Judgement by jury

[Pindar]

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

Thank you sir.

[Pindar]

...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]

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]

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

My pleasure.

[bmolsson]

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]

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.

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

[Xiahou]

The question "what is just?" have nothing to do with the legal process.

Wonder why it's called the Justice system then?

[bmolsson]

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]

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.....

[bmolsson]

Wonder why it's called the Justice system then?

The famous English humor......

[ICantSpellDawg]

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

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.

[bmolsson]

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....

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

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

[Papewaio]

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]

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.

[bmolsson]

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 politicians are democratically elected to make your voice heard. Your resoning have absolutely no place in a democratic society.
Further more, mental state etc are to be evaluated by an expert who will testify. A jury have to competence what so ever to do so.

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?

Any western country at present day. Democracy is not only about rights, its also about responsibility. You can never defend your self with that you didn't know. The citizens have elected people to create laws, which are to be enforced. If they don't understand what their elected politicians have decided, they have failed their responsibility as voters.
Your resoning has nothing to do with the question at hand, it's rather criticism on a democratic process.

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.

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.

[bmolsson]

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........

[Duke of Gloucester]

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]

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.

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]

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.....

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]

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...

[Duke of Gloucester]

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]

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]

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]

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]

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]

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]

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]

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......

[Papewaio]

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]

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......