Trial by jury! Why?

[Farm Boy]

Which raises the question: what is the burden of proof for criminal (and civil) cases in Brazil?

Just to expand on the information above, if you don't mind BvBPL, burden of proof for civil transgressions in the US is "a preponderance of the evidence."

 

[EnglishEdward]

Just to expand on the information above, if you don't mind BvBPL, burden of proof for civil transgressions in the US is "a preponderance of the evidence."

Despite their faults, juries are essential to help keep lawyers' logic in the real world.

 

[amadeus]

A lot of it would have to do with the judge, as well. You really don't want to be at the mercy of a law-and-order "hanging judge" who typically sides with the prosecution on virtually all issues. Just having one presiding over your case is bad enough.

The same should apply to a bleeding heart who would let off violent criminals because it was, in their minds, the fault of institutionalized discrimination against minorities and the poor.

 

[Formaldehyde]

Do you have an example of a bleeding heart judge who let someone who was guilty go free because they were likely discriminated against much of their lives?

And if so, do you think that is as bad as sending someone who was innocent of the charge to prison on the presumption they likely committed some crime at some stage of their lives?

 

[amadeus]

I just thought we were making unsubstantiated claims about perceived injustices by the court system.

 

[Rashiminos]

A judge is no less subject to public pressure than a jury and I would fear that giving judges that power in high-profile cases could result in abuse for personal financial or political gain.

Could?

Does.

 

[amadeus]

At least in those cases the judge has less power to alter the outcome. It's ultimately still up to the jury to decide.

 

[Farm Boy]

I think we can agree hangman judges as well as overly lenient judges would both be acting outside of the best interests of a well founded and just society. Jury trials at least help ground criminality within the larger common standards of the society.

 

[Formaldehyde]

I just thought we were making unsubstantiated claims about perceived injustices by the court system.

Au contraire. They are quite real. Most jurisdictions have at least one judge that all defense attorneys wish would not hear their cases. Here are a few legendary examples from history:

Roland Freisler, President of the People's Court during Nazi era Germany. He was known for (as his additional role as being court reporter) manipulating the transcripts to make the defendants guilty, and also for screaming the sentences to defendants - so much that in one politically-charged trial, the news media found it hard to comprehend what he was saying. He also was responsible in his three years on the bench for the majority of the death sentences the court ever issued - including some, like Helmuth Hubener (only 17), despite the recommendations of the Gestapo against executing him.
As a side note, Freisler was killed by a collapsed beam when a bomb fell on his courthouse.

Judge Jeffreys (or to be exact, George Jeffreys, Baron Jeffreys of Wem) was called both "the Hanging Judge" and "the Bloody Judge" as a result of his habitual excesses, particularly during the so-called "Bloody Assizes" that marked the putting down of the Monmouth Rebellion of 1685. Jeffreys was notorious for his manipulation of juries and his violent language toward prisoners and witnesses even in that unscrupulous age. He has been a popular figure in historical fiction set in the seventeenth century, and has become for Britons the archetypical Hanging Judge.
Judge Jeffreys starred in Neal Stephenson's The Baroque Cycle as one of the protagonists' nemeses.
He was also a villain in Peter S. Beagle's Tamsin.
He appears in Rafael Sabatini's Captain Blood: His Odyssey and in the film based thereon; Sabatini incorporates historical dialogue reportedly used by Jeffreys from the bench.
Jeffreys also appears in the background of M. R. James's ghost story, "A Neighbour's Landmark," and in person in his "Martin's Close."
Christopher Lee played Judge Jeffreys in Hammer Horror's The Bloody Judge (released in the US under the title Night of the Blood Monster).

Judge Isaac Parker of the US also earned the nickname "the Hanging Judge" for his harsh sentences.

John "Maximum John" Sirica, who presided over the Watergate scandal, might qualify. Lawyers who appeared before him gave him the nickname because he always applied the maximum penalty under the relevant sentencing guidelines.

Athenian lawgiver Draco is the Ur Example, giving us the word "draconian" to describe excessively harsh punishment. It is said that when asked why minor offences get the same death sentence as the serious ones, he agreed that it is indeed unjust, but he couldn't think of any punishment harsher than death (good they didn't have TV Tropes back then).

Time/Life treats Issac Parker, a Hanging Judge, in a favorable light, claiming that he was a Lawful Good or at least Lawful Neutral who brought peace to a lawless territory, and, among other things, treated Indians as fairly as whites. According to Time/Life the only reason he hanged so many people was that there was an excess of outlaws in his territory who of course "needed killin'." Your Mileage May Vary.

