons.
The first is that lawyers would very rapidly come to figure out who were the “hanging” judges and who were the soft touches. They would thus wait till they knew who their judge was and then plead guilty or not depending on their perception of their chances. This would distort the reliability (in a statistical sense) of outcomes.
The second is that judges (and legal systems) can develop a microculture that is very insular without the corrective injected by juries. Judges were the ones who invented the idea that women and children were not reliable witnesses and required corroboration before their evidence could form the basis of a conviction. They did so on what is now seen as a profoundly wrong understanding of such things. Yet they were convinced that they had a special insight that made them right.
Another example from my experience is the importance of inconsistency in a witness’s testimony. Judges have a tendency to attach too much weight to this issue in the assessment of credibility. Perhaps this is because it is easy to identify, it appeals to the micro-analytical mindset of lawyers generally and it offers the illusion of objectivity. In truth inconsistencies can be found in the testimony of everyone, and juries tend to attach little significance to the general run of inconsistency that is merely an inevitable artefact of ordinary human imperfection and background noise in the system. In my view, they are generally right to do so. (Of course, no-one ignores whopping inconsistencies - they are not what I am talking about.)
Shortly put, it is too easy for a judicial culture to emerge that believes itself to be unassailably superior to the lesser judgment of the poor benighted peons it serves, and build in biases in the assessment of facts that are hard to eradicate.
The third reason is that (in jurisdictions like the UK and elsewhere where judges are appointed and not elected) the creation of a system of judge only trials creates an increased pressure on politicians to appoint judges more likely to convict, to avoid the political embarrassment of high profile acquittals. While that pressure is there in the present system, it is muted because judges don’t make the ultimate decision.
Whether that pressure translates into actual appointments is another issue, but it is an unhelpful pressure on the system. It imposes an increased tendency to distort judicial appointments in favour of the prosecution. As a prosecutor, of course I am happy with that :). As a citizen, I am unhappy with any added risk of the distortion of the processes of judicial appointment.
In conclusion, my view after having been done more hundreds of jury trials than I care to count is that both systems have their strengths and weaknesses. I think it is more important to be driven by pragmatism about this than an a priori assumption about the superiority of one system over the other, to keep an eye on what is actually happening in the courts, and to apply whatever correctives are necessary. Appeals to generalised hagiographic mythologising about juries or judges won’t answer the question.
Some posters above have suggested that the appeal system serves to correct whatever flaws the jury system produces. May I offer the view that that is less valuable than one might at first think.
Appeals generally (subject to regional variation) do not involve a retrial of the issues from zero. Appellate courts generally work from transcripts, and recognise the advantages that the jury had (and that the appellate court does not) in actually seeing the witnesses live. Stammering, long pauses, and failure to make eye contact, never appear in a transcript, nor do forthrightness or ring-of-truth body language. After all, if appellate courts were to rehear the whole thing from the outset, what is the point of going through the jury trial at all? One may as well cut out the middle man and cut straight to the appellate court. Appellate courts recognise the constitutional position of the jury, and will not supplant trial by appellate court for trial by jury. Thus, appellate courts tend overwhelming to defer to juries when it comes to questions of determining who was telling the truth, should a particular complainant be believed, etc. It is generally only in rare, outlier cases that appellate courts intervene and overturn juries’ conclusions on purely factual questions.
Since juries do not give reasons for their verdicts, a consequence of this is that appeals from jury verdicts IME tend to focus on formal things such as the wording of directions to the jury. This is much more complicated than one might naively think. It does not, however, really mean that appellate courts correct jury verdicts on conclusions of fact other than in extreme cases.
One advantage of bench trials is that judges have to give reasons, making their decisions both more transparent and more open to critique on appeal than jury verdicts.
