Chapter 4
Courts
Courts personify the law. In the more grandiloquent accounts of law and the legal system, judges are its custodians, guardians of its values: sentinels of justice and fair play. Yet we do think of judges as embodying fairness, evenhandedness, and impartiality. And an independent judiciary is an important hallmark of the rule of law. The jurist, Ronald Dworkin, memorably observed that ‘courts are the capitals of law’s empire, and judges are its princes’.
Judges are not, however, always perceived in these lofty terms. In the words of a distinguished English judge:
[T]he public entertain a range of views, not all consistent (one minute they are senile and out of touch, the next the very people to conduct a detailed and searching inquiry; one minute port-gorged dinosaurs imposing savage sentences on hapless miscreants, the next wishy-washy liberals unwilling to punish anyone properly for anything), although often unfavourable.
It is especially the judges’ role in criminal trials that excites public interest. The drama of the law court is irresistible to novelists and playwrights, as well as film and television scriptwriters. In the English-speaking world, several come instantly to mind. Dickens’s Bleak House is a wonderful example. Albert Camus’s The Fall, Kafka’s The Trial, and the popular portrayal of the judicial process in Harper Lee’s To Kill a Mockingbird, Scott Turow’s Presumed Innocent, John Mortimer’s Rumpole of the Bailey series, and bestseller John Grisham’s novels are other striking examples. Shakespeare provides an unforgettable representation of the idea of justice and the forensic process in The Merchant of Venice. Courtroom dramas on film abound: Judgment at Nuremberg, Witness for the Prosecution, and Anatomy of a Murder are outstanding examples. Courts and lawyers are also the stuff of many a successful television series, though their depiction is often based less on reality than drama. The Good Wife, Ally McBeal, The Practice, and LA Law are recent instances.
It is easy to see why court proceedings fascinate and entertain. The theatre of a criminal trial can be gripping. The clash of lawyers, the uncertain fate of the accused, the lurid evidence—excite a voyeuristic curiosity and genuine interest. And occasionally the fictional representation of the judicial process is no less spectacular than authentic trials which, particularly in the United States, are often televised live. Where a celebrity is on trial, cameras in court guarantee an enormous audience of viewers—the more gruesome the alleged crime, the better. The trials of celebrities such as O. J. Simpson, Oscar Pistorius, and Phil Spector attracted millions of viewers globally. Few trials, however, achieve this level of vivacity or glamour; they tend to be dull and tedious.
While a criminal trial may be enlivened by engaging evidence, civil trials normally lack this piquancy. The court is here engaged in the resolution of a dispute. The lawyers who represent the parties seek to persuade the court of the merits of their case. In a common law trial one side cites a previous judgment, arguing that the present case is sufficiently similar to the earlier one that it ought to be followed. The other side seeks to distinguish this precedent by identifying its often subtle differences. This is the essence of legal reasoning. Should the losing party appeal, the arguments will be rehearsed before more senior judges.
Judges unquestionably exercise onerous responsibilities:
It is an awesome thing to go forward before the judge and await the utterances of his decision … He symbolizes the merger of conceptual justice with organized coercion, the rational human with the mass brute. In him have been remitted the ideals of his culture and the power to compel submission. When a citizen stands in court he feels the immediate impact of that power; it is all assembled and concentrated there on him.
The role of judges is fundamental to the common law; the pivotal force of the judicial function drives the legal system both in theory and in practice. And though it may be less significant in the codified systems of Continental Europe, the influence of judges cannot be overstated.
The judge is thus the archetypal legal institution. In his robed and exalted independence, he represents the very apotheosis of justice. The ‘social service’ that he renders to the community is, in the words of the English judge Lord Devlin, ‘the removal of a sense of injustice’. The neutrality that informs his judgments in the settlement of disputes is nothing short of an article of faith in a free and just society. The dispassionate judge is the quintessence of a democratic system of government. And the ostensible delineation between legislation and adjudication is among its most celebrated hallmarks.
Although this attractive and enduring perception of the judicial function is regarded by cynics as a myth, no amount of scepticism can easily dislodge the image of the judge as keeper of the law, protector and repository of justice (see Box 11). Nor is this to deny that judges are, like all of us, tainted by personal predilections and political prejudices. Yet occasionally it is contended that to acknowledge judicial frailty is, in some sense, subversive, ‘as if judges’, as the illustrious American judge Benjamin Cardozo put it, ‘must lose respect and confidence by the reminder that they are subject to human limitations’.
Box 11 The judges’ moral responsibility
A judge must decide not just who shall have what, but who has behaved well, who has met the responsibilities of citizenship, and who by design or greed or insensitivity has ignored his own responsibilities or exaggerated theirs to him. If this judgment is unfair, then the community has inflicted a moral injury on one of its members because it has stamped him in some degree or dimension an outlaw. The injury is gravest when an innocent person is convicted of a crime, but it is substantial enough when a plaintiff with a sound claim is turned away from court or a defendant leaves with an undeserved stigma.
Ronald Dworkin, Law’s Empire
Courts play a