Should Trial by Jury Be Retained - Essay Example

?Should Trial By Jury Be Retained? Introduction Trial by jury has long been regarded as the bastion, supporting the criminal justice system. The argument about retaining trial by jury is complex. While advocates of trial by jury uphold it as a constituent element of the fabric of justice, challengers to it hold it as an antiquated and old form of establishing guilt. Trial by jury has for ages been extolled as a bastion in the criminal system of justice. This is meant to instil ethical authenticity required from the law. Sustained use over time is perhaps why trial by jury is deep-rooted in the criminal justice system. Regardless of the historical subsistence, trial by jury it has gone a long way to constitute the subject matter of extreme censure. If this academic pondering has to be based on reason, it is obligatory to accept that trial by jury is not the only way to establish guilt. It shall be necessary to evaluate the arguments on both sides and determine if trial by jury should be totally retained, rejected or if some modifications can be made to it. What Is The Underlying Principle Behind Trial By Jury? There is a connectedness between democracy and the jury system. Remember that the law should mirror the needs of the society; directly serving the people. Trial by jury allows a group of people, representing a fair majority of the public, to ensure that the law is not misdirected. The blend of society ideas into the criminal law system has been amongst the most persuasive argument for the establishment and continuance of trial by jury. Therefore, it was not mere supposition when Lord Devlin asserted that trial by jury must exist to serve as a ‘little parliament”1. Trial by jury gives the jury the authority to mix law with facts; jurors therefore freely pursue the ‘prejudices of their affections or passions’2 and find not guilty when their high opinion for the law is presided by the certainty that to penalize would be unfair3. Are There Any Advantages Of Trial By Jury? Trial by jury is the “best blend of logic and common sense”4. Remember that the understanding of 12 men is almost the best way to arrive at a reasoned verdict, better than that of one person. Trial by one’s peers is a bastion of democracy. Lord Devlin referred to this as “the lamp that shows that freedom lives”5. The jury deliberates in the jury room where jurors are free from the heat and controversy of external influences on the case. Trail by jury is the best means to determine credibility and reliability of witnesses in criminal proceedings. It is probable that one mind can easily err. This position was reiterated by Lord Devlin when he said: “The impression that a witness makes depends upon reception as well as transmission, and may be affected by the idiosyncrasies of the receiving mind; the impression made upon a mind of 12 people is more reliable. A judge may fail to make enough allowance for the behaviour of the stupid because by his training he regards so much as simple that for the ordinary man may be difficult. The jury hears the witness as one who is as ignorant as they are of lawyers’ ways of thought”6. There is public participation in the trial process. A good system of law is highly rated as a superior section of civilization, which in its absence; the people lose confidence in the law. This is connected to the notion of popular opinion, whereby society’s standards of justice becomes the only arbiter of guilt7. Inclusion of the society is a mature way to express democracy, and to see through the eyes of the society, a better way to legitimize trials and verdicts. Therefore, moral credibility becomes a legal feature and the legal system becomes more open. What does trial by jury encompasses Trial by jury exists in most common law jurisdictions. For example, in the United Kingdom, offences listed as ‘indictable’ offences have to be tried by judge and jury. There are equally numerous offences which can be tried by the judge or judge and jury8. Statistics however prove that just about an insignificant 1% of defendants are tried by jury with the remaining 95%, tried in the Magistrates’ Court9. One thing worthy of note here is that there are a swelling number of indictable offences providing the defendant as well as magistrate, the option not to choose trial by jury10. Perhaps, this is one of the reasons for the demise of trial by jury. Because a very insignificant number of trials are determined by jury, it is therefore reasonable to believe that the retention of trial by jury should receive some serious consideration. It is continually argued that in such cases, the defendant should not be given the option to elect which way trial should be conducted. Therefore, the right to opt for trial by jury merely presents a right to elect, especially for trials in either-way proceedings. However, protests have existed for this right to be closed to the defendant from the Runciman Commission11 and the Auld Report12. This position seems true because cases exist in which affording this option to the defendant will simply amount to a costly operation of the criminal justice system13. Are There Any Disadvantages of Trial by Jury? Gilbert a Becket noted that “it was difficult to see the British bosom with a sufficiently tranquil state to discuss this great subject, for every Englishman’s heart will begin bounding like a tremendous bounce at its mere mention”14. This is very true about trial by jury because of the following: Ineffectiveness of the Juror – The jury is drawn from a section of the society with common sense to reason facts and pass judgment. A cross section of the unemployed and the retired are occasionally scanned for jurors. Any person can be qualified as a juror, provided that he can be selected at the trial15, making jurors less clever