Judgement by jury [Archive]

Aenlic

08-26-2005, 19:22

Trial by jury should be the most fair. After all, the jury is supposed to consist of your peers who are sworn to remain impartial and give weight only to the evidence presented in court.

In practice, it doesn't always work out that way.

In high profile, high dollar trials, boths sides pay consultants vast sums of money just to help them in the voir dire portion of the jury selection. They have become quite adept at choosing jurors from the available pool who they think will be better for their side. Are they accurate? Who knows? They certainly get paid very well.

Then during the trial, you have all manner of theatrics and styles that are designed not to present evidence, but instead to influence the jury. From the suits the lawyers and the defendants wear down to hair styles is carefully selected for its influence on the jury.

At times, even, a great deal of effort is spent on doing things to get the jury's attention knowing that such things will be objected to by the other side and the objections sustained. But that it'llnot be allowed to stand isn't the point. The point is to get the jury to hear it first. Then the judge has to instruct the jury to disregard such things. And we all now how that works out. Consider the famous "whatever you do, don't think of an elephant!" experiment. It can't be done. Having been told not to think of it, it's too late. You can't avoid thinking of it.

And then, of course, there is the problem of selecting a completely random and impartial jury pool in the first place. In most places in the U.S. jurors are selected from the available pool of registered voters. In days past, under certain Jim Crow laws in the southern U.S., the pool of registered voters was designed to be all or mostly white. So when a black defendant needed a jury, the pool of jurors was all white. Not exactly a fair situation. But since the judges were all white as well; the alternative wouldn't have been fair either.

Judge panels have their advantages, considering the above; but no one is wholly without some prejudice or bias. It is simply impossible to be utterly impartial. The intent of a jury system is to gather a number of jurors from a random pool; thereby increasing the chances of creating more fair and impartial system.

Red Harvest

08-26-2005, 19:30

It has been my understanding that jury trials are a way to reserve some protections from the "elite." A valid concern in any democracy is that judges and governmental leaders are much more affluent and wield much more power than the average citizen. A jury trial provides a check and balance against this concentration of power in the hands of a few.

Of course, this creates other problems. Many jurors lack the technical skills to understand some cases--and in fact those with such skills are often the first stricken because they are seen as a threat to one side or the other's case. Jurors also carry in their own prejudices (see the O.J. trial, or many Southern pre-Civil Rights Movement cases for examples.) Some things are done to mitigate this in the system, but there are limits to how effective it can be.

yesdachi

08-26-2005, 21:33

You know, as dumb as it sounds, the Jury usually does disregard things when the judge tells them to. Jurors are eager to please, and tend to do what they believe they are supposed to do. You have to remember that the Jury is not always the dumb unwashed masses--they're just people. Some smart, some not. Some will be swayed by the fancy court theatrics, others will look objectively at the facts. The system works well.
Additionally the jury is selected from a pool. People that cannot be impartial don’t often get picked. I have been on a jury and they threw out dozens before I was chosen. Mostly ex-military, security, people that suffered from similar crimes, etc. A jury trial is the most fair I can think of.

A jury can also, and sometimes does, completely forget the law (without consequences) and does what is morally right where a judge cannot. I’d take a jury rather than a judge any day. ~:)

A.Saturnus

08-26-2005, 21:48

A jury can also, and sometimes does, completely forget the law (without consequences) and does what is morally right where a judge cannot.

This is precisely what is wrong with a jury. The law is the product of a democratic process. Any verdict is only just if it is done according to the strict interpretation of the law, something only an accountable proffessional is able to. The jury can deviate from the code of law and by that from the will of the people. Thus, a trial by jury is less democratic than one by judge.

Divinus Arma

08-26-2005, 22:49

sharrukin

08-26-2005, 22:52

Trial by jury puts your neighbours in the position of judging you and when all is said and done they are the ones who have to live with you.

Laws may be unjust or oppressive (it's been known to happen) and a jury provides a last line of defence against this. Juries essentially judge the law, and the justice or injustice of the law as well as applying it. If this is not the case then they become simple agents of the crown in carrying out existing laws. Jurors should have the right to refuse to enforce an unjust law.

This is where we have gone wrong as we apply the law.

"if the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence. That is, it can dictate what evidence is admissible, and what inadmissible, and also what force or weight is to be given to the evidence admitted. And if the government can thus dictate to a jury the laws of evidence, it can not only make it necessary for them to convict on a partial exhibition of the evidence rightfully pertaining to the case, but it can even require them to convict on any evidence whatever that it pleases to offer them." Lysander Spooner 1852

As it currently stands in our system (Canada and the US) there is no longer much difference between a jury trial and a trial by judge due to this sort of control.

"If the government may decide who may, and who may not, be jurors, it will of course select only its partisans, and those friendly to its measures. It may not only prescribe who may, and who may not, be eligible to be drawn as jurors; but is may also question each person drawn as a juror, as to his sentiments in regard to the particular law involved in each trial, before suffering him to be sworn on the panel; and exclude him if he be found unfavorable to the maintenance of such a law." Lysander Spooner 1852

The inadmissibility of evidence seized, and the exclusionary rules of evidence have in many cases rendered the jury system pointless. The use of evidence seized in violation of the Fourth or Fifth Amendment, or its equivalent does not bring justice into disrepute. Juries are essential to the system of justice and deny them the truth when they are judging a mans life is a sickening violation of justice. It matters not, if this is done on behalf of the defendant or the state. The illegal acts of a police officer does not have a magical effect on the truth or validity of evidence. The deterrence of unlawful police conduct can be accomplished without undermining the jury system. The jury is not allowed to hear all of the witnesses nor see all of the evidence unless it has been approved by the state. This in my opinion is very dangerous and gives too much power into the hands of the state and simplifies the manipulation of the truth on the part of the state.

An example;
http://www.townhall.com/columnists/jacobsullum/js20030207.shtml

I am against the use of medical marijuana, but California voters approved it. The state should have gone after the city of Oakland or challenged state law, not this guy.
"The city of Oakland had asked Rosenthal to help supply patients who were not able to grow their own cannabis. It even deputized him as an "officer of the city" in an attempt to shield him from prosecution."

Judges should not be hiding evidence or the consequences of their judgements. In some cases mandatory sentences are kept from the jury. They are not given the choice of weighing the evidence against the punishment to be inflicted. Keeping juries in the dark about the "Three Strikes" laws (which I agree with) is another aspect of this manipulation. Prior violent acts (important in determining who initiated a violent confrontation) and the reputation of defendant's are kept from the jury and hampers their ability to seek justice.

The National Institute of Justice study found that 46% of individuals freed in California in 1976 and 1977 as a result of the exclusionary rule went on to commit additional crimes within 24 months of their release.

A system of justice that is corrupt and incompetent, which is used by authorities to punish political opponents, or by advocates to let the guilty go free, erodes the trust of the people in their own government and of society in general. You cannot have a free society without real freedom of the press (NOT the current corporate monopolies), and freedom of speech. This freedom should not be denied to a jury, any more than it should be denied to the rest of us. Democracy requires a system of justice that works, and treats people fairly, meaning that they receive punishment if this is their due and does not unfairly punish them if they are innocent.

Aenlic

08-26-2005, 22:55

I think the Jury alone is insufficient. There should be layers, like passing a law.

Should have a trial with a jury who deliberate behind closed doors and trained judges who deliberate in the open. Both verdicts should concur, otherwise a new trial is required.

Look at the jury findings in the South before the civil rights movement. Black suspect and a jury full of white men. Guilty.

And likewise, look at urban population centers. OJ simpson, innocent? Blacks want to get other blacks off the hook because of their preception of whitey crackers who rule the earth.

In most U.S. states, that's essentially already in practice, in regards to sentencing. The judge can set aside a jury's sentencing if the judge deems it to be too extreme. The case of the British nanny a few years back is a good example. However, in the case of guilt or innocence, you are correct; but there is also the appeals process as well.

And as far as the O. J. Simpson verdict goes, I seem to recall that his jury was mostly white, drawn from the rather non-ethnic population of Simi Valley, California. But I do get your point. ~D

Divinus Arma

08-26-2005, 23:42

In most U.S. states, that's essentially already in practice, in regards to sentencing. The judge can set aside a jury's sentencing if the judge deems it to be too extreme. The case of the British nanny a few years back is a good example. However, in the case of guilt or innocence, you are correct; but there is also the appeals process as well.

And as far as the O. J. Simpson verdict goes, I seem to recall that his jury was mostly white, drawn from the rather non-ethnic population of Simi Valley, California. But I do get your point. ~D

Oh really?http://www.law.umkc.edu/faculty/projects/ftrials/Simpson/Jurypage.html

9 blacks, 2 hispanics, and 1 white.

So you are pretty much fill of sh*t. Thanks for your input. ~D

Aenlic

08-26-2005, 23:57

Oh really?http://www.law.umkc.edu/faculty/projects/ftrials/Simpson/Jurypage.html

9 blacks, 2 hispanics, and 1 white.

So you are pretty much fill of sh*t. Thanks for your input. ~D

As I said, I seemed to recall it. I wasn't sure and said so. Thanks for correcting me in an adult fashion. And thanks for the pointless, unnecessary and uncalled for childish insult. :bow: I'll keep my opinion of you to myself, I think.

Xiahou

08-27-2005, 00:06

Do you really think that commons or neighboring have more capacity of making a true judgement than a professional that studied the matter for years? ~:confused:
Of course they do. Judges can often become removed, even aloof from the general populace. Whereas juries are supposed to be peers of the defendant. Id rather have my peers judge my motives/intentions than some stuffy old judge in his ivory tower. I'd like to see more trials by jury- not less.

This is precisely what is wrong with a jury. The law is the product of a democratic process. Any verdict is only just if it is done according to the strict interpretation of the law, something only an accountable proffessional is able to. The jury can deviate from the code of law and by that from the will of the people. Thus, a trial by jury is less democratic than one by judge. Are you against judicial review too?

Soulforged

08-27-2005, 00:48

Well i think that you all missed the point here. Is there any law student (preferibly from USA or Britain)? If i'm correct those systems base the practice of the law on the "common law", i mean the custom of the judges, expressed in the sentence. So it's supposed, even taking this system, that you've to follow the publication of the official sentences and know how the doctrine functions to understand it, and make interpretation, so you can aply science on the pratice.
Morality, to the contrary that everyone thinks, is a different thing than law, and it doesn't matter what happens, a man that is not disciplined for years of training to detract himself of his moral view will always base decisions on that morality. Morality sometimes penetrates even the law, and that's exactly for protection of the system and of others unscrupulous manners of certain people. If anyone studied this science they'll know that all of it is way far more complicated that any nonstudent can comprehend, the jury is not prepared for that. The jury will always tend to treat the suspects like criminals from the beggining (notice that i'm talking about penal law here), even more when they see an appearent atrocious murder or rape, they'll like to condemn them at any cost, without appling any technical process (because they don't know it). Besides this turns the practice of lawyers almost in a piece of theatrical show. That's what i fear would happen here.
The story of it's implementation here is insteresting. The Constitution already had it for the beggining, but because of the protection of the dogma and of the mob it has never been implemented until now, all because an "angry father" knows that he has the right to enter the practice and mobilize people against the "criminals". He has done other terrible things in the name of justice too, but this will do it. His son was kidnapped and later killed by accident, but it doesn't matter how tragic it's, people that doesn't understand the popose and history of penal law can go alerting the mob, even more here where the society is so polariced.
The other question is: Is it really democratic? I think not, it's just formally democratic, but the results show something else. For what i know the rate of condemnation in USA is way to high and most cases don't even get to trial because of the strange practice of deals, this is an effect of the jury. Here the deals exists but are rarely used. Of course for what i've seen the USA people seem to be really overmoral and really like the "bad" guy being profiled like a criminal and condemn them to even death. The practioner will never profile another human being like a criminal, they never forget that is the state who condemns and therefore everyone must leave the personal business outside of the court. The modern doctrine accepts that is the action that's judged and not the person.
Now the justification of penal law is a really difficult thing, and many jurists propose that penal law is no more. But this is for another thread.
I would always prefer to be judged by a scientist, not only because he can detract himself, but also because he can apply science, therefore his decision will always be, at least in theory, more close to justice than that of the "commons" (of course even in theory).

Kanamori

08-27-2005, 01:01

Divinus Arma

08-27-2005, 01:13

As I said, I seemed to recall it. I wasn't sure and said so. Thanks for correcting me in an adult fashion. And thanks for the pointless, unnecessary and uncalled for childish insult. :bow: I'll keep my opinion of you to myself, I think.

Your welcome. I had fun, how about you? ~:cheers: :balloon2:

Soulforged

08-27-2005, 01:32

A judge can ignore the law just as well as any other person, and they can ignore it without seeming to, better, perhaps, than could your typical jury member. However, most judges act more professionally than do most jurors, I would think. At any rate, in the end, both judges and juries can be swayed by popular belief, personal motives, and downright ignorance. As such, I believe serious decisions should be left to a representative sample of that society; after all, the laws in question are agreed upon by that society.

But there's a differece of probabities between judges and jurors, refering to the "popular belief, personal motives, and downright ignorance". But empirical proof demosntrate that the jury tend more to make wrong decitions. Judges take wrong decitions too, but at a minor rate. But most importantly, they know the law, the science, the doctrine, the custom of the sentences; on the other hand juries don't know but the half of it in the most optimistic of the cases. So again if we want to apply one of the both i go for science.

Louis VI the Fat

08-27-2005, 01:54

Oh really?http://www.law.umkc.edu/faculty/projects/ftrials/Simpson/Jurypage.html

9 blacks, 2 hispanics, and 1 white.

So you are pretty much fill of sh*t. Thanks for your input. ~DThat's the murder trial.

With Aenlic, I seem to recall a mostly white jury too. And indeed, the civil trial did consist of eight whites.

honkies (http://www.law.umkc.edu/faculty/projects/ftrials/Simpson/civiljury.html)

GodsPetMonkey

08-27-2005, 02:02

Well i think that you all missed the point here. Is there any law student (preferibly from USA or Britain)? If i'm correct those systems base the practice of the law on the "common law", i mean the custom of the judges, expressed in the sentence. So it's supposed, even taking this system, that you've to follow the publication of the official sentences and know how the doctrine functions to understand it, and make interpretation, so you can aply science on the pratice.

There are a few legally trained individuals on these boards, and Pindar has already made his opinion known.

Now, juries, and trial procedure in general is an interesting and twisted subject, and as most of this discussion has dealt with it in the criminal sphere, I'll leave it there. In case you can't tell, I'm Australian, so we inherited the mechanisms of the English courts, some of which have been altered by statute, but they are fairly minor. There are, of course, differences between our system and the US one, and as most of the readers are from the USA, I will list those that I can remember off the top of my head, but most of it is the same.
All our jurors are selected from the electoral role, which, as voting is compulsory here, is pretty much everyone over 18. Two dozen or so are dragged into a court room, then names are drawn at random, and they walk from the gallery to the jury box (there are loads of affectionate names for this part of the court room, but they are not appropriate in a G rated environment). As they walk over, either the prosecution or defence can veto their selection (based entirely on their name and physical appearance). Each party only gets 2 vetos. This is one of those major differences, and is IMHO, a good one. None of that jury consultant crap. After sitting down, a juror may give a reason for why they cannot serve as a juror (various reasons exist). In my case, one of the best is a legal practitioner cannot be a juror, YAY! There are good reasons for this particular exception.

They then get stuck listening to lawyers for 5 hours for a few days. Surprisingly enough, most jurors take their work seriously, and as someone already pointed out, tend to disregard anything they are told to disregard. However, if barristers acted anything like they do on TV, well, courts don't stand for that crap, fast way to be in contempt of court, and end up disbarred.

IMHO juries are essential in a criminal trial. It's really a case of someone from the outside looking in, and to be doubly sure, we make it MANY people looking in. The whole judged by your peers speech is good for the general public, but what we really want is someone who can look at the facts without being influenced by an extensive knowledge of the law. The jury is the trier of fact when ever one is used (both parties can elect to not have a jury, in which case the Judge is the trier of fact). However, many trials have at length debates about points of law, and certain things really confuse juries (like motive goes towards proving intent, but itself is not part of the mens rea), and if I had a dollar for every time I have heard a Judge explain the difference between a subjective and objective element of a crime several times through the course of a trial... These days the jury is normally sent out of the court when a point of law needs to be debated (it's the Judges job to decide those), but the jury having only a basic understanding of law can be a blessing, and a curse.

A judge can ignore the law just as well as any other person

Yeah, they can, but it's a sure fire way to end up in some crappy tribunal, or as a bail court magistrate.

Of course they do. Judges can often become removed, even aloof from the general populace. Whereas juries are supposed to be peers of the defendant. Id rather have my peers judge my motives/intentions than some stuffy old judge in his ivory tower. I'd like to see more trials by jury- not less.

