Is trial by jury obsolete?
Thomas F
A trial by jury is a legal proceeding in which a jury reaches a verdict. Typically, a jury trial is used in serious criminal cases in common-law countries, and it is distinguished from a bench trial, in which judges make decisions. I shall argue that trial by jury is not obsolete. It remains significant despite functional inefficiencies; it acts as an essential democratic check on judges delivering ‘wrong’ verdicts. Approaching the second quarter of the 21 st century, jury trial remains the way to determine guilt in approximately fifty countries. An institution is obsolete when it no longer performs its intended functions better than available alternatives. Firstly, one can argue that a trial by jury is not obsolete, given its key advantage: a trial by jury limits the power of judges. One major flaw of a trial by a judge is that it often lacks a community’s perspective and diversity, whereas the jury is the representative of the community in the courtroom and reflects prevailing public sentiment, which may diverge from governmental interests. Disturbing judgments made by judges without juries often lead to dissatisfaction among the people, some of whom may think the public interest or human rights have been violated. Caused by social inequality and systemic unfairness, the verdict of Frieda Keller (1904) is a famous example of a trial by judges failing to satisfy public opinion: the desperate mother, Keller, murdered her child due to serious circumstances. Prosecuted by the state, the death sentence was pronounced by the court the day after the trial. This verdict, made solely by judges, was shocking to the Swiss public. Feminist associations mobilized, authors protested, and the media exerted pressure – turmoil arose all over Switzerland. Half a month later, the Cantonal Council of St. Gallen (the legislature of the Canton of St. Gallen) summoned a vote, and the result was Keller's pardon, commuting her sentence to life imprisonment. 1 From this case, it can be concluded that a trial by a judge is not always capable of delivering a desirable sentence, especially in the era in which the influence of the media is burgeoning. Therefore, controversial judge- made judgments, once propagated, can diminish public confidence. It certainly is not true that everyone in society can be satisfied if a jury decides a judgment, as there are always opposing views in society. For instance, while most of society was supporting Keller, the Catholic newspaper Die Ostschweiz voiced against her, describing Keller as a cold-blooded murderer. What a jury can and is supposed to do is represent the majority of society. Public disagreement does not necessarily mean that the judges are wrong. If criminal justice derives legitimacy from public consent, then jury verdicts possess a democratic authority unavailable to professional judges. Nevertheless, the majority may be wrong and biased. Another weakness of a trial by judges, shown in Keller’s case, is that judges are state employees, and in some extreme cases, they might be more inclined to favour prosecution arguments. When a case similar to Keller’s is presented before a criminal court, judges might take the public prosecutor’s statements more seriously than the defence lawyer’s, as many judges have personal relations with prosecutors. The defence lawyer of Keller emphasized his client’s
1 See Müller 2023; Sandl 2022.
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