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>> Good luck finding one of them :-)
>
> I don't see the problem.
The problem is that for some crimes there are very few specialists available
who know enough about the subject to give a useful opinion. If that is the
case then those people should not also be the jury, because there is far too
much risk that they are associated in some way with the person being tried
(eg working for the same company, working for competing companies, had a
brick through their window the night before, etc).
> Compare that question to:
>
> When dealing with an ongoing crime, would you prefer it to be handled
> by trained and experienced police officers, or by a mob of random people?
What happens if the police officers are told by their boss what to say? Or
even if they get some "pressure" from above for not finding enough people
guilty? Choosing random people from the population who don't have to answer
to anyone seems less susceptible to corruption.
Anyway, if you want trial by the police, then you may as well just get rid
of the court procedure altogether, and the police can just have a meeting to
decide what to do with each person.
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scott <sco### [at] laptop com> wrote:
> The problem is that for some crimes there are very few specialists available
> who know enough about the subject to give a useful opinion.
It's still better to have people who have years of education and
experience on criminology and forensic science in general than random
people who have no such things at all.
> If that is the
> case then those people should not also be the jury, because there is far too
> much risk that they are associated in some way with the person being tried
> (eg working for the same company, working for competing companies, had a
> brick through their window the night before, etc).
By that logic judges should be random people without any education or
experience on the field as well.
> > Compare that question to:
> >
> > When dealing with an ongoing crime, would you prefer it to be handled
> > by trained and experienced police officers, or by a mob of random people?
> What happens if the police officers are told by their boss what to say? Or
> even if they get some "pressure" from above for not finding enough people
> guilty? Choosing random people from the population who don't have to answer
> to anyone seems less susceptible to corruption.
Don't be ridiculous. A random mob of people is the most susceptible
group of people "wanting to find a guilty person", especially if the crime
raises strong feelings.
When lynch mobs start taking the law on their own hands, seldom good
things happen.
> Anyway, if you want trial by the police, then you may as well just get rid
> of the court procedure altogether, and the police can just have a meeting to
> decide what to do with each person.
I was just making an example (even if related to the subject in question).
I was not saying that the police should be the jury and judge.
The police is experienced in handling criminals and getting them to
justice. In the same way there are people who are experienced in judging
people.
--
- Warp
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4814f9d0@news.povray.org...
> 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.
Note that the US is quite unique in that it allows jury trials for both
civil and criminal cases, and in the latter case jury trials are
(theoretically at least) possible even for lesser crimes. Common law
countries are on the whole more favourable to jury trials than civil law
countries, where they are usually limited to the most serious crimes.
Now, IANAL or a legal scientist, but it could be that the rationale for jury
trials in common law countries emerged because in common law systems the law
is by definition created by the judges, who have the authority to make
precedents, so that a popular jury (the defendent's peers) is necessary as a
counterbalance to that (potentially arbitrary) power: it's the principle of
separation of powers between those who make the law and those who apply it.
In other words, jury trials are there to prevent judges to create law as it
fits them.
In civil law countries, the law is codified by the State (and in a
democracy, the law is written by the People's representatives) and judges
can only read/interpret the law. They cannot make it, so the separation of
powers is built in the system. However, popular juries still exist in civil
law countries, perhaps due to the practical fact that a Penal code doesn't
provide the "internal conviction" (which doesn't depend on the law, but on
facts) required for the final judgement in the most difficult cases.
However, for the majority of offenses, civil law countries use bench trials,
not jury trials.
Again, IANAL so I could be completely off base here.
G.
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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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On 27 Apr 2008 18:10:24 -0400, Warp <war### [at] tagpovrayorg> wrote:
>
> Moreover, putting it bluntly, in average half of the jury will have
>less than average IQ, is some cases even significantly low IQ. This may
>affect negatively their capacity to judge something impartially and
>rationally.
You don't really get the point about being tried by a jury of your
peers, do you?
It is not an education based safeguard but a class based safeguard.
Although there is talk, here in the UK, of having specialised juries
or no juries but a panel of judges, for financial and technical
trials. It is the job of the lawyers to explain to laymen the case and
the judge to interpret the law, amongst other things.
--
Regards
Stephen
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On Mon, 28 Apr 2008 08:47:05 -0400, John VanSickle
<evi### [at] hotmailcom> wrote:
>In short, trial by jury means that in disputes between the government
>and the people, the people decide.
[snip]
I wish that I had read this before posting my own reply then I needn't
have bothered. Well put!
--
Regards
Stephen
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Having served on a few juries here in the U.S., my experiences tend to confirm
most of Warp's concerns as valid. The problem with the alternative is that
judges are either directly elected or appointed by elected officials who are
voted into office with even less reasoning and objective scrutiny than one
finds in a jury trial. Suspicions that those in power are not acting with the
interests of justice as their primary motivating force are often well founded.
Panels of knowledgeable individuals seeking to act genuinely in the interests of
justice would indeed be a vast improvement over the current system, but that's
NOT what would happen were the right to a jury trial to be abolished. The U.S.
is a fragmented society in which religious, ethnic, racial and class bigotry
abound (middle-aged white male of above average income speaking). For all of
its flaws, the jury system is a very necessary check against the unlimited
exploitation of ordinary people by the privileged classes.
Best Regards,
Mike C.
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Gilles Tran <gil### [at] agroparistechfr> wrote:
> In other words, jury trials are there to prevent judges to create law as it
> fits them.
I thought the Constitution (and the comissions created to impose it)
exists precisely to stop law-makers (and, in this case, judges) from
creating unfair laws.
Anyways, why should 12 people who have not been elected by the community
be representing the wishes of the community with regard to law? Isn't that
the task of elected representatives?
--
- Warp
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John VanSickle <evi### [at] hotmailcom> wrote:
> 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?
The big problem I see in this case is that 12 persons *who have not
been elected by the people* are representing the people. They may or
may not truely represent the opinion of the majority, at random.
Also, these 12 people usually have no education nor experience about
how law, politics and criminology works. What is worse, the views and
expectations of these people on these subjects may be colored, if not
even twisted, by the media. Thus they might not be the best people to
decide about critical issues related to these things.
> 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.
It would be nice to know if the result would have been different if the
jury consisted of trained and experienced professionals (of law, criminology
and forensic science) instead of random people.
--
- Warp
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Stephen <mcavoysAT@aoldotcom> wrote:
> You don't really get the point about being tried by a jury of your
> peers, do you?
I, once again, would like to make the comparison: If there's a crime
in progress, would you prefer experienced trained police officers to
handle it, or a lynch mob of random people?
The lynch mob may consist of "my peers", but they do not have the proper
education, training nor experience to handle these things properly (ie. to
make sure that suspects are secured and innocent people protected).
--
- Warp
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