than an accurate random sampling of twelve citizens16. There is no problem for instructions to be followed by jurors. The main problem however lies in the aptitude to understand instructions17. A typical example was found in Scholfield18 where following a decision of guilty to affray, a juror disclosed to a bailiff that there was lack of understand on affray on the part of the jury. This is injurious to justice and Mannheim says “to overstrain the responsibilities of the ordinary public is not democratic and can only lead to a general lowering of standards”.19 This is true of fraud trials which may sometimes be very complex as well as lengthy. Jury Deliberations Are Permeated By Immaterial Considerations and Prejudice – Considerations of the jury are taken under strict confidentiality. Irrelevant or inadmissible evidence may be wrongly considered20. For example, previous conviction21 may inevitably lead to a verdict of guilt as confirmed by Devons in an existence representation of jury deliberation22. Thus, the jury may convict without even looking at the evidence tendered23. Examples of immateriality consist of unpleasant characteristics of the prosecution witness24 or pleasant appearance of counsel25. Juries are found to pass verdict by replacing legal considerations with personal experiences. This is irrelevant and inadmissible because this unreasoned behaviour creates bias. Ethnic representation has also raised so many repulsive issues concerning trial by jury26. The courts have not been helpful with regards to the issue of bias. Instead of discharging the jury where there is clear evidence of bias, the extent to which the court has gone is merely to warn the jury Gregory v U.K.27 Pre-Trial Publicity Can Be Injurious To the Trial – With a lot of media concentration on pre-trial materials, trial by jury is likely to achieve a negative effect where the jury often pays attention to the media. Open justice is an issue of law which advocates for absolute transparency of judicial proceedings. Perhaps the media may be restricted by law to publish pre-trial materials that may wrongfully sway the jury28, especially where publicity creates a substantial risk of serious prejudice Therefore, it will be difficult for the media to rely on the principle of open justice relating to the openness of court hearings29. Darbyshire strongly believes that, the jury is an anti democratic, irrational and haphazard legislature, whose erratic and secretive decisions run counter to the rule of law30. Lord Justice Auld equally thought that giving the jury the right to penalize or acquit will be more than illogical in addition to being disrespect for due process of law31 - appropriating the role of legislature. But the jury is sometimes in urgent need, especially to check any abusive administrative authority32. Existing Reforms and Reactions to These Reforms Could we just avoid the whole system of trial by jury or is it worthwhile reforming it? Trial by jury has been found to contain inbuilt problems that obstruct the smooth functioning of the criminal system of justice. Completely closing down of the tradition of trial by jury would constitute a farthest remedy which however has its advocates33. But trial by judge alone is not the only alternative to trial by jury. Reforms will contentedly go to extremes to ensure that trial by jury is revolutionized. The following reforms need some reading: Trial by Judge Alone – opponents to this frequently quote that a judge is not the appropriate person to find facts. This should be ignored because such opponents fail to recognize the function that judges carry out in summary proceedings. Sometimes, it is thought that it is irrational to compel judges to be the sole determinant of guilt34. The burden of establishing guilt should not be an issue for one person. Occasionally, a verdict established by a judge alone who may be uncompromising. In a case where the nature of the proceedings requires media attention and the verdict of the judge is out of favour, the judge may possibly be the subject of personal criticism from the media, demoralizing the trial process and the idea of justice35. It will neither be reasonable, nor practical to use trial by judge alone as a replacement to trial by jury. Trial through A Lay Judge –One of the latest things in the criminal justice system is to call for reform of trial by jury on continental lines36, though no prescribed continental system has been put in place. What obtains is a combination of lay judge system, in addition to what obtains in France by which the judge retires with the jury. This novelty has been welcomed and adopted by some jurisdictions37 because it is cost effective and time efficient – taking half of the time that trial by jury would take38. But again, this model falls short of the democratic character of trial by jury that is found in the Common Law tradition. The duty to select lay judges is often left to politicians or even administrators who have the authority to sanction any lay judge list39. Besides, lay judges ought to have parallel learning as well as social understanding like qualified judges, thereby causing the value of the system lose ground.40 For this reason, this so-called ‘safeguard against inexperience’ should not be copied by any reasonable criminal justice system because true public participation will be prevented in a trial process. Importation of the French System – What obtains in France is that three directing judges together with nine jurors consider issues relating to guilt and punishment. They therefore constitute twelve ‘judges’ from which at least eight will be required to uphold a verdict of guilt, with each “judge” having identical voting rights. Conceivably, this blend may use the experience from skilled and lay judges to establish a reasonable verdict for a number of