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Thinking Outside the Jury Box

In Home Affairs, Judicial Spotlight, Law And Order on September 16, 2010 at 11:52 pm

By polarii for The Daily Soapbox

Part of September’s Law and Order Series

Jury trial is an old idea. Not as old as trial by judge, but still old. Its origins rest in Early Greek customs for complex cases; sometimes, both defendant and prosecutor would have grievance with each other, and would take the matter to the elders of the town for resolution. Each of the elders would give an opinion concerning the case, and that opinion which found favour with the people – and so by public pressure would find favour with both parties – was adopted. The elder who had given the most popular judgement was rewarded an often substantial fee for his mediating. But in short, here the origins of jury trial exist; the weight of the opinion of the people could force a judgement in legal cases.

A few hundred years later, in democratic Athens, the aristocratic or monarchic elders were removed, and the people spoke directly on verdicts. This was the beginning of jury trial proper. The Athenians grew democracy pretty much by accident, and its court system was no exception. Juries ranged in sizes from modern sizes to up to 500. Women, foreigners and slaves could not serve, and the jury’s opinion was easily swayed (and prosecutors exploited this) by things such as plays and the ‘general opinion.’ As jury trial has evolved in the West, we have ironed out some of the weaknesses of this system.

But that’s not to say that the Athenian system was not without strengths. It is often not noted that many of the Athenian jurors were old men. This served a dual purpose to Athens; older people were genuinely received in ancient Greece (and I don’t think this is unreasonable) to be wiser and more experienced in arriving at right judgements. However, since jurors were paid, it also served as a pension system for the elderly who were prepared to commit to sustaining their state. This is something that we might adapt in the UK. Perhaps there is room to prefer mentally competent OAPs on juries. We might extend this to mentally competent disabled people, who are otherwise unable to find work. This would have the additional advantage of producing a pool of experienced jurors, who would be able to give straighter judgements than a random selection of individuals. It does do away, to some extent, to trial with a jury of peers – but I would actually prefer the jury that tried me to be more experienced in adjudicating the law, rather than my peers, who are not always the most level-headed.

Another thing the Athenian courts allowed was the defence and prosecution to propose a sentence once convicted. This led to some very interesting situations, as the jury had to choose between the two. In the trial of Socrates, he suggested that his punishment should be to be fed by the city for the rest of his life. The prosecution suggested death. The jury voted for death; in fact, more jurors voted for his execution than his conviction. We could adapt this for the UK system, as, unlike the Athenians, we have professional judges. We could have the protagonists propose punishment, and then the judge moderate the two. This will allow the judge to consider the impact of the crime on the family – often do we decry the leniency of a murder sentence when the bereaved wife has three children and no job – and also the intentions of the defendant – the case of Paul Clarke, who was given a suspended sentence for handing in a gun that he found in the park. This presupposes the abolition of minimum sentences, and also that judges will be confident in their independence to move beyond the brackets of the punishments of the prosecution and defence. Otherwise, we essentially arrive at plea bargaining; the prosecution may ask for a guilty plea in return for suggesting a lenient punishment, thus lowering the upper bound of severity.

Very, very occasionally, the jury would ensure that a member with certain understanding or expertise served. This was because the jury acknowledged that they did not understand some elements of the case. This is something modern juries, and indeed judges, should also be able to do. In complex medical trials, expert witnesses can bandy about statistics furiously, with the average juryman becoming increasingly confused, leaving room for a less certain confusion. If however, the judge provided an independent statistician or clinician for the jury, the understanding of medical cases, and other technical cases, would be greatly enhanced.

All these changes have some sort of precedent in ancient Athens, cradle of jury trial and democracy. They are all a bit ‘outside the box’, hence the title. But they’re all quite easy to implement – particularly the inclusion of statisticians – and not difficult to fund, particularly if we are cutting a load of data-generating quangos from which we can salvage the intelligent statisticians. Athenian jury trial wasn’t perfect, for sure, but that doesn’t mean that there is nothing useful left to retrieve from the founders of the institution, albeit the founders who didn’t expect it to last or work.

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  1. I definitely wouldn’t want juries filled with my grandparents’ friends, many [most?] of whom are at least mildly racist.

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