While I agree judges are typically removed from the general populace (as are many others with power, like politicians), I have met very few that live in an ivory tower (proverbially and literally!). And if you’re unlucky, you can always appeal.
But, for whether or not you should use a jury, it depends a lot on the case, it's very much a strategic decision. A common example would be when you’re dealing with a crime which would disgust most everyone is society, or if your case deals a lot with legal issues rather then factual.

Soulforged

08-27-2005, 02:41

There are a few legally trained individuals on these boards, and Pindar has already made his opinion known.

Is good to read that!. ~:cheers:

But i strongly disagree with you in two points:
1- Even if you try to teach the jury the science of law 5 h a day, it's too little time to understand (even more in complicated cases), and too much time wasted. The judgements by this standard can be delayed only by that. I've even heard that in USA the judgements can be delayed to the point of prescription just selecting the jury!!. I'll have to study for 6 years only to graduate myself, and more if i want specialization. But in reality study never ends, if you really want to practice law properly you've to keep yourself informed on pages and pages of doctrine and jurisprudence, besides of course of sociology, phylosophy, history and all the other auxialiary sciences of the law.
2- "but what we really want is someone who can look at the facts without being influenced by an extensive knowledge of the law." That's exactly the problem, if you don't have an extensive law knowledge then you will aply your moral, thus leading to absurd ends in the majotity of the cases. The law is not only the written one (because if i understand it well the word law in your language is used with the same amplitude as our word "derecho", "directum", wich alludes to all the science), it has other resources, two of them (the jurisprudence- custom expressed on the sentences- and the doctrine - free scietific work of jurists) particulary are way to important to just ignore them and put some people just for the sake of formality. To me law is just to important to go looking for formalities (even more criminal laws), when you're condemning people sometimes to 25 years in prison.
Even so for what i see the power of the mob is, until some point, limited. But when the parties chose to have or not have a jury. Both have to agree?

Said this i wanted to know what is aprox. the condemnation rate in your country and how many cases get to formal judgements. ~:confused:

GodsPetMonkey

08-27-2005, 03:30

Is good to read that!. ~:cheers:

But i strongly disagree with you in two points:
1- Even if you try to teach the jury the science of law 5 h a day, it's too little time to understand (even more in complicated cases), and too much time wasted. The judgements by this standard can be delayed only by that. I've even heard that in USA the judgements can be delayed to the point of prescription just selecting the jury!!. I'll have to study for 6 years only to graduate myself, and more if i want specialization. But in reality study never ends, if you really want to practice law properly you've to keep yourself informed on pages and pages of doctrine and jurisprudence, besides of course of sociology, phylosophy, history and all the other auxialiary sciences of the law.

A juror does not become a qualified legal practitioner ~;)
Don't worry, I get what your saying, and your right, the intricacies of the law are far to hard for anyone to understand, even with careful instruction by the Judge on any matters they wish clarified. And I agree, this can be a problem, but emphasis here must be on CAN, jurors are not dopes, and they are not there to assess the constitutional validity of a law, and whether it falls within one of the ambiguous heads of power granted by the constitution to a parliament (insert any other legally complex example here). It is a juror’s job to apply the facts of a situation to the law. Now, say we gave them all the facts and then locked them in a room until they figured it out, yeah, that would be problematic, but we invented lawyers, it's their job to apply the facts to the law in such a manner that is preferential to their client, and this is what is presented to the jury. So really, the jury does little in the way of legal problem solving (unless they really wanted to), but decide between two different applications of the material facts. I have seen several criminal cases where, despite a very legalistic set of arguments by the defendant, the jury has returned not guilty, IMHO they felt that the law as stated to them (whether from statute or common law) favoured this argument.
Of course, I am speaking abstractly (I have never heard a prosecutor say "And this is how the facts will demonstrate that the elements of the actus reus and mens rea for murder are made out"), but you get the idea.

2- "but what we really want is someone who can look at the facts without being influenced by an extensive knowledge of the law." That's exactly the problem, if you don't have an extensive law knowledge then you will aply your moral, thus leading to absurd ends in the majotity of the cases. The law is not only the written one (because if i understand it well the word law in your language is used with the same amplitude as our word "derecho", "directum", wich alludes to all the science), it has other resources, two of them (the jurisprudence- custom expressed on the sentences- and the doctrine - free scietific work of jurists) particulary are way to important to just ignore them and put some people just for the sake of formality. To me law is just to important to go looking for formalities (even more criminal laws), when you're condemning people sometimes to 25 years in prison.
Even so for what i see the power of the mob is, until some point, limited.

Formalities tend to end up in the appellant courts (when it does not go the defences way, it takes political intervention for the public prosecutor to appeal.... obviously private prosecutions are different). That is not to say legal issues are not raised in the trial, but it's normally in relation to the facts, and they are the domain of the Judge, not the jury. So for instance, if the evidence collected by the police was gained through an illegal search, the Judge will dismiss it... hell, it most likely would not get to trial in the first place, our public prosecutors are completely detached from the police (unlike the US system) and would not touch such a case with a 40-foot pole. I doubt the US prosecutors would either actually.
Now, I will agree that the jury is not perfect, and many people have a very bad idea on just what they do (and I imagine many juries have had trouble realising that it's nothing like TV).

But when the parties chose to have or not have a jury. Both have to agree?

In criminal law here, both have to agree not to want a jury (there’s a presumption in favour of one). They have been ditched in some areas though (like Torts, part of tort reform and to prevent any US like mess).

Said this i wanted to know what is aprox. the condemnation rate in your country and how many cases get to formal judgements. ~:confused:

I'm presuming condemnation rate is meant to be conviction rates by jury, and formal judgement is a full trial where the defendant has pleaded not guilty (where they plead guilty, well, no jury is needed, and it goes pretty quick).

I'm not sure on the conviction rate, I would guess 50-60% would return a guilty (but stats are useless as they take into account cases where there is some legal reason for no conviction, and thus the juries verdict is unimportant).
As for a formal trial, only about 15% get to that stage. Most people plead guilty, reduced sentences and legal costs are attractive when your clearly guilty. Though this rate changes significantly when we are dealing with crimes that attract the big punishments (eg. murder, sexual assault).

Soulforged

08-27-2005, 03:49

Ok. ufff...you interpreted me well, my english is codificated i know. ~D
In any case, while the Judge has power to overrule the decision of the jury, it's not that bad. But imagine that system implemented here: firstly you've to locate the persons, thing that's pretty imposible here due to administrative problems, then you've to select them, moment that will be delayed to the point of prescription of the crimes (really useful thing for us, the potencial lawyers ~D )and finally here the differences between rich and poor people is just to wide and the majority of the persons who are qualified are rich. My conclusion is: here it would be a disaster, and i guess that it would be dismissed shortly. But i still keep the judge only system (here 3) for me, i want it to be the most scientific as possible. (i just expect to see the minimal tax of convictions as possible)

Thanks for the information. ~:cheers:

Soulforged

08-27-2005, 04:23

No legal system is safe in a place where there are no truly terrifying safegaurds against bribery. IIRC, most places in South America haven't reached that point yet.

It really comes down to who is more reliable? A single judge, or many jurors?

I say that's more realiable to have 3 judges for court, like we've here.
But you're assuming wrong that the problem is for bribery. The functionaries don't even need that here, they receive oversalaries and buy great houses and cars :furious3: . The problem is mostly focused on the catholic tradition, the political influence (mostly because they are afraid of the mob that waits outside to linch them -yes linch them- and the president encourages them to do that), in the laws (wrong written, too many holes) and in a minor set of cases due to religion. But prooved bribery is insignificant.

Kanamori

08-27-2005, 05:44

Yeah, they can, but it's a sure fire way to end up in some crappy tribunal, or as a bail court magistrate.

Many judges got away with horrible decisions in the Civil Rights cases. I'm sure I could dig up many more examples, too.

But there's a differece of probabities between judges and jurors, refering to the "popular belief, personal motives, and downright ignorance". But empirical proof demosntrate that the jury tend more to make wrong decitions. Judges take wrong decitions too, but at a minor rate. But most importantly, they know the law, the science, the doctrine, the custom of the sentences; on the other hand juries don't know but the half of it in the most optimistic of the cases. So again if we want to apply one of the both i go for science.

Then, I believe the jury would not be a representative sample of the populace.

Xiahou

08-27-2005, 05:44

But, for whether or not you should use a jury, it depends a lot on the case, it's very much a strategic decision. A common example would be when you’re dealing with a crime which would disgust most everyone is society, or if your case deals a lot with legal issues rather then factual.Yes, I agree- there are reasons a defendant may not want a jury, but they should always have the option.

Soulforged

08-27-2005, 06:34

A splendid example of why religion and government do not mix. But I suppose that's for a different thread.

I agree. But i also think that morality has not much place in court too (though it's more discussable than religion). Anyway those kind of practices are very rare today here.

Divinus Arma

08-27-2005, 13:57

That's the murder trial.

With Aenlic, I seem to recall a mostly white jury too. And indeed, the civil trial did consist of eight whites.

honkies (http://www.law.umkc.edu/faculty/projects/ftrials/Simpson/civiljury.html)

You are correct. And he was found responsible. Exactly my point.

A.Saturnus

08-27-2005, 14:14

The jury rarely chooses a verdict that is, to any significant degree, at odds with the law.

But they can. There´s no garantee that they interpret the law correctly, unless a judge checks it. And then you can let the judge decide anyway.

Of course they do. Judges can often become removed, even aloof from the general populace. Whereas juries are supposed to be peers of the defendant. Id rather have my peers judge my motives/intentions than some stuffy old judge in his ivory tower. I'd like to see more trials by jury- not less.

Isn´t "become removed" a synonym for being impartial? I want to be judged according to the law. Ideally the law itself would pass sentence. Since it does´t do that, a proffessional is needed who knows how to interpret it.

Are you against judicial review too?

Not at all. Just like a verdict must be according to the law, the law must be according to the constitution.

InsaneApache

08-27-2005, 14:28

Not at all. Just like a verdict must be according to the law, the law must be according to the constitution

Well that's us screwed in the UK then, we don't have a constitution, at least not a written one. ~;)

yesdachi

08-27-2005, 17:28

I agree. But i also think that morality has not much place in court too (though it's more discussable than religion). Anyway those kind of practices are very rare today here.
Morality has no place in a science lab but it should definitely be our courts. Not all of our laws are perfect and there are sometimes loopholes that can allow the true intent of laws to be molested. A jury and the judge have to use their morals combined with their common sense, facts and knowledge of the law (judge) to choose the correct verdict. I would not want a machine to judge me as there is no room for interpretation of special circumstances and many trials are not very cut and dry. If they were they would probably have been pleaded out already.

If a trial were a math question then no morality would be fine but its not. :bow:

Soulforged

08-27-2005, 21:21

Morality has no place in a science lab but it should definitely be our courts. Not all of our laws are perfect and there are sometimes loopholes that can allow the true intent of laws to be molested. A jury and the judge have to use their morals combined with their common sense, facts and knowledge of the law (judge) to choose the correct verdict. I would not want a machine to judge me as there is no room for interpretation of special circumstances and many trials are not very cut and dry. If they were they would probably have been pleaded out already.

If a trial were a math question then no morality would be fine but its not. :bow:

Well the analisys behind the law science tries to be the more exact posible, so it's more similar too maths than any other social science. But you're right and that's why i said it's disscusable. Though i don't know your law system i'll tell you this: morality (defined in my post above) is different from law, and it should enter the court if and only if the law permits it, and even a set of laws (at least in my system) have a sense of morality in it (mostly the ones that rule the business between parties so they're ethical). With the common sense happens the same, always exists a treaty in doctrine to replace the simple common sense, so it has little to do in court too. As you notice the value of the jury is reducing itself to just formality.

Soulforged

08-28-2005, 00:36

Morality has no place in the law. The law should be based on efficiency, and should try to avoid contradicting morality wherever possible, but efficiency should be the overarching component. Efficiency, in this case, meaning what is best for society. Both in terms of removing criminals from the streets, and doing it cost-effectively. This is a principle that is slowly being forgotten here in the US.

Ok, again the profiling of persons as criminals. This is exactly the problem of average people. When you say this guy is a criminal, you're impling that the guy commits delits at regular basis, almost like a way of living. The problem is that the justice system cannot judge persons for the way they conduct their lives, and the people should not profile the people. The exact definition should be "person who commited a crime" or two crimes or three. That wrong assumption is exactly from where the absurd precept of "relapsing" (i'm not sure if this is the term used there, but this means that the guy who commited a crime, if commits it again will be charge with more penalty) comes. You seem to reduce all to cost-effectiveness, well that's your view, but no budget has to be first that human life and integrity. Anyway removing the "criminals" from the street could be discussed, many jurists propose to reduce the penal law to a series of convictions based only on giving fines or institucions of rehabilitation.

Soulforged

08-28-2005, 01:22

Close, but no cigar.

In general, crimes can be classified as major and minor. In my opinion, people who commit minor crimes (shoplifting or some such) deserve the option of rehabilitation with the expectation of being sent back into society. For major crimes (Pre-Meditated Murder, Rape, ect.) there is no point in rehabilitating them. That would cost money, and is not garunteed to work anyway. They should simple be locked up.

All assuming, of course, that they are found guilty. All people are innocent until proven guilty.

Well that's your opinion, many eminent voices on the matter (Roxin, Stratenwerth, Sancinetti, Kant) will disagree with you. It's not a matter of degree, though you're right about one thing and wrong at the same time. Rehabilitation suppose that there's a certain morality and the society has the elevated ground respect of the individual, so it's an instrumentalization of the individual. You're correct that they should be "locked up" for some time, and then realesed, and that is a matter of degree, but everybody should be "locked up" just for matters of retribution.

Soulforged

08-28-2005, 04:47

You believe serial rapists and murders can be rehabilitated? Last I checked, many murderes, and most rapists, go right back to comitting crimes when they get out.

Money from the taxes of law-abiding citizens should not be used to "cure" rapists and murderers. Shoplifters, fine. Potheads, okay. Those are minor offenses. The big things should land you in a prison cell for a very long time, with no amenities. Would you believe they get cable telivision up here? I didn't even have cable until recently. That's just absurd. Then again, if it were up to me, things like serial murder and rape would land your neck inside a noose.

No you didn't understand me. I just don't like profiling of any type. What i say is that retribution is the justification of the criminal punishment. So it's exactly the contrary. It doesn't matter if anyone could be rehabilitated, the government and society simply can't force anyone to adapt to the society, so the function of the punishment, to me, is just reduced to retribution.

bmolsson

08-28-2005, 05:11

Judges are professionals. They judge based on given laws and after given procedures. A jury have neither the knowledge nor the professional training to do this.
I am pretty sure that nobody here would like to have a "jury" of neighbours to take decisions on medical treatment instead of a trained and professional doctor.
Judges as professionals, of course, have to follow a code of ethics and have a board that control their performance. Also to note, there are higher courts, just to prevent any biased or incompetent decisions by judges.
The whole jury discussion is absurd and totally puts the whole point of a legal system aside.

Soulforged

08-28-2005, 05:15

It seems to not be that absurd because everybody answered and gave they perspectives. Read what PetDog said. Anyway i'm on your side ~:cheers: , but just to look to the system of countries like USA and Australia makes room for discussion. So no, it's not absurd.

bmolsson

08-28-2005, 05:39

So no, it's not absurd.

Actually it is, but the main reason for using the word absurd is that it really gives a kick to the statement...... ~;)

Xiahou

08-28-2005, 06:06

1- Even if you try to teach the jury the science of law 5 h a day, it's too little time to understand (even more in complicated cases), and too much time wasted. The judgements by this standard can be delayed only by that. I've even heard that in USA the judgements can be delayed to the point of prescription just selecting the jury!!. I'll have to study for 6 years only to graduate myself, and more if i want specialization. But in reality study never ends, if you really want to practice law properly you've to keep yourself informed on pages and pages of doctrine and jurisprudence, besides of course of sociology, phylosophy, history and all the other auxialiary sciences of the law.If the law is too archaic for your average juror to be able to comprehend, then I don't think it's the jurors that are the problem.

Isn´t "become removed" a synonym for being impartial? No.

bmolsson

08-28-2005, 07:41

In my opinion, people who commit minor crimes (shoplifting or some such) deserve the option of rehabilitation with the expectation of being sent back into society. For major crimes (Pre-Meditated Murder, Rape, ect.) there is no point in rehabilitating them.

If the law says they are to be rehabilitated, then they are to be just that. Its not up to a jury or a judge to determine who gets rehabilitated and who is to be locked up.

Soulforged

08-28-2005, 08:09

If the law is too archaic for your average juror to be able to comprehend, then I don't think it's the jurors that are the problem.

No.

