Why is trial by jury a good thing?

[Petrosjko]

In Australia, I think, the barristers can dismiss seven jurors without stating a reason, but otherwise they have to provide a reason for sacking the juror. That way (since the initial selection is assumed to be random) you can't infinitely pass over jurors that you think would favour the other side.

That's also done here, a practice known as peremptory challenges.

That's what really makes me curious about the competence of the defense in the trial I was at, because going in with two people who had histories involving DUI quite likely stacked the deck. I wonder who he did use his challenges on...

[Stravo]

Trial by Jury is a natural evolution of Anglo Saxon legal thought. Back in the bad old days the Norse and later on their other barbarian brothers had a system of Attestors where the person who could get enough people to swear that your version of the story was right won a legal matter. So if you had a legal claim against Baldric the Nasty and you managed to get 15 people in your village to attest to your story and Baldric got 18 people to attest to his side of the story, Baldric won.

This was considered far more civilized than the trial by combat that was in vogue in the Dark Ages.

It was from these attestors that the idea of a group of the community deciding the outcome of a legal conflict was born. Eventually it became a jury that had no connection to either side of the conflict that would help render a just verdict.

Now while it sounds egalatarian and noble to have a jury of your peers deciding your innocence or guilt the application of this principle has been twisted and taken advantage of by the legal community almost from the beginning.

Lawyers have always stacked the deck when it comes to jury selection and the rules themselves governing proof and evidence. Lawyers don't like educated people on the jury - in particualr plaintiff's attorneys who like to appeal to emotion (rolling out the injured in a wheel chair, etc) and especially other lawyers. In NYC until about 5 years ago, Doctors and Lawyers could be automatically excused from jury duty if they asked for it. That has since changed only for lawyers and doctors to now bitch that they serve but are never picked for juries anyway.

Lawyers want the lowest common denominator and yes, race, not just education plays a role as well. Think of the system of jury voire dire and pre-emptory challenges. You have a set number of challenges that need not be explained when you execute them so you can start kicking off black panelists if you have a case in the Bronx (By far the most plaintiff friendly borough in the city) and not need to explain why even though it is primae facie misconduct to boot someone due to race. But a loophole was created to deal with that.

There's loopholes for everything. The system has been designed to empanel the most maleable jury you can find. That's what being a lawyer is all about when you go to trial. Manipulating opinion. Everything is a big show. From how we dress, act, speak - down to how we use our equipment in the courtroom. In my trial in Camden a few months ago we did our best not to look like the big bad NY law firm coming down to Camden to tangle with the local boys. We were forbidden to use anything hi-tech, to have too many people on our side of the table, etc just so that we could portray ourselves as just another group of lawyers.

And this was a bench trial. No jury. If there had been a jury it probably would have been even more stringent.

But here's my rather long winded point. A jury should be maleable in my opinion. No one wants a panel that has already made up its mind and sort of takes away from the 'art' of lawyering if all you're doing is presenting some dry facts. Leave that to the Europeans and their system of Judicial panels that examine the facts and make a decision. I like the rough and tumble world of trying to get 12 people (6 in a civil trial) to come around to your line of thinking.

But there are some serious issues that will never really be addressed as long as human nature remains the way it is. Jurors will bring their own prejudices and quirks into the trial - OJ being a prime example where it is generally believed that the OJ verdict was more a slap in the face against LAPD and the 'system' in general than a true verdict of OJ being innocent. That cannot be stopped, it can try to be curtailed by rules and regulations but people are going to be as irrational and prejudiced as they want to be and I do not believe that educational level will change that dramatically.

[EmperorChrostas the Cruel]

Exactly WHAT prevents the "professional jury" from becoming one more branch of the government? (A difference, that makes no difference, IS no difference)
There was a VERY good reason the jury system was started.
The system assumed ALL called would serve, exept for real hardluck cases, like caregivers for invalids, and equaly important excuses. The random selection factor makes for the least bias.
Also, profesional jurists would become a political force in and of themselves. The selection process would be subject to the same gerrymandering that voting is done by. This goes to the same reasoning why we don't have a selection process for screening voters for education.
No matter how well meaning the idea, and how many upsides, the downsides are always worse. (State controle over one more citizen's check on government power."

