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Revue internationale de droit pénal
érès

I.S.B.N.2-86586-990-3
638 pages

p. 19 à 23
doi: 10.3917/ridp.721.0019

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Vol. 72 2001/1-2

Discipline > Revue > Sommaire > Article

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The idea of the conference

Stephen C. THAMAN []*

Plan de l'article

• I. THEORETICAL INTRODUCTION

• II. CONTEMPORARY CRIMINAL PROCEDURE REFORM AND THE QUESTION OF LAY PARTICIPATION

I. THEORETICAL INTRODUCTION

The modern notions of due process, and "rule of law" in criminal procedure, that have gained general international recognition in national constitutions and international human rights conventions, have their origins to a great extent in Anglo-American concepts which developed in the context of an adversarial trial by jury : (l) the presumption of innocence; (2) the privilege against self-incrimination; (3) equality of arms; (4) the right to a public and oral trial; (5) the accusatory principle; (6) independence of the judge from the executive (investigative agency). The classic separation of powers within the adversarial criminal process between a neutral judge, responsible for deciding questions of law and punishment, and a panel of non-legally-trained lay persons responsible for questions of fact and guilt, also, arguably, gave rise to Common Law rules of evidence relating to hearsay and relevance and exclusionary rules relating to excessively prejudicial and, later, illegally-gathered evidence and to the principle of "intime conviction" or "free evaluation of the evidence." Important developments in the substantive criminal law which affect the presentation and evaluation of evidence such as the separation of factual from legal questions and the breaking-down of criminal offenses into their various constituent elements, both objective and subjective, arguably have their roots in the need for the judge to instruct the jury on how to apply the law to the facts of the case.

Though most of these principles have been accepted into the formerly inquisitorial criminal procedures of civil law countries, the structural framework in which they originated--the adversarial trial by jury--has largely been rejected by the same countries as being alien to certain other principles of the inquisitorial criminal process : (l) the duty of the State (prosecutor, judge, investigating judge) to ascertain the truth; (2) the necessity of reviewability of judgments, as reflected in the requirement of giving reasons for findings of guilt or innocence, and, to some extent, in the need to compile an official dossier containing all relevant and admissible evidence taken in the inquiry. Juries have largely been abolished or converted into a form of lay participation more conducive to the adherence to the aforementioned principles : the "mixed court" of professional judges and lay assessors, collectively responsible for all questions of law, fact, guilt and sentence.

To what extent, however, are the universally-accepted principles derived from Common Law criminal procedure dependent on the classic separation of powers in the adversary jury trial ? Can you have a presumption of innocence and an independent fact/guilt finder in a professional judge who has studied the investigative file and determined, before the trial, that it includes sufficient evidence for a finding of guilt ? Is the classic jury a needed catalyst in cementing the independence of the judge from the executive (investigative) branch, so as to provide a foundation for an objective "ascertainment of the truth ?" If judge and investigator have a duty to find the truth and the defendant invokes his/her right to remain silent, how effective is this right when the judge is also the finder of guilt ? What is the meaning of "intime conviction" or Afree evaluation of the eevidence@ ina "mixed court," where the presiding judge has unique access to the dossier, and is responsible for drafting the judgment (even in the unlikely event he/she has been overruled by the lay assessors) so it will withstand the formal requirements of appellate scrutiny ?

How do juries or lay assessors function in a system in which the professional judge is duty-bound to ascertain the material truth and in pursuit thereof, is herself responsible for presenting incriminating and exculpatory evidence while being guided by the investigative dossier ? (Germany, Austria, Central America, Russia). Does the situation change when the professional judge is not familiar with the investigative dossier ? (Scandinavia, Italy, Spanish jury trials). How do they function in a classical adversary system such as in the Anglo-American legal sphere ? Does the participation of lay assessors have any effect on the ascertainment of truth and the procedural fairness of the criminal trial in the reformed inquisitorial systems ? Are the results any different than they would be were professional judges (either singly or in collegia) to decide the cases without lay participation ? Is the participation of lay persons in the mixed court (Schöffengericht) more aimed at democratic legitimation of the administration of criminal justice, rather than considerations of fairness or accuracy of results ?