reasons. The presence of professional judges could centre the minds of the jury from factors which are immaterial to the case. Since jurors may not completely understand legal rules41 as professional judges will do, it will be helpful for an educated counsellor be always in attendance. Some countries have adopted the opposite with the foreman not instructing the jury to provide reasons for its verdict. For example, Article 342, Belgian Code of Criminal Procedure provides the foreman to state that “The law does not ask jurors to account for how they reached their personal conviction”42. Quality of justice can only be guaranteed by a reasoned verdict. This point was recognized by the Court of Appeal in Flannery and another v. Halifax Estate Agencies Ltd43 where Lord Henry explained the bases for a reasoned verdict: First, there should be fairness, permitting all parties to have reasons for winning or loosing, so that each party knows if the trial was properly conducted; secondly, the necessity of a reasoned verdict “...concentrates the mind. If it is fulfilled the resulting decision is much more likely to be soundly based on evidence than if it is not”44. British courts have held contrary to this45. Reforms are therefore apparent. A question list can be put to the jury to decide if the jury has been proved or not46, affording the judge a factual foundation to establish judgment. This may not work properly because an onslaught of questions takes time and does not solve the matter as noted by Thaman in the infamous Otegi47. If we expect the jury to give a reasoned judgment, having to understand every feature of the law will mean compelling them to once more give unreasoned verdicts. The best possible solution would be the presence of a seasoned judge in jury deliberations. Conclusion Which is the better system - trial by jury, trial by judge alone, or trial by jury with judges’ presence? It is erroneous to conclude that if trial by jury fails, it should be completely abandoned. This will suggest that the whole system of law is equally bad and therefore, unacceptable. It is now established that there exist systemic problems to the issue of trial by jury, which calls for its eradication. This will unreasonably fail to notice the deep-seated role the jury has in a democratic society. What type of justice does the society of today wants? Perhaps, justice ought to be for the people and administered by the people. Trial by judge alone is therefore not the best. Although judges’ presence in jury deliberations could amount to an attack on jury secrecy, it is rather, the best way to solve this problem. This ought to be the only way to advance justice through reasoned verdicts, without necessarily abolishing the deep-seated tradition of trial by jury. The trial by jury is somewhat trial by the people – country – and this should be distinguished from trial by magistrate – synonymous to trial by the government. Trial by jury should in no way be abolished because it is touchstone of liberty. Bibliography Daly, G. and R. Pattenden, ‘Racial Bias and the English Criminal Jury Trial’ (2005) Darbyshire, P. ‘What can we learn from published jury research? Findings for the Criminal Courts Review 2001’ [2001] Crim.L. Rev 970, at p.973. Darbyshire, P, ‘The lamp that shows that freedom lives – is it worth the candle?’ [1991] Crim. L. Rev 740, at p. 750. Devons, E. ‘Serving as a Juryman in Britain, (1965) 28 Modern Law Review 561. Jackson, J. ‘Trying Criminal Cases without Juries’, Med. Sci. Law (1998) Vol. 38, No. 2 p. 112, 118. J. H. Langbein, ‘Mixed Court and Jury Court: Could the Continental Alternative Fill the American Need?’ (1981) Journal of the American Bar Foundation 195, K. Dion, E. Berscheid, and E. Walster, ‘What is Beautiful is Good’ (1972) 24 J. of Personality and Social Psychology 285-90. Krog, ‘Some Thoughts on Jury Instruction’, quoted in S. Anderson, ‘Lay Judges and Jurors in Denmark’, (1990) 38 The American Journal of Comparative Law 839, at p. 857. Lord Devlin, Hamlyn Lectures, Trial by Jury, 8th Series, (1956) at p. 104. Lord Devlin, ‘The Conscience of the Jury’, L.Q.R, 398, at p. 403. Lord Justice Auld, Review of the Criminal Courts of England and Wales (TSO, October 2001), para. [124] and [105]. Louis Blom-Cooper, ‘Article 6 and modes of criminal trial’ (2001) E.H.R.L.R p. 13 Mannheim, H, Criminal Justice and Social Reconstruction, (Routledge, 1946) 246-249. M. Chesterman, ‘OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt With in Australia and America’ (1997) 45 The American Journal of Comparative Law 109, at p. 115. P. C. Ellsworth, ‘Are Twelve Heads Better Than One?’, [1989] 52 Law and Contemporary Problems 205, at p. 207. Review of Delay in the Criminal Justice System, Report, 1997 [hereinafter Narey Report] Chapter 1, at p. 2. R. Munday, ‘Jury Trial, Continental Style’ (1993) 13 Legal Studies 204, at p. 205 Roberts, Paul and Adrian Zuckerman, Criminal Evidence (Oxford: Oxford University Press 2004) at p. 64. . Roy Almot Q.C, ‘Leave the Jury Alone’, in ‘The Effectiveness of Juries and the Use of the Civil Courts in the Control of Crime’ (1998) 38 Med. Sci. Law, No. 2, 124 Royal Commission on Criminal Justice (RCCJ) (1993), Report (Cm 2263) (London: HMSO). Sanders, Andrew and Richard Young, Criminal Justice, (Oxford: Oxford University Press, 3ed., 2007), 496. 19 See note 6 above at para. [124]. Simon Jenkins, The Times, Jan 27th 2005. S. Thaman, ‘Europe’s New Jury Systems: The Cases of Spain and Russia’ 62 Law and Contemporary Problems (1999) 233, at p. 249. Wilson, ‘The Dawn of Criminal Jury Trials In Japan: Success on the Horizon?’ (2007) 24 Wisconsin International Law Journal 835, at p. 855. Statute Belgian Code of Criminal Procedure Article 342 Criminal Justice Act 2003, s.321 and Sch.33 Contempt of Court Act, 1981 The Magistrates’ Court Act 1980 s17 Read More