The law is not archaic, and i believe that you've no idea of what you're talking about. The law is complicated, the text doesn't explain just by itself, it has centuries of tireless studies behind, and even some questions still don't have any certain answer. But just to enlight your doubts i would give you and example. You're a juror and you'll say me what is your decision on this case: A train is going close to a river when it suddenly looses control. The wagons are full of children and to save some of them the driver must separate various wagons of the front so at least the children on the back can survive. Do you think that this guy is justifated? And notice that this is a very simple case in the doctrine. But make your guesses.

Soulforged

08-28-2005, 08:12

Did I ever say otherwise?

The law is a constantly evolving thing. You can't deny that. The constitution was written with that intention (don't confuse this with the constitution itself constantly evolving--that's an unrelated argument for a different thread). My issue is with the laws and policies that say a rapist can get 3 meals a day, cable televisision, and a roof over his head when some law-abiding citizens can't even get that much.

Oh so this time all your views are reduced to envy. But don't get mad read my response to your previous post above.

bmolsson

08-28-2005, 08:28

My issue is with the laws and policies that say a rapist can get 3 meals a day, cable televisision, and a roof over his head when some law-abiding citizens can't even get that much.

Well, US is a democratic society so it's the law-abiding citizens own fault. The laws has been written by the people he voted for........ :book:

bmolsson

08-28-2005, 08:33

I don't see why you should object. You are all for Morality in law, no? This idea certainly gels with morality. Unless Morality has come to mean "Screw your citizens, and give the convicts Cable TV." when I was not looking. And not just cable TV. They get rehab. They get medical care. They get the attention of countless experts who would be far more useful elsewhere. The current system is offensive not just morally; but from an objective societal standpoint. It is regressive. Detrimental to progress. Wrong on every level, except for the viewpoint which assumes you are innocent even after you have been convicted. And, dare I say it, that viewpoint is wrong.

So you would be more for a Sharia type punishment system. Theft, cut a hand, murder death penalty etc. Or should it just be that people get the food they hate every day and their mother in law keeps bugging them on the phone ?

Duke of Gloucester

08-28-2005, 08:38

The connection between trial by jury and democracy is the idea that they are less susceptible to the influence of the powerful than a judge is. They make a one-off decision, and the idea is they can do this without fear or favour. Because a judge is employed by state, he or she is more susceptible to pressure from the powerful. A jury, for those who believe in trial by jury, is not necessarily more accurate in finding the "correct" verdict, but more "democratic" because of the isolation from direct pressure from those in power.

Juries are there to decide on the facts in the case. They do not make any decisions based on law, so arguments that they have no legal training are not relevant. The judge makes these all "legal" decisions. You can argue that juries are better placed to decide on the facts of individual cases because they are not biased by previous experience of dealing with criminals. A judge can direct a jury to find a defendent "not guilty", but cannot insist on a guilty verdict, even if he or she believes the facts of the case mean that a guilty verdict is obvious. Whether you think this is a good or a bad thing depends on your view of the law. If you think that laws should be kept to rigidly, then giving a group of lay people the right to disregard the law is dangerous. If you believe, as I do, that it is impossible to draw up a code of laws to meet every situation, then this flexibility is useful. It also makes it harder for the state to use the courts as an instrument of persecution, as was attempted in the case where the right of juries to return a "not guilty" verdict without direction was established.

http://www.chrononhotonthologos.com/lawnotes/penntrial.htm

I do not think you can say which system is more accurate, but I don't think the examples of injustices quoted show that juries are less reliable. The jury in the Birmingham six trial were told by the police that the defendant had confessed and by forensic evidence showed that they had been handling explosives. It later emerged that the police had scared the confessions out of them and that the traces found on their hands could just as easily come from playing cards as from bombs. Who thinks a judge would have come up with a different verdict?

I think it is down to culture and heritage. If your country's history shows important limitations on the power of the state linked to the use of the jury, then you are right to be suspicious of politicians who want to limit it. If your tradition emphasises accuracy and professionalism, then you are right to ask why your government wants to change this.

Soulforged

08-28-2005, 08:43

I don't know if it's because i cannot write in english or because you think that you know more of law than anyone who studies it, but you accuse me of making wrong statements when you don't understand me. I don't like morality, i'm not a moralists ok, i think that that is understandable.
You say that you're innocent until proven guilty and you're right, the same is here. But when you profile people, you're making assumptions that they will commit crimes again. What i'm saying is put yourself in his place, think in the things that probably may have leaded a man to the crime, see if you're any different, if there are any different man, the only one that has no way back and is far from rational is one suffering of a patology, all the others are humans like you or me, and the penitenciary system only makes them worst than they were. To me they should be treated like any other citizen (so they don't loose the custom), give them the right to vote, give them protection from the state, give them protection from others, separete them for sometime, revalue the law that has been damaged by his action, and then let them free. And i keep saying that you say this from a subjective point of view (of course envy). There's nothing material that makes a subject less than all the others, the actions are judged not the subjects, at least understand this.

When i said that morality should be in some part in the law is like this. Suppose that you're making a deal, you don't know nothing about it just that you're going to exchange something, the other party knows everything about making deals and they'll take advatage of that, but then is when the law let's morality in and sais: "no mr. you can't do that, where's the ethical behavior". If your country has any wrote Civil Code then look at it and you will see that morality gets inside in many subjects.

Duke: It's not regid, it has many protections from regidness. The study behind it is constantly moving discovering new horizons, new ways of proof, new procedures, new concepts and new ways of seeing the system. The jury not necessarily will give you flexibility because it will see all from the common sense when there's no written law. But keep in mind that it's a science. It's like someone above said is you go to an specialist if for him to give you a diagnostic and not some "neighboring". Besides like i said many times it's just a formality, the commons are not realy your commons, that's just ideal, that just has form no content, like the very democratic system that we've today, and like this system it's not logic to say that it will lead to democratic decisions. And i don't know how the judicial system works there, but here the three powers are constantly in fight one with the other (this has some political issues but is another subject) so the judicial system is compeled by the others in a rare set of cases. So they don't really come to injust conclusions by political influence, that's just another formality. To me, i prefer being judged by an authoritarian like state, it's more scientific.
This topic does not reduces itself to points of view. There's an actual science that manages with this subjects and gives factical and logic arguments to the "why".

Soulforged

08-28-2005, 09:09

I thought I made it clear earlier that a distinction must be made between major and minor crimes. Your accusatory attitude is detrimental to debate, bmolsson.

And you seem to not read all the assumptions that your mates do, at least not mine. If you read my response you'll notice that when the type of penalty comes up, though it's a matter of degree, it's not a matter of degree if they should be rehabilitated or not, it's a matter of phylosophy. And i said and will say again, nobody should be rehabilitated, because the state cannot treat people like instruments or slap them like you do with a dog, you cannot force them to accept society or it's ways. If the person commits a crime again then it passes again for all the process without any special treatment (what i mean is no elevation of the punishment).

Soulforged

08-28-2005, 09:20

So you're saying that it's not really their fault? Bottom line is that they broke the law. Whether their parents abused them, or they're addicted to drugs, or whatever does not matter. If we accomodated everyone who broke the law, our society would fall apart. And why? Because we would be elevating criminals above law-abiding citizens. It's the same deal for illegal immigrants. Yeah, Mexico sucks. I can see why they'd want to move here. That does not make it right, however--and if we suddenly opened the border wide and said "Come on in!" our economy would be destroyed within the year.

It's their fault, but i don't see your connection between fault and degradation of the humanity of that person. Again (and if you didn't read my other posts) they're judged by their actions, not by the way that they carry their lives. Elevating criminals above law-abiding citizens? Again the profiling, but i don't see any system elevating them. The "criminals" like you call them deserve the same treatment that any other citizen, that's all. If it's better i really don't know, because here they're treated like rats. Elevating them is a fact that you cannot proof just by comparing their situations (that's really not better than yours, you're forgetting that they are still treated like a menaze, beated by the guards and possibly raped and murdered by their own partners) with other law-abiding citizens, maybe you're forgetting that nobody is perfect, and law cannot pretend to mess with such an statement. I cannot tell you about that, but if any nation begins to treat their "criminals" with the same respect that anybody would receive, as a citizen, that nation will evolve a lot from the others.

bmolsson

08-28-2005, 09:37

I thought I made it clear earlier that a distinction must be made between major and minor crimes. Your accusatory attitude is detrimental to debate, bmolsson.

No intention to accuse you of anything, but you do clearly state that you believe that punishment are too lenient and criminals are provided better social conditions than normal law abiding citizens. The Sharia law is addressing just these concerns and is an existing legal system used in several areas in the world.

Xiahou

08-28-2005, 10:18

But just to enlight your doubts i would give you and example. You're a juror and you'll say me what is your decision on this case: A train is going close to a river when it suddenly looses control. The wagons are full of children and to save some of them the driver must separate various wagons of the front so at least the children on the back can survive. Do you think that this guy is justifated? And notice that this is a very simple case in the doctrine. But make your guesses.
Justified in what? Is he accused of violating a law or committing a crime? If so, what crime? No one could make a judgement of anything based on that

Pindar

08-28-2005, 17:32

My conclusion is: here it would be a disaster, and i guess that it would be dismissed shortly. But i still keep the judge only system (here 3) for me, i want it to be the most scientific as possible. (i just expect to see the minimal tax of convictions as possible)

Thanks for the information. ~:cheers:

Soulforged,

I have legal license in both the U.S. and Japan. The U.S. Common law tradition is quite distinct from Japan's civil code which is more along lines you are familiar (i.e. the three judge model). One issue you may want to consider is how the two systems approach the notion of justice. The Civil Code model is necessarily elitist. The Judge is specifically and uniquely trained to uncover the true and similarly the just. Under a Common Law standard justice is a construct. Professionalism is necessary to properly act as an advocate in an adversarial system and maintain the rules of engagement, but the base question of "what is just?" does not require specialized training. The common citizen is taken as having equal insight into the nature of the good and the true.

Japan is also moving toward a jury system as well.

Xiahou

08-28-2005, 20:26

Soulforged

08-28-2005, 21:19

Justified in what? Is he accused of violating a law or committing a crime? If so, what crime? No one could make a judgement of anything based on that

If you don't see the crime there then just that proves me right.

Pindar: Again you're talking about a formality and morality when you say "The common citizen is taken as having equal insight into the nature of the good and the true". There's no truth there, the citizen can never have the same knowledge of law (not morality, but law) that those who practice them. In any way, while a judge can overrule the decision of the jury i'm ok with the system. To me justice is a question of science, is not a simple theme of points of view based on morality, that can be very different from person to person, so it has it's system, it aplication and it's process.

Pindar

08-28-2005, 21:48

Well said. That notion was the gist of my argument. :bow:

Thank you sir. :bow:

Pindar

08-28-2005, 22:08

...you're talking about a formality and morality when you say "The common citizen is taken as having equal insight into the nature of the good and the true". There's no truth there, the citizen can never have the same knowledge of law (not morality, but law) that those who practice them. In any way, while a judge can overrule the decision of the jury i'm ok with the system. To me justice is a question of science, is not a simple theme of points of view based on morality, that can be very different from person to person, so it has it's system, it aplication and it's process.

Your sense of jurisprudence is very different from the Common Law model. Law is considered the handmade of justice, not the other way around. Law void of justice is seen as inseparable from tyranny. Thus, the moral component is thought essential. The moral component that grounds law is given voice by appealing to the common man (the citizen). The common man thereby trumps the specialist. This is the case with voting rights (universal suffrage). This is the case with the judgment of one's fellow citizenry (the jury system).

Soulforged

08-28-2005, 22:19

Your sense of jurisprudence is very different from the Common Law model. Law is considered the handmade of justice, not the other way around. Law void of justice is seen as inseparable from tyranny. Thus, the moral component is thought essential. The moral component that grounds law is given voice by appealing to the common man (the citizen). The common man thereby trumps the specialist. This is the case with voting rights (universal suffrage). This is the case with the judgment of one's fellow citizenry (the jury system).

Though i disagree with your conception, i respect it. Thanks for that information.

Pindar

08-28-2005, 22:37

Though i disagree with your conception, i respect it. Thanks for that information.

My pleasure. :bow:

bmolsson

08-29-2005, 04:12

Professionalism is necessary to properly act as an advocate in an adversarial system and maintain the rules of engagement, but the base question of "what is just?" does not require specialized training. The common citizen is taken as having equal insight into the nature of the good and the true.

The question "what is just?" have nothing to do with the legal process. This question is to be asked during the process of writing the laws. Using this question during a trial would only make it an emotional charade and people would not be equal to the law. The jury system is a flawed position.

ICantSpellDawg

08-29-2005, 04:21

Xiahou

08-29-2005, 04:22

The question "what is just?" have nothing to do with the legal process. Wonder why it's called the Justice system then?

bmolsson

08-29-2005, 04:26

Your sense of jurisprudence is very different from the Common Law model. Law is considered the handmade of justice, not the other way around. Law void of justice is seen as inseparable from tyranny. Thus, the moral component is thought essential. The moral component that grounds law is given voice by appealing to the common man (the citizen). The common man thereby trumps the specialist. This is the case with voting rights (universal suffrage). This is the case with the judgment of one's fellow citizenry (the jury system).

The common law model is a compromise surviving the old feodalistic era in Europe. Moral is a part of law writing, but it can't be a part of the execution of the legal system, since it then have removed the most important part of a legal system, predictability and transparancy.

bmolsson

08-29-2005, 04:29

Every system is a flawed system.
The jury system is simply the one that insults the sensibilities of the smallest amount of people.

With over 2 million prisoners in US, I wouldn't call that a small amount of people..... ~D

bmolsson

08-29-2005, 04:31

Wonder why it's called the Justice system then?

The famous English humor...... ~;)

ICantSpellDawg

08-29-2005, 04:37

With over 2 million prisoners in US, I wouldn't call that a small amount of people..... ~D

You are blaming the US Jury system on the number of people in prison? You believe that if a single judge had say over the entire matter himself that there would be LESS people in prison?

You do know that a judge can overturn a verdict if he finds it irresponsible in certain cases, don't you?

We have a trial among peers system to curtail an inordinate amount of people being judged by those who do not understand their situation (ie. elitist judges). I am not saying that judges are bad, but the system that we have regarding some serious transgressions is designed to protect citizenry against unjust punishment.

If I were the devil, I would fire you as my advocate. :duel:

bmolsson

08-29-2005, 05:01

You are blaming the US Jury system on the number of people in prison? You believe that if a single judge had say over the entire matter himself that there would be LESS people in prison?

No, but I am sure there are a large chunk of inmates that does......

You do know that a judge can overturn a verdict if he finds it irresponsible in certain cases, don't you?

Doesn't that beat the purpose ?

We have a trial among peers system to curtail an inordinate amount of people being judged by those who do not understand their situation (ie. elitist judges). I am not saying that judges are bad, but the system that we have regarding some serious transgressions is designed to protect citizenry against unjust punishment.

I believe more in a professional judge than a bunch of civilians recruited as a jury by force. But then, I guess that is just me.... ~:grouphug:

If I were the devil, I would fire you as my advocate. :duel:

Well, I am no advocate, so I have never really applied for the job.... ~:bow:

Papewaio

08-29-2005, 08:35

The question "what is just?" have nothing to do with the legal process. This question is to be asked during the process of writing the laws. .

That would only be possible if the politicians wrote every law without the influence of a special interest group.

Additionaly every law would have to cover every situation of a case to give it full justice. Emotional and mental state of the accused, amount of information provided by physical evidence (finger prints, DNA etc), validaty of the witnesses... all aspects would have to be written into the law and looked up to have a law that was purely based on its writings to be just.

Using this question during a trial would only make it an emotional charade and people would not be equal to the law. The jury system is a flawed position.

If a law is just the majority of citizens should be able to understand that law. If the average citizen cannot comprehend the law nor the evidence showing a conviction of a person for not obeying that law then it would not be just to convict someone.

What kind of country would you like to live in where the laws cannot be understood without a decade of specialist training?

Jurys are as flawed as the rest of democracy. A democracy has the citizens elect professionals to rule the country. A jury elects if a professional should or should not pass sentence on the accused.

Xiahou

08-29-2005, 08:53

If a law is just the majority of citizens should be able to understand that law. If the average citizen cannot comprehend the law nor the evidence showing a conviction of a person for not obeying that law then it would not be just to convict someone.

What kind of country would you like to live in where the laws cannot be understood without a decade of specialist training?Indeed, as I've said, if law is incomprehensible juries aren't the problem- the incomprehensible laws are. You can hardly convict someone for violating a law that they can't even understand. :bow:

bmolsson

08-29-2005, 10:20

bmolsson

08-29-2005, 10:31

You can hardly convict someone for violating a law that they can't even understand.

Yes, you can and you must. Laws do have a purpose. One of them is to protect the society from threats. These threats doesn't always understand they are threats. If they can be rehabilitated to understand that they are threats so they stop being threats, it's good. If not they have to be removed from the society. Actually US foreign policy is built on this concept........ :bow:

Duke of Gloucester

08-29-2005, 11:40

The question "what is just?" have nothing to do with the legal process. This question is to be asked during the process of writing the laws. Using this question during a trial would only make it an emotional charade and people would not be equal to the law.

