The Jury System
Is the Jury System relevant in today’s system of justice?
The jury system of justice was first introduced into British Law during the reign of King Henry ll, as written in the Constitutions of Clarendon in the year 1164.
§ 6. Laymen ought not to be accused unless through reliable and legal accusers and witnesses in the presence of the bishop, in such wise that the archdean do not lose his right, nor any thing which he ought to have from it. And if those who are inculpated are such that no one wishes or dares to accuse them, the sheriff, being requested by the bishop, shall cause twelve lawful men of the neighbourhood or town to swear in the presence of the bishop that they will make manifest the truth in this matter, according to their conscience.
At the time, Ecclesiastical law was the used as a means of administering the Kings Law, and the Kings Will.
The idea of having twelve lawful men to pass judgment as to the guilt or innocence of the accused would appear to have been an extension of the older moot court, where the majority of the village would hear the evidence and decide as to the position of the accused.
Evidence was given by the witnesses, as to their knowledge of the crime, and on the basis of this evidence a verdict was made for or against the accused. Evidence was simpler in those days. It was a case of “I saw him do it.”
In today’s Justice System the system of evidence has become somewhat clouded in technicalities. The concept of probable cause has become the mainstay of the judicial system. The prosecution no longer has to prove the case with hard evidence, if such evidence is not apparent at the time of trial. The mere fact that the accused may have had opportunity, motive, and the will, to commit an offence can be enough to obtain a conviction.
Also the concept of Reverse Onus has also become a regularly used tool in the prosecutor’s bag of tricks. Reverse onus relies on the idea that the arresting officer believes that the accused has committed an offence. It is up to the accused to prove innocence. Gone is the idea of the “Golden Thread” that once governed the administration of justice. The idea that assumed that the accused is innocent until proven otherwise is dead and gone.
In today’s world, the accused is tried before they even get to court. The media publicizes the assumed facts of the charges to anyone who can read or turn on a television. The idea that one can find a jury that has not been contaminated by publicity and rumour is a misnomer. By the time a jury is picked, many potential jurors have already decided, depending on the nature of the offence.
The manner in which jurors are picked by the defense and the prosecution also has become a game. Jurors are chosen based on, gender, color, and social standing, in relation to the charges. Both the prosecution and the defense struggle to find a jury that is more likely to vote in their favour, rather than finding a jury that is more likely to find the truth.
As stated previously, the evidence given in a modern trial has become somewhat blurred, in comparison to the older idea of clear and incontrovertible truth.
Today’s Jurors are required to have an understanding of Science, Psychology, Sociology, Law, and a myriad of other technicalities that are used by the protagonists to prove their case.
In the past all a juror needed to know was whether a cow was a cow and not a sheep. Albeit that there may have been rumor and innuendo around the village, which may have had some influence on his verdict, the system of evidence was at best simple and understandable. He did not have to wrestle with the concepts of DNA evidence, Psychological profiling, Ballistics, and post mortem evidence. I have come to the possible conclusion that the jury system is maintained, so that the lawyers can use the BAB system to obtain a verdict. For those that are wondering, the BAB system means, Baffle them with bullshit.
The more illustrious the Expert witness is, the likely a favorable verdict would be obtained.
The jury is then placed in the position where they begin to judge the crime and not the criminal. Many even adopt the attitude that, if he is innocent, then he would not have been arrested in the first place. Ipso facto, he is obviously guilty.
As a result, many verdicts within the judicial system are more likely to be based on prejudice, rather than on hard evidence.
The prosecution tends to use personal information to influence a jury. Hence a Gay male is more likely to be found guilty for a paedophile charge, simply because he is gay, and in the minds of the jury, more likely to have committed the offence. Albeit that the empirical evidence shows that such offences are more likely to be committed by non gay men, he is likely to receive a homophobic, or moral verdict, of guilty. Whether he is guilty in fact, has become an irrelevancy in the group consciousness of the jury.
The idea that the accused can receive a guilty verdict, based on race, religion, gender preference, is a very real and common result under the present system.
Similar situations can be found with other types of offences, evidence is manipulated to include statements that have no bearing on the original charges.
What can be done?
In many countries, the jury system has been removed, having been replaced by a panel of Judges who have the sole responsibility of hearing the evidence and reaching a verdict. Many countries use this system within their Supreme and High courts, also within the Appellant courts.
In these situations arguments are based on legal matters only. The rule of law applies, and only the rule of law.
Maybe it is time to start choosing jurors based on technical expertise. For instance, where a matter before the court is one that involves a shooting, the jury could be chosen according to their knowledge of, Ballistics, Criminology, and other matters that could be relevant.
A crime involving fraud by an accountant could possibly face a jury made up of accountants. Who better would know whether fraud actually occurred, if not the experts in that field? Mind you I am not suggesting that all accountants are frauds, what I suggest is that such a jury would have a better understanding of the mechanics that make up the charge
This may be a better alternative to jurors being selected based on their fashion knowledge.
Of course the prosecution would oppose such a solution with vigour. Where you have a system, where the District Attorney is elected to office. It becomes incumbent on the office holder to show results, in order to get re-elected to that office.
The D.A. must show the public that he can get results. The manner in which those results are obtained is not important. As long as he can show that he is meeting the expectations of the people in alleviating their fear, by putting criminals behind bars. So selecting a jury that is prejudicial to the defense, and or the prosecution becomes the first order in getting a satisfactory result
It is in the interest of the Defense to obtain a few satisfactory results in order to promote his business.
It is their job to get a not guilty verdict in any way they can, and if that means stacking and then influencing the jury, then so be it. The fact that their client may well be guilty is of little no consequence.
So, in the long run it would seem that a trial is more of a contest, between the Prosecution and the Defense, rather that a search for the truth behind the charges. The accused is merely a chess piece, caught between the verbal lances of two legal knights who are more interested in the joust, rather than the truth.
R.A.Spicer © 28th March 2005