Then there is the empathy factor. Some profesional jurist is unlikely to understand the real world pressures on the lower half of the income spectrum.
Case and point, do you want to be tried in a case of what you consider self defence, but the state thinks is murder, by folk who live in a gated community? To live in the vulnerable position of apartment dweller in the projects or downtown is to be missing a HUGE set of options for avoiding trouble. Guess what, you HAVE to shop at the store around the corner, (The one where that crazy bastard who claims "This is MY corner! You need to pay some 'taxes' to use MY corner!) because to go farther on foot only increases the risk. (same thing on some OTHER corners too)

When confronted, you need only convince ONE person you felt in danger of you life, and this is much easier if the jury has to deal with this type of person too.
A professional jury would have to pay enough to be competative with OTHER jobs, and the "living wage" standard now so prevalent with cities, that the jurist wouldn't have to live with the poor people, and thus, lose the empathy/understanding that is the WHOLE PERPOSE of jury by your peers.
Professional jurors would be better off, and live in better neighborhoods, loosing the valuable perspective that made then important.

They would become ONE MORE class of overpaid, arrogant, self important public servants, with unions, strikes and everthing else bad with government.
Think of their strike potential. We have a law in our state, called the speedy trial law, which states, if you do not waive your right to a speedy trial, and you are not brought to a trial in 30 days, the state LOSES it's case by default.
One week into this strike, and criminals start being declared innocent by defalt.
This actualy HAPPENED in LA, caused by a budget crisis. They were letting convicted criminals go because they couldn't afford the cost of housing them.


Also, where is the money to pay for these jurists coming from? Out of the police's budget? DA's budget? PD's budget? Court's budget?

[Patrick Degan]

Other countries that have panels of judges hand out rulings seem to be doing okay with them--most notably the way that the English judicial system is set up.

No, England has trial-by-jury. It's on the Continent that trials are conducted by panels of 3-5 judges.

[Petrosjko]

Another point against professional juries is that it would likely kill the right of jury nullification, i.e., the right for a jury to say 'yup, the defendant is guilty as hell, but the law is wrong here, so we're letting him off.'

As is often stated, just because something is a law does not make it moral, and jury nullification can serve to check unjust laws.

(In a magical happy land where we have educated people who actually know about it and also happen to end up on a jury.)

[Admiral Valdemar]

I always thought it started, as ever, with the Greeks whereby a jury consisted of not 12, nor 15, but 400+ jurors of equal sex mix. Of course, this is completely absurd to attempt today, so we randomly pick a much smaller batch.

The main objection I can see to the professionla jury, that I can see now, is the whole lawyers bringing in their favoured jurors or some other sort of verdict buying. The Runaway Jury was a nice example of the possibility of this happening with modern jury systems, I can only imagine what'd happen if there was a special jury panel formed by professionals. It seems like too much power.

Plus, even if we added the college degree entry level requirement for being on jury duty, I'm sure you'd get people complaining it was unethical to make such an arbitrary limitation, no matter how much sense it may make.

[Stravo]

Are college educated people and professionals peers for a poor black man who is accused of stealing in a slum in the Bronx? Are they peers for the majority of criminal cases?

[Darth Wong]

Exactly WHAT prevents the "professional jury" from becoming one more branch of the government? (A difference, that makes no difference, IS no difference)

Nothing. So what? Are you saying that the entire government and all of its branches should be assumed to conspire against a defendant? That's fucking ridiculous.

There was a VERY good reason the jury system was started.

Road to hell. Good intentions.

The system assumed ALL called would serve, exept for real hardluck cases, like caregivers for invalids, and equaly important excuses. The random selection factor makes for the least bias.

Too bad the selection is not random then. Kind of blows your argument out of the water, doesn't it?

Also, profesional jurists would become a political force in and of themselves. The selection process would be subject to the same gerrymandering that voting is done by. This goes to the same reasoning why we don't have a selection process for screening voters for education.

Oh right, and there's no selection process now, right?

No matter how well meaning the idea, and how many upsides, the downsides are always worse. (State controle over one more citizen's check on government power."

Prove this conjecture.

Then there is the empathy factor. Some profesional jurist is unlikely to understand the real world pressures on the lower half of the income spectrum.

