Lay Participation in Criminal and Civil Law Procedure - Essay Example

Lay Participation in Criminal and Civil Law Procedure Introduction The role of lay participation in the process of administering justice differs across various countries. Countries including the United States of America and United Kingdom continually attach high value to the use of ordinary citizens in legal processes referred to within the corridors of justice as laymen. They take roles as juries in such countries. France on the other hand, considers lay participation a democratic ingredient within the legal system. The role of citizens participating in legal proceedings will continue to differ within countries with progress in time among other developments. While lay participation is not present in the legal system in Netherlands, Belgium continues to consider amendments on its role. Voices of discord in the political structure of Netherlands now consider the value of lay participation within the legal corridors and want the legislature as well as the government to introduce it in the country. This discourse examines lay participation among various judicial systems making various comparisons. Furthermore, the paper considers unutilized input that lay participation can have in civil law procedures. The paper also compares alternative methods to lay participation among others greater accessibility and increased transparency to the trial cases. In this discussion, features of how lay participation enhances democracy within various legal systems also come under scrutiny. Comparison For a very long time, the way the Japanese legal system treats both civil and criminal defendants continues to attract much criticism from both local and international fronts. Critiques hold that the system does not provide defendants freedom to enjoy their constitutional rights. Reports from the media, human rights agencies, as well as independent oversight bodies exist unraveling wrongful confessions and forced confessions as well. The reports form the foundation of criticism from international and domestic fronts. Pressure mounts to have the legal system uphold the freedom to counsel, presumption of innocence where the system considers the accused innocent until proven guilty, and the right to silence. In response to the pressures, Japan is implementing its entire legal proceedings to enhance the participation of ordinary citizens, increased role of locals in government, and building of more citizen trust within the justice fraternity. Along the same line, Japan introduced jury trials in the fifth month of two thousand and nine. The introduction of lay participation aimed at eradicating old habits where the justice system ignored police practices besides dismissing processes that uphold the constitutional rights if defendants. Ongoing reforms within the justice system remain ambitious to make sure that defendants receive adequate treatment during their trial period. Debate on the involvement of ordinary people in judicial proceedings continues to remain a controversial issue in Belgium and Netherlands since olden days. The discussion in Belgium surrounds the function and role of the assize jury. The system introduced the jury in eighteen hundred and thirty-one and since then, the jury commands special authority and appropriate position within the Belgian justice administration system. Lay participation is not present in the Dutch judicial system that includes legal proceedings. The Dutch criminal justice system is highly professional making it difficult to attract riffraff. The nature of the system cannot allow the use of ordinary lay participation in the adjudication of criminal cases. The only elements of lay participation in the legal system appear in the use of honorary judges and expert lay judges. The judicial system in the united States of America and the United Kingdom comprehend that the right to a jury trial contains a determinative influence on the results whether the trial is held or not. Results of this type of trial forms the lodestar that determines whether the case will go for full trial or the parties involved will negotiate a plea. Doubts in the reasonability of the outcome can influence the defense and prosecution not to make a decision on the type of results coming after the trial. Systems in the United Kingdom and United States consider considerable protections to make sure that no situations exist to disadvantage the defendant during a negotiated plea. Measures of protection in the judicial systems include among others the public form covering all proceedings as well as documents in addition to the fettered accessibility of the public and the members of fourth estate as well. Furthermore, the defendant must access all the information developed by the prosecution together with people involved in the process of investigation. Participation in certain cases also means that the defendant should access necessary support including legal counsel assistance paid by the government if the defendant lacks capacity to pay for one. The defendant also gets room for an elongated plea agreement document, an investigating dialogue between the defendant and the judge with the help of the counsel to make sure that the agreements as well as its influences are clear. The judicial systems in the United Kingdom and the United States make sure that factual basis for the plea is in place and the defendant is free, acts with a lot of competence as additional measures of safeguarding the entire judicial system, and authenticate their judgments, which go miles in building public confidence in the system. It is important that the system avails collateral review and direct appellate to provide keen scrutiny to the entire process. Irrespective of whether countries allow lay participation in