The jury and democracy

(Presentation at the round table held on July 25th. in Berlin, Humboldt University, organized by The Law and
Society Association)

I) LAY PARTICIPATION IN ARGENTINA

More than one and a half century has passed since the enactment of the National Constitution of Argentina and
yet its mandates for the establishment of trial by jury are still pending. However, and for the first time in such a
long period, there have been signals of political willingness towards its implementation. In 2004 the House of
Senate produced a draft law establishing jury trials all over the country following the style of the classical
American-English twelve-juror jury. Contemporarily, one of the twenty-three provinces of Argentina –Córdoba
Province—enacted a law in force since January 2005, creating a mixed court composed of three professional
judges and eight jurors.

The House of Senate draft law expired for consideration in 2006. It was reintroduced at the end of this year and
is now again pending for consideration. The Córdoba Province law has been in force for more than two years
now. The question at stake is: “Are mixed tribunals better suited for Argentina?” My conclusion is that
notwithstanding its shortcomings and inconveniences, lay participation in the Cordoba mixed tribunals is
showing a great deal of approval by the people. We have the possibility to analyze some data.

During the year 2006, one of the offices of the Supreme Court of Cordoba Province in Argentina prepared a study
about jurors’ opinions. They tested a panel of 121 persons after their performance as jurors[1]. They concluded
that most of them: (1) Had no previous experience or knowledge of trial processes or had information exclusively
from the media or from friends; (2) Showed a favorable reaction when first notified of their appointment as
jurors; (3) Experienced no difficulties during trial hearings; (4) Felt that during deliberations they had had the
opportunity to express their own opinions; (5) Changed their minds favorably about the justice system and their
officers.

These results are meaningful but perhaps more meaningful are the comments by the media and how they
changed their opinion with the passing of time. Three months after the new law became established, when there
was no experience at all of its performance, “La Voz del Interior”, the best known and influential newspaper in
Cordoba, editorialized under the caption: “Many problems for the opening of popular juries” (editorial note of
April 24/2005). One year later, after two cases had been tried under the new law, the same newspaper published
a commentary announcing in its heading: “Two trials with jurors leave doubts and certainties”. In this
commentary an officer of the Court was quoted to have said that the final balance of the experience showed
that people were inclined to participate and that the fears of the unknown were vanishing (commentary by
Mariela Martínez, La Voz del Interior, June 25, 2006). Two years later, after an important number of cases had
been tried with jurors participating in the tribunal, the same newspaper published a commentary –written by
one of the public prosecutors in Cordoba—under the heading “Aprobare” (Latin word meaning approved). The
final sentence reads: “Today, members of the jury, you have been approved; congratulations” (Marcelo
Altamirano, La Voz del Interior, April 9, 2007). Another commentary announced “The people want to participate”
and quoted the opinion of one officer of the Cordoba Supreme Court in charge of the jury trial organization, who
had given account of the positive response from persons summoned to perform jury duties (La Voz del Interior,
April 9, 2007). A short essay prepared by the chairman of Cordoba Supreme Court (Armando Andruet Jr.) was
published in the newspaper edition of April 12, 2007 of La Voz del Interior. It said “[…] the citizens have shown a
remarkable variation in their opinion in favor of the performance of the criminal justice system in general, and
also of the judges and officers of the judiciary in particular”.

Apart from the Cordoba experience there is no lay participation of any kind in the justice system in the rest of
the country. At the national level, the opinions show a clear contrast with those reported for Cordoba. One
survey prepared for the Argentine Federation of Bar Associations concluded that, concerning its positive image,
the Judiciary and Congress rated as the worst. Another survey prepared for the Argentine Association of
Constitutional Law and the International Institute for Democracy and Electoral Assistance (Stockholm, Sweden)
showed that the Judiciary rated at the lowest level of trust. More data from that survey indicate that four people
out of ten do not trust their fellow citizens, although there is one answer worth noticing: 72% believes democracy
is the best form of government[2].

II) THE JURY AND DEMOCRACY

Concerning the conclusions of the studies prepared by the Jury and Democracy Project[3], there are various
comments of interest. I would like to discuss three different questions. First, there is the conclusion that face-to-
face talk is the best way to reinforce confidence in fellow citizens and public institutions. But then, we have the
observation that group discussion is something rooted in America’s cultural practice, which induces the question
about what happens in a different cultural environment where there is no such practice.

