Printable View
I would like to know what is the feeling on this in the countries that have it?
Here until now we didn't have that type of judgement, but now it's going to be implemented.
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:
Trial by jury is'n't perfect, but then neither is democracy. As an Englishman the thought of being tried for a (serious) offence without a jury scares the crap out of me...in my view this type of justice is essential to a true functioning democracy.
Now I've gone and done it. All the guys from mainland Europe will maintain that the Civil Code is essential for a functioning democracy, but that is incorrect. ~;)
Quite right.Quote:
Originally Posted by InsaneApache
Incorrect. A jury's deliberations are not public, so nobody except the jurors knows how a verdict is reached. In the Dutch judicial system judges not only judge, they have to make their deliberations public. Frankly, the thought of being judged by a bunch of neighbours with no record of rational and judicial thought and experience scares the hell out of me. ~;)Quote:
Originally Posted by InsaneApache
Jury is nothing more than a legalisation of mob justice. Practice of law should be done only by professionals.
Democracy is not something that should be mixed in to legal practices. It would endanger minorities and the basic right in a civilized state (which don't have to be a democracy in my opinion)......
Ladies and gentlemen the true difference between British and European democracy is precisely this. We (British) actually do think that the democratic process MUST have influence with the Law. It comes from our tradition of ruling from the bottom up.Quote:
Democracy is not something that should be mixed in to legal practices.
I think you are generalizing a bit too much here - perhaps based on a pride that you take in a perceived uniqueness ~;)Quote:
Originally Posted by InsaneApache
In the German jurisdiction there is actually the position of the lay judge ("Schöffe") a volunteer "amateur" judge who works together with the professional judge in a process.
So the notion that "normal" people are generally not involved in continental Europe's legal systems is incorrect.
In Finish system we have two volunteer (amateur) judges called lautamies and one professional judge.
I think that a handful of judges can be easily influenced by politicians, whereas a jury, since it is larger is slightly harder to change its decision.
Oh please, bottom-up democracy has no place in a courtroom, just as it has no place in a science lab or a football stadium. Think of the Birmingham Six and many other innocent Irishmen convicted by jury. That was mob justice. All systems have their flaws. Let us discuss those instead of making grandiose statements.Quote:
Originally Posted by InsaneApache
I'd rather face a jury than one of our judges, but then, Belgian law/court is quite infamous for it's absurd verdicts that have little to do with the written law.
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.
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.
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.Quote:
Originally Posted by Gelatinous Cube
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. ~:)
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.Quote:
A jury can also, and sometimes does, completely forget the law (without consequences) and does what is morally right where a judge cannot.
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.
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/j...20030207.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.
Quote:
Originally Posted by Divinus Arma
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/proj.../Jurypage.htmlQuote:
Originally Posted by Aenlic
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.Quote:
Originally Posted by Divinus Arma
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.Quote:
Originally Posted by Soulforged
Are you against judicial review too?Quote:
Originally Posted by A.Saturnus
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).
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.
Your welcome. I had fun, how about you? ~:cheers: :balloon2:Quote:
Originally Posted by Aenlic
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.Quote:
Originally Posted by Kanamori
That's the murder trial.Quote:
Originally Posted by Divinus Arma
With Aenlic, I seem to recall a mostly white jury too. And indeed, the civil trial did consist of eight whites.
honkies
There are a few legally trained individuals on these boards, and Pindar has already made his opinion known.Quote:
Originally Posted by Soulforged
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.
Yeah, they can, but it's a sure fire way to end up in some crappy tribunal, or as a bail court magistrate.Quote:
Originally Posted by Kanamori
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.Quote:
Originally Posted by Xiahou
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.
Is good to read that!. ~:cheers:Quote:
Originally Posted by GodsPetMonkey
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:
A juror does not become a qualified legal practitioner ~;)Quote:
Originally Posted by Soulforged
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.
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.Quote:
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.
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).
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).Quote:
But when the parties chose to have or not have a jury. Both have to agree?
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).Quote:
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 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).
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: