One of the oldest institutions of the common law is the jury. It evolved so as to ensure that the judgement on the accused was passed by his/her, fellow-subjects. The object for the establishment of this institution was to secure that the accused at a criminal trial went through a process that the other citizens felt was fair in the determination of the facts. Giving juries the power they have over the right of the accused expresses the English and common law legal systems’ faith in the role of juries in democracy and the confidence that jury trials can be just, precise, and unbiased. However, while theoretically the jury system is supposed to be an efficient democratic instrument, in practice its disadvantages outweigh the advantages.
Comparison of the Advantages and Disadvantages of Jury
In the days when trial by jury was made a permanent fixture of the legal system, there were questions about the impartiality of the judges. It happened because the judges served at the behest of the monarch and thus had a duty to him, factual or psychological, to make decisions that were not against the monarch. Thus, in cases where the monarch had a direct interest in, the subject would have little to no chance of having a fair trial. Moreover, those were also the days when the legal system was not well developed and thus, the role of the judges, solicitors and barristers and their separation from both the church and the state was not well pronounced. However, with the development of the legislation, the legal system and the judiciary was extricated from the claws of the executive. As such, judges could be trusted to make an impartial decision without the help of juries. In this regard, although the cases like the Bushell’s Case and R v McCenna unequivocally established the independence of the jury, there is little doubt now that judges are both independent and impartial too. This fact obliterates the basic argument used to support the need for jury trials that of the impartiality of the jury as the judicial officers are highly impartial and independent.
The second reason the proponents argue for the continued use of jury trials, especially in criminal law, is the fact that jury trial provides a particular form of legal certainty. In England and Wales, after a jury trial, there can be no retrial in most of the cases. Nevertheless, there are several exemptions to this rule like in case where there is jury nobbling. In such tainted cases, a retrial is allowed. There is even an offence of intimidating or threatening to harm a juror. However, there is a belief that in spite of all these precautions, throughout history jury nobbling has resulted in frequent acquittals which both legal professionals and the general public feel were wrong. Additionally, the legal system has been constructed in such a way so as to prevent enquiries into the deliberations of the jury after a verdict so as to avoid cases of disrepute. The case of R v Connor & Mirza reaffirmed this decision by explaining that evidence as to things jurors said during deliberations in the privacy of the jury chamber are inadmissible as evidence in court. The prohibition on enquiring about jury deliberations even includes appeal judges. Subsequently, in cases where a juror or another person alleges cases of bias or wrongdoing, there can be no redress. It is particularly painful when compared to judged and administrative bodies where a proof of bias could result in a retrial.
Another reason jury system has survived in the legal system is that taking into consideration a percentage of what the criminal justice system spends, they are not expensive as most occur in the magistrates courts. However, this representation is not entirely true. Moreover, proponents of juror trial argue that the fact that the prosecution and defence can challenge any juror will not be impartial and have him/her removed from the jury panel is another advantage. This fact stays in contrast to having an appeal in a trial without a jury which not only takes valuable judicial time but is also costly. However, these two related points of view taken as one have several misgivings. In the first place, jury trials are by default more costly and take a lot of time. The court system has to provide jurors with facilities, for instance. The fact that both the prosecution and the defence are allowed to vet jurors is not only against the principle central to the selection of jurors, the principle of a random selection but also does waste time and can be used by the defendants to manipulate the system.
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Jury trials are also inclined to have perverse judgments in some cases. However, this has been seen as one of the advents of the jury system as they are thought to bring ‘real world’ knowledge to the courtroom. Consequently, the juries can avoid an unjust law including a precedent without breaking it. Thus, according to the proponents, it makes jurors a better judge of facts than professional judges who might not relate to the facts in question in the case. For instance, a judge might not relate to the tough neighbourhoods of inner cities that might drive a young person towards crime, and thus, would not empathize with the defendant. Besides, a perverse decision of 12 jurors will be more acceptable to the public than one by a single judge or magistrate. The argument is erroneous in several ways. Firstly, jurors are only called to judge facts as they are i.e. whether the specific events in question did take place, and not fail to ascribe criminal liability where it is due. The fact that juries may be more reluctant to convict once the prosecution has established the incriminating facts, the jury should move ahead to convict. Otherwise, failing to convict when the prosecution has established the facts beyond the legal threshold because the jury empathizes with the prosecution would lead to guilty defendants getting acquittals. Such action is undemocratic and unwelcome in a justice system that wants to sanction the guilty and spare the innocents.
Juries have also won many people over because one undergoes a trial by a “jury of his/her peers.” This way, the jury is able, in the first place, to provide a barometer of public opinion. Secondly, juries are by default assumed to be ordinary honest citizens applying common sense to solve legal problems, who are not only eager to do their civic duty but also do their best to uphold the law. However, there are several drawbacks to this argument. Firstly, some cases require a level of technical training, and it might be inherently unjust to try them before a jury. An example is tax and fraud cases that not only take a long time but also might be too complicated for the common mind to grasp. In addition, it is possible that a juror may not understand or may choose to ignore the legal threshold for conviction due to emotiveness of an issue, and local prejudice may play its role in such case. An example is the Litchfield case which had to be moved from its original place of trial. Also in cases that capture public attention like paedophilia and those involving the murder of children, the juries’ empathy with the victims of the crimes can lead to a conviction even with less convicting evidence. One has to take into account that a judge is trained to discount evidence that he/she does not find to be of great probative value. Juries are made up of laypeople who have minimal understanding of the law, and thus, some of the nuances may not only escape them but might also result in injustice.
Lastly, there has always been an argument that as the court chooses a jury panel randomly, they are more likely to be representative. However, juries by their very composition do not represent the population at large. Women and ethnic minorities have always had an underrepresentation in jury panels. Moreover, large sections of the population are excluded from jury panels as a result of ineligibility, disqualification or an excusability as of right. This exclusion does not only affect the representativeness of the jury system but also affects the legitimacy of the jury panel, and thus its subsequent decisions.
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In theory, the jury system was supposed to be an efficient democratic instrument. However, its disadvantages outweigh its advantages. From the dissection above, it is manifested that for every benefit the jury system conveys on the legal system, it also brings with it a list of drawbacks. Consequently, there would be many practical advantages in scrapping jury trials as it has more sentimental than practical use in a democracy now. Chief among the advantages that would accrue from scraping the jury system are lowering of costs, reducing time spent on trial, and ensuring that external considerations such as empathy do not affect the judicial process. Additionally, it would reduce cases of injustice through jury prejudice such as that apparent in R v Connor & Mirza. Lastly, cases that require technical expertise will be better served by a person professionally trained in the art of law such as a judge or a magistrate.