their justice criminal systems or not, safeguards remain important elements in enhancing the effectiveness of those systems. Models Various models that define the use of lay participation within the criminal justice systems exist. The United States applies two of these models including application of the trial jury to determine whether the accused is guilty or not and the grand jury that guides the process of making judgments. Other countries across the world have and use other models within their legal judicial ranks. The Grand Jury Scholars define a grand jury as a body consisting of twenty-three people in most cases picked to sit permanently for a period of between one and twelve months in ex parte proceedings and their function is to help in making decisions on the issuance of indictments. The decision by the grand jury to uphold evidence against the defendant, it returns a true bill referred to as the bill of indictment that charges a suspect with particular crimes. This means that the prosecutor gets the nod to institute charges against the suspect. Two roles of the grand jury include as the first screening role. In this case, the grand jury assesses evidence by the prosecution and investigators to support the case if they decide to institute charges. The jury returns a true bill only on those cases with hitherto evidence that can uphold the case in a court of law. The second role of the grand jury is investigative. By carrying out this function, the jury builds information with value in evaluating whether grounds for prosecution exist. The existence of adequate evidence and grounds of starting judicial proceedings in the corridors of justice exist. The Prosecution Review Commissions in Japan carry out this role undertaken by the grand jury in other countries especially the United States. Eleven lay participants sit of these commissions. Their biggest responsibility is to review the decision by the prosecutor to file suits in the court of law or not. The difference between the Japanese Prosecution Review Commission and the grand jury in other nations is that decisions by the commission in Japan are binding and only remain reviews, which is a different case in the United States because decisions by the jury form either starting point of prosecution or asking parties to negotiate a plea. The Private Prosecution Model The framework is common in Spain. Citizens in this country have a legal right to start prosecution against another individual. This covers both victims of crimes and victims of civil deviance. Corruption within the judicial system in Spain forced the country to develop this type of model. Lack of adequate personnel within the judicial system was responsible for unwarranted delays in judicial process considering the fact that justice delayed is justice denied. The criminal justice legal system allows private prosecution for all minor and major crimes with the only exception coming in the areas of military and minors. The biggest danger of this system is that the defendant might face tow judicial proceedings entailing both public and private. More so, the system is prone to manipulation and corrupt influences of the financial and political forces. Mixed Tribunals The systems are common features in the European Union. The separation of mixed adjudicating tribunals and the grand jury is that the former collaborates with professional judges in developing a sentence as opposed to receiving guidelines from the professional judge in addition to delivering judgment independently. Schoffen, the classic Germany court serves as the best example with two lay assessors and one professional judge. Variations of this court are in Cour de assises, a French collaborative court framework. Collaboration comes during delivery of judgment where the bench consists of nine jures and three professional judges. However, a voting decision by the jures takes place in privacy. Other countries within the European Union appear to blend features from both the German and French systems. Far East, China demonstrates elements of mixed tribunals. Application of mixed tribunals within the judicial systems requires issuance of equal rights between the lay participants and professional judges. However, media reports as well as investigations by independent agencies show that the case is not the same in countries that practice mixed tribunals. The reports indicate that professional judges appear to exert pressure on their decisions and try overriding decisions by lay participants. A hundred percent Lay Judge Model Few countries constitute pure lay judge systems to take care of cases involving minors. Magistrate and justice courts take this position in the United States. Lay judges have the option of either sitting alone or taking the input of clerks to offer guidance. Receiving assistance broadens the role of lay judges while on the other hand; sitting alone limits the jurisdiction. Arguments in favor of Lay Participation People in many countries continue to debate whether to include or exclude citizen participation in criminal and civil justice proceedings. There are scholars who offer arguments in favor and against the role of lay participation. The biggest example in this case is the role played by emotions among lay adjudicators. There are situations when emotions can influence the decision by a lay adjudicator and interfere with an objective judgment. Similarly, emotions can prevent undue technical decision-making processes by professional judges. Arguments also occur concerning the expense of lay participation. One group of scholars identifies high costs arising from the principle of immediacy. The principle directs that experts as well as witnesses make their submissions in open courts. This is in addition to explaining legal issues and terminologies