Monday, 5 January 2015

Hold Fast to the Traditions and Institutions of Liberty

In Defence of Juries

Why juries?  They appear to be a peculiar anglo-saxon institution, at least in terms of their origin.  Every so often a talking-head stands up to suggest there has to be a "better way".  The assessment of evidence and the determination of guilt would surely be better served by those trained to evaluate evidence and reason to a sound conclusion.

Juries necessarily reflect the general state of society at large.  That is offered as one of the great benefits of juries: it is a trial of one's peers.  That is one of their perceived benefits.  Juries are not made up of elites who control just about everything else.  But that also means that if education standards in society generally fall and folk are unable to reason clearly, let alone articulate, juries risk falling into a situation where they are little more than corporate expressions of brute prejudice, self-righteous sanctimony, and general ignorance.  We have served on juries and have "insider" knowledge, so to speak.

Yet, strangely enough, more often than not--by a long, long shot--juries get it right.  Their decisions reflect not just the evidence, but its weight.  Yet, this alone, is not the sole argument for juries.  There is a far, far more important principle at work (which, more often than not, contributes to their effectiveness).  Peter Hitchens puts it this way:
The jury is more noble in theory than in reality.  There is nothing especially elevating in the sight of twelve people crammed into a room trying to decide whether to ruin a fellow human being's life.  Yet for once, the idea is more important than the practice.  As long as these strange committees continue to exist, governments are less powerful and citizens are more free.  [Peter Hitchens, The Abolition of Liberty: the Decline of Order and Justice in England (London: Atlantic Books, 2003), p.180.]
Checking the power of governments and buttressing the freedom of citizens is a worthy, Christian principle.  For that alone, jury trials are a wonderful Anglo-Saxon institution and a definite contributory institution to the emergence and growth of the first Christendom.  Power corrupts and always needs checking and limitations.  Amongst humankind, the state is the highest and therefore the most minatory of all human institutions.  It has the power to kill the body.  Whilst ordained as a minister of God (Romans 13: 4,5) in corrupt times and hands it can wreak (and repeatedly has wrought) destruction and havoc.  Therefore, the institution of the jury is not just a national treasure: it is vital to our collective future.  Hitchens explains how this works:
Two things happen to trails when a jury is present.  First there is the element of doubt about the outcome that is quite beyond the control of the state.  This turns the presumption of innocence from a mere slogan into a real possibility.  Some on the jury may actually be prepared to believe that the police have the wrong man.  Secondly, the prosecution's huge advantage over the defence is greatly reduces.  The defence is not an interloper among officials but one of the two contestants before a panel that owes nothing to either side. (Ibid.)
The jurors are the gods of guilt; before them the state must (figuratively) bow.  Ergo the godly state will defend the institution of the jury with the fury and tenacity of a she wolf defending her young. If she were to fail, the future of her cubs would become decidedly bleak.

In a criminal court, the powers have been carefully divided--at least in our Christian tradition.  The judge (representing the Crown, and therefore a power of the State) will decide on matters of law.  The jury will decide on matters of evidence, as to guilt or innocence.  The authority of the judge with respect to the law is limited and checked by the institution of the appeal to wider and higher courts.  The authority of the jury is limited and checked by the very high standard of proof required viz a vis the evidence: the matter must be proven "beyond reasonable doubt". 

The alternative is not just sub-standard, it is positively dangerous. 
Without a jury, the legal process is like any other government action. Strip the process of arrest, trial, conviction, sentence and appeal down to its basic parts and it is quite simple.  A series of state employees, few of them especially brave or intelligent or perceptive, are asked to approve the original decision of another state employee.  The chances are strong they will do so at every stage, and will feel that this is what they are paid to do.  [Hitchens, op cit., p. 181.]
And, we may add, these government functionaries are not just paid to support their employer, but most are career employees.  To oppose, to diverge, to act the contrarian is likely  to become a career limiting move--and that right quickly. The presumption of bias and prejudice on their part is necessarily conclusion to be drawn by anyone who understands the human heart and the fallibleness of mankind and yet insists upon liberty for man as the image-bearer of God Himself.

One argument against juries persistently put forward is the limitations of many people that serve on juries.  As noted above, we have experienced it first hand. But this argument proves far too much, to where it actually becomes a telling and convincing argument for the institution of the jury.  Every observation to be made about the limitations and cant of jurors can be multiplied several times over when it comes to politicians, career bureaucrats, and ambitious state-functionaries.  In addition, every argument about the cant and limitations of jurors applies equally well to the democratic system itself.  If jurors cannot be trusted, neither can voters. 

Jurors might well have their weaknesses, but in comparison to the alternatives, they positively shine like beacons upon a dark, sinister sea. 

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