Tuesday, October 6, 2009

Why Trial By Jury?

A legal historian once said in the late 19th century:
"It is remarkable that no History of Trial by Jury has ever yet appeared in this country."
(History of Trial by Jury). The US Constitution, our supreme law, provides us with three distinct juries.

One such jury is the criminal grand jury (5th Amendment), another is the criminal petite jury (6th Amendment), and the third is the civil petite jury (7th Amendment).

Without an adequate understanding of the experiences of our forefathers and foremothers who founded this country, we won't understand why all free people must have a robust trial-by-jury system.

Those Americans that went before us came to fundamentally believe that governmental power tends to corrupt and absolute governmental power tends to corrupt absolutely.

What that means is that the people must be protected from those who become immersed in governmental power. It does not mean that governmental power is wrong or to be eschewed.

That wisdom of the ages simply means that we know governmental power contains toxins within it, and those toxins must not be allowed to run amok and infect the people with oppression. The election cycle is a process of purging those who have been overcome with those toxins while in office.

But it was the desire to have day-to-day immunity from the effect of those toxins of power (based on their day-to-day experiences under tyrannical systems operated by tyrants) that led them to design a day-to-day immunity beyond the less frequent and not so day-to-day election cure. After all, federal and state-wide elections are not so day-to-day.

One of the fundamental oppressions tyrants used was the day-to-day event of false charges for crimes. An innocent person was charged because of dissent from the view of the tyrant, not because the accused had really committed a crime. Therefore, a day-to-day cure was wisely developed. Since justice is the absence of the use of tyranny, our American ancestors gave us the gift of the jury system which has the effect of a day-to-day remedy.

The grand jury was designed to prevent or resist government oppression by nipping it in the bud. A grand jury of 'a lot of folk' (more members than a petite jury) must be convinced that there is some reasonable degree of probability that a felony crime may have been committed before an American can even be charged. Not convicted, charged.

Once the grand jury returns an indictment, still another petite jury must be convinced unanimously and beyond a reasonable doubt that the individual who was charged is in fact to be held accountable for those charges. And the person charged need not say a single word. The prosecutor carries the entire burden to prove it. Is that fair? No. But it is safe.

Let us look at some abstract examples. In the courts during trials experts are used. In the typical case experts will give their opinions to the jury. Typically this means an opposite opinion for each side. The experts are sworn in, list their degrees, and the court makes a ruling that they are experts.

Afterwards those experts explain that they looked at the evidence, and then they tell the jury what their opinion is. The expert for the defense has one opinion, but the expert for the prosecutor typically has another and different opinion. On the exact same evidence I should add.

Finally, the everyday folk on the jury make the decision as to which expert was right and who was telling the truth! Yes, the person who left the farm after a 5:00 AM breakfast, and then drove the truck into town for that day's jury duty, decides which rocket scientist had it right.

If you are still wondering why this is so, remember that the foundation of jury theory is that the people can determine facts better or more accurately than those immersed in governmental power can. By “better or more accurately" I mean in the context of the impacts that governmental power has on individuals.

We have found that historically, by and large, the people tend not to oppress their fellow citizens like governmental agents have tended to do. The old saying that “power tends to corrupt and absolute power tends to corrupt absolutely" is directed at governments. It is not directed at juries of the people.

Juries are the people's reaction to the oppression of tyrants who have inebriated themselves with the toxins active within governmental power.

Oh, to be sure juries make mistakes. But the mistakes of the people are much easier to live with over the long run than the mistakes of government.

So say the sages of the ages.

Lawyers at times will make the point that sometimes it is better to waive the right to a jury and have a judge decide a case.

That point highlights the need to distinguish the jury system and its purpose, from the jury panel in an individual case and its purpose.

The jury system is what is designed to protect the people in general from governmental oppression in general. While the individual jury panel applies only to a single case and has the single mission to decide if the government has proven its case beyond a reasonable doubt in that case.

The important lesson to this is that the jury system is wise and proper and is not a mistake even though the individual jury panel can and does make mistakes from time to time.

It comes down to the realization that we must not mistake the two different purposes and throw the baby out with the bath water, as some other nations have done.

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