Warp wrote:
>   I have been thinking: In the US and a few other countries trials by
> jury are quite common. What I don't understand is how that makes any
> sense.

Trial by jury goes to the very question that is at the heart of 
political science:  Is the government primary over the people, or are 
the people primary over the government?  Does the government act by 
right, and the people by permission, or do the people act by right, and 
the government by permission?  Are the powers of government based on 
inherent rights of the government, or is governmental power merely the 
delegated exercise of the rights of the people in general?

The western democracies are based, at least in theory, on the principle 
that the people are primary and that the government is secondary. 
History has shown that the people who form the government are often not 
content with this secondary role, and will often seek to reverse it, 
making the government (and, in so doing, themselves) primary over the 
people.  This is generally accomplished through expansions of the powers 
of the government, by increasing the number of areas in which the 
government acts, and by increasing the control of the government in 
those areas where it acts.  It cannot be overstated that these 
expansions of the government's powers are always at the expense of the 
people, and the alleged benefits of these expansions never offset the 
total cost to the people; a bigger government is always a net loss to 
the people who are outside of government.

In a criminal case, the interests of the government and the interests of 
the people are not necessarily the same.  The people, in general, want 
dangerous people locked up or neutralized in some other manner, and for 
everyone else to be left alone.  The government, on the other hand, will 
tend to want those who disobey the government to be locked up (or 
worse), and to let the obedient go free.  Whenever there is a conflict 
between what the government wants and what the people want, it is always 
either the government wanting to punish a person who presents no threat 
to society, or to leave unpunished someone who is clearly dangerous to 
society.

Courts are all creatures of the government.  They are created by acts of 
government and are funded by appropriation from taxes collected by the 
government.  They are no exception to the tendency of government 
officials to expand the powers of government, and for officials of the 
court, this takes the form of seeking to prosecute and convict more 
people than is necessary to protect the rights of the people.

This is where the jury comes in.  The jury consists of a certain number 
of people, drawn from the populace as a whole, who are first screened to 
ensure that they have no interest at stake in the case, beyond the 
general interest in the conviction of criminals and the acquittal of 
innocent people.  They are paid whether they convict or acquit, and a 
decision to acquit, unless obtained by unlawful influence on the jury, 
is final.

In short, trial by jury means that in disputes between the government 
and the people, the people decide.

This is not to say that juries never err.  They do, and often blatantly 
so, but in many cases where the jury acquits a guilty defendant or 
convicts an innocent one, it can be shown that the jury was led to this 
by systematic misconduct on the part of the officials of the court.  A 
recent review of many dozens of American prisoners, convicted of murder, 
who were later exonerated by DNA evidence, shows a common paradigm where 
the prosecution relentlessly pursues the conviction of an early suspect, 
ignoring (if not hiding) exculpatory evidence along the way, and in some 
instances unknowingly allowing the actual culprit to testify against the 
defendant.

A court can just as easily secure the acquittal of someone who is in 
fact guilty, either though sheer incompetence or by deliberately 
mounting a weak case against the defendant, so that the jury--who is 
sworn to regard only the evidence presented during the trial--has no 
option but to acquit.

There have also been cases where a jury reluctantly convicted a 
defendant whom they fully believed presented no threat to anybody, 
merely because the law demanded the conviction, and the jury regarded 
the law as requiring punishment, instead of merely authorizing punishment.

In these cases, the fault did not lie with the jury system, but with a 
legal and criminal justice system that either through incompetence or 
corrupt intent caused justice to miscarry.

Now some may argue that the jury may consist of twelve bumpkins who 
don't understand the law well enough to render a valid verdict.  This 
can be easily answered by pointing out that if twelve people, selected 
at random, cannot understand the law that applies to the case before 
them, it is a strong indication that the law is too vague to serve 
justice, and should not be enforced (in its present formulation).  It 
also goes without saying that sometimes the judge presiding over a case 
commits errors of logic every bit as stark as that of any jury.

Others may argue that there may be jurors who believe that the alleged 
conduct of the defendant should not be a crime.  This is answered by 
pointing out that this is not a weakness that is peculiar the the jury 
system; there are judges who are known for ruling according to their 
political opinions, and not according to the law (and some of our most 
powerful courts are chief offenders in this regard).  Second, if out of 
twelve persons selected at random, there are more than one or two who 
oppose the law (and not merely opposed to the specifics of the case at 
hand), it is an indication that the law does not serve the interests of 
the whole society, but only a part of it, and therefore should not have 
been made.

Do juries screw up?  Sure.  But the history of the jury system makes it 
pretty clear that trials without juries are no more likely to serve 
justice than trials with them.

Regards,
John

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