This is outrageous nonsense. The legal system of any society must make just decisions. This is what the citizens expect and deserve, not because they are unrelaibly emotional, but because they rightly assign a high value to justice.

The common law model is a compromise surviving the old feodalistic era in Europe.

The common law pre-dates the feudal system and you have to ask why it survived it. I say it survived because it was perceived as just. It might seem attractive to make predictability and trasnsparency so important that the law is always applied rigidly, but if a system does this, then someone is going to be treated unjustly. I would prefer a system that is more flexible.

It does not matter whether the law is complex or not - the jury is there to decide on fact, not on law. Legal decisions are made by the judge.

Yes, jurys are flawed, therefore they should not be used. A civilian has no right what so ever to decide if I am guilty or not of a crime.

This is a killer argument if the alternative you put forward is flawless. I am not convinced.

Adrian II

08-29-2005, 12:28

I do not think you can say which system is more accurate, but I don't think the examples of injustices quoted show that juries are less reliable. (..) I think it is down to culture and heritage. If your country's history shows important limitations on the power of the state linked to the use of the jury, then you are right to be suspicious of politicians who want to limit it. If your tradition emphasises accuracy and professionalism, then you are right to ask why your government wants to change this.That is an excellent, balanced summary of the background to this controversy, Duke of Gloucester. :bow:

However, a Judiciary serves a different function than that of dispensing justice. Its function is to check injustice and to do so with an eye to the public interest. Historically, judiciaries have been wrested from the hands of kings and princes to ensure against their abuses of judicial power, starting with the medieval parliaments where nobles were literally judged by their peers in order to reduce the judicial power of the rulers. Nowadays, the primary function of judges and juries is to ensure that the individual is preotected against judicial abuses by 'the People'.

That is an entirely different notion from the one most people seem to entertain in daily life. Judges and juries do not decide what is right and what is wrong, they merely judge the merits of cases presented to them by the prosecution. Ideally, if a case is not proven beyond reasonable doubt, the suspect is allowed to go free.

The reason why we establish courts, judges, juries and elaborate procedures to judge these cases is that they serve the public interest, not that they serve justice. The primary function of the system is to uphold the values and rules of behaviour that govern a society. Therefore justice (in the narrower sense of due process) must be seen to be done, i.e. must be seen to reflect those values and rules and not the private notions, layman's views and prejudices of jurors.

Hence my qualm with all jury systems: the full considerations underpinning the verdict remain unknown to the public. This is a fatal flaw of the system and it is the reason why jury trials all over the world have always given rise to suspicions of class justice and dirty dealing behind the screens. At the centre of the jury system, there is this black hole of jury confidentiality that is bound to leave observers suspicious and dissatisfied, no matter what the outcome is.

If you want a concrete example of what I mean, just ask yourself the simple question: Why did Orenthal James Simpson 'walk' in 1995?

Nobody knows. Not even judge Ito knows the answer to that question. Justice has not been seen to be done, because the considerations that led that particular jury to its verdict can only be guessed at with (incomplete) hindsight.

In my view any verdict reached in a court of law should conform to democratically established and commonly accepted judicial standards, and should be seen to conform to them.

Recently in my country, a man suspected of laying plans to blow up parliament was sent home because the prosecution could not prove their case. As is the rule, the considerations of the judge were an integral part of that verdict and they were read out in court and published afterwards, so that every Dutchman knows (or is able to find out in his local library) exactly why this man was judged not guilty of the offense he had been charged with.

There is no room for speculation about why the suspect was allowed to walk. The reason is explicitly given by the judge: the prosecution failed to make its case. And the verdict tells us exactly why, according to which criteria, on the basis of which laws and jurisprudence, which forensic considerations, etcatera, etcetera. The judge's entire train of thought underlying this verdict is spelled out in great detail for everyone to see and check for inconsistencies. That is the essence of 'democratic justice' in my book.

bmolsson

08-29-2005, 12:43

This is outrageous nonsense. The legal system of any society must make just decisions. This is what the citizens expect and deserve, not because they are unrelaibly emotional, but because they rightly assign a high value to justice.

If so is the case, why does murderers get off the hook due to technicalities daily in western society ? Why does we react with loud voice when evidence is not enough and people in the third world are convicted anyway ?
A just decision is based on real evidence and the actual law text, not some opinions from a civil jury that believes the accused is guilty. The law is blind and should continue being so..... ~:cool:

The common law pre-dates the feudal system and you have to ask why it survived it. I say it survived because it was perceived as just. It might seem attractive to make predictability and trasnsparency so important that the law is always applied rigidly, but if a system does this, then someone is going to be treated unjustly. I would prefer a system that is more flexible.

Depends what you define as a feudal system. Just knittpicking from your side.
It did not survive because it was perceived as just, it survived because the population was homogen and had no problem in prosecuting minorities. It has nothing to do in a large modern society, it fits well in a small biased community with protectionistic desires.

It does not matter whether the law is complex or not - the jury is there to decide on fact, not on law. Legal decisions are made by the judge.

Irrelevant. The fact and evidence in a case is just as important as the law itself.

This is a killer argument if the alternative you put forward is flawless. I am not convinced.

The alternative is well educated professionals. In a modern secular society this is always superior to the use of civilian amateurs.

bmolsson

08-29-2005, 12:49

There is no room for speculation about why the suspect was allowed to walk. The reason is explicitly given by the judge: the prosecution failed to make its case. And the verdict tells us exactly why, according to which criteria, on the basis of which laws and jurisprudence, which forensic considerations, etcatera, etcetera. The judge's entire train of thought underlying this verdict is spelled out in great detail for everyone to see and check for inconsistencies. That is the essence of 'democratic justice' in my book.

Agree... :bow:

Duke of Gloucester

08-29-2005, 13:17

If so is the case, why does murderers get off the hook due to technicalities daily in western society ? Why does we react with loud voice when evidence is not enough and people in the third world are convicted anyway ?

These are examples of injustice, but I can't see what they have to do with juries. Most Western countries do not have juries,

Depends what you define as a feudal system. Just knittpicking from your side.

Associating the common law with the feudal system disparages it, so I thought is important to point out that it pre-dates the feudal system, having its roots in Anglo-Saxon England. The feudal system was imposed over the common law (and contributed to its developement) but you can't argue that it pre-dates it however you define the fuedal system. I know of no examples of the common law being used to persecute minorities, but can quote you an example of a jury preventing the persecution of a religous minority.

It is self evident that a person needs training to understand the law, but I am very troubled by the idea that you need to be a professional to decide facts, such as who is lying, who can be trusted etc.

The alternative is well educated professionals. In a modern secular society this is always superior to the use of civilian amateurs.

This is the nub of our disagreement. I back the one-off amateurs because they are insulated from state pressure to come to a particular verdict. As Adrain says:

Nowadays, the primary function of judges and juries is to ensure that the individual is preotected against judicial abuses by 'the People'.

However, a Judiciary serves a different function than that of dispensing justice. Its function is to check injustice and to do so with an eye to the public interest.

Adrain, the distinction between dispensing justice and checking injustice is too subtle for me. Can you explain why these two things are not effectively the same.

Re OJ Simpson and the recent Dutch case, is not your argument here about secrecy and not the jury system, and in the end don't both cases come down to whether the evidence is convincing or not. Is the judge going to say anyting different from: "I was not convinced that this or that piece of evidence was conclusive"? Where we disagree is over who is best at making this decision, 12 amateurs or 1 (or 3 professionals).

Adrian II

08-29-2005, 13:50

Adrian, the distinction between dispensing justice and checking injustice is too subtle for me. Can you explain why these two things are not effectively the same.No Judiciary would be able to shape a 'just society' even if it wanted to. All that a Judiciary does is see to it that the state ('the People') respects the established rules and values of society whilst upholding the public order. The notion that a Judiciary could or should dispense justice is an illusion.
Re OJ Simpson and the recent Dutch case, is not your argument here about secrecy and not the jury system, and in the end don't both cases come down to whether the evidence is convincing or not. Is the judge going to say anyting different from: "I was not convinced that this or that piece of evidence was conclusive"?No, the difference is that in the Dutch case all the relevant considerations are available in the public domain. Indeed, our judges say a lot more than what you suggest. In complicated cases one hundred page verdicts are no rare exception. This is to ensure that the judge accounts for every syllable of his final verdict. It is this precise account that is lacking in jury verdicts.
Where we disagree is over who is best at making this decision, 12 amateurs or 1 (or 3 professionals).No, that is not the point at all. What we disagree about is whether all considerations leading to a verdict should be presented to the public (Dutch system) or kept behind closed doors (jury system). I opt for the former.

N.B. Dutch judges who write shoddy verdicts will constantly see them overturned by higher courts until their entire prestige is down the drain and they are forced to resign from the bench.

Papewaio

08-30-2005, 01:47

If so is the case, why does murderers get off the hook due to technicalities daily in western society ? Why does we react with loud voice when evidence is not enough and people in the third world are convicted anyway ?

Considering the Bali Judge has a record of 500 found guilty to 0 found not guilty... do you think he is being just?

The biggest problem with having professional judges is that they can be pressured to convict or not by government (or more shady groups).

How is it the professional Indonesian judges are giving sentences that are less then 3 years for conspiracy of terrorism. Either the evidence was not strong enough and Bashir should have got 0 time or he should be hanging from a gibbet and then feed to the pigs. The issue is that these professional judges can be pressured to give verdicts, a jury by his peers could have in all likely hood found him not guilty.

It is also easier for an individual with an agenda to convict all those of a type they don't like.

A jury is a check on the power of the Judiciary. The Judiciary is rarely democractically elected, yet they hold a lot of power in society. So for a democracy the jury is an easy way of injecting the democratic process into the Judicial process.

Yes, you can and you must. Laws do have a purpose. One of them is to protect the society from threats. These threats doesn't always understand they are threats. If they can be rehabilitated to understand that they are threats so they stop being threats, it's good. If not they have to be removed from the society. Actually US foreign policy is built on this concept........

If the jury (representing the people) cannot understand why the person is a threat then why should the person be convicted.

The larger threat is not a lack of 100% convictions. The largest threat is having a government that can prosecute without checks or balances.

Soulforged

08-30-2005, 01:50

That would only be possible if the politicians wrote every law without the influence of a special interest group.

Additionaly every law would have to cover every situation of a case to give it full justice. Emotional and mental state of the accused, amount of information provided by physical evidence (finger prints, DNA etc), validaty of the witnesses... all aspects would have to be written into the law and looked up to have a law that was purely based on its writings to be just.

The problem to answer you is that i don't know if we're talking of the same thing, but i'll try to explain myself. Here we call the science not law, but "derecho" wich comes from "directum" (rect, oriented to or by, from the latin) the "derecho" (that would be translated to english like "right") has four sources: jurisprudence, law (ley here, "lex" from the roman language), doctrine and custom. Between the four they cover every hole mentioned avobe by you, so there's no need to establish them in the law, because there's others sources that the judge, jurists and lawyers take in account, and that anyone without a minimal knowledge of the science will never know, therefore cannot make a true judgement in this complicated matter, that's not a question of morality or simple custom, but right, directum.

If a law is just the majority of citizens should be able to understand that law. If the average citizen cannot comprehend the law nor the evidence showing a conviction of a person for not obeying that law then it would not be just to convict someone.

In criminal matters the person doesn't have to comprehend the type described by the law, they just have to know that the action they're performing has some disvalue of action, i mean that the action is seeing as bad even in the enviorament outside the law. In civil matters the subject is different, but civil matters doesn't carry conviction anyway.

What kind of country would you like to live in where the laws cannot be understood without a decade of specialist training?

Well here you don't need all that time to comprehend it with suffiently to know what is the action that follows the right. To comprehend all the extension that the law can achieve is another thing, but the common citizen doesn't need to know that, only, of course, if they are in a jury. ~;)

Jurys are as flawed as the rest of democracy. A democracy has the citizens elect professionals to rule the country. A jury elects if a professional should or should not pass sentence on the accused.[/

Again the certain and eternal true of democracy is the best. Even if we achived true democracy in some time i always will want to be judged by an authoritarian state, so you don't really have to accept that formality if you know that those people's are just ignorant.

Proletariat

08-30-2005, 01:54

Typical members here advocating appointing an anointed genius above giving power to the unwashed masses.

Why not just make the person with the highest IQ in each country King?

Soulforged

08-30-2005, 02:03

The larger threat is not a lack of 100% convictions. The largest threat is having a government that can prosecute without checks or balances.

Well i already answered to this but here i go again: here, where there's 3 judges for every chamber, the judicial system is so separated of the rest that in theory the rest of the powers cannot touch them, of course in our country sometimes this doesn't happen, but this is due to corruption and not to the effectiveness of the model. So the judicial system always had an element of "police state". And i really like it that way. To the other questions i answered above.

bmolsson

08-30-2005, 02:12

Considering the Bali Judge has a record of 500 found guilty to 0 found not guilty... do you think he is being just?

If it's the same judge I am thinking of, then all those cases are drug cases. Indonesian law is rather simple there. You carry drugs, you are guilty. Can't really see how any jury could see that differently.

The biggest problem with having professional judges is that they can be pressured to convict or not by government (or more shady groups).

And that would not happen with a jury ?

How is it the professional Indonesian judges are giving sentences that are less then 3 years for conspiracy of terrorism. Either the evidence was not strong enough and Bashir should have got 0 time or he should be hanging from a gibbet and then feed to the pigs. The issue is that these professional judges can be pressured to give verdicts, a jury by his peers could have in all likely hood found him not guilty.

Do you know what he was convicted for at all ?

It is also easier for an individual with an agenda to convict all those of a type they don't like.

That is why you have higher courts.

A jury is a check on the power of the Judiciary. The Judiciary is rarely democractically elected, yet they hold a lot of power in society. So for a democracy the jury is an easy way of injecting the democratic process into the Judicial process.

A jury has nothing to do with democratic process. Neither have a legal process. Or do you really think that a referendum on guilt would be the ultimate just system ? Nothing by mob justice, our modern society have grown out of that, I hope....

If the jury (representing the people) cannot understand why the person is a threat then why should the person be convicted.

The larger threat is not a lack of 100% convictions. The largest threat is having a government that can prosecute without checks or balances.

The government is elected by the people, why would the government want to prosecute without checks and balances ? Don't you believe in the democratic process ?
The modern laws are a little bit more complex than they where 100 years ago.

Note: By the way, do you see DNA as a absolute evidence of guilt ? Do you believe it's unique ?

bmolsson

08-30-2005, 02:14

Typical members here advocating appointing an anointed genius above giving power to the unwashed masses.

Why not just make the person with the highest IQ in each country King?

Nah, then we wouldn't be able to elect our great movie stars president...... ~D

Papewaio

08-30-2005, 02:23

The government is elected by the people, why would the government want to prosecute without checks and balances ? Don't you believe in the democratic process ?
The modern laws are a little bit more complex than they where 100 years ago.

Note: By the way, do you see DNA as a absolute evidence of guilt ? Do you believe it's unique ?

No I don't believe in having an unchecked government. Part of the reason of the success of most democratic governments is the accountability of them, which the checks and balances help insure. Any person who gives up freedom for security deserves neither. Nor should a government elected by the people have free reign, they may have been elected on a few topical issues this does not give them absolute authority.

====

DNA evidence is not absolute.

a) Tiny chance that the sequence checked can be identical on two individuals
b) We shed DNA everywhere we go. Our skin which forms upto 90% of household dust. This dust can be blown hundreds of kilometers by wind or carried off by other individuals.
c) DNA like any other evidence (like drugs) can be planted by a third party.

bmolsson

08-30-2005, 02:41

No I don't believe in having an unchecked government. Part of the reason of the success of most democratic governments is the accountability of them, which the checks and balances help insure. Any person who gives up freedom for security deserves neither. Nor should a government elected by the people have free reign, they may have been elected on a few topical issues this does not give them absolute authority.

So you do believe in the democratic process. Then you also believe that the laws written in the democratic process is good and should be enforced. And that is best done by a judge, educated in the laws to be enforced.

DNA evidence is not absolute.

a) Tiny chance that the sequence checked can be identical on two individuals
b) We shed DNA everywhere we go. Our skin which forms upto 90% of household dust. This dust can be blown hundreds of kilometers by wind or carried off by other individuals.
c) DNA like any other evidence (like drugs) can be planted by a third party.

Even more important, twins have identical DNA......

Papewaio

08-30-2005, 03:00

So you do believe in the democratic process. Then you also believe that the laws written in the democratic process is good and should be enforced. And that is best done by a judge, educated in the laws to be enforced.

A jury finds the if they are or are not guilty.

A judge then decides the sentence or they can even suspend it. He writes up the account of the whys of the sentence at that point based on the evidence given and other factors. The jury is a judicial safeguard.

