Rule of law: Merits and pitfalls of juryless trials under the microscope
Margaret TaylorTuesday 10 January 2023
When the French government axed jury trials for most rape cases at the beginning of January, judges and lawyers were outraged. Writing a piece for Le Monde newspaper and backed by hundreds of legal professionals, Benjamin Fiorini, lecturer in Private Law and Criminal Sciences at the University of Paris, said the move severed a key link between the judiciary and ordinary citizens and brought an end to a system that dates back to the French Revolution.
‘The popular jury of the assize court […] shining symbol of participative democracy, is on its way to extinction’, he wrote. France’s Justice Minister highlighted however that ‘if there is an appeal, the case is tried again by the traditional assize court […] and the most serious crimes are still dealt with at the assizes.’
There was a similar reaction in Scotland in 2021 when the country’s top prosecutor, Lord Advocate Dorothy Bain KC, suggested piloting judge-only panels for sexual offences cases, citing research from University of Glasgow academics that warned jury prejudices were leading to persistently low conviction rates. Leading defence advocate Frances McMenamin KC noted that ‘even other countries not so historically associated with democratic traditions and institutions are turning towards a jury system, such as Argentina and Bulgaria’.
Yet for Sabine ten Doesschate, Senior Vice-Chair of the IBA Criminal Law Committee and a partner at Dutch firm Sjöcrona van Stigt, it’s ‘super normal to not have a jury’, with the legal system in the Netherlands being based on ‘written rules and regulations rather than on case law’. Far from representing an undemocratic process, the system ensures the rule of law is upheld and justice is served, she says. ‘Those rules require a lot of interpretation so it makes sense that it’s a professional judge who interprets them’, she explains. ‘If you’re only talking about establishing the facts of a case I could understand that non-professional people on a jury would do it just as well or better than a judge, but a big chunk of what a judge is required to do is interpret the law. I couldn’t imagine a jury doing that.’
Yet that’s exactly what juries are asked to do in many countries. Proponents say it’s the best way of ensuring the rule of law is upheld but that hasn’t always been the case. Indeed, Matt Kaiser, Senior Vice-Chair on the IBA Criminal Law Committee and a partner at KaiserDillon in Washington, DC, highlights that in some southern American states, changes had to be made to the jury system to ensure that individuals didn’t apply their collective prejudices to the detriment of the accused.
We all have biases and we’re never going to iron that out
Matt Kaiser
Senior Vice-Chair, IBA Criminal Law Committee
‘The law here is caught up with America’s regrettable history with race and until recently in Louisiana you could convict someone of a serious crime without having a unanimous jury,’ he says, noting that all but one other state had that requirement at the time Louisiana’s law changed. ‘If you had a majority it was enough but you had horrible racial outcomes, where eight white jurors would vote to convict [an accused Black person] and four Black jurors wouldn’t but the person would go to prison for a long time.’
Kaiser says these juries were influenced by individual members’ biases – as the Glasgow research indicates happens in sexual offences cases – with jurors’ ‘biases reflecting societal biases’. Kaiser adds that ‘we all have biases and we’re never going to iron that out – it’s just going to be a flawed decision-making process’.
In some countries the jury process is seen as the lesser of two evils, the assumption being that a panel of peers will have fewer biases than a single or three-strong bench of judges, and so using juries is the best way of ensuring democracy and the rule of law prevail. In Uruguay, however, the jury system was seen to be so corrupt – and so corruptible – that it was abandoned in the 1930s. ‘The Uruguayan Constitution is based on the US Constitution and for a century after 1830 [when the country’s first constitution was adopted] we had jury trials for criminal cases’, says Leonardo Melos, Co-Vice Chair of the IBA Access to Justice and Legal Aid Committee and a partner at Montevideo firm Bergstein Abogados.
Melos describes a specific case involving a land-owning man with significant political influence who was imprisoned for allegedly paying for his wife to be killed, but who – after serving in prison – was ultimately acquitted by a jury. ‘That created a massive reaction [from] the population and the President and parliament decided to abolish jury trials’, explains Melos.
While Uruguay continues to view the absence of juries as the best way of avoiding potential corruption, Spain, for example, takes the opposite view. Adriana de Buerba, Co-Chair of the IBA Criminal Law Committee and a partner at Pérez-Llorca in Madrid, says that juries were introduced to Spain’s Constitution at the end of the Franco dictatorship ‘to allow people to participate in the administration of justice and to enhance the trust of the population in the administration of justice’.
That said, Spain only uses juries for a limited number of cases, including murder and matters involving public officials. ‘All offences involving the corruption of officials are tried by a jury and the only exception is miscarriage of law because it’s very technical’, says de Buerba. ‘It wasn’t until 1995 that the law on juries was passed […] It was an experiment – let’s include a few offences and see how it goes – and the practical experience has been uneven.’
De Buerba says there have been a few major scandals involving jury trials, such as when homophobic bias led to a woman being convicted for the murder of her female partner’s daughter without any evidence being presented. However, ten Doesschate says there have been instances in the Netherlands where judges convicted the wrong person based on their own biases or misreading of the facts.
While both judge-only and jury trials have been proven to serve justice and uphold democracy reasonably well, it’s clear that both systems have their flaws. Ultimately, as Melos says, all lawyers ‘are conditioned by their own legal tradition’, but just because they are used to doing things one way doesn’t mean the alternative is inferior – or that system change should be instantly dismissed.
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