Second, there is the idea that it is the quality of jury deliberation what determines changes and improvement in
jurors’ civic attitudes, which leads us to another line of inquiry. Being –as they are supposed to be—trained
professionals, are the judges helpful for the best development of deliberations? In other words, is it better for
the judge to provide orientation for jurors from outside the jury room, as it happens in the classical model, or is
it preferable to have the judge participating in the deliberation itself from the inside? The alternative between
the classical jury and the European style mixed tribunal (composed of both lay persons and professional judges),
becomes particularly frequent in the context of countries where lay participation in the justice system is in the
process of being implemented.
From the historical perspective, John Langbein demonstrates that in England, before the last quarter of the
eighteenth century, judges used to comment on the merits of a case. Common Law Courts have never left juries
to their own devices and until 1670 (until the historical “Bushell” case) judges fined juries for returning a verdict
against the weight of evidence. Another practice of judges was probing of proffered verdicts, which means that
they could reject a verdict and require redeliberation. It is uncertain when this practice fell out of favor but, in
any case, it was based on the implied understanding that the jury, on the judge’s request, would disclose the
rationale for the verdict[4]. It follows that the viewpoint that favors judges participating in the deliberation
provide helpful orientation can also be seen as the opportunity for undesirable manipulation.

It is clear then that one of the inconveniences of mixed tribunals is the excessive influence of professional judges
over lay citizens. Another inconvenience refers to the necessity of expressing the basis of the verdict, which is
always required in mixed tribunals. It means that the professional judge (or one of them) should be in charge of
writing the rationale of the verdict. Then, in case he (or they) has been outvoted after deliberation, it becomes
a contradiction to impose on him the duty of expressing reasons in favor of a verdict with which he does not
agree.

This last inconvenience was resolved by the law enacted in the Cordoba Province in Argentina by an apparent
sound device. In the system implemented by such law, there are three judges participating in the deliberation
but only two of them are to vote. In case the two voting judges become outvoted, then the chairman is to write
the rationale. So it is for sure that the writing will be prepared by somebody who is concurring with the opinion
of the majority or, at least, somebody who has not voted against it.

Notwithstanding the soundness of this device, the experience from the cases up to now adjudged in Cordoba
shows one aspect that is frustrating: the reasons for the verdict are usually formulated in the burocratic language
of the courts which makes it obscure and artificial. Of course the lay persons sign it as a formula but have no idea
of what it means. We don’t know if the deliberations were conducted using such kind of language, but we can
imagine that it was not possible. Anyway, and in order to measure the quality of jury deliberation and its impact
on future developments, the balance is negative. Fortunately, the proposal of the draft project now pending for
consideration at the House of Senate in Argentina is the classical jury, which means an autonomous deliberation
separated from the judge and, hopefully, it will be better for the improvement of its quality.

Third, I would like to discuss the initial idea proposed by Alexis de Tocqueville and tested by The Jury and
Democracy Project: that the consequences for juror members themselves and the improvement in their civic
attitudes is one of the most important functions of jury service. The Project’s findings undisputedly corroborate
such proposal. There are, however, other aspects of the functions of juries that call for our attention.

One of them relates to a political aspect embedded in the jury’s work. I follow Valerie Hans and Neil Vidmar on
this respect[5]. Apart from its socializing function through the education of the people, there is the legitimating
function that comes from the acceptance of the law as a body of rules to be followed. Going one step further, I
would also like to quote Nancy Marder[6], who points out various political roles of the jury. The first one that
she mentions and that I would like to emphasize is its role as a “buffer” for the defendant. This particular function
has been enhanced by the doctrines of the United States Supreme Court since the year 2000 when the “Apprendi
v. New Jersey”[7] case was decided. Since then the same doctrine has been ratified in many other cases,
particularly in relation to the imposition of the death penalty.[8] What is interesting to remark is that while trial
by jury declines in the U.S.A. because of the employment of plea bargaining and other similar devices, at the
same time the jury is empowered with new duties to accomplish, which means that trial by jury is not declining
but increasing in its functions.