And a great modern day example would be the honorable Supreme Court Justice Antonin Scalia, whose opinion on the death penalty appears in my current sig. He believes that the death penalty should be mandatory in most cases where a person is intentionally killed, and that any jurist who disagrees with him should immediately resign:

From Justice Scalia, a Chilling Vision of Religion’s Authority in America

Spoiler :

PRINCETON, N.J. -- Earlier this year Antonin Scalia decided to share some aspects of his worldview with the public. His inspiration seems to have been the death penalty: recent debates with his colleagues on the Supreme Court and his general reflections on the legitimacy of the state taking to itself the power to kill a citizen. Justice Scalia spoke on these matters at the University of Chicago Divinity School in January, beginning with the ritual disclaimer that "my views on the subject have nothing to do with how I vote in capital cases"; his remarks appeared in the May issue of First Things: The Journal of Religion and Public Life. They are supplemented by his dissent to the court's decision on June 20 that mentally ******** people should not be executed. Justice Scalia's remarks show bitterness against democracy, strong dislike for the Constitution's approach to religion and eager advocacy for the submission of the individual to the state. It is a chilling mixture for an American.

Because Mr. Scalia is on the Supreme Court, and because President Bush has held him up as an example of judicial greatness, his writings deserve careful attention.

Mr. Scalia seems to believe strongly that a person's religious faith is something that he or she (as a Roman Catholic like Mr. Scalia) must take whole from church doctrine and obey. In his talk in Chicago, Mr. Scalia noted with relief that the Catholic Church's recent opinion that the death penalty was very rarely permissible was not "binding" on Catholics. If it had been, Mr. Scalia said, this teaching would have led the church to "effectively urge the retirement of Catholics from public life," given that the federal government and 38 states "believe the death penalty is sometimes just."

Mr. Scalia apparently believes that Catholics, at least, would be unable to uphold, as citizens, views that contradict church doctrine. This is exactly the stereotype of Catholicism as papist mind control that Catholics have struggled against throughout the modern era and that John F. Kennedy did so much to overcome. But Mr. Scalia sees submission as desirable and possibly the very definition of faith. He quotes St. Paul, "For there is no power but of God: the powers that be are ordained of God."

"The Lord," Mr. Scalia explained in Chicago, "repaid did justice through His minister, the state."

This view, according to Mr. Scalia, once represented the consensus "not just of Christian or religious thought, but of secular thought regarding the powers of the state." He said, "That consensus has been upset, I think, by the emergence of democracy." And now, alarmingly, Mr. Scalia wishes to rally the devout against democracy's errors. "The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible," he said in Chicago.

Mr. Scalia is right about one thing. Modern democracy did upset the divine authority of the state. That has usually been considered by Americans to have been a step forward. The great 17th-century dissenter Roger Williams declared that government derived no authority whatsoever from God, but was "merely human and civil." Thomas Jefferson put matters bluntly in 1779: "[O]ur civil rights have no dependence on our religious opinions any more than on opinions in physics or geometry."

Such a belief in the worth of people independent of religious considerations (whether their own or those of the state) has distinguished secular democracy. This seems to irritate Mr. Scalia. It seems to indicate a humanist egotism that might lead a person to think individual lives are so valuable that it is not the privilege of the state to take them. "Indeed, it seems to me," Mr. Scalia said in Chicago, "that the more Christian a country is the less likely it is to regard the death penalty as immoral. Abolition has taken its firmest hold in post-Christian Europe, and has least support in the churchgoing United States. I attribute that to the fact that for the believing Christian, death is no big deal."

In Chicago, Mr. Scalia argued strenuously that in America a judge who morally opposed the death penalty ought to resign. "Of course," Mr. Scalia said, "if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty and if that fails, lead a revolution."

One senses that Mr. Scalia's true priority is to get secular humanists off the federal bench. In his dissent to Atkins v. Virginia, the recent decision against executing mentally ******** criminals, Mr. Scalia wrote, "Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members." The ones he had in mind were not all the members, just the six who disagreed with him. Mr. Scalia dissents vigorously against them for letting their personal notions infect the law.

In Chicago Mr. Scalia asserted, not for the first time, that he is a strict constructionist, taking the Constitution as it is, not as he might want it to be. Yet he wants to give it a religious sense that is directly counter to the abundantly expressed wishes of the men who wrote the Constitution. That is not properly called strict constructionism; it is opportunism, and it threatens democracy. His defense of his private prejudices, even if they may occasionally overlap the opinions of others, should not be mislabeled conservatism. Justice Scalia seeks to abandon the intent of the Constitution's framers and impose views about government and divinity that no previous justice, no matter how conservative, has ever embraced.

 

[Farm Boy]

How did a thread about trial by jury become a tl:dr rant about Scalia?

 

[Formaldehyde]

The topic of capital punishment has been mentioned repeatedly in this thread. It is really the essence of the issue of trial by jury, since it is the one sentence which can not be reversed at some stage.

 

[Farm Boy]

Trial by jury is by no means limited to capital punishment. The essence of trial by jury is that the revocation of rights must be approved by the peers of the accused. Right to life is but one of many.

 

[Formaldehyde]

I believe the death penalty is the only sentence which is always decided by a jury in this country. Furthermore, I believe all cases where the death penalty might be handed out must be decided by a jury.

 

[Farm Boy]

It is true that capital crimes have additional jury protections if the prosecution is seeking the death penalty. Jury protections while applicable to capital punishment are not exclusive to them. Unless I am mistaken, any criminal offense(or very nearly) gives the defendant the right to have a bench or jury trial. It might just be that in order to sanction execution both a jury must find, and recommend a death sentence, and judge must also then choose that as the sentence.