Empathy is utterly irrelevant to the question of whether somebody committed a crime. It does, however, make itself a huge factor in court cases anyway; this is not a good thing.

Case and point, do you want to be tried in a case of what you consider self defence, but the state thinks is murder, by folk who live in a gated community? To live in the vulnerable position of apartment dweller in the projects or downtown is to be missing a HUGE set of options for avoiding trouble. Guess what, you HAVE to shop at the store around the corner, (The one where that crazy bastard who claims "This is MY corner! You need to pay some 'taxes' to use MY corner!) because to go farther on foot only increases the risk. (same thing on some OTHER corners too)

When confronted, you need only convince ONE person you felt in danger of you life, and this is much easier if the jury has to deal with this type of person too.

Ah yes, because middle-class people cannot comprehend the concept of being afraid of an armed man

A professional jury would have to pay enough to be competative with OTHER jobs, and the "living wage" standard now so prevalent with cities, that the jurist wouldn't have to live with the poor people, and thus, lose the empathy/understanding that is the WHOLE PERPOSE of jury by your peers.

Professional jurors would be better off, and live in better neighborhoods, loosing the valuable perspective that made then important.

See above.

They would become ONE MORE class of overpaid, arrogant, self important public servants, with unions, strikes and everthing else bad with government.

Ah yes, better to have an ignorant, uneducated, lawyer-selected class of self-important temporary public servants. As for unions and strikes, they can simply be outlawed by legislation, over which they have no say. That's what they do with the police.

Think of their strike potential. We have a law in our state, called the speedy trial law, which states, if you do not waive your right to a speedy trial, and you are not brought to a trial in 30 days, the state LOSES it's case by default.

One week into this strike, and criminals start being declared innocent by defalt.
This actualy HAPPENED in LA, caused by a budget crisis. They were letting convicted criminals go because they couldn't afford the cost of housing them.

See above.

Also, where is the money to pay for these jurists coming from? Out of the police's budget? DA's budget? PD's budget? Court's budget?

More tax money. Or don't you realize that their lost time and wages are already being taken out of the economy?

[Dahak]

The German system of trial by judges may sometimes lead to not quite understandable verdicts (too lenient, sometimes to harsh, on a subjective level), I still have far more faith in the education and objectivity of our judges than in the fairness of a jury.
The importance of "acting", swaying jurors (all this hollywood-esque portrayal of lawyers), is also greatly diminished. A judge won't be swayed that easily by a likeable and eloquent lawyer.

The number of judges depends, though. On a low level, there is just one judge, for cases like murder, et al. supplemented by jurors (who decide together with the judge).
Higher levels of courts have more judges.

[Darth Wong]

Are college educated people and professionals peers for a poor black man who is accused of stealing in a slum in the Bronx? Are they peers for the majority of criminal cases?

Why is it necessary to be a "peer" in order to answer the question of whether some guy committed a particular crime?

[Admiral Valdemar]

Are college educated people and professionals peers for a poor black man who is accused of stealing in a slum in the Bronx? Are they peers for the majority of criminal cases?

I suppose the reasoning goes that these people will be better educated in rational thought and won't let emotion cloud their view as much and will likely have a better grasp of legal procedure. But I see your point, it isn't as appealing for the majority of the accused in criminal cases.

[Stravo]

Are college educated people and professionals peers for a poor black man who is accused of stealing in a slum in the Bronx? Are they peers for the majority of criminal cases?

Why is it necessary to be a "peer" in order to answer the question of whether some guy committed a particular crime?

It's an argument that can be made against the professional jury idea. If you commit a crime in Brooklyn, Bronx or even Queens you will most likely have a jury composed of people that sort of understand where you're coming from and can more easily be described as peers. They can put themselves in your shoes more easily. Remembr that in the US at least the criminal system tries to be slanted against the prosecution to give a cirminal defendant every chance to beat the rap.

There was a great Dave Chappele skit about a white guy who has to go through the same legal system that blacks must go through and his jury is a bunch of gangstas. The jury system tries (and many times fails) to make sure that the jury is at least refelctive of the community you come from. Its never a good thing to have an all white jury and a young black man as the defendant.

