"trial by jury" vs "trail by Judge"

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If I ever went to trial I believe I would opt for a judge ruling rather than a jury. I don't think my "peers" can relate to me very well, and at least a judge might try to see things objectively. Regular people are dangerous to someone as strange as myself.

The problem here is that no one has ever been fired for being too hard on crime. There is no incentive for a prosecutor to be lenient. I don't think the grand jury system creates that incentive.


I don't see this as a bad thing. The laws in a democracy supposedly exist because they are the will of the people. But it doesn't always work properly. If a jury decides not to convict because the law is unjust then I see that as a check on the legislative system. Of course, that means only twelve people the power over millions who vote, but if they are supposed to be representative then it is generally a good idea.

It all just depends. I feel the same as you, in that I don't think people relate to me very well. I think that judges in general are better at objectively evaluating and applying the facts and using them to make an impartial determination as to guilt or innocence. I think that juries can let emotions and irrationality enter into the whole process far more easily than a judge can - if for no other reason than simple mathematics - with one judge its much more likely to have the pool of people deciding your fate be impartial people, whereas with a jury you need all 12 to be impartial - a much harder and unlikely thing to achieve. But the jurors lack of impartiality and propensity to let emotions enter into it can help you, or it can hurt you. If they're sympathetic to you, or they just want to stick it to "the man" or the government, as a lot of people participating in this discussion seem to feel is appropriate, then as a defendent, that can help you. On the other hand, if they decide you're an as*hole, they might decide to stick it to you, even if the evidence doesn't support that. So it can cut both ways. But if I was really guilty, or I felt that the evidence made me look guilty, I'd chose a jury over a judge every time, as there'd be nothing to lose by going with the folks more likely to lack partiality.



Well, I see this as a bad thing for exactly the reasons you point out - twelve people should not be able to override the will of the people. Such a thing is very much undemocratic. And once it happens, there's no legal recourse. Retrial is prohibited by the constitutional provisions against double-jeopardy, and generally the prosecution cannot appeal a not-guilty verdict. On the other hand, there are all sorts of ways out of an incorrectly returned guilty verdict - first, the judge can determine that as a matter of law, the evidence does not support a guilty verdict, and the judge can thus override a guilty verdict returned by the jury. Also, the defense can appeal guilty verdicts on a variety of grounds, including all sorts of procedural issues, improper jury selection, etc. Thus, whereas the jury is very much free to abuse its authority to return a not-guilty verdict, the reverse is not really possible.

Its also interesting that a trial by jury has a one-sided "escape" mechanism. The judge can override a guilty verdict returned by the jury if they find that as a matter of law, the evidence presented clearly does not support a verdict of guilty. It doesn't happen very often, but it does happen. On the other hand, the judge cannot find that as a matter of law the evidence clearly supports a verdict of guilty and override a verdict of not guilty returned by the jury. Such a thing is unconstitutional. Thus whereas jury nullification can occur with no legal recourse against it, the reverse of jury nullification (i.e. the jury returns an unwarranted guilty verdict) can be reversed. In fact, generally even when found guilty, the defendant can appeal. The prosecution can generally not appeal a not-guilty verdict. So there are at least a few ways where the deck is stacked against the prosecution.

And that is precisely the strength of jury nullification. To get twelve people to unanimously agree that the state is misconducting itself in bringing a prosecution is a very high bar to pass. Jury nullification does not happen often, and it does not happen in trivial cases.

One must remember that at the outset of criminal proceedings, the state holds all the cards. It controls the police, it controls the prosecution service, and the work hand in hand with a view to securing a conviction. The government has the resources to fully investigate a criminal matter, and to prosecute it from beginning to end with whatever professional legal resources it controls.

An individual has only those resources that are provided to the individual by the constitution and by law. Given the enormous imbalance, the presumption of innocence, the obligation of disclosure, the protection against double jeopardy and the decision of a jury are all proper tools for an accused person to use.

Given that in Canada 80% of criminal charges result in conviction, it does not appear to me that the Crown is labouring under too heavy a burden.

No, that's a very low bar to pass. Getting twelve people to agree on something is not that difficult - it happens all the time - else jury trials would be ending in hung juries instead of verdicts most of the time. The notion that twelve people should be able to override a law passed democratically under the constitution is absurd.

In any given criminal prosecution, there's only a few real questions...

a) Is the law that the defendant is accused of violating unconstitutional? If so, then there's all sorts of ways to establish this before trial, and on multiple chances to appeal subsequent to the trial.

The idea that a law might be "unjust" is basically irrelevant - if the law was properly passed via the processes outlined in the constitution, and the law does not violate any of the provisions in the constitution, then it is the law, period.

b) Did the defendant violate the law in question?

No amount of "misconduct" by the state can change the actual, factual answer to this question.

Of course, the state can possibly (mis)conduct itself in such a way that the "facts" are skewed into making it appear that the defendant violated the law, when the defendant in fact did not. If there is evidence presented at trial that the state misconducted itself, then that can, and should, call into question the credibility of the evidence presented by the case, and should be taken into account by the jury when it deliberates. But lacking such evidence presented at trial, the only way that the jury could acquit based on the state misconducting itself would be based on hunch or intuition, and rendering verdicts in this way is wrong on many different levels.

The evidence doesn't support you. If jury nullification was a low bar to pass, then we would be seeing it occur time and again. The reality is that it is very rare, even in the United States which has the fewest restrictions on its use.

We can get twelve people to agree on guilt or innocence by sequestering them until they do. But those same panels of twelve people don't routinely agree on innocence in the face of overwhelming evidence. Either it's a high bar to pass, or juries have been profoundly respectful of statute law. Either way, jury nullification has not presented itself as a significant mischief to be cured.

The simple solution is the Canadian one--allow the prosecution to appeal acquittals.



It seems to me that your belief is far too simplistic, and far too reductionist.

The tort of malicious prosecution exists at Common Law, and it exists for the very good reason that prosecutors may act perfectly legally, but nonetheless abusively. The entire body of equity exists because the application of law may be unfair--and when the law and equity are in conflict, equity prevails. Prerogative writs like injunction, estoppel, mandamus and certiorari exist because the strict application of the law can be abusive.

It is very hard to get twelve people to agree on something. Odds are that three of those twelve people believe in space aliens, two believe in bigfoot, and one believes the moon landing was fake. It only happens often in court because those are the only cases which get prosecuted. But even that withstanding, it is much easier to get a jury to agree on guilt or innocence than it is to get them to agree that the rule of law shouldn't apply, which is basically what jury nullification does.

But there are exceptions to every rule, and there should be room for that in the justice system. A law that might make sense in 99.999% of cases might still be wrong once in a while, but there is no reason to throw out the baby with the bathwater.

Just do this.

[youtube]http://www.youtube.com/watch?v=XL2RLTmqG4w[/youtube]