to lay participants. Here, the system applies immediacy with strength when lay adjudicators get involved in the case compared to when the case falls in the hands of professionals. Scholars in favor of lay participation hold that remunerations for lay participants are lower compared what professional judges receive therefore, this leads to reduced expenditure for judicial payment authorities in case of lay participation. The democratic argument stands as the supportive base for lay participation in judicial criminal proceedings. The system should allow citizens to take part in all trial case whether civil or criminal taking the position of representing the entire population. Proponents argue that making decisions in the trial cases should not remain a reserve of few elites. They hold that the system owes each person a chance to partake in the process. This explains why the grand jury is important. Scholars refer to this type of democracy as representative. Groups that support lay participation posit that peers have a right to try defendants. The United States of America considers juries protectionists of excessive power of state agencies as well as biases by professional judges in addition preventing corruption in the corridors of justice. Scholars in the United States hold that juries add democratic values to legal proceedings taking the biggest responsibility of bringing common sense to the entire process. This feature is absent in Netherlands. Allowing citizens to participate in trail processes enhances the debate on justice and trial proceedings. It is not appropriate to have professionals sitting high above other members of the society because it is a profession like any other. To narrow the gap, the justice system must allow the use of the grand jury. Thus, it is necessary to have ordinary citizens taking functions in legal proceedings and influence decisions. Arguments Against Important arguments against lay participation exist in the public domain and the judicial corridors as well. First, members of the grand jury do not have legal knowledge. This means that it will take much time explaining obvious basics appearing jargon to them. Use of lay participants means that proceedings will take longer considering that all witnesses must be heard, cross-examination exercises, and questions from the bench. This needs more time yet justice delayed is justice denied (Hans, 2008, p. 283). Availability of such times within the legal system is scarce. There is a general agreement that lay people with village minds will make more mistakes during delivery of statements. Lack of familiarity and experience with normal routine activities within the systems causes these mistakes. Since the lay participants have inferior education compared to professionals, chances are that they would comprehend almost everything communicated by the judges. It becomes irrelevant to people who do not understand each other on the same bench to deliver judgment on the same issue. This will only take place if clerks simplify cases to a very low degree. Lack of familiarity among members of the grand jury results in another dangerous situation in which they will rely on emotions to make decisions. A good example is a defendant accused of killing his wife appears in session in the presence of a daughter sitting in court with many pictures of a lifeless body taken by the police. To a person not used to such scenes, his or her emotions will guide decision-making. Although it might to professionals, they have an edge over lay participants because of familiarity. Analysis The debate on lay participation in legal proceedings within the criminal justice system requires much more than discussing on the ability of a person or a group of people without background in legal education participating in trial processes. Determining the role of citizens exclusive of their Academic and professional background in the adjudication of cases only involves part of lay participation in the administration of criminal and civil justice. The debate is complex with various factors attached. The first factor of the many factors entails assessing the input of lay participation in the quality as well as effectiveness of the entire justice system. This where matters off expenses, understanding proceedings, and ability of the chosen members come into play. Democratic participation is another recurrent factor of consideration. It is important to consider whether the society requires having representatives participating in the process of decision-making. This factor receives almost equal concerns for and against lay participation in the adjudication of cases. The democratic argument stands as the supportive base for lay participation in judicial criminal proceedings. The system should allow citizens to take part in all trial case whether civil or criminal taking the position of representing the entire population. Proponents argue that making decisions in the trial cases should not remain a reserve of few elites. They hold that the system owes each person a chance to partake in the process. This explains why the grand jury is important. Another significant factor of the multiples regards the relationship between lay participation in the trial process in both the civil and criminal legal proceedings and confidence in the same system. Included in this part is the influence by this relationship on the democratic legitimacy of the entire criminal justice system. Measures of protection in the judicial systems include among others the public form covering all proceedings as well as documents in addition to the fettered accessibility of the public and the members of fourth estate as well. Bibliography Hans, V.P. 2008. Jury systems around the world. Annual review of law and social Science, 4, 275-297. Read More