Its not just about the facts as weird as it may sound. Appearances are just as important for the system.

[Durandal]

I love that skit.

"I sentence you to two life-sentences in prison. That'll be plenty of time for you to lift weights and convert to Islam."

[Darth Wong]

So by the "peer" and "empathy" rationales, the best jury for a gangsta is a bunch of other gangstas? Sorry, but that makes no fucking sense at all.

[Tribun]

Good thing that we have no jury system in Germany.

These whole "convince-the-jury" shows when at court and all that emotional salvos fired are simply ridiculous.

I prefer judges who haved studied their profession, and know what they say.

[Stravo]

So by the "peer" and "empathy" rationales, the best jury for a gangsta is a bunch of other gangstas? Sorry, but that makes no fucking sense at all.

No, that was an exageration in the Dave Chapelle skit. The peers of a gangsta would come from his community. So you could have a hard working single mom, a Pakistani who owns a grocery store, etc. They all come from his community thus creating the extra layer of legitimacy of the verdict in that he was no judged by a bunch of WASPs from Westchester or a bunch of stock broker yuppies (though one could be on the jury.) It's all about skewing the percentages to get as widely diversified jury as possible that best reflects the values of the community.

A professional jury could be seen as outsiders, especially considering their proposed make up as educated people.

The jury system also engages the community as a whole, making them feel like part of the process and giving them a say in the legal system.

[egyptfrk]

Good thing that we have no jury system in Germany.

These whole "convince-the-jury" shows when at court and all that emotional salvos fired are simply ridiculous.

I prefer judges who haved studied their profession, and know what they say.

Doesn't Germany have a "lay judge" system? I know Germany is based off of the civil and not common law, so the court is controlled by the judge(s). I just remember reading an article for class once about lay persons as judges.

[The Cleric]

Just a nitpick, IIRC, a "trial by peers" is a feature of English common law, and not involved in the US legal system. It's a "fair and impartial jury" or somesuch.

[Dahak]

Good thing that we have no jury system in Germany.

These whole "convince-the-jury" shows when at court and all that emotional salvos fired are simply ridiculous.

I prefer judges who haved studied their profession, and know what they say.

Doesn't Germany have a "lay judge" system? I know Germany is based off of the civil and not common law, so the court is controlled by the judge(s). I just remember reading an article for class once about lay persons as judges.

We have professional judges, but sometimes they are assisted by jurors.

[dummnutzer]

A somewhat simplified overview of German criminal justice and its use of lay judges, not including appeals etc. :

Petty stuff is dealt by a single judge, a ´Strafrichter´.

Small stuff is being done by a ´Schöffengericht´, one professional judge and two lay judges/jurors called ´Schöffen´.

The serious crimes are mostly handled by a ´Große Strafkammer´, three professional judge and two lay judges/jurors called ´Schöffen´.

Schöffen are of only limited use. I no longer do criminal law, but during my training (Referendariat) I was attached to several Schöffengerichte and the Schöffen always agreed with the professional judges. They are de facto useless. Parrots would be cheaper, prettier and IMHO quite often smarter than Schöffen. Most Germans IME are quite critical of the involvement of lay people in the legal system.

But in Bavaria in 1946, there was a case were two Schöffen (local farmers) overruled the professional judge in a criminal case dealing with stolen poultry: They ordered the removal of the thief´s right hand. The jugdement - formulated by the professional judge - went something like this. ´In clear violation of the Criminal Code and the basic priciples of justice and humanity ...´ The appeal, supported by the DA, was successfu

[Jalinth]

So by the "peer" and "empathy" rationales, the best jury for a gangsta is a bunch of other gangstas? Sorry, but that makes no fucking sense at all.

No, that was an exageration in the Dave Chapelle skit. The peers of a gangsta would come from his community. So you could have a hard working single mom, a Pakistani who owns a grocery store, etc. They all come from his community thus creating the extra layer of legitimacy of the verdict in that he was no judged by a bunch of WASPs from Westchester or a bunch of stock broker yuppies (though one could be on the jury.) It's all about skewing the percentages to get as widely diversified jury as possible that best reflects the values of the community.

A professional jury could be seen as outsiders, especially considering their proposed make up as educated people.

