Wednesday, November 02, 2005

A jury of one's peers

Read this book a few months ago - David Lodge's Ginger, You're Barmy. It's a curious thing set decades ago, back when Britain still had conscription. Anyway, it has a scene where a man accidently kills himself during target practice, and the incident is investigated by something called the Coroner's Court. In this institution, the decision on whether the death was an accident or a suicide attempt (and therefore, whether the drill sergeant is responsible) was made by the coroner, who reviewed the scene and the body.

A very interesting idea! Trial by a jury of one's peers is considered a fundamental human right these days, and like all such things it was eminently sensible when it was established. Concepts like reasonable doubt were useful back in the days when the majority of crime was cattle theft or bar brawl killings.

But these days the legal system faces a major problem in the fact that in complicated cases, the juries are not equipped to understand the evidence. CSI-type situations are one thing, but let's consider economic crime. Essentially if the principle was followed to the letter, the defendant would literally be tried by a jury of his peers - stock brokers, accountants, analysts, etc. It is, basically, an extension of the common law concept, where the criminality of actions is decided on the merits of the individual case. The peers decide whether the person on trial had done something wrong.

The problem, besides the shortage of any jurors, not to mention qualified ones, is of course bias. Common law cannot be the sole basis of society, there needs to be legislation because the peers may not consider it a transgression if they dislike the plaintiff and in their hearts applaud the actions of the defendant. The trial would need someone acquainted with the details of the field, but at the same time unbiased, trained in the social and legislative definitions of right and wrong, and capable of making the relevant decisions. Interestingly enough that type of person is a fixture of the legal system already. The judge is assumed to be impartial, and in most cases a specialist in cases of a specific sort. In criminal cases, the jury simply decides guilt, and it is the judge who decides punishment.

So if we accept it as a given that the judge is impartial, then can we not establish the institution of the Specialist's Court? Would it not be more appropriate, and essentialy more fair, to let the guilt of a perpetrator of complex crime to be decided by the legal personality that is best equipped to do so?

No comments:


| More