A judge is not democratically elected. Nor are they easy to get rid of. The problem is the level of professionalism can be found lacking in some of them. Falling asleep at trials being one of the more obvious problems.

bmolsson

08-30-2005, 05:30

A jury finds the if they are or are not guilty.

A judge then decides the sentence or they can even suspend it. He writes up the account of the whys of the sentence at that point based on the evidence given and other factors. The jury is a judicial safeguard.

A judge is not democratically elected. Nor are they easy to get rid of. The problem is the level of professionalism can be found lacking in some of them. Falling asleep at trials being one of the more obvious problems.

If a judge fails his duties, he is to be suspended or punished. Just like any other professionals there has to be an ethical committee. This committee can have elected people. There is nothing in my opinion that make me being treated more fairly by having a jury deciding if I am guilty or not.
Furthermore, are you saying that normal people would never fall asleep during a trial while a judge would ? I can't really see the relevance to be honest.

Soulforged

08-30-2005, 05:49

If a judge fails his duties, he is to be suspended or punished. Just like any other professionals there has to be an ethical committee. This committee can have elected people. There is nothing in my opinion that make me being treated more fairly by having a jury deciding if I am guilty or not.
Furthermore, are you saying that normal people would never fall asleep during a trial while a judge would ? I can't really see the relevance to be honest.

The judges are punished in exeptional cases that practically, due to level of study and knowledge, rarely happen in reality, one of these would be making analogy of a criminal law. In reality they've a kind of absolute power, being the supreme ruler the Supreme Court, wich sentences are practically laws by themselves. Though this in anyway makes the decitions biased or partial, this has nothing to do with that, but the real subject here is the separation of powers.

A jury finds the if they are or are not guilty.

Just that only is very difficult. Believe me.

A judge then decides the sentence or they can even suspend it. He writes up the account of the whys of the sentence at that point based on the evidence given and other factors. The jury is a judicial safeguard.

But that's exceptionally facultative of the judge, he cannot make it in every case, or can he? So the jury makes "whys" (arguments) when they really have not idea of what they're talking about? I asure you that not all the arguments are reduced to the facts, there're a great number that corresponds to the abstract analisys. To me the jury acts more like Pindar said, like the element of morality in the court, though i disagree with that conception, morality is a totally different thing from law (directum, derecho, the science as i explained before).

A judge is not democratically elected. Nor are they easy to get rid of. The problem is the level of professionalism can be found lacking in some of them. Falling asleep at trials being one of the more obvious problems.

The judge is not democratically elected because the same ones that know the flaws on the system know that if the judge is elected then he'll have to favor certain elite that supported and supports him. Well you're right they're not easy at all. I never saw a judge falling asleep here, most be a problem of the unic enviorament of Australy ~;) .

Duke of Gloucester

08-30-2005, 08:16

Here we call the science not law, but "derecho" wich comes from "directum" (rect, oriented to or by, from the latin) the "derecho" (that would be translated to english like "right") has four sources: jurisprudence, law (ley here, "lex" from the roman language), doctrine and custom. Between the four they cover every hole mentioned avobe by you, so there's no need to establish them in the law, because there's others sources that the judge, jurists and lawyers take in account, and that anyone without a minimal knowledge of the science will never know, therefore cannot make a true judgement in this complicated matter, that's not a question of morality or simple custom, but right, directum.

In England and Wales the law has three sources, statutes passed by parliament, common law, which, I suppose is the same as "custom", and case law where judges interpretaion of statute and common law binds subsequent judges to behave in the same way. This is complicated: society and technology change, so new situations arise, language changes, new statutes overlap with old ones, new judgements are made; in order to understand all this, you need years of training. "Anyone with a minimal knowledge of the science will never know it...", I agree entirely. However in most cases the issues are those of fact, and not of law. In England and Wales juries never make decisions about law. They only make decisions about fact. If the proposed system in Argentina is that juries make legal decisions, then you are right to be against it.

They are not making decisions entirely on their own. The judge is there to guide them. He or she will say things like "If you believe such and such a thing you should find the defendent not guilty. If, on the other hand you believe such and such, you should find the defendant guilty." If the judge does not give correct direction, then this can be challenged on appeal. I suppose an argument could be made for alternatives to jury trial for cases where facts are very complicated and involved, perhaps fraud cases. However in nearly all cases, both the law and the factual issues are straightforward.

Del Arroyo

08-30-2005, 08:38

A judge in Oklahoma got busted for jerking off under the bench... they even said he sometimes used penis pumps during court proceedings..... :help:

A.Saturnus

08-30-2005, 15:19

Typical members here advocating appointing an anointed genius above giving power to the unwashed masses.

Why not just make the person with the highest IQ in each country King?

No, I´m (and I think others as well) advocating giving power to the law. The judge has no power, only the law has.

A judge is not democratically elected.

Neither are policemen. They shouldn´t be elected because their role is a professional one. BTW, juries aren´t elected democratically as well.

Adrian II

08-30-2005, 15:21

A judge in Oklahoma got busted for jerking off under the bench... they even said he sometimes used penis pumps during court proceedings..... :help:Imagine what those juries get up to behind closed doors.. ~:eek:

sharrukin

08-30-2005, 20:43

If a judge fails his duties, he is to be suspended or punished. Just like any other professionals there has to be an ethical committee. This committee can have elected people.

What colour is the sky in your world?

Judicial accountability is a joke! Like lawyers, and doctors, judges are rarely held accountable for their actions, even when they become outrageous. Slightly more than a dozen federal judges and perhaps 20 state judges, have been removed from office in the history of the United States and I would be very much surprised if it was much different elsewhere.

Proletariat

08-30-2005, 23:27

No, I´m (and I think others as well) advocating giving power to the law. The judge has no power, only the law has.

I don't understand this. You could say the same of the jury.

Soulforged

08-31-2005, 00:31

In England and Wales the law has three sources, statutes passed by parliament, common law, which, I suppose is the same as "custom", and case law where judges interpretaion of statute and common law binds subsequent judges to behave in the same way. This is complicated: society and technology change, so new situations arise, language changes, new statutes overlap with old ones, new judgements are made; in order to understand all this, you need years of training. "Anyone with a minimal knowledge of the science will never know it...", I agree entirely. However in most cases the issues are those of fact, and not of law. In England and Wales juries never make decisions about law. They only make decisions about fact. If the proposed system in Argentina is that juries make legal decisions, then you are right to be against it.

They are not making decisions entirely on their own. The judge is there to guide them. He or she will say things like "If you believe such and such a thing you should find the defendent not guilty. If, on the other hand you believe such and such, you should find the defendant guilty." If the judge does not give correct direction, then this can be challenged on appeal. I suppose an argument could be made for alternatives to jury trial for cases where facts are very complicated and involved, perhaps fraud cases. However in nearly all cases, both the law and the factual issues are straightforward.

Yes i think i understand your position, but then this system is really archaic. Though it has administrative advantages, the truth is that every case is a mess of circumstances and facts that can only be seen by the expert. There's the case of that image of the two mans in black and white that can also be perceived as a jar, this one is very famous. But in science there's always one true perception not two, and if the jury has only the perception from the side of custom and morality the decisions can rarely be properly founded, though the conviction may achieve justice anyway, but if something lacks of form the content may get lost.

Papewaio

08-31-2005, 01:24

Neither are policemen. They shouldn´t be elected because their role is a professional one. BTW, juries aren´t elected democratically as well.

The jury represents a cross section of the people. Democracy also represents a cross section of the people.

I still hold onto the principle that a law that cannot be understood by those who it effects is not a just law. I agree with a Judge deciding what the penalty for breaking a law is as they can match it with previous cases. The jury of peers allows a litmus test of if a law is understandable to whom it effects most, it also is the social strata that understands the context of the accused actions most closely.

Maybe a better system would be publication of the juries deliberations... make them open after the case has finished.

Why not advocate a benevolent dictatorship and leave leading the country to professionals?

Papewaio

08-31-2005, 01:26

But in science there's always one true perception not two

Science deals with models and facts. It also can have multiple perceptions that are correct.

Proletariat

08-31-2005, 01:40

Why not advocate a benevolent dictatorship and leave leading the country to professionals?

Exactly what I said. Let's just take whoever had the highest GPA when earning a PHD in Poli Sci from whatever university happens to be the most prestigiously ranked in the country at the time.

The electorate is just a bunch of idiots that need to be led anyway, right guys?

Soulforged

08-31-2005, 01:57

Exactly what I said. Let's just take whoever had the highest GPA when earning a PHD in Poli Sci from whatever university happens to be the most prestigiously ranked in the country at the time.

The electorate is just a bunch of idiots that need to be led anyway, right guys?

The judicial system must be separate of all the political life (there're exceptions but little of concern to typical cases). Thus making it incorrect saying that the judge can be influenced by the policies, when in fact you put a jury for democratic policies reasons.
The electorate isn't just a bunch of idiots, the system considers them in this "democratic" system as numbers. The elites appeal to them every time that they want to be elected or at the end of the period so they can be reelected. To them you're just a number that can be tuned by lies and ideal proposes that will never achive reality. As the jury, the actual democratic system is just a bunch of formalities, nothing of real democratic content in it.

Soulforged

08-31-2005, 01:58

Science deals with models and facts. It also can have multiple perceptions that are correct.

Agree, but you need the right "instruments" to percieve the truth or truths.

Papewaio

08-31-2005, 02:00

Considering the lifestyles of citizens of democracies compared with others it ain't such a bad gig.

If there is a better performing system out there then show me...

Papewaio

08-31-2005, 02:00

Agree, but you need the right "instruments" to percieve the truth or truths.

Which more often then not is starting with the right brain and ideas.

Soulforged

08-31-2005, 02:01

Why not advocate a benevolent dictatorship and leave leading the country to professionals?

Well i don't think that this democracy works any different. But,yes, why not leave at least the judicial system in a benevolent dictatorship? I don't see anything wrong. ~:confused:

sharrukin

08-31-2005, 03:18

Well i don't think that this democracy works any different. But,yes, why not leave at least the judicial system in a benevolent dictatorship? I don't see anything wrong. ~:confused:

I would have thought the 30,000 Desaparecidos (disappeared) in Argentina might suggest that benevolent dictatorships don't always stay that way. If you hand the law over to a any group, you also hand over the country. If they can make or break law as they choose, they are the government.

Soulforged

08-31-2005, 05:41

I would have thought the 30,000 Desaparecidos (disappeared) in Argentina might suggest that benevolent dictatorships don't always stay that way. If you hand the law over to a any group, you also hand over the country. If they can make or break law as they choose, they are the government.

They can make the law as they want, only a elite has real power in this democracy, the rest of us must satisfy ourselves with voting from time to time. And i didn't talk about a full government like dictatorship, i clearly said that the principle of dictatorship will do very well to stay in the judicial system. That dictatorship you're talking about was more executive (gobierno de facto, goverment by fact, not by right because they overrule the Constitution) than judicial, there were no formal trials in all the period, the executive power just worked by decrets and force. Btw the dissappeared are today on the numbers of +60000.

Oh now i see what benevolent dictatorship means in english, well i meant only dictatorship, totally impartial.

Adrian II

08-31-2005, 06:43

If there is a better performing system out there then show me...Think: operation theatre.

Imagine twelve of your peers looking over the surgeon's shoulder and telling him whether to remove your appendix. Oh look, one just fell asleep -- apparently he doesn't care much and there is no reason he should care because he can not be held accountable for the outcome of the operation anyway. Fortunately, another has brought his old biology textbook from college so he can look up the key words in the index. 'Hold on, doctor... got it! A-p-p-e-n-d-i-x, "vermiform extension of large intestine". Now what is that knife you got there?'

Feel better yet?

Soulforged

08-31-2005, 06:46

I totally agree with you. In reality the "despotic" system functions better than the "democratic" one.

Papewaio

08-31-2005, 06:50

Think: operation theatre.

Imagine twelve of your peers looking over the surgeon's shoulder and telling him whether to remove your appendix. Oh look, one just fell asleep -- apparently he doesn't care much and there is no reason he should care because he can not be held accountable for the outcome of the operation anyway. Fortunately, another has brought his old biology textbook from college so he can look up the key words in the index. 'Hold on, doctor... got it! A-p-p-e-n-d-i-x, "vermiform extension of large intestine". Now what is that knife you got there?'

Feel better yet?

a) I was talking about government.

b) A lot of surgeons are refusing video cameras into operating theatres as they fear getting sued based on the video evidence oftheir screw ups... accountablity.

Also you are ignoring the defence and prosecution... your example is a bad stretch of a failing argument.

Compare the number and calibre of democracies that have emerged from the British system and then compare that to the number of those from the rest of the EU. After all isn't South America based on EU not British law?

Soulforged

08-31-2005, 06:56

Compare the number and calibre of democracies that have emerged from the British system and then compare that to the number of those from the rest of the EU. After all isn't South America based on EU not British law?

Yes, and it's theorically superior. The germans specially have a long tradition on law, and good one. But what did you mean by this?

I've not seen any convincing argument to leave the power of the law to the mob.

Papewaio

08-31-2005, 07:00

Soulforged

08-31-2005, 07:08

Simple take a look at all the ex British or ex US colonies and the US and Britain themselves.

Check how many have became reasonable democracies and then compare with what happened to the rest of the EU and its colonies.

I don't see the connection between judicial system and what you seem to consider "reasonable democracy", when in fact there's no real connection between a current power and the citizens. Germany is a reasonable democracy, USA has death penalty until now (and some other irrational laws, based totally on morality, to me this appears to be an overconfidence in the common law system), French is too and Italians are very progresits. Britain and Australia are the only exceptions based on common law that i would call "reasonable democracies", but it seems that paranoia has taken it's toll in Britain in this times.

Duke of Gloucester

08-31-2005, 07:14

Imagine twelve of your peers looking over the surgeon's shoulder and telling him whether to remove your appendix. Oh look, one just fell asleep -- apparently he doesn't care much and there is no reason he should care because he can not be held accountable for the outcome of the operation anyway. Fortunately, another has brought his old biology textbook from college so he can look up the key words in the index. 'Hold on, doctor... got it! A-p-p-e-n-d-i-x, "vermiform extension of large intestine". Now what is that knife you got there?'

This situation would need to be twisted a long way to make it parallel to jury trials, but even here, the decision about whether to operate is made by an amateur: the patient, possibly the patient's relative. The doctor, an expert, explains his or her judgement about the case, but the final decision rests elsewhere.

Papewaio

08-31-2005, 07:20

Britain and Australia are the only exceptions based on common law that i would call "reasonable democracies", but it seems that paranoia has taken it's toll in Britain in this times.

Canada, New Zealand and a huge chunk of Commonwealth nations.

Adrian II

08-31-2005, 07:21

a) I was talking about government.Speaking of flawed comparisons.

Governments are (or should be) transparent and accountable to the people. The voters are the final judges.

Juries, even though they speak in the name of the people, are not transparent and can not be held accountable for their verdicts by the people or by the suspect in a particular case. Suspects are judged guilty or not guilty on the basis of secret deliberations and considerations. Therefore, as I said, the system is profoundly undemocratic.

Once again, let us take the most publicised jury case in human history, the O.J. Simpson case. Why, on what grounds and because of which lacunae in the prosecution's case, was Simpson acquitted? Is there a single American who knows the answer to that? Not even the jurors in that trial could tell, could they? They do not know what moved the next juror to vote guilty or not guilty in the end.

At the center of the jury system there is a black hole.

Papewaio

08-31-2005, 07:26

Would a transparent jury be the best synthesis?

The sentence is still up to the judge and the judge is supposed to help inform the jury on how to measure the facts.

The Judicial system is I suppose another part of the government. I do not think they should be immune to the democratic process. Also I think citizens should be involved in government. One of the key points of democracy is having well informed and active citizens.

Soulforged

08-31-2005, 07:38

Canada, New Zealand and a huge chunk of Commonwealth nations.

Yes you're right, but i'm not aware of their legislative situation.

The sentence is still up to the judge and the judge is supposed to help inform the jury on how to measure the facts.

But the judge can only overrule in exceptional cases. In the rest you're guy in the middle of an ingnorant mob.

The Judicial system is I suppose another part of the government. I do not think they should be immune to the democratic process. Also I think citizens should be involved in government. One of the key points of democracy is having well informed and active citizens.

You're right, but it will not be real democracy anyway. About the judges, it will not be acceptable, good judges are unknown to the average people, and the actual "democratic" system will not work if we let the judges be elected. As i said before the actual democracy supposes a group of elites who supports the campaings of the parties and those parties later own a real debt with them, with the judges it would happen the same, and they wouldn't be able to be impartial.

bmolsson

08-31-2005, 07:48

The jury represents a cross section of the people. Democracy also represents a cross section of the people.

Only at a local level. Laws are to be the same nationally.

