If you want to design a criminal trial system that is expensive, time-consuming and potentially ineffective, then you need 12 honest citizens.
The jury in its early days was very democratic – their peers decided the fate of the accused.
In recent years, lawyers and judges have been trying to rebuild the building, so that the democratic idea is not too far away, and the chances of a “departure” – that is, a fair trial – are better.
For example, in the Middle Ages only a small population, mostly living in villages and towns, would have known the accused. They will immediately know the events that led to the alleged crime.
Judging someone on that basis is very democratic.
Times have changed. Today, any judge who knows about the accused is barred from participating in the trial. They are also not allowed to have their own knowledge or understanding of the nature of the alleged crime.
Democracy is good, but not good. The judges want to control their patch and the current rules say that the twelve see and hear what the court allows. The heavens know many interesting things that do not enter their ears and eyes. Today, information and knowledge are everywhere, which means that citizens’ judgments are less biased than ever before.
And the thirst for knowledge is unquenchable. Although people are advised 17 times to focus only on the evidence in court and not look elsewhere, people’s temptation is to reach out.
Judiciary weakness is evident, according to trial judge Bruce Lehrmann. Since the system has become so corrupt, the courts are now frustrated and ineffective in dealing with the risk of early litigation.
The only alternative was to lock the jury in sealed chambers for the duration of the trial.
Otherwise, the way remains open for defense attorneys to present arguments for their clients, in highly publicized and highly contested cases, to avoid convictions at all.
While citizens are prone to prejudice, judges are not, and apparently, they can be independent and make a reasonable decision on a background that would be considered harmful to a moderate citizen.
The judge in Lehrmann’s trial was so adamant that he left his research papers in the room, the police found. That was the end. There is no need for the judges to continue their fruitless argument to reach a verdict.
If, on the other hand, the judges conducted some research on the peace and quiet of their own homes, who knows? A poor verdict may be handed down, and the judge congratulates him on a remarkable achievement.
The world has moved on, but the judges are stuck in an artificial age. Blasphemy and crime were two areas where community involvement in litigation was considered effective. Now juries are not heard in defamation cases, nor are they in other civil cases. They are committed for serious crimes. But how long? Lawyers traditionally love judges. They are the audience that needs to be persuaded, and the opportunities are dwindling.
And while there’s more than a cross section of low-level citizens to be found in the courtroom, there’s also the smart ones who sniff out the wrongdoing and smell the 20 speed.
That is the problem – the cause of so much delay and the inability to achieve an outcome.
Scottish judges can give three possible verdicts: guilty, not guilty and not found guilty. In sexual assault cases where there are few outside witnesses, judges have reverted to “not tried” – and are called police for failing to reach a verdict.
The French, as well as other countries’ systems for serious criminal cases, do it differently. Usually three judges sit alongside six lay judges. The decision is made together.
This system is intimidating to ordinary lawyers in the English culture. After all, it is French – although there is little cross-fertilization between the two.
Another feature of the country’s trial is that the right to remain silent is limited but the focus of the trial is on the criminal trial itself – the textbook.
This is a file that contains all the police work and the judge d’instruction. An important part of the French system is the examination of the character of the accused. It may be considered harmful to the home country.
It’s an investigative process rather than an investigation and its focus is on killing witnesses. It’s investigative, not gladiatorial.
We were raised to believe that our common law approach to criminal justice is the flower of justice. Unfortunately, no, but the players on the stage are able to test other systems and work in a world that is very clear and unavoidable.