Jury trials = Mob justice

Jury trials are the norm in the Anglo-Saxon world. A jury of your peers. This sounds very nice for a group person. A herd person. For charming and manipulative liars. For sociopaths, and in the modern age, for people who have the media on their side. But is it the most likely system to guarantee justice?

Juries are groups of ordinary people. Not trained professionals in law or assessing evidence, nor people trained in any way to be impartial. They are groups. Groups of ordinary people. Yet their assessment of a person, their collective intuition or sentiment is made decisive in determining guilt or innocence.

They are to examine the evidence. The matters of fact while judges are to ensure the law is followed. But juries have (somewhat vaguely) defined leeway in analyzing and weighing evidence. In and of itself it is strange that the law leaves a lot of room for the assessment of evidence and the weighing off it. While judges can create a consistent jurisprudence, different juries of different people may reach different conclusions. It’s like gambling. Sometimes the glass is half full, sometimes it is half empty. A lot of value is placed on how juries assess testimonies. Whether people manage to come off as truthful.

Juries never explain their verdicts, unlike judges in judge only trials. They are not accountable. There is also the issue of jury nullification. Juries refusing to convict someone of something they don’t think should be a crime. If the majority of people in a particular district reject the law or are influenced by a revolutionary political movement, people can commit crimes with relative impunity.

The role of judges within jury trials seem especially problematic. In certain countries with judge only trials, citizens cannot merely request a judge recuse his or herself but challenge them, so that a separate panel of different judges has to look at whether the judge could appear biased. But in jury systems such guarantees are generally far weaker. If a judge refuses to recuse himself, you’re off to a bad start. The idea is that judgement lies with the jury. But what influence do judges have on jury trials? A lot.

Judges have a lot of influence over both the questions that can be asked of jurors to ensure impartiality as well as the striking off people from the jury. They have immense sway over what evidence and testimonies may be shown to the jury.

Judges also pass the sentence. Verdict and sentence are separated. Juries pass verdicts without knowing what it will lead to exactly. Judges can be unusually biased, judges can give unusually hard verdicts hiding behind a jury verdict they influenced. This has happened.

A cynical person might equate the judge during jury trials, to a demagogue hiding behind the mob or a demagogue manipulating the mob. At best he serves as a referee between two factions trying to persuade the mob.

Appeals over matters of fact are also much more difficult (Australia, UK) or virtually impossible (USA) under jury trials. In judge only systems appeals are the norm. Under cassation systems appeals in matters of fact can generally only be made once to an appeals courts, but in countries with courts of final appeal the facts are looked at a third time in exceptional cases.

The US system focuses more on legal formalities rather than objective truth. Actual innocence proven by new evidence does not provide a right to relief after a legally valid conviction.

Jury trials only serve as the final layer of protection (or condemnation) in a complex legal process. Police and prosecutors can arbitrarily choose to pursue certain accusations while not dealing with others off a similar nature (Bill Shorten compared to Cardinal Pell in Australia). In the Netherlands citizens can petition appeals courts to order to prosecutor’s office to pursue such cases.

Then there is the practice of plea bargaining very dominant in the US which has recently been introduced in several countries such as Brazil and China. Innocent people with little legal knowledge can even give up a future right to appeal.

Prosecutorial misconduct and corruption by the police become more difficult to confront after ‘the people’ have spoken.

The requirement of unanimity for jury verdicts means surprisingly little. Most juries don’t take more than a week even in controversial cases. A small minority that has lives to get on with won’t hold out forever. They have lives to get on with. Loud, manipulative and dominant people can influence a jury. Groups are often swayed by their worst members.

Since judge only trials can rely too much on a single person, panels of three professional judges would make sense in felony cases or important civil suits involving large amounts of money. Three professional judges, is three expert individuals working together. It is not a group. Not a tiny mob.

The threats of violence from protesters and media disinformation can influence a jury of 12 random citizens more easily than a single, or three, professional judges.

I have managed to refrain from pointing out issues of race and class and other cases when your peers, may not actually be your peers.

Johan van Schaik

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