The practice of consensual disposition of criminal cases ("plea bargaining") also developed out of the adversary criminal trial before a classic independent jury in the U.S. and England. Though models of consensual disposition are now becoming increasingly popular in Continental European countries (Italy, Spain), and a type of bargaining is common in Germany (Absprachen), to what extent is their efficacy dependent on the fact that the guilt question is decided by an independent jury, rather than a more predictable mixed court or panel of professional judges ?

In this context it is important to remember that the primordial Aadversary ssystem@ wasa privatized form of procedure, without public prosecutors or defense lawyers, in which the victim brought criminal charges against his/her victimizer. Will the future empowerment of the victim in criminal proceedings, especially if it is couched in a system bent on reconciliation and restoring the judicial peace, also be more effective with lay decisionmakers ?

Even if one assumes that the AAlawyerization@ ofthe criminal trial in England and the U.S., and not the jury, is the reason for the intricate law of evidence and the general cumbersome nature of the trial, one must ask if such AAlawyerization@ ina system based on powerful single judge courts, or mixed courts dominated by the professional component, would have the same affect as it has in the jury-based systems. The increasingly active intervention of German judges in moving for investigation of new evidence may be a parallel here. But one must also try to ascertain the relationship of the right to trial by jury, with its rich protective safeguards for the defendant and the perpetual hope of jury nullification or a hung jury, with the substantive criminal law which is applied in such jurisdictions. All of the countries which experimented with jury trial on the European Continent in the 19^th and early 20^th Centuries experienced a kind of jury nullification called sanction nullification. The liberalized jury procedures usually existed in the context of Draconian substantive penal laws which threatened death penalties and other excessive punishments (Siberian hard labor camps in Russia). Juries knew this and exercised Apious pperjury@ inacquitting or reducing crimes to avoid such punishments. This was also common in English jury courts even earlier.

Is the situation in the U.S. similar to that in the older European jury courts ? Is the survival of jury trial and complicated procedures of jury-selection, evidencemarshalling, etc., linked to the Draconian U.S. sentencing policies ? With a more rehabilitative, humane approach to criminal sentencing, would defendants trust the sentencing decisions of professional judges ? Would they agree to testify in their own behalf in such a system more than is the case now ? Could such Draconian sentencing schemes function without a complicated and necessarily unpredictable trial procedure ? Could a system based on plea-bargaining function without the threat of Draconian punishments to be used as a bargaining-chip in the plea negotiation process ? To what extent are juries needed in a country like the U.S. as a protection against an over-politicized judiciary, subject to re-election in most states, and wary of public opinion in all jurisdictions ?

Finally, the links between lay participation (especially in the form of the classic jury) and the substantive criminal law have seldom been systematically studied. Legal systems based on professional judging and mixed courts dominated by professional judges do nottinker with the elements of offenses and the requirements of mens reaas is done, for instance, in the U.S. Scandalous jury verdicts in the U.S. have often led to referenda or legislative initiatives to change the definition of crimes, create new crimes, or redefine the mens rea elements of crimes. The overhaul of federal U.S. insanity and diminished capacity law after the acquittal ofJohn Hinckley of the attempted assassination of Ronald Reagan and a similar reform in California after the manslaughter verdicts against Dan White in the assassinations of George Moscone and Harvey Milkare prime examples. Effectively, crimes are redesigned to take elements away from the jury. Thus, the insanity defense has been abolished in several states, and evidence of intoxication is inadmissible to prove mental state in others. All of these developments would not have taken place without the presence of the classic jury as a decisionmaker. Could, for instance, the notorious acquittal in one of Spain=s first jury trials of Mikel Otegi, a young Basque nationalist accused of the murder of two police officers, on grounds of diminished capacity lead Spain to similarly redefine its very liberal substantive law on diminished capacity and insanity ? Spaniards very much doubt that this could happen.