I still hold onto the principle that a law that cannot be understood by those who it effects is not a just law. I agree with a Judge deciding what the penalty for breaking a law is as they can match it with previous cases. The jury of peers allows a litmus test of if a law is understandable to whom it effects most, it also is the social strata that understands the context of the accused actions most closely.

A court session is not a lithmus test, it's real life. Somebody is accused of a crime and his/hers whole life depends on the outcome. It's unresponsible to use citizens as some kind of "comprehension" test on law. We just have to elect better politicians that write the laws from the beginning.

Maybe a better system would be publication of the juries deliberations... make them open after the case has finished.

That would be to put them at risk, a risk they are to take without their choice. I think that would make the jury system even more unpredictable and unjust.

Why not advocate a benevolent dictatorship and leave leading the country to professionals?

What does this has to do with a judiciary system ?

bmolsson

08-31-2005, 07:53

Canada, New Zealand and a huge chunk of Commonwealth nations.

Yep, they are all under the Queen. And your point was ?

Soulforged

08-31-2005, 08:00

A court session is not a lithmus test, it's real life. Somebody is accused of a crime and his/hers whole life depends on the outcome. It's unresponsible to use citizens as some kind of "comprehension" test on law. We just have to elect better politicians that write the laws from the beginning.

There's no reason to get to that bmolsson. The thing is that the meaning of the word just is mistaken. Just means "ajusted", to what, well to society, the law must adapt to society and society is not a simple thing, so law for instance cannot simplify it. When we enter the criminal law (i don't like that term i prefer penal, but i don't know if in english it could be named that way) the system gets more complicated because there's problems even with the justification of the existence of it. But if criminal law is accepted you cannot expect something simple, it has a very specific scientific method that's very difficult to grasp. Again you cannot use the formality excuse to justify the presence of ignorant people in a court wich treats with the life of another human being.

Soulforged

08-31-2005, 08:03

Yep, they are all under the Queen. And your point was ?

LOL- I like that. This countries are all under the ideal power of some monarch and we still call them democracies. Is pretty absurd.

bmolsson

08-31-2005, 08:16

There are very few democracies in the world. We all love to put a king, president or similar on top of us and worship him/her.....

Soulforged

08-31-2005, 08:24

There are very few democracies in the world. We all love to put a king, president or similar on top of us and worship him/her.....

In fact there're no democracies at all.

Adrian II

08-31-2005, 10:32

LOL- I like that. This countries are all under the ideal power of some monarch and we still call them democracies. Is pretty absurd.Apparently, things aren't always what they seem. Ever been to a 'People's Democracy', Soulforged? ~:cool:

Duke of Gloucester

08-31-2005, 12:03

But the judge can only overrule in exceptional cases. In the rest you're guy in the middle of an ingnorant mob.

In the England and Wales, the judge must direct the jury to find the defendant not guilty if he or she believes that the jury could not reasonably convict given the evidence presented. If this happens, it would normally be at the end of the prosecution case. It is unusual, but not exceptional.

bmolsson

08-31-2005, 12:52

In the England and Wales, the judge must direct the jury to find the defendant not guilty if he or she believes that the jury could not reasonably convict given the evidence presented. If this happens, it would normally be at the end of the prosecution case. It is unusual, but not exceptional.

Doesn't that really defeat the purpose ??

A.Saturnus

08-31-2005, 14:24

The jury represents a cross section of the people. Democracy also represents a cross section of the people.

I still hold onto the principle that a law that cannot be understood by those who it effects is not a just law. I agree with a Judge deciding what the penalty for breaking a law is as they can match it with previous cases. The jury of peers allows a litmus test of if a law is understandable to whom it effects most, it also is the social strata that understands the context of the accused actions most closely.

Maybe a better system would be publication of the juries deliberations... make them open after the case has finished.

Why not advocate a benevolent dictatorship and leave leading the country to professionals?

To call a jury democratic is a mockery of democracy. For one, juries are not representative of the population as the lawyers of both parties can exclude candidates. But even if that were not the case, even a random sample of people cannot have any democratic authority. If it could, why not make elections a lot easier?

If the law is to be undersood by everyone, no law can ever be just. And BTW, does it happen often that the jury comes forward and says "we don´t understand the law and therefore the defendant must be released"? If there´s a doubt that the law is just, it may not be applied. If there´s a danger that the law is incomprehensible, it is the least responsible to let laypeople decide. The sense of morality of 12 people cannot be a basis for jurisdiction.

The comparison to a benevolent dictatorship is misapplied. As I said, a defendant has to be judged according to the law, and nothing else. The law is the product of a democratic process. A benevolent dictator makes decision what is best according to his view and his sense of morality. The sense of morality of a judge is irrelevant. The judge must apply the law, nothing else. That is a purely proffesional role.

Duke of Gloucester

08-31-2005, 16:31

Quote:
Originally Posted by Duke of Gloucester
In the England and Wales, the judge must direct the jury to find the defendant not guilty if he or she believes that the jury could not reasonably convict given the evidence presented. If this happens, it would normally be at the end of the prosecution case. It is unusual, but not exceptional.

Doesn't that really defeat the purpose ??

No. One of Soulforged (and if IRC correctly, yours too) objections to the jury system is that you are at the mercy of 12 ordinary people. This meets some of that objection in that you can't be convicted perversely. Of course you can be acquited peversely, and this is a disadvantage. Those who support the jury system think this advantage is outweighed by involving the people in the justice system and by its limit on the power of judges.

Originally posted by A.Saturnus
To call a jury democratic is a mockery of democracy. For one, juries are not representative of the population as the lawyers of both parties can exclude candidates. But even if that were not the case, even a random sample of people cannot have any democratic authority. If it could, why not make elections a lot easier?

Only if you have a very limitted definition of what democracy is. You could be even more limitted and say that true democracy (rule by the people) would involve a referendum on every decision and call an election a "mockery" of democracy. As Pape has already explained, a jury system is "democratic" because it involves all citizens, in the sense that anyone might be called to serve on a jury, in decisions about guilt and innocence. I don't think that Pape was saying countries without jury trials are not democratic.

And BTW, does it happen often that the jury comes forward and says "we don´t understand the law and therefore the defendant must be released"? If there´s a doubt that the law is just, it may not be applied. If there´s a danger that the law is incomprehensible, it is the least responsible to let laypeople decide. The sense of morality of 12 people cannot be a basis for jurisdiction.

Juries don't make decisions based on law. Those are made by the judge. Juries make decisions on fact. They need to understand the facts and issues and the judge is responsible for explaining these to them. For example if a case hinges on whether a person has committed murder or manslaughter, the judge will not give a full explanation of the law on murder and manslaughter; he or she will explain how the law applies to the particular case, and will outline to them the key decisions of facts they need to decide and, once they have made those decisions, the implications for the verdict. The question about whether anyone would be acquitted because the jury don't understand the law would never arise. The judge makes legal decisions. Juries decide on facts.

There is a chance that if the jury decides that a law is unjust, they won't enforce it, but I like this. It is a safeguard to ensure that the government and judiciary don't develop laws that the people don't consent to. It can't be more responsible to enforce unjust laws.

As I said, a defendant has to be judged according to the law, and nothing else.

The problem is it isn't just about the law. If two people have a fight and one of them is in court because a couple of witnesses say that person threw the first punch and there was no provocation. The accused says that the other person was very threatening and he acted in self-defence. The law is pretty clear. If the accused genuinely believed he was in danger and acted reasonably to protect himself, he is innocent. If he threw the first punch for any other reason, he is guilty of assualt and battery. (I think that is what the law of England and Wales says, but I would be happy to let a judge decide on that.) To come to a verdict someone needs to decide who is more reliable, the accused or the two witnesses. I think I could do this just as well as a judge. What, in a judges legal training, makes him or her better at making this decision the twelve laypeople?

Papewaio

09-01-2005, 00:34

I don't think that Pape was saying countries without jury trials are not democratic.

Yes and No.

You can be a democracy without trial by jury.

But there is a very strong correlation to the number of long term vibrant democracies and those that have trial by jury. (I think this is more a case of finding fire fighters at fires not fire fighters lighting fires).

Mind you that correlation also overlaps with British/US colonies and more open minded religious tolerance.

Papewaio

09-01-2005, 00:42

To call a jury democratic is a mockery of democracy. For one, juries are not representative of the population as the lawyers of both parties can exclude candidates. But even if that were not the case, even a random sample of people cannot have any democratic authority. If it could, why not make elections a lot easier?

One of the key points of democracy is having well informed and active citizens.

Being on a jury is a duty that helps keep citizens active and informed. Add to that the

"The price of freedom is eternal vigilance." - Thomas Jefferson.

Citizens should particapte and be vigilant and not just rest on their laurels leaving others to look out for their freedoms.

Redleg

09-01-2005, 01:00

How many here have ever sat through the Jury Selection process for thier country - if a jury is used?

How many here have ever watched how a trail is conducted in their nation's courtrooms? (Or like here in the United States most trails are conducted either at the county or city level.)

Trails are an interesting thing to watch in the United States. The jury selection process is often the highlight of the trail - and the responses of the jury pool during the picking process can be very informative. (I watched one as a member of the jury pool, unfortunately they picked all the individuals they needed for the trail before they got to me.)

Every now and then I go to the court house to see a court case in action - that is the other thing that I like about the United States court session - most have to be open to public viewing unless motions have been filed to prevent it. (Or that is my understanding of the constitution and the laws regarding courts.)

In the United States you get a choice of what type of trail you want - well for misdemenors (SP) anyway. Rarely does an individual pick a jury trail for those type of cases - but the process is still interesting. After seeing how Judges rule in these cases - I would prefer a jury trail if I was ever brought up on any charge that might result in jail time.

A judge is regardless how impartial he claims to be, no matter how perfect the process is in selecting judges - their individual baises will always play a part in their decision making process. At least in a jury trail - some cases require a majority opinion - some all of them agreeing - there must be a consenus of opinion about the verdict.

Soulforged

09-01-2005, 02:37

Apparently, things aren't always what they seem. Ever been to a 'People's Democracy', Soulforged? ~:cool:

No i know. As the democracy itself it's just formality. But the royal family still keeps going without even working, they do nothing. Or am i wrong? ~:confused:

How many here have ever watched how a trail is conducted in their nation's courtrooms? (Or like here in the United States most trails are conducted either at the county or city level.)

I've.

Trails are an interesting thing to watch in the United States. The jury selection process is often the highlight of the trail - and the responses of the jury pool during the picking process can be very informative. (I watched one as a member of the jury pool, unfortunately they picked all the individuals they needed for the trail before they got to me.)

This instrument could be used by lawyers to delay the process. Besides i already say that all this is a waste of time and has the appearence of a show.

Every now and then I go to the court house to see a court case in action - that is the other thing that I like about the United States court session - most have to be open to public viewing unless motions have been filed to prevent it. (Or that is my understanding of the constitution and the laws regarding courts.)

Here's the same.

In the United States you get a choice of what type of trail you want - well for misdemenors (SP) anyway. Rarely does an individual pick a jury trail for those type of cases - but the process is still interesting. After seeing how Judges rule in these cases - I would prefer a jury trail if I was ever brought up on any charge that might result in jail time.

And why is that? The fact that you can only chose when it's a midemenors just prooves me right (at least with your system). Is just the contrary the most important, and for instance the one that requires more science, so it has to be turned the other way to be more just.

A judge is regardless how impartial he claims to be, no matter how perfect the process is in selecting judges - their individual baises will always play a part in their decision making process. At least in a jury trail - some cases require a majority opinion - some all of them agreeing - there must be a consenus of opinion about the verdict.

This is not my point, at least. The impartiality of the judge does matter, but the problem here turns around science, the judge alone trial is more scientific. And i agree with everybody the jury is more formally democratic, but that doesn't make it better. The simple idea of form without content is enough to understand why. Even if it was real democracy, that will not ensure a scientific work from the jury. So the problem is in reality how ignorant of the law can be a jury. I would say very much. The life of an human being is at stakes on a criminal case.

Redleg

09-01-2005, 02:59

This instrument could be used by lawyers to delay the process. Besides i already say that all this is a waste of time and has the appearence of a show.

Oh its indeed a show - however its an important step in determining if the possible jurist is incapable of listening and then deciding.

And why is that? The fact that you can only chose when it's a midemenors just prooves me right (at least with your system). Is just the contrary the most important, and for instance the one that requires more science, so it has to be turned the other way to be more just.

Not at all - it doesn't prove your point. It shows that the system allows the individual charged with criminal case or even a civil case - to pick how his judgement will happen. Its perfect examble of freedom in action. Choice.

This is not my point, at least. The impartiality of the judge does matter, but the problem here turns around science, the judge alone trial is more scientific. And i agree with everybody the jury is more formally democratic, but that doesn't make it better. The simple idea of form without content is enough to understand why. Even if it was real democracy, that will not ensure a scientific work from the jury. So the problem is in reality how ignorant of the law can be a jury. I would say very much. The life of an human being is at stakes on a criminal case.

The jury can be ignorant of the law - the lawyers and the judges obligation is to educate them on the law as it relates to the charge that the defendant is facing. The impartiallity of the Judge can only be assumed never proven. The impartiallity of the jury can be meant by the jury pool process where each side gets to weed out jurists that might be baised toward the case. Do some lawyers ruin this process - yes indeed. Does history show that this process is sometimes unfair based upon the laws of the land - yes indeed. But the process - in at least my opinion - of a Jury Trail is better then standing in front of just one judge or a panel of three judges for judgement by them on your actions.

bmolsson

09-01-2005, 04:08

Oh its indeed a show .

This more or less describes my opinion on a jury trial. Entertainment, but nothing about law...... ~;)

A.Saturnus

09-01-2005, 15:44

Only if you have a very limitted definition of what democracy is. You could be even more limitted and say that true democracy (rule by the people) would involve a referendum on every decision and call an election a "mockery" of democracy. As Pape has already explained, a jury system is "democratic" because it involves all citizens, in the sense that anyone might be called to serve on a jury, in decisions about guilt and innocence. I don't think that Pape was saying countries without jury trials are not democratic.

Whether all citizens are involved is irrelvant. The point is that an individual jury cannot claim to be a representative of the people anymore than a judge can. I´m not saying that it is undemocratic, but the argument that a trial by jury would somehow be a more democratic system is wrong.

Juries don't make decisions based on law. Those are made by the judge. Juries make decisions on fact. They need to understand the facts and issues and the judge is responsible for explaining these to them. For example if a case hinges on whether a person has committed murder or manslaughter, the judge will not give a full explanation of the law on murder and manslaughter; he or she will explain how the law applies to the particular case, and will outline to them the key decisions of facts they need to decide and, once they have made those decisions, the implications for the verdict. The question about whether anyone would be acquitted because the jury don't understand the law would never arise. The judge makes legal decisions. Juries decide on facts.

There is a chance that if the jury decides that a law is unjust, they won't enforce it, but I like this. It is a safeguard to ensure that the government and judiciary don't develop laws that the people don't consent to. It can't be more responsible to enforce unjust laws.

Well, yes you are right, the jury decides about facts, but it shouldn´t. Actually the judge shouldn´t as well. An expert should decide about facts. Many facts are too complicated to be judged by laypeople. That includes judges and juries.
And "the people" aren´t involved. Only 12 individuals. If these 12 decide that they find a law unjust, that´s only their opinion, not a democratic votum. It should be irrelevant for jurisdiction.

To come to a verdict someone needs to decide who is more reliable, the accused or the two witnesses. I think I could do this just as well as a judge. What, in a judges legal training, makes him or her better at making this decision the twelve laypeople?

Probably nothing. That´s why he shouldn´t decide it. All facts in a case should be judged by experts. The judge is still needed to make legal decisions. The jury is superfluous because it cannot judge facts and it cannot judge legal issues. To make a verdict on basis of whom 12 laypeople find more reliable is certainly unjust.

Duke of Gloucester

09-01-2005, 16:47

Whether all citizens are involved is irrelvant. The point is that an individual jury cannot claim to be a representative of the people anymore than a judge can. I´m not saying that it is undemocratic, but the argument that a trial by jury would somehow be a more democratic system is wrong.

Actually, I am going to claim exactly that. In theory anyone (well, almost anyone) could be called on to serve on a jury. Judges are an elite (they've earnt their elite status by being very learned. Therefore a jury is more represntative of the people.

All facts in a case should be judged by experts.

Yes, but who decides when the experts disagree?

A.Saturnus

09-01-2005, 20:28

Actually, I am going to claim exactly that. In theory anyone (well, almost anyone) could be called on to serve on a jury. Judges are an elite (they've earnt their elite status by being very learned. Therefore a jury is more represntative of the people.

Only by a hair. It remains that 12 individuals chosen in a non-random way, can never be said to have a democratic votum. To put the jury as representatives of the people is a proposterous deception.

Yes, but who decides when the experts disagree?

If no consensus can be found, a fact may not be used in the trial.

bmolsson

09-02-2005, 03:12

Yes, but who decides when the experts disagree?