The participation of jurors in determining the sentence is something that goes against the traditional division of
functions between judge and jury. Nevertheless, it is in accordance with the history of the English common law
described by Thomas A. Green[9]: the jury role, rather than a bulwark against tyranny, was to serve as a mitigator
of capital sanctions. Apparently opposed to this approach is the one suggested by an English author in his
research about the Victorian age. Martin Wiener proposed the idea that the transfer –occurred by that time—of
a great number of cases from jury trial to summary judgment was due to a lessening in the moral function of the
jury[10]. However this transfer means the reduction in the penalties inflicted for a great deal of offenses. As we
can see then, this approach does not deny the role of the jury signaled by Green. I quote Wiener: “Trial by jury
was not only a ‘bulwark of English liberty’ but also a traditional effective instrument for ratifying and reinforcing
public moral standards”.

Carlos Santiago Nino, an Argentine author, advanced the proposition that ethics and politics must be connected
through deliberative democracy and I myself –in the conclusions of my book on jury trial[11]—have asserted that
lay participation in the criminal trial is an agency for the control of the authority to inflict punishment.

I am not suggesting that Tocqueville approach was wrong. However Tocqueville was saying that jurors were not
to be appreciated because of their decision making but because the people serving as jurors learn how to behave
as citizens. In opposition to that view I should like to quote another French author from the nineteenth century,
Faustin Helie. He wrote extensively in the field of Criminal Law, Criminal Procedure Law and in its history. He
analyzed both the juridical and the political functions of juries and emphasized the improvements in education
resulting from jury service but he also points out that jurors are better than professional judges because they are
free from scientific rules or systematization ideas. Because, says Helie, they are more human. A book recently
published by an American author is referred to “Commonsense Justice”. Norman Finkel says that jurors’ reasons
for their verdicts seem solid, substantial and sound. Jurors, says Finkel, resist vindictive excesses “excesses that
some legislators find hard to resist”.

My only final remark is that whatever the answers to the questions proposed should be, the questions
themselves and the conclusions of the studies prepared by the Jury and Democracy Project are meaningful for
the advancement of a “deliberative democracy” theory. This theory, as was expounded by Nino, means that the
most reliable device to achieve fair and impartial decisions is by means of consensus through dialogue.[12]
[1] Centro de Perfeccionamiento Ricardo Núñez. Survey prepared by Lucía Laura Croccia under the direction of
Armando Andruet (Jr.)

[2] Surveyed by Manuel Mora y Araujo based on a sample of 1000 persons. Reported by Adrian Ventura in La
Nación, Buenos Aires, July 11/2005.

[3] The Jury and Democracy Project aims to understand the impact that jury service has on citizens. Its studies
can be consulted at the website http://depts.washington.edu/jurydem/index.html They are also in the way to
be published as a book under the name Freedom in our hands Perry Deess, John Gastil and Phil Weiser are the
principal investigators of the project.

[4] John Langbein “The origins of Adversary Criminal Trial”, Oxford University Press, 2003, Chapter 5.F:

[5] Valerie P. Hans & Neil Vidmar “Judging the Jury”, Cambridge, Massachussets, 1986, p. 248

[6] Nancy S. Marder “The Jury Process”, New York, New York, 2005, p. 10

[7] 530 U.S. 466

[8] “Ring v. Arizona” 536 U.S. 584 (2002); “Blakely v. Washington” U.S. (2004); “Cunningham v.California” U.S.
(2006); “Abdul-Kabir v. Quarterman” U.S. (2007)

[9] Thomas Andrew Green “Verdict according to Conscience”, University of Chicago Press, 1985, pp. 379/383.

[10] Martin Wiener “Reconstructing the Criminal: Culture, Law, and Policy in England, 1830-1914”, Cambridge
University Press, 1990, p. 264

[11] Edmundo S. Hendler “El juicio por jurados: significados, genealogías, incógnitas”, Buenos Aires, 2006, p. 159

[12] Carlos Santiago Nino “La constitución de la democracia deliberativa”, Barcelona, 2003. Original in English
“The Constitution of Deliberative Democracy”, Yale University Press, 1996