Pros and Cons - Debbie Newman, Ben Woolgar 2014
Jury trials, abolition of
Section G. Crime and punishment
Juries are an integral part of the criminal justice system in most ’common law” countries, such as the UK, the USA and Australia, but are totally alien in ’civil law’ systems like France and Germany. They were abolished in South Africa in 1969 as the apartheid government did not want black jurors sitting in judgement on their peers. In some cases, jurors may also sit in non-criminal claims cases; in the USA, juries sit in personal injury or medical negligence cases, which has led to very high pay-outs in those trials. Similar worries have emerged in the UK where juries occasionally sit in libel claims cases, and often tend to give huge pay-outs for damage to reputation which are even larger than those for physical harm.
Pros
[1] In the modern world, there is no longer any need for protection against unscrupulous or politically biased judges. Therefore, we do not need a jury, which used to provide this safeguard.
[2] Judges can be relied on to enforce the law more faithfully, as it has been made by democratic institutions, and because they have had a lifetime of believing that this is the correct way for a system to operate. Indeed it is; democratic institutions should make the laws, and the legal system should then enforce them. Anything else represents a troubling breakdown in the separation of powers.
[3] Jurors are unreliable lay people, uninformed about the law and with no training, and no proven skills of attentiveness, analysis or fairness. They, unlike legal experts, will be swayed by prejudice and preconception (e.g. judging defendants by their appearance). It is not in the interest of justice to have such people decide the fate of those accused of serious crimes, whose futures, or even lives, hang in the balance. Particularly in the case of fraud trials which last months or years and are full of complex legal technicalities, juries cannot be expected to follow the case or know how to reach a verdict. Juries should be replaced by panels of lawyers (as already happens with appeal court judges who sit in panels) or magistrates, the latter being a compromise between the untutored lay person and the professional lawyer.
[4] Most jurors, especially if they have not understood or followed the case closely, will be swayed by the summing up of the judge. A panel of lawyers or magistrates would have their own understanding of the case to balance that of the judge. So replacing jurors with an expert panel will in fact provide a more efficient check on the influence which a single judge can bring to bear on the outcome of a case.
Cons
[1] Judges, even if they do have fewer progovernment biases, may still have a range of other prejudices. They are often drawn from a white, male, middle-class elite. It could be argued that because of the narrow demographic pool from which judges are currently drawn, they may be more likely to sympathise with the police, and so are more willing to accept evidence given by the police.
[2] Juries inject an element of commonsense morality into the justice process; whether someone can prove that, for instance, they were coerced into committing a crime is not a legal judgement, but one based on what the reasonable person thinks. Moreover, juries may help to prevent the enforcement of highly regressive laws; for instance, although abortion is illegal, for most circumstances, in the Australian state of Queensland, juries have simply acquitted the accused in recent trials, because the law is now widely accepted as unjust.
[3] The jury system forces lawyers and judges to make the law lucid and comprehensible. Without a jury, barristers and judges would have no obligation to make a comprehensible case, and the courtroom would become an alienating and incomprehensible preserve of legalistic jargon in which defendants were left not understanding the accusations made against them, nor the process by which they were acquitted or convicted. While they are, indeed, untrained in legal matters, jurors bring an open mind and commonsense judgement to bear that expert panels would lack. Expert panels would tend to become ’case-hardened’ and cynical, disbelieving often-heard defences simply because they were frequently encountered, not judging them on their merits.
[4] There is already the appeals process to deal with cases where judges have misdirected the jury. And expert panels would be inclined towards the opposite danger — trusting too much to their own ability at legal interpretation and tending, arrogantly, to ignore the judge’s direction as inferior to their own analysis.
Possible motions
This House would abolish jury trials.
This House would not use juries in civil cases.
This House would leave tough cases to judges.
Related topics
Judges, election of
Community sentencing