Well, I don't think a referendum in the local community is a good idea....

Papewaio

09-02-2005, 04:08

Only by a hair. It remains that 12 individuals chosen in a non-random way, can never be said to have a democratic votum. To put the jury as representatives of the people is a proposterous deception.

Do we use the same 12 at each trial?

No.

So at each trial there is a different 12. Overtime you get more and more of the citizens being at trials. So over time you get a representation of the people.

Part of being a vibrant democracy is particaption of the citizens and being informed. By being part of a jury you have an eye opener into the judicial system.

How in comparison is then doffing ones hat to a professional elite any more representative?

bmolsson

09-02-2005, 06:15

So at each trial there is a different 12. Overtime you get more and more of the citizens being at trials. So over time you get a representation of the people.

Part of being a vibrant democracy is particaption of the citizens and being informed. By being part of a jury you have an eye opener into the judicial system.

A trial against a individual is NOT some kind education center for voters to understand law. What you describe is outrageous.

bmolsson

09-02-2005, 06:54

Double post for some reason.... :embarassed:

Duke of Gloucester

09-02-2005, 07:11

Well, I don't think a referendum in the local community is a good idea....

Nor do I. Why not choose a group of ordinay people at random, say 12. (In England and Wales it is essentially random. In the US there is a system for rejecting jurors).

Orignally posted by A.Saturnus.
If no consensus can be found, a fact may not be used in the trial.

Maybe what we are arguing over is not the use of juries, but the adversarial system. The prosecution and the defence put their opposing cases and the decision on who has made the best case is made by an impartial body. In those circumstances, consensus is impossible.

Soulforged

09-02-2005, 09:49

Oh its indeed a show - however its an important step in determining if the possible jurist is incapable of listening and then deciding.

And the jurist on your language is...anyway if it's a show then it prooves my point again, it doesn't have the seriousness required to judge the actions over an human life.

Not at all - it doesn't prove your point. It shows that the system allows the individual charged with criminal case or even a civil case - to pick how his judgement will happen. Its perfect examble of freedom in action. Choice.

No because you stated that that only happened on minor cases, not in the important ones, when the life of the suspect is at stakes, so it prooves my point on your system at least.

The jury can be ignorant of the law - the lawyers and the judges obligation is to educate them on the law as it relates to the charge that the defendant is facing. The impartiallity of the Judge can only be assumed never proven. The impartiallity of the jury can be meant by the jury pool process where each side gets to weed out jurists that might be baised toward the case. Do some lawyers ruin this process - yes indeed. Does history show that this process is sometimes unfair based upon the laws of the land - yes indeed. But the process - in at least my opinion - of a Jury Trail is better then standing in front of just one judge or a panel of three judges for judgement by them on your actions.[/

Well that's when you're right, in your last sentence. The judge has the scientific, methodic and systematic capacity of judge a person by it's actions, the jury will always (because like Pindar said they're the moral component) judge the person by the way he carries his life, wich means morality, wich means that it hasn't a place in court.

bmolsson

09-02-2005, 12:17

Nor do I. Why not choose a group of ordinay people at random, say 12. (In England and Wales it is essentially random. In the US there is a system for rejecting jurors).

It is not random if they can be rejected. Also random has nothing to do with justice. That would mean that luck is a part of the determination on your guilt. It's not a green card lottery we are talking about.

econ21

09-02-2005, 13:38

It's interesting to see the different national perspectives of posters - we see our own juidicial systems as obviously right while finding those of other countries strange and lacking legitimacy. At least that's the case with me - as Brit, I like the random 12 jury system. I distrust both non-jury systems and weeding out impartial jurors as in America, for reasons I am not sure I can articulate.

I served on a jury before Christmas and it vastly increased my faith in the UK legal system. However, on reflection, I don't think that's an argument for a jury system as what impressed me most was the judge and, to a lesser extent, the lawyers. The judge was extremely sharp and also admirably fair. To be honest, he probably would have done a better job deciding guilt and innocence than we jurors did. On the other hand, there are stories of judges falling asleep in trial, making ridiculous arguments (eg, to UK posters, regarding the "fragrance" of Mary Archer) etc.

The jury were pretty conscientious, trying to cope with a mass of detail and also come to terms with concepts of law that we only vaguely understood. Some of us scribbled frantic notes, everyone strained to catch every word and nuance. When it came to considering the verdict, everyone had a chance to speak and every witnesses testimony was reviewed. In the end, however, we basically had to decide on matters of fact - from the evidence given, was it clear that person A committed offence X beyond all reasonable doubt. It was not very technical, but just involved people using their common sense to form a judgement based on a variety of data.

Personally, I'd feel a little uneasy about a non-jury system where guilt and innocence was decided by a rather narrow class. Judges are inevitably going to over-represent a certain strata - for example, just by virtue of their income, they will tend experience rather different things to people living in poorer neighbourhoods. There does seem to be something "democratic" about being judged by a cross-section of society.

The US system seems to compromise that representativeness. I'm not sure I fully understand it, but it seems that it effectively allows lawyers to try to change the ethnic, age, gender etc composition of jury to get one more sympathetic to their case. That seems more risky that just taking a cross-section, warts and all.

However, I suspect that these broad differences in how judgements are made do not have a massive effect on the quality of the judicial system, so that if I were brought up in the US or Germany, I would have ended up happily advocating the superiority of their systems.

A.Saturnus

09-02-2005, 15:32

So at each trial there is a different 12. Overtime you get more and more of the citizens being at trials. So over time you get a representation of the people.

So, if in every election only 12 people would vote but over time everyone would have a chance, that would be democratic? In an individual case, the individual jury would have to have a democratic votum.
I´m not saying that a judge is more representative. Neither the judge nor the jury has a democratic votum. But the law has.

Maybe what we are arguing over is not the use of juries, but the adversarial system. The prosecution and the defence put their opposing cases and the decision on who has made the best case is made by an impartial body. In those circumstances, consensus is impossible.

I find this system abhorrent. In Germany, the judge investigates the case and then makes a judgement based on the facts and the law. He is the active part of the trial. What I would like to see is that he´s required by law to follow the opinions of experts over facts. If there´s a consensus over a fact by experts, it has to be taken exactly that way.

It was not very technical, but just involved people using their common sense to form a judgement based on a variety of data.

That´s what scares me. The usage of common sense. People make all sorts of mistakes when they use common sense. Also, people mostly do not know why they decide something. When you ask people what considerations they make before the choice what car to buy, they usually name 5 or 6 reasons for a particular car. However statistical analysis has shown that they only apply 2 or maximally 3 factors for such a decision. If people don´t know why they buy a car, can you expect them to know why they find someone guilty?

Redleg

09-02-2005, 15:44

And the jurist on your language is...anyway if it's a show then it prooves my point again, it doesn't have the seriousness required to judge the actions over an human life.

Difference in prespectives - I think the system while flawed as more benefits then negatives

No because you stated that that only happened on minor cases, not in the important ones, when the life of the suspect is at stakes, so it prooves my point on your system at least.

Actually I said In the United States you get a choice of what type of trail you want - well for misdemenors (SP) anyway. Maybe I should of futher clarified that I was only speaking from my experiences with the legal system - since the worst criminal activity I have ever been charged with is a speeding ticket.

However I have seen a state level felon charge be asked if they wanted a trail by jury or a trail by judge also. But I was able to convince the Prosecutor to cut my step-son a break and charge him with a misdemenor if he plead guilty to it.

Well that's when you're right, in your last sentence. The judge has the scientific, methodic and systematic capacity of judge a person by it's actions, the jury will always (because like Pindar said they're the moral component) judge the person by the way he carries his life, wich means morality, wich means that it hasn't a place in court.

A judge no more applies science to his ruling then an individual setting in the Jury. The judge has to still apply the law and the methods of the trail in the court room - its the jury that decides the verdict. Again difference of opinion - I however would chose a jury trail if I was ever charged with a felonly because the judgement of 12 people is better then letting just one judge decide my fate.

econ21

09-02-2005, 16:44

That´s what scares me. The usage of common sense. People make all sorts of mistakes when they use common sense.

In some technical cases - e.g. complex financial fraud - I can understand worrying about laymen making mistakes. However, in the case I was involved with (street crime), the judgement we had to make was more about assessing the credibility of witnesses and of their alternative accounts of what took place. I don't see that a judge is any better equipped to handle that than a jury. His legal training seems rather unimportant to such an endeavour. And arguably a judge is more handicapped, as they don't have the range or quantity of experience of everyday life that a jury does.

Also, people mostly do not know why they decide something. When you ask people what considerations they make before the choice what car to buy, they usually name 5 or 6 reasons for a particular car. However statistical analysis has shown that they only apply 2 or maximally 3 factors for such a decision. If people don´t know why they buy a car, can you expect them to know why they find someone guilty?

Judges and experts are people too. ~;)

Soulforged

09-03-2005, 00:53

[QUOTE]Actually I said In the United States you get a choice of what type of trail you want - well for misdemenors (SP) anyway. Maybe I should of futher clarified that I was only speaking from my experiences with the legal system - since the worst criminal activity I have ever been charged with is a speeding ticket.

However I have seen a state level felon charge be asked if they wanted a trail by jury or a trail by judge also. But I was able to convince the Prosecutor to cut my step-son a break and charge him with a misdemenor if he plead guilty to it.

But it's still for misdemenors, don't? So this still hasn't been refuted.

A judge no more applies science to his ruling then an individual setting in the Jury. The judge has to still apply the law and the methods of the trail in the court room - its the jury that decides the verdict. Again difference of opinion - I however would chose a jury trail if I was ever charged with a felonly because the judgement of 12 people is better then letting just one judge decide my fate.

No you're wrong the Judge applies science because he knows it and he has been disciplined to do that by years of education and training, the Jury again bases their opinions (wether they're 12 or 1000) in moral, means outside the law, but your common law system allows indiscriminated use of morals in trials, wich can lead to unjust ends. I'll never put my life in the hands of untrained people, never. The society has evolve, but in any time your judgement could turn into a witchhunt, again because of morality.

Redleg

09-03-2005, 03:36

[QUOTE=Redleg]
No you're wrong the Judge applies science because he knows it and he has been disciplined to do that by years of education and training, the Jury again bases their opinions (wether they're 12 or 1000) in moral, means outside the law, but your common law system allows indiscriminated use of morals in trials, wich can lead to unjust ends. I'll never put my life in the hands of untrained people, never. The society has evolve, but in any time your judgement could turn into a witchhunt, again because of morality.

Actually I don't believe I am wrong - what science does a judge apply when making his decision?

What equation does he apply to make a decision?

How the United State court system works according to Mass.

http://www.massbar.org/lawhelp/legal_system/index.php?sw=397&plate=print

Soulforged

09-03-2005, 05:41

[QUOTE=Soulforged]

Actually I don't believe I am wrong - what science does a judge apply when making his decision?

What equation does he apply to make a decision?

How the United State court system works according to Mass.

http://www.massbar.org/lawhelp/legal_system/index.php?sw=397&plate=print

Well you may have a point there. When i said that i was refering myself to our system, not the common law. Though i can't make a broad assumption like "the common law is a archaic and too flawled system", the truth is that this system considers the custom too important and the morality as subsidiary in most cases (or in all), for this reason it may be that both, the judges and the jury, make their decisions based more on custom and morality (with no reason) that and science.

bmolsson

09-03-2005, 10:52

In some technical cases - e.g. complex financial fraud - I can understand worrying about laymen making mistakes. However, in the case I was involved with (street crime), the judgement we had to make was more about assessing the credibility of witnesses and of their alternative accounts of what took place. I don't see that a judge is any better equipped to handle that than a jury. His legal training seems rather unimportant to such an endeavour. And arguably a judge is more handicapped, as they don't have the range or quantity of experience of everyday life that a jury does.

Wouldn't a jury put more into "moral considerations" in the trust or suspicion of witness as well as the prosectuted ? People in the neighbourhood with bad experience from gang activity would surely have a harsher veiw on a gangmember on trial than a judge. Shouldn't he get a fair trail as well even if he is a punk?

The thing with a judge is that he listens to withnesses daily. This is what he does, therefore he is better equipped.

econ21

09-03-2005, 12:24

Wouldn't a jury put more into "moral considerations" in the trust or suspicion of witness as well as the prosectuted ?

I don't see why. Legal judgements are primarily about deciding matters of fact, not morals ("is" not "ought"). "Moral considerations" may come in when assessing the credibility of witnesses (e.g. deciding if they are liars). However, I suspect judges have prejudices, just as juries do, but they will tend to be the prejudices of a particular socio-economic class.

People in the neighbourhood with bad experience from gang activity would surely have a harsher veiw on a gangmember on trial than a judge.

Judges may also start to take a harsh view, having to deal with crimes on a daily basis. My hunch is that people from bad neighbourhoods have a better understanding of the behaviour, normal and criminal, of their fellow residents than judges who live in better neighourhoods. They may be better at telling the bad apples from the rough diamonds.

The thing with a judge is that he listens to withnesses daily. This is what he does, therefore he is better equipped.

Yes, through experience he may get better at absorbing testimony. But on the otherhand, he may get jaded and pay less attention than a jury (I was straining like hell to catch every word). But more generally, I don't think experience merely listening to testimony helps decide its credibility.

A.Saturnus

09-03-2005, 19:18

In some technical cases - e.g. complex financial fraud - I can understand worrying about laymen making mistakes. However, in the case I was involved with (street crime), the judgement we had to make was more about assessing the credibility of witnesses and of their alternative accounts of what took place. I don't see that a judge is any better equipped to handle that than a jury. His legal training seems rather unimportant to such an endeavour. And arguably a judge is more handicapped, as they don't have the range or quantity of experience of everyday life that a jury does.

A layperson can´t assess the credibility of a witness, believe me. In fact, even science has problems to assess credibility of anyone. The only thing we can say is that it is generally low. That´s why witnesses are bad evidence anyway. No one should be convicted exclusively on the basis of witnesses. Facts on the other hand can be credible, if assessed by experts, what the jurors aren´t.

Judges and experts are people too.

The effect is reduced in case of expertise over a subject. Also, judges and experts have to justify their decisions. Everyone can check them.

econ21

09-03-2005, 23:09

That´s why witnesses are bad evidence anyway. No one should be convicted exclusively on the basis of witnesses. Facts on the other hand can be credible, if assessed by experts, what the jurors aren´t.

I suspect our legal paradigms are so different we can't communicate clearly. In the UK courts, AFAIK, the only "facts" of a case are those testified to by witnesses. Witnesses could range from policemen, forensic scientists, the defendant(s), the victim(s) etc as well as the independent eye witnesses I think you refer to.

A layperson can´t assess the credibility of a witness, believe me.

That's overly pessimistic. Credibility can be assessed based on a number of things. Internal consistency of the account is one. Corroboration by other testimony is another. Plausibility of the account a third. Whether the witness has a history of lying or a motive to lie would be a fourth. I don't see that a "scientist" or judge could assess these better than a jury.

At least in the case I heard, it boiled down to credibility. Person A said he was innocent. Person B said person A did it. Based on the kind of criteria I listed above, we the jury believed one person rather than another. And did so beyond reasonable doubt. Again, a judge or "expert" would have had the same task and I am not sure they would be any better equipped to handle it. There's no "expertise" to draw on.

bmolsson

09-04-2005, 03:01

However, I suspect judges have prejudices, just as juries do, but they will tend to be the prejudices of a particular socio-economic class.

Judges can easily be held accountable via an "internal affairs" organisation.

Judges may also start to take a harsh view, having to deal with crimes on a daily basis. My hunch is that people from bad neighbourhoods have a better understanding of the behaviour, normal and criminal, of their fellow residents than judges who live in better neighourhoods. They may be better at telling the bad apples from the rough diamonds.

Not really. Judges can be assigned anywhere in the country, far from home, while jurors comes from the local neighbourhood.

Yes, through experience he may get better at absorbing testimony. But on the otherhand, he may get jaded and pay less attention than a jury (I was straining like hell to catch every word). But more generally, I don't think experience merely listening to testimony helps decide its credibility.

Soon you will bring in the lie detector...... ~D

bmolsson

09-04-2005, 03:06

No one should be convicted exclusively on the basis of witnesses.

I believe that in most legal systems you can't be convicted on witnesses only....

Soulforged

09-04-2005, 05:23

I believe that in most legal systems you can't be convicted on witnesses only....

You're right there has to be material evidence.

Duke of Gloucester

09-04-2005, 08:54

This is not my point, at least. The impartiality of the judge does matter, but the problem here turns around science, the judge alone trial is more scientific. And i agree with everybody the jury is more formally democratic, but that doesn't make it better. The simple idea of form without content is enough to understand why. Even if it was real democracy, that will not ensure a scientific work from the jury. So the problem is in reality how ignorant of the law can be a jury. I would say very much. The life of an human being is at stakes on a criminal case.

