Trial by jury
In the common law world, trial by jury is closely associated with the notion of receiving a fair trial. Despite its faults, they say, it’s the best way of serving justice.
And even though juries are used far less often they we might think (e.g., they “decide less than 1% of all criminal cases in England and Wales”), they are used in cases ruling on the most serious offences, which might be why we have the idea that the concept is nearly always at work, keeping the justice system just and safeguarding us from tyranny.
Hollywood has probably helped this idea along a bit and has probably even helped juries to become accepted, or at least to seem not so strange, in countries that traditionally don’t, or didn’t, have trial by jury, which is probably all non-common law countries and certainly most civil law countries, including Spain, where trial by jury was introduced relatively recently with the passing of the Spanish Jury Law in 1995, which implements Article 125 of the 1978 Constitution.
Prior to that, bench trials were the norm in Spain, with the judge, or judges, always handing down the verdict. The traditional belief in trial by jury and the untouchable status often given to it in common law countries did not exist in Spain.
As you can’t change people’s beliefs in a day and despite Hollywood’s influence, some people in Spain still aren’t sure that juries are the way to go, and a recent high-profile corruption case got them talking again about whether trial by jury was actually a good thing, or at least whether it was the best thing.
In this high-profile case, Francisco Camps, the ex-president of Valencia (who had stood down because of this matter), and Ricardo Costa, the ex-secretary general of the PP in Valencia (who had been stood down because of this matter, by Camps actually), were accused of having received bribes in the form of suits. The jury found, by five votes to four, both men not guilty. Even though neither of the politicians could produce proof of payment for the suits.
Some people said that a bench trial would have found Camps guilty. They claimed that it was a straightforward case and that the jury made a mistake and obviously didn’t examine the evidence properly, or that the jurors didn’t want to find Camps guilty and weren’t going to (five of the jurors, at least).
Some of these criticisms were, of course, politically motivated, but there did seem to be some genuine discussion about the case and in particular on whether trial by jury was a good thing, especially on forums and in the comments to news articles.
Par for the course
Jury verdicts in high-profile cases are argued about in many places. But, in common law countries, the discussion doesn’t usually turn so quickly to questioning the concept itself. Trial by jury, in the UK at least, is still held in high esteem, with most people taking it as a given that it’s better than the alternatives, and it doesn’t come under much scrutiny.
That’s not to say trial by jury is never questioned in common law countries; it is (listen here or read here for instance). Although most of this criticism seems to come from politicians and the institutions themselves (they say it’s costly and aren’t so keen on its unpredictability), which some would argue is reason enough to support jury trials.
And, ironically enough, at a time when other countries are introducing and extending the use of juries, Britain has restricted it and is seeking to restrict it even further, so it seems that, in the UK, the establishment is having its way on this matter.
Maybe it’s impossible to have unbiased trials for high-profile politicians. You can’t stand on a jury if you know the person being tried, but this is obviously an impractical restriction for this type of case.
Politics and judges
Judges on bench trials might make decisions that are influenced by their political persuasions or personal views, but I believe that they have a better chance of getting it right, even in high-profile cases. Their training and experience make them better prepared to examine the evidence and hopefully even to put their beliefs and attitudes to one side.
Having said that, the Garzón saga has shown how difficult it is to separate politics from the judiciary in Spain, although, with Garzón, it may have been more of a personal matter than one of politics.
I’ve changed my mind
It looks like I have changed my mind about trial by jury. Not that I ever had a strong opinion about it; I just took it for granted that that was how it should be done. But now I think that people with legal training should be the ones handing down the verdicts.
One of the arguments against bench trials, the one I used to wheel out when confronted by the idea that trial by jury might not be the best alternative, was that we should be judged by our peers as judges might be out of touch with society and current values.
But, even if Spain is producing too narrow a grey scale of judges when it comes to backgrounds and beliefs, this doesn’t mean that, with the right training, that they can’t do their job properly, which, in most cases, probably comes down to decisions of a technical nature rather than a moral one, especially when there is a fairly explicit code of legislation to base decisions on.
The other argument against bench trials, which is related to the first one, is that trial by jury is a safeguard against tyranny. This one is harder to argue against. Although, if there is a genuine separation of powers, or something close to it, the safeguard should already be there.
Would a bench trial have found Camps guilty?
I don’t know what would have happened to Camps and Costa in a bench trial, but I might have had more faith that the decision would have been made purely on technical merits. Although I’m not assuming that they would have been found guilty—I didn’t follow the trial closely enough to have even a half-informed opinion; maybe the jury didn’t get it wrong as many have suggested.
I know what I would have liked to have happened to Camps and Costa, but that’s another matter. After all, we all have our opinions on politicians. If I had been on that jury, I would have tried to focus on the evidence and put my prejudices to one side, but I’m not sure how successful I would have been.
This is not the first controversial jury case in Spain. There have been two other famous cases in which what this article calls “deviant verdicts” were handed down: the Otegi and Wanninkof cases. Some say that these cases, along with the Camps trial, are evidence that Spain is not ready for jury trials, but examples like these can be found in all systems (e.g., OJ Simpson in the US).
I think Spain is as ready as any country for trial by jury. The problem is that trial by jury might be, at the most, only the second best option.
Anyway, now that juries are becoming part of the furniture in Spain, I imagine that, as the years go by, there will be less and less debate about how just they are.
Translation of jurado profesional and jurado popular
It might seem like a waste of Web space to spend more than two lines talking about the translation of these terms, as they do seem fairly straightforward, but…
While you won’t get too much argument over the translation of jurado<>jury, owing to some of the cultural differences touched on above, there does not appear to be a direct equivalence in usage when you want to differentiate between the two types of trials or juries.
Whereas, in Spanish, making the distinction between “popular” and “professional” is quite natural, in English, you seem to have a jury or you don’t, although this particular English usage might be more characteristic of a general register.
So, you have two options.
As I have done in this post, you can just talk about bench trials and juries, which is more of a target-language focused and indirect approach. No jury and juryless trial are other possibilities along this line.
Or, you can go for professional jury and jury or popular jury, which might be useful if you want to provide more of a source-system focus and more cultural information. It might also be the best way to go in academic articles on the Spanish legal system, particularly if the terms are defined in the text.
However, it may not always be clear what “professional jury” means in English.
It could mean that the judge(s) hand down the verdict (i.e., as in the jurado profesional or bench trial), but it may also be understood to mean a jury selected from a pool of qualified jurors.
This is, at any rate, how “professional jury” is being used here.
So, maybe I would always try to go for the bench trial—jury option. At least unless it was an article in which the jurado profesional was defined at some point or a text that was specifically about the jurado profesional.
Am I changing my mind again?
Thinking about it a little, having professional juries made up of a pool of qualified jurors could be the best solution; you’d have the best of both worlds: qualified jurors who aren’t part of the establishment.
Maybe I’ll have to give this one another rethink…