The practice of justifying judicial decisions by reference to consensual community values, which are distinguished from ordinary public opinion, has occurred in a number of jurisdictions and has been defended by prominent scholars. It provides a response to concern about the democratic legitimacy of judicial decision-making especially in constitutional cases. While it has also been critiqued for exacerbating concern about democratic legitimacy, the community values approach has proved resilient and merits further exploration. This chapter takes seriously its aim of promoting democratic legitimacy in constitutional decisions by connecting those decisions to the community’s values. Some of the democratic theorists referred to by adherents of the community values approach are also helpful. It is suggested that community values be understood as majority informed opinion. It is finally argued that the aim of connecting constitutional review to the community’s values in order to promote democratic legitimacy in bill-of-rights cases might be realised if constitutional juries are introduced.
Of the many reforms affecting the Japanese judiciary that were undertaken in connection with the recommendations of the Justice System Reform Council, one reform above all attracted widespread public attention: the introduction of the so-called saiban’in system. In this system, mixed panels of professional judges and lay jurors judge guilt and assess penalties in serious criminal cases. Following a five-year preparation period, the new system went into effect for the specified categories of crimes for which indictments were issued on or after May 21, 2009, with the first trials under the new system commencing in August 2009. Pursuant to the enabling legislation, the saiban’in system was subject to review three years after going into effect, and the Supreme Court issued its three-year evaluation in December 2012. While this essay introduces some of the results of that evaluation, the following remarks primarily reflect my own appraisal.
Of course, the saiban’in system is by no means perfect. Many issues warrant consideration. Some issues have become clearer during the four years the system has been in operation; others have become apparent since the system went into effect. To my mind, however, the achievements of the system far outweigh the issues relating to it, and it is on those achievements that I focus in this essay.
The literature considering various possible procedural reforms to American jury trial practice suffers from a high dose of American Exceptionalism. The experience of other nations rarely is acknowledged, much less considered as possibly informative. This Article argues that as a British-derived system of roughly identical vintage as the United States, the jury practices of Malta can inform American practice in three respects: (1) the desirability of increased juror interaction – in particular allowing oral juror questions to witnesses and allowing deliberation during the trial, (2) the utility of eliminating voir dire in jury selection, and (3) the possibility of procedural reform such as modifying the verdict form to insulate jurors from external pressures on the verdict.
This article examines the practice of restricting jury service to citizens. While some jurisdictions, such as the United Kingdom and New Zealand, base jury eligibility on permanent residency status, others, such as Ireland and the United States limit it to citizens. This article examines sets out two principal arguments in favour of abolishing citizenship requirements. First, the need to ensure that juries are broadly representative of the community from which they are drawn. Secondly, the need to promote integration more generally, particularly as Western societies become increasingly multicultural. The article also considers specifically Irish constitutional and historical reasons why this citizenship requirement is difficult to justify.
The article below discusses the voir dire process in a high profile murder case in Montreal. According to the article, the jurors selected for this case must be bilingual. This requirement is necessary because evidence will be submitted in both English and French. This surprises me because I would think the court would prefer an official translation of the evidence whether it be from English to French or French to English rather than rely on an individual juror's interpretation which can vary based on someone's fluency or proficiency in the other language.
The most recent edition of the Economist has an interesting article about juries in the Caribbean entitled 12 Clueless Men. According to the article, some of the smaller countries in the Caribbean that adhere to the common law system are moving towards abolishing criminal juries. While this article is definitely anti-jury, it does highlight some of the concerns that arise when countries rely on lay persons to decide difficult issues like guilt or innocence.
“WE simply cannot carry on the way we are going,” says Trinidad and Tobago’s chief justice, Ivor Archie. Along with other reforms, he wants to abolish the jury system, a hallowed cornerstone of English common law for almost 800 years and exported to Britain’s former colonies in the Caribbean. Juries, he argues, slow trials down, making them last up to a year, and clog his country’s courts. Clogged they certainly are. More than 500 jailed murder suspects await trial.
A homicide trial in Australia has been derailed after it was discovered that a juror conducted Facebook searches on both the victim and criminal defendant. Pursuant to the law in Queensland, this juror now faces criminal charges that come with a potential penalty of 2 years in jail. Here is the Queensland statute:
Section 69A of Queensland’s Jury Act 1995 states: A person who has been sworn as a juror in a criminal trial must not inquire about the defendant in the trial until the jury of which the person is a member has given its verdict, or the person has been discharged by the judge.
In 2004, the Province of Córdoba implemented lay participation in criminal decisions by means of Law 9182. The law was passed within a context of national debate concerning efficient measures to fight against insecurity and crime. These debates were brought about by a social movement led by Juan Carlos Blumberg, which demanded harsher penalties and judicial reform as means to improve urban safety.
Data obtained in two public opinion studies, conducted in 1993 and 2011, are used to analyze trends in attitudes towards criminal punishment, including issues such as the image of criminals or opinion on capital punishment. The revision also includes the influence of the fear of crime on attitudes towards punishment.
The analysis of citizen views on punishment extends past public opinion data to the judicial field, reviewing how these views are expressed during jury service. Using a set of 213 sentences decided between 2005 and 2012, juror and judge decisions on the same cases are compared.