Why Trial By Jury Is Always Unjust
We have a belief that if we are accused of a crime we did not commit we are entitled to a trial by a jury of our peers and that this is the best way for truth to come out. We also believe that all we need do is to tell the truth, the whole truth and nothing but the truth. Ask yourself, is it? We know that miscarriages of justice happen, probably more frequently than we realize or are comfortable with, so why do we still have a belief that trial by jury is safe and fair?
Are 12 people, subject as they are to biases and opinions because they are human, likely to come to a truer decision than say a computer program?
First let's try and establish what the justice system is there to do, serve justice yes but how? We need to know what its purpose is in both an ideal world and in the real world. Ideally I guess we like to think that our justice system rights wrongs, it punishes the guilty and protects the innocent. What though does justice mean? An eye for an eye? To meet aggression with passivity? To exact vengeance for wrongdoing or insult, to punish those who deviate from the norm?
Isn't justice a subjective concept that means different things to different people at different times? If it is, how can we be sure our justice system is doing what we want it to?
How many people do you think have been imprisoned not because they're guilty of the crime with which they've been charged but because the police and others know that they've been guilty of other crimes and got away with it?
So justice in that case would be "he was guilty of something so he deserved to go to jail", it's hard to argue with that if you're the innocent victim of a crime for which no one is punished. But what about the reverse, where you're an innocent person accused of a crime you didn't commit but where the 'authorities' believe you are guilty and are using the same argument? What then?
You could argue that justice is served if an habitual criminal finally gets found guilty and is punished even where he was innocent of the crime with which he was charged. I think however, that's a very slippery slope and one that leads not to justice but to injustice.
In the past it seems that this was the attitude of many police officer, frustrated that hardened criminals kept escaping them, they were not above 'planting' evidence to ensure conviction regardless of guilt.
The major problem with this kind of justice is that it's not infallible and it's open to abuse. A police officer (who is first and foremost a human being) may have a personal grudge against someone which has nothing to do with the person being a criminal.
The police officer may hold the grudge because of a false belief, personal insult or even because the officer himself is corrupt and the accused could in someway cause the police officer to be found out.
Therefore to say that the justice system is there to dispense justice is perhaps not the best explanation. So what other explanation can we offer?
Let's examine punishment as an explanation, after all, once found guilty the person in the dock is sentenced to some form of 'retribution' from forced community service or a fine, up to imprisonment and in some countries death.
Is this sufficient explanation of our justice system? If it is then we are still left with having to decide who is to be punished. I am going to make the assumption that if the purpose of our justice system is punishment, then who are to be punished are the guilty.
This at least gives us a place to start.
Now that we know our starting point you'd think we were home and dry and I could start to explain the title of this article and offer an alternative. We have some other ground to cover first though, because although we have a starting point for our justice system existing, we have yet to look at how it operates.
So now let's look at what happens in a court as a trial begins and after all the pomp and circumstance is over, the basics are as follows.
Charges are read out to the accused. The defendant pleads either 'Guilty' or 'Not Guilty' although in practice, if a jury is sworn in it's because the accused person is pleading 'Not Guilty'. A guilty plea would remove the need for a jury and a judge would go straight to summing up and sentencing.
So we have someone in the dock accused of doing something illegal to which their reply is basically "I didn't do this".
The judge will make some opening remarks to the jury reminding them of their duties and responsibilities.
The prosecution will outline their case against the accused without stating any real facts. They will set the 'tone' of their case which will be along the lines of this person is evil and he/she really did do this evil things, we will prove it to you and so you must, at the end, find him/her guilty or you will contribute to the breakdown of law and order and be responsible if he does this again.
The defense will present their case, again without using any actual facts and setting their 'tone'. Naturally as the defense their 'tone' will be, the accused is innocent and the victim of a monstrous miscarriage of justice which we will prove to you and after which you must find him/her not guilty.
Nowhere will you be told that the purpose of the trial and the opposing teams is to find the truth, the whole truth and nothing but the truth. Which, if you think about it is really quite strange because surely for justice to be done, we first need the truth?
Just for a moment let's recap what both the prosecution and defense will say in opening speeches, where they layout their cases. They will both imply that they are going to prove their explanation of the facts is the right one. To be more accurate, what they are really going to do is to try and persuade you that their explanation is the right one.
Persuasion is what goes on in a trial and to persuade, the players on stage in court room will explain their version of events by telling a 'story'.
That story in order to be successful must cover all known facts and opinions and be presented in a compelling and convincing way.
So in fact both sides tell stories, they supposedly have to do it in a proscribed manner to prevent unfairness. In reality however, both sides will 'cheat' as long as they do it correctly. How do they cheat correctly, let's take an example of the prosecution making a statement that implies something bad about the defendant without being able to back it up with facts. All he has to do is 'withdraw' the remark and the judge will direct the jury to ignore it. But let me ask you this, if you hear a statement that says something bad and then you're told to forget you heard it, can you? No and that's how you cheat correctly!
Remember that whilst both sides may pay lip service to "getting to the truth" in practice they're there to win. Nothing more than that because let us not forget that they get paid to represent the protagonists (The Crown for the prosecution legal team, the accused in the case of the defense team).
How often do you think they would be employed if they didn't do everything every thing in their power to win?
It seems then, that guilt or innocence hangs not on provable facts but on which side has the best storyteller.
Still think juries are the fairest way to decide a person's fate?
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