A neat summary of the pros and cons of jury v judge systems. :bow:

Just to remind everyone again: juries don't make legal decisions, that is the judge's job.

I am wondering, Soulforged, two things. Firstly, what reasons are given in Argentina for wanting to move to juries, and secondly, will there be an adversarial system, or will the jury direct the investigation?

A.Saturnus

09-04-2005, 16:15

I suspect our legal paradigms are so different we can't communicate clearly. In the UK courts, AFAIK, the only "facts" of a case are those testified to by witnesses. Witnesses could range from policemen, forensic scientists, the defendant(s), the victim(s) etc as well as the independent eye witnesses I think you refer to.

Well, I meant eye-witnesses.

That's overly pessimistic. Credibility can be assessed based on a number of things. Internal consistency of the account is one. Corroboration by other testimony is another. Plausibility of the account a third. Whether the witness has a history of lying or a motive to lie would be a fourth. I don't see that a "scientist" or judge could assess these better than a jury.

Sorry, Simon, but there´s literature in abundance that suggests that it is not overly pessimistic. If you do a scientific test and let laypeople assess the credibility of various subjects. All variables are controlled. Which factors do you think will turn out to be important? Only internal consistency, corroboration and plausibility? Or will ethnicity, social status and sex play a role as well?

At least in the case I heard, it boiled down to credibility. Person A said he was innocent. Person B said person A did it. Based on the kind of criteria I listed above, we the jury believed one person rather than another. And did so beyond reasonable doubt. Again, a judge or "expert" would have had the same task and I am not sure they would be any better equipped to handle it. There's no "expertise" to draw on.

If person A says he´s innocent and person B says he´s not, then the verdict must be lack of evidence. This is not a basis to convict anyone. There´s nothing in this example for a jury to decide.

econ21

09-04-2005, 21:56

If person A says he´s innocent and person B says he´s not, then the verdict must be lack of evidence. This is not a basis to convict anyone. There´s nothing in this example for a jury to decide.

Um, I can't get into the details, as by UK law, juries are not supposed to disclose details of their deliberations. However, I was thinking of genuinely hypothetical example that might show the kind of thing at issue.

Suppose the defendant in a burglary trial admits to being in a house of a stranger at midnight, but says that he wandered in to feed the man's pet budgie. In such a case, the defendant has produced an absurd and unbelievable account. If another witness gives a credible eye witness account saying he saw the defendant commit burglary, then surely there's a basis to convict? [There would be other evidence to prove a burglarly was committed etc, but essentially the case would revolve around which of the two pieces of testimony was believed.]

As I say, I can't get into the actual details but let's just say criminals are not always very clever at thinking up plausible cover stories.

Adrian II

09-04-2005, 21:58

(..) by UK law, juries are not supposed to disclose details of their deliberations.Why is that?

BTW Hi Simon, good to see you pay us a visit again. :bow:

econ21

09-05-2005, 00:41

Why is that?

No idea. ~:confused: Maybe it's to try to keep the mystique of the law; maybe to stop it giving rise to appeals; I don't know.

I thought the fact that judges have to give an explanation of their judgements was a good point A. Saturnus made against the jury system. But I did not acknowledge it at the time because I was in adversarial mode. ~;)

BTW Hi Simon, good to see you pay us a visit again. :bow:

I've been meaning to say the same thing to you, AdrianII - I particularly appreciated your posts on hurricane Katrina. ~:cheers:

Papewaio

09-05-2005, 00:46

Historically speaking the basis of the Jury system predates Democracy in the UK.

The Saxons did not give all the judicial power to their Kings and Princes, they ruled on each other.

This was strengthened by the Magna Carta.

Power to the people.

So Juries could be argued as the proto-democracy of the UK and its descendent systems.

==== Tongue firmly planted in check from here on:

The lead up to WWII

How many common law nations fell to fascism?

What % of nations where common law on the Axis vs the Allies.

====

Singapore which is probably the closest thing in the world to a benevolent dictatorship got rid of the jury system except for cases involving the death penalty. They felt that was too important a situation not to have it in.

====

I would hazard a guess that if you looked at all the world governments the most democratic (or benevolent dictatorships) would be jury/common law.

bmolsson

09-05-2005, 02:20

As I say, I can't get into the actual details but let's just say criminals are not always very clever at thinking up plausible cover stories.

What does clever have to do with guilt ?

bmolsson

09-05-2005, 02:23

I would hazard a guess that if you looked at all the world governments the most democratic (or benevolent dictatorships) would be jury/common law.

Just becuase the queen lost her touch at old age..... ~D

bmolsson

09-05-2005, 03:54

One question to the Americans. Is a jury used during a class action trial? For example somebody asks for compensation due to a products failure or something. I have seen this on TV, but I don't know the real life scenario.....

Strike For The South

09-05-2005, 04:05

bmolsson

09-06-2005, 03:37

Yes it is

That would explain all these silly lawsuits with enormous amounts paid out. Another strong argument for not using jury...... :bow:

ICantSpellDawg

09-06-2005, 04:11

That would explain all these silly lawsuits with enormous amounts paid out. Another strong argument for not using jury...... :bow:

honestly, when you have an opinion is there ever such thing as a strong arguement for the case of the opposition in your eyes? i havnt seen it

bmolsson

09-06-2005, 04:34

honestly, when you have an opinion is there ever such thing as a strong arguement for the case of the opposition in your eyes? i havnt seen it

Well, the guilt should be beyond all doubts...... ~D

A.Saturnus

09-06-2005, 23:10

Suppose the defendant in a burglary trial admits to being in a house of a stranger at midnight, but says that he wandered in to feed the man's pet budgie. In such a case, the defendant has produced an absurd and unbelievable account. If another witness gives a credible eye witness account saying he saw the defendant commit burglary, then surely there's a basis to convict? [There would be other evidence to prove a burglarly was committed etc, but essentially the case would revolve around which of the two pieces of testimony was believed.]

The act of burglery must leave some material evidence behind. I´m not sure but I think the means by which someone entered a house can already make it burglery. I would deem that evidence in any case more important. Generally what this example about is less credibility of a witness but the credibility of the argument. Independent of the witness, I still grant the jury the ability to identify obvious nonsense. But a judge could do that as well.
BTW the fact that the man admits to have been in the house is also not very good evidence. Confessions can in some cases be worse evidence than eye-witnesses.

There´s something I wanted to ask those from countries that have that adverserial system in court. In Germany there was a trial the last days where a TV-moderator was accused of sexual abuse of a woman he met at a bar. The prosecution basically had only the testimony of the supposed victim as evidence. After two psychologists have found her emotionally instable and prone to confusing fantasy and reality, the accusation broke apart and now the prosecution requested the defendent to be released. Now, my question is, could this happen in your system, that the prosecution asks to release the defendant?

econ21

09-07-2005, 00:10

The act of burglery must leave some material evidence behind.

Yes, in my hypothetical example, there would be ample evidence of the crime. But no physical evidence to identify the perpetrator.

Generally what this example about is less credibility of a witness but the credibility of the argument. Independent of the witness, I still grant the jury the ability to identify obvious nonsense. But a judge could do that as well.

OK, credibility of argument/testimony/witness whatever. My hunch is that a lot of cases - especially rape as you later mention - boil down to his word against hers. And I don't think that automatically entails an acquittal.

BTW the fact that the man admits to have been in the house is also not very good evidence.

Nah, he confessed that because they had him bang to rights - lots of other evidence that he was there, then. He has to concede that and still try to talk his way out of it. [That may be why rape is often hard to prove - it's not hard to find a plausible story why you were intimate with a person, especially
if that person is a spouse, lover or ex.]

There´s something I wanted to ask those from countries that have that adverserial system in court. In Germany there was a trial the last days where a TV-moderator was accused of sexual abuse of a woman he met at a bar. The prosecution basically had only the testimony of the supposed victim as evidence. After two psychologists have found her emotionally instable and prone to confusing fantasy and reality, the accusation broke apart and now the prosecution requested the defendent to be released. Now, my question is, could this happen in your system, that the prosecution asks to release the defendant?

I'm not legal expert - you might be better waiting for English Assassin - but I believe it is fairly common for the prosecution to withdraw a case when they realise it is hopeless or just too weak. Often the judge would force the matter anyway, so there is little to be gained - except wasting everyone's time - by pushing on regardless. My - very limited - personal experience suggested to me that the prosecution, as representatives of the state, were almost objective and not as adversarial as one might expect. This was particularly obvious at sentencing, when the prosecutor seemed conciliatory and appeared to want to get the most appropriate sentence rather than have the guilty man hanged and quartered.

Soulforged

09-07-2005, 00:28

The act of burglery must leave some material evidence behind. I´m not sure but I think the means by which someone entered a house can already make it burglery. Yes, for example if you enter with perforation or climbing (that of course if i interpreted well the word "burglery")

Edex

09-07-2005, 10:32

here, in Latvia, we dont have jury sistem as in englih/american law. Here ome kind of jury is only in the first instance in serious crimes (2 non lawyer persons). If the case is appealed or gets to 3.rd instance in highest court, then you have 3 judges or in highest instance it can be more (5 senators of the highest court). I personally dont think that jury is well balanced system. The thing what is made to jury sistem to make it strong is unanimous decision, but n fact, it also can make worse as non professional juries may also save criminal from punishment only because of their bad knowledge of interpretation of evidences. Also here system is still corrupted so it would be at least much cheaper to buy jury "from masses" then 3 or 5 judges... :( Anyway, I dont think jury is necessary as the court system provides three levels of courts - so 2 levels of appeal.

econ21

09-07-2005, 10:52

Edex, I also have a suspicion that juries are less likely to convict than judges, but am not sure that's a bad thing.

I don't think jury tampering is a big problem in much of the UK, although it was a big problem in Northern Ireland during the troubles and led to special non-jury courts.

One fear I have with non-jury systems is that they are more susceptible to corruption or political interference, especially when the institutions are not that strong (e.g. in some developing or ex-communist countries).

Edex

09-07-2005, 11:45

Simon, thats what i was talkiing about. I live in ex #$^*& communists country :), and corruption really is a problem at courts. But - juries here would be mostly elderly or jobless people (if we would make the juries), so as I told - it would be even much easyer (at least cheaper) to corrupt them as to corrupt 5 judges. i have no doubt that in countries where jury is historically established and rpoved system it works very good and theres no need to change something. Also that system works very well and balanced with english/american law. In the continental law I does not think it should fit very good.

econ21

09-07-2005, 12:29

Yes, I see your point and did not really counter it. It is true that juries will be poorer than judges, but I am not sure that makes them more susceptible to corruption. If a majority verdict is possible, then one would have to bribe more people and so there is more of a chance of enough of them being honest.

With judges, I have suspicion that in UK history they were often in the pocket of powerful people and so the jury system was one "democractic" way of trying to counter that.

In some developing countries, I fear the legal system is just geared up for corruption, so again a jury system might be cleaner.

But I admit I am being a little speculative here. I know that were intimidation is a really big problem - eg with terrorists in N. Ireland and maybe the mafia in Italy - juries may be vulnerable and trying to rely on "incorruptible" magistrates may be the best way forward.

Edex

09-07-2005, 12:40

as practicing inhabitant of , lets say, developing country and practicing lawyer in it, I should say, that it wouldnt be surprise, that jury would be "democratically ellected" friends and blababla of the one or other side in trial :) So it would not help.

If the system is corrupted - there are many holes from ground levels. I can tell sample - not all judges, off course, are corrupted here, I wpould even say, that bigger part of them are not. But if you want your case to get decided by corrupted judge, you first have to talk to ordinary secretary at court who will help your case "to find" the right judge :). So I believe, clever person could find holes in any system.

I guess both systems ar well where they belong. One more thing - as in most Europe death penalty is not sentenced any more, there are also less need to think about jury, because this is probably only sentence where objectivness of high number of persons and unanimous decision about guilt could play some extra role.

Duke of Gloucester

09-07-2005, 20:03

A.Saturnus

09-07-2005, 21:10

I think Juries are less susceptible to bribery and corruption because there are more of them, they make one-off judgements, so you can't have a tame juror in your pocket, and because they have less to lose, they are harder to blackmail to keep them on your side.

But a juror´s decision is not public. If bribed, he can make the most outragous of decisions without fearing prosecution. The verdict of a judge can be checked by any number of other judges.

yesdachi

09-07-2005, 21:18

But a juror´s decision is not public. If bribed, he can make the most outragous of decisions without fearing prosecution. The verdict of a judge can be checked by any number of other judges.
Jurors can be “polled” making their votes public. If found guilty or innocent it is safe to guess which way they voted.

A.Saturnus

09-07-2005, 21:31

Jurors can be “polled” making their votes public. If found guilty or innocent it is safe to guess which way they voted.

Yes, but it would also matter why they voted that way.

bmolsson

09-08-2005, 02:44

Yes, but it would also matter why they voted that way.

Good, I fully agree....

Xiahou

09-08-2005, 02:50

But a juror´s decision is not public. If bribed, he can make the most outragous of decisions without fearing prosecution. The verdict of a judge can be checked by any number of other judges.Last I checked, appeals still apply to jury trials too.

Edex

09-08-2005, 07:09

yes, its a good question. I have forgotten from studies about appeals in jury system. So, in the countries with jury - what about the way to appeal jury decision and if its not the last instance, then who decides the appeal - another jury? Is the jury part of all instances or only the last one? Lot of holes in my memory :)

A.Saturnus

09-08-2005, 21:38

Last I checked, appeals still apply to jury trials too.

But they have no consequences for the juror. I don´t think a judge likes his verdicts to be overruled, so he will be more conscious about them.

Papewaio

09-09-2005, 00:06

But they have no consequences for the juror. I don´t think a judge likes his verdicts to be overruled, so he will be more conscious about them.

And that is a good thing how?

Pandering to ego rather then making a judgement based on fact and justice is hardly a plus.

bmolsson

09-09-2005, 07:13

Last I checked, appeals still apply to jury trials too.

And the higher court doesn't use jury ??

Soulforged

09-09-2005, 07:36

And the higher court doesn't use jury ??

No the higher court only reviews problems strictely of law, so putting a jury in that too will be definitely proposterous.

A.Saturnus

09-09-2005, 16:43

And that is a good thing how?

Pandering to ego rather then making a judgement based on fact and justice is hardly a plus.

I´m not sure I understand you. What does that have to do with pandering to ego? It seems reasonable to assume that verdicts that are in accordance with the facts and the law have a higher chance not to be overruled. Accountability is usually assumed to make for reliability.

yesdachi

09-09-2005, 17:11

No the higher court only reviews problems strictely of law, so putting a jury in that too will be definitely proposterous.
I agree, when it is an issue of law clarification or an appeal based on law interpretations a jury would not be appropriate. And the fact that there is usually more than 1 judge reviewing the situation is “appealing”. ~:)

Don Corleone

09-09-2005, 18:12

I hear what Adrian & Bmolsson are saying... that correct application of law is too important to leave it to the fickle whims of one's neighbors. But consider the alternative.... when you have an all-professional legal system, the citizens become disenfranchised from the legal system. Those of us who opt not to go into the law profression have no hope of understanding the arcane & byzantine machinations at work. Many times we cannot even understand the language being spoken, as it's neither English, nor Latin. Many times, we may not even understand the nature of the charges against us. We can only sit back and hope like hell our professional knows more than the other professional. That's essentially where America is right now, and the only balance against that is the 12 everyday joes sitting in the jury box. At the end of the day, for the prosecutor to throw me in jail for something most people don't even understand, he has to convince 12 people, like myself, that I did do something wrong and that I knew it was wrong when I did it. Likewise, my spin doctor, in coming up with clever reasons why I should be absolved will have his own common-sense sniff tests to pass. Having the judge decide all verdicts means that you've gone full tilt over... that the only true citizens are those with a law degree.

Soulforged

09-10-2005, 01:46

I agree, when it is an issue of law clarification or an appeal based on law interpretations a jury would not be appropriate. And the fact that there is usually more than 1 judge reviewing the situation is “appealing”. ~:)

Well though i agree with you at this point, because it will be totally unfoundable to say that the jury must interpret the law, i cannot agree in any point of the "common law" system in general. It appears to be flexible, but then you accumulate thousands of archives with precedents of cases that no human can know. The codificated law is far better and rational. To me the common law is archaic and should be at least modified, as USA has done in some cases creating statutes and interpretation that are subsidiary or resume the precedents. But in general there's nothing great about the common law. And this has to do with everything because first: most nations on the world follow a code and second: the common law is perfect for the inplementation of the law, because almost all cases are freed to the arbitrary interpretation of a judge or a jury, the code puts limits to this. The discussion can go on and on, but i'll discuse the system if necessary.

bmolsson

09-10-2005, 03:43

No the higher court only reviews problems strictely of law, so putting a jury in that too will be definitely proposterous.

Hmm... So the jury is only for the first instance... I understand less and less the point with a jury.... :book:

bmolsson

09-10-2005, 03:45