The jury system also engages the community as a whole, making them feel like part of the process and giving them a say in the legal system.

Agreed. You have the quote from France (pre-Revolution AFAIR) about it being against the law for both the rich and poor to sleep under bridges.

Also, perceived fairness comes into it. As Stravo points out, having a bunch of rich white guys convict a poor black kid (or vice versa) of a crime doesn't look or smell good.

A better answer is to really make jury duty "random". Knock out lawyers/judges other para-legal professionals (I agree with this - a jury is supposed to debate the facts - not the law), but otherwise everyone is in. Everyone serves unless they have a real reason not to (military duty, hospitalized, imprisoned, etc...) For long trials (more than a week), the government compensates them based on current earnings.

No automatic dumpings of jurors - for cause challenges only. This will help reduce the lawyers ability to "stack" a jury (and hopefully keep your relatively intelligent jurors from being ejected just for having a brain).

[Darth Servo]

Whoppi Goldberg once joked that she wouldn't ever trust her future to 12 people who weren't smart enough to get out of jurry duty.

[UCBooties]

Darth Wong, I think there is a logistical problem with professional jurries. First off, does anyone know how many trials are held durring any given day in America? All of these cases requier a jury. So this means that the professional jury corps would have to at a minimum, be able to man every courthouse in the nation at maximum possible trial load. All of whom must be paid, given benefits, time off, etc. This would be a huge organization. also, large organizations which police themselves tend towards corruption over time. So we might need either an independant, judicial, or legislative oversight organization of some sort. Where would we find these fairminded, educated, and qualified legions? How do we pay them? Do we permanently sequester them, hole them up in abbys so they can't be influenced by news or opinion? I don't think our country has the resources or manpower to make such a transition. Also, it would requier amendment to the constitution, and that's a touchy issue in and of itself.

[Darth Wong]

No, that was an exageration in the Dave Chapelle skit. The peers of a gangsta would come from his community. So you could have a hard working single mom, a Pakistani who owns a grocery store, etc. They all come from his community thus creating the extra layer of legitimacy of the verdict in that he was no judged by a bunch of WASPs from Westchester or a bunch of stock broker yuppies (though one could be on the jury.) It's all about skewing the percentages to get as widely diversified jury as possible that best reflects the values of the community.

What do "the values of the community" have to do with the question of whether he's guilty of committing a crime? I might see that factoring into sentencing, but it really has nothing to do with the question of whether a crime was committed.

A professional jury could be seen as outsiders, especially considering their proposed make up as educated people.

Why should legal rulings depend on local sentiment?

The jury system also engages the community as a whole, making them feel like part of the process and giving them a say in the legal system.

Again, why should legal rulings be based on local political sensitivity concerns?

[Darth Wong]

Darth Wong, I think there is a logistical problem with professional jurries. First off, does anyone know how many trials are held durring any given day in America? All of these cases requier a jury. So this means that the professional jury corps would have to at a minimum, be able to man every courthouse in the nation at maximum possible trial load.

That is already the case; we just pretend that it costs nothing.

All of whom must be paid, given benefits, time off, etc.

This is already the case; the cost is simply being spread out unevenly through the population under the current system.

This would be a huge organization. also, large organizations which police themselves tend towards corruption over time.

It would only need to have enough juries to fill all the courtrooms and presumably use a bit of rotation to avoid stagnation. It's not as if every courtroom doesn't already have a substantial number of full-time employees.

So we might need either an independant, judicial, or legislative oversight organization of some sort. Where would we find these fairminded, educated, and qualified legions?

Where do we find them currently? Oh yeah, we don't. We just grab any ignorant asshole off the street and throw him in there, with a vetting system that must be repeated (on both sides' legal teams' bill) for every single trial.

How do we pay them? Do we permanently sequester them, hole them up in abbys so they can't be influenced by news or opinion?

Sequestering is only necessary because unprofessional juries can't be counted on to behave intelligently.

I don't think our country has the resources or manpower to make such a transition. Also, it would requier amendment to the constitution, and that's a touchy issue in and of itself.

Two points:

1) Your country is already pissing away this manpower and resources; you just don't track it.

2) The desirability of an idea is not affected by its likelihood of implementation, which is a separate question.