II. CONTEMPORARY CRIMINAL PROCEDURE REFORM AND THE QUESTION OF LAY PARTICIPATION

The dismantling of the socialist party dictatorships in Eastern and Central Europe and the Soviet Union and the attempts to build a democratic state and a market economy have necessitated thoroughgoing reforms of the judicial systems. One of the most surprising events in this context, was the reintroduction of trial by jury in the Russian Federation in l993. Though trial by jury has only been introduced preliminarily in 9 of Russia's some 89 political subdivisions, it there exists sidebyside with the old court of one professional judge and two lay assessors, which had been introduced by Lenin in l9l7 to replace the l2-person Russian jury of Tsarist times. This Leninist mixed court was subsequently adopted by most of the obedient Socialist bloc countries after their conquest in World War II. In Russia the jury was seen as a democratic institution which would help free Russian judges from the tight control exercised over them by the party apparatus during Soviet times.

At virtually the same time as Socialist Europe has been engulfed by reform, Latin America, most of the countries of which had been ruled on and off by military dictatorships since their independence from Spain and Portugal, has also taken the path of democratization. Judicial and criminal justice reform has also been a burning issue in these countries, for their judiciaries were known for their corruption and dependence on the executive and military. Not only did few of these countries have lay participation in their criminal courtsBthe exceptions are Brazil, Panama, El Salvador and Nicaragua--some had not yet introduced oral trials and were still mired in the written inquisitorial procedures they inherited from early Spanish codes of criminal procedure.

In l995 Spain reintroduced trial by jury for a certain list of crimes, including murder and burglary, and trials began in May of l996. Spain had included the right of the citizens to participate in the administration of justice in the form of trial by jury in Article 25 of their l978 post-Franco Constitution and had been haggling since then as to whether to introduce a classic jury of the Anglo-American variety, or a "mixed" lay assessor court, the form taken by "juries" in Germany, France, Italy and Portugal following reforms this century. The surprising turn of events in Spain was followed by the enactment of a new Code of Criminal Procedure in Venezuela in December 1997, which provides for a system including both classic juries following the Spanish example for serious felonies and a mixed court with lay assessors for the trial of lesser crimes. New draft laws seeking to introduce the jury in many of Argentina=s states are also being hotly discussed.

The experiences in Russia, Spain and Venezuela were completely unexpected in Continental Europe, for the classic Anglo-American type jury was held by the overwhelming majority of criminal proceduralists to be an archaic institution that was unpredictable in its results, excessively costly in its implementation, and was, indeed, being gradually limited in its applicability in England through legislation (misdemeanors are no longer tried by juries in England) and in America by plea bargaining (only around 7% of criminal convictions in America are as a result of a jury's verdict). Though both can be seen as an ideological underpinning of attempts to democratize former dictatorships (much like the introduction of classic juries in Continental Europe in the l9th Century was seen as a blow against the absolute monarchies that ruled at that time), the jury reforms in Russia, Spain and Venezuela were part of attempts to change from a neo-inquisitorial to an adversarial criminal justice system, i.e., as catalysts to give the guarantees of the presumption of innocence, the right to remain silent, the right to confront witnesses, the right to a public trial, and adversary procedure, already included in their respective constitutions, more substance. Interestingly enough, evidence of convictions of the innocent in Japan has led to a reawakening of interest in the classic jury in that country, an institution that was experimented with in the 1920's.

It will be curious to see whether other democratizing countries in the former socialist bloc or Latin America take a similar step, as have Russia, Spain and Venezuela, or choose to establish or remain with their respective systems of lay assessors or panels of exclusively professional judges. But it is not only in the democratizing countries of the Third World and the former socialist bloc, that the question of lay participation may be a relevant reform question. In the Anglo-American legal sphere and in Western Europe many voices are asking whether lay participation is a needed component in the adjudication of criminal cases. Whereas many scholars in countries with lay assessor systems believe that lay participation has little or no effect on the outcome of criminal cases and performs primarily a function of democratic legitimation, many in Common Law countries with juries continue to criticize the jury's costliness, arbitrariness and marginality as a result of the practice of plea-bargaining.

The herein proposed international comparative law conference will pose, and attempt to ascertain the answer to the question : "What is the future of lay participation in the criminal trial in the 21st Century ?"

NOTES

[*]

Conference Organizer, Associate Professor, Saint Louis University, U.S.A.