Judgement by jury

[Soulforged]

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 . 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]

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]

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]

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]

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

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

[A.Saturnus]

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]

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]

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.

[Soulforged]

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.

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]

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]

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]

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]

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]

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

[bmolsson]

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]

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]

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]

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]

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]

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........

[bmolsson]

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]

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/.../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]

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]

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]

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]

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]

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]

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.

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]

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.

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

[Soulforged]

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.