 

[Elrohir]

Au contraire. They are quite real. Most jurisdictions have at least one judge that all defense attorneys wish would not hear their cases. Here are a few legendary examples from history:

Please tell me you didn't just cite tvtropes for historical examples.

 

[Takhisis]

As a juror, you don't usually have the luxury of circumventing the existing laws, even though jury nullification still occasionally occurs, especially under those exact circumstances. But I would never serve on a jury that had to make that decision. I would excuse myself on the grounds that I would likely do just that.

What I find particularly reprehensible is that many states only require a majority of the 12 jurors to decide to execute someone instead of requiring a unanimous decision.

In the jury which I served last year, I was amazed that a detective could coach the victim to a huge extent to make a secretly recorded phone call to the plaintiff, which would literally provide the only real substantial evidence that a crime had occurred when he essentially confessed. But that is apparently quite legal to do so. Even so, the other jury members did not realize the importance of what he had stated until we intently listened to his exact words during deliberation. It was very difficult to make out exactly what was said over the PA system in the court room.

All in all, I was incredibly impressed by the entire proceeding. The system can work amazingly well when jurors who are intelligent, rational, and interested enough that justice be served can be found. Even the judge, who was a Bush appointee, impressed me with his demeanor and even-handedness.

The topic of capital punishment has been mentioned repeatedly in this thread. It is really the essence of the issue of trial by jury, since it is the one sentence which can not be reversed at some stage.

Yes, I don't want to derail this into the usual argument about the death penalty, but putting an end to a person's life is not an option.

Back to the juries, what are the requirements to be (or not be) a jury in the US?
Can you appeal on the grounds of a biased jury, say on race or religion?

Trial by jury is by no means limited to capital punishment. The essence of trial by jury is that the revocation of rights must be approved by the peers of the accused. Right to life is but one of many.

No, the right to be alive is not the same as the rest.

 

[MagisterCultuum]

The right to trial by jury is secured by the U.S. Constitution, specifically the Sixth and Seventh Amendments of the Bill of Rights.

Article the eighth ... In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Article the ninth .. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Note that the constitution makes no mention of inflation, so even though it originally would have required the right to a jury trial in suits over several thousands of dollars in today's money there is nothing to stop you from demanding a jury over really trivial sums (far less than the attorney fees a jury trial would cost both parties).




I tend to think that the problem with jury trials is jurors hands are tied too much. Judges instructions to juries tend to go too far. Each and every juror ought to have as much right to cross examine witnesses as do the attorneys for the prosecution and the defense.The jury should never be limited to determining only whether the accused is guilty of the charges that the prosecutors are perusing, but should always be able to find guilt on lesser charges. I would not require a simple binary option of guilty or not guilty, but also allow a non proven verdict in cases where there is not enough evidence to either exonerate or convict so that there could be a retrial if new evidence turned up. I might even go so far as to allow juries to determine the guilt of a parties other than the accused.

 

[Takhisis]

Interpretation of the spirit of the law will mean that they'll throw the book at you if you sue someone at court over 20 dollars.

 

[Berzerker]

"Indeed, it seems to me that the more Christian a country is, the less likely it is to regard the death penalty as immoral." Supreme Court Justice Antonin Scalia

I tend to think that the problem with jury trials is jurors hands are tied too much. Judges instructions to juries tend to go too far. Each and every juror ought to have as much right to cross examine witnesses as do the attorneys for the prosecution and the defense.The jury should never be limited to determining only whether the accused is guilty of the charges that the prosecutors are perusing, but should always be able to find guilt on lesser charges. I would not require a simple binary option of guilty or not guilty, but also allow a non proven verdict in cases where there is not enough evidence to either exonerate or convict so that there could be a retrial if new evidence turned up. I might even go so far as to allow juries to determine the guilt of a parties other than the accused.

and let juries sentence the convicted

 

[Farm Boy]

Yes, I don't want to derail this into the usual argument about the death penalty, but putting an end to a person's life is not an option.

Back to the juries, what are the requirements to be (or not be) a jury in the US?
Can you appeal on the grounds of a biased jury, say on race or religion?

No, the right to be alive is not the same as the rest.

I'm not up on the details, but arguments could be made that the juror selection process was flawed. That would usually have to hinge on the defense being incompetent or corrupt somehow, since both sides have the right to exclude jurors from the pool.

Unless I am very mistaken almost all adult citizens can be summoned for jury duty. It isn't an option to respond to the summons, they are compulsory. Potential jurors can appeal summonses as causing undue hardship, they may be excused on such grounds.

While I will agree with you that the right to be alive is unique in that it cannot be revoked and then later reinstated if the revocation was in error, and on that basis we should not execute people, its unique status does not make it inviolable. The state treats the right to life like any other insofar as it has protocols for situations where it is appropriate to remove. Many states and the Federal government still have capital crimes. Police officers have sometimes surprising(sometimes not) latitude to kill citizens in the line of duty. No criminal proceedings required at all.