James Duncan

The central plank of trials within a jury based system is this: "No free man shall be captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgement of his peers, and or by the law of the land" (Spooner, 1852). The implications of this are very weighty indeed.

To realise the full sense to which this reflects a democratisation of justice compared to a purely judicial system, it is merely necessary to consider the Socratic judgements of antiquity, or the very wide latitude given to Japanese judges today. The freedom of action and interpretation that is held by one individual in these cases has two primary problems. Firstly, justice is hugely dependent on the competence and impartiality of one person, with a single point of failure for corruption to be introduced. Secondly, judges have been of high social status throughout history, and thus can be criticised as having a possible lack of intuition and empathy with poorer defendants. The extent to which these criticisms still hold is shown in the fact that these are frequent critiques of the modern Magistracy.

In contrast to this, a jury trial puts the finding of fact into the hands of social peers of the defendant. This has several major advantages. The people who are tasked with finding facts are not known before trial, and this greatly limits the opportunity of the parties to build a corrupt relationship with them. In addition, the jury is likely to have a greater experience of contemporary cultural trends and pressures then a judge who has spent 30-40 years in intense study of the law, and a correspondingly greater understanding and empathy with the actions of the parties involved in the case. A jury also often has far less of a stake in political issues; we need merely consider the clerically dominated Star Chamber trials of John Lilburne to see this is a major protection from overbearing state power.

In purely representative terms a jury is also an important projection of the views of the community, and has often protected defendants from actions widely regarded as an unjust and undue application of the law. This has good and bad points. The concept of jury nullification does indeed represent a large protection against overbearing laws, as it owes an explanation to no man and can thus ignore the written statutes as it wishes. The disadvantage is that this has also often led to protections of societal norms in times of social conflict, with the famous discrepancy in treatment of black and white defendants in the courtrooms of the Deep South and the perceived injustice in the Los Angeles Rodney King case forming an unfortunate reflection of the prejudice of that society.

Regardless of this, the negative reaction of the media and population to the Falkner proposal to abolish jury trials in certain cases reflected the wide support for jury trials within the UK. The UK does have a somewhat unhappy history relating to judge-only proceedings, through the actions of the Northern Ireland 'Diplock' courts. The Diplock courts were set up in 1972, with the brief of effectively intervening against terrorism. This very assumption could be seen to reflect the view that a purely judge based system was more likely to convict in these cases, and thus reflects the importance of jury trial in other cases. The Diplock courts, as might have been expected, then proceeded to be involved in several extremely contentious convictions, notably that of Christy Walsh. In this case, several sections of the trial were criticised for unfairness during the trial itself, with the defence faced by a judge apparently uninterested in this (British Irish Rights Watch, 2006).

It would seem that the jury trial is a very fundamental defence against this. Yes, they can be both incompetent (the common quip is that your fate is chosen by twelve people who have failed even to avoid jury duty) and prejudiced, but it is this very humanity that means that injustice is more commonly avoided. A jury means that the law cannot be overly unbalanced without risking jury nullification, and also ensures that a comparatively impartial eye of the common man is on all proceedings, keeping the judge from departing too far from legal norms. As Jefferson states,

"We all know that permanent judges acquire an esprit de corps; that, being known, they are liable to be tempted by bribery; that they are misled by favor, by relationship, by a spirit of party, by a devotion to the executive or legislative; that it is better to leave a cause to the decision of cross and pile than to that of a judge biased to one side; and that the opinion of twelve honest jurymen gives still a better hope of right than cross and pile does." (Jefferson, 1789)

To understand the value of jury trials we need only to consider the quality of justice we had without them: the unjust Star Chamber has been replaced with the belief that the best guardian of the rights of the people are the people. As Spooner makes clear, this is the cornerstone of the modern legal system. As Faulkner's failure confirms, the political climate is such that it is likely to remain so, both now and in the forseeable future.

Word count: 931

Bibliography:

British Irish Rights Watch (2006) Failed by the System. Retrieved from http://www.birw.org/Christy%20walsh.html on 08/01/07.

Jefferson, T (1789) Thomas Jefferson to Abbe Arnoux, 1789. ME 7:423, Papers 15:283 Retrieved from http://etext.virginia.edu/jefferson/quotations/jeff1520.htm on 08/01/07.

Spooner, L (1852) An Essay on the Trial by Jury. Retrieved from http://www.geocities.com/Heartland/7394/lysander.html on 08/01/07.