Judgement by jury

[Soulforged]

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?

[InsaneApache]

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.

[Pindar]

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.

Quite right.

[Adrian II]

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.

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.

[bmolsson]

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)......

[InsaneApache]

Democracy is not something that should be mixed in to legal practices.

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.

[Ser Clegane]

Ladies and gentlemen the true difference between British and European democracy is precisely this.

I think you are generalizing a bit too much here - perhaps based on a pride that you take in a perceived uniqueness

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.

[Adrian II]

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.

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.

[Xiahou]

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?

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]

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).

[GodsPetMonkey]

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]

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

Is good to read that!.

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.

[GodsPetMonkey]

Is good to read that!.

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.

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).

[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.

[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.

[Kanamori]

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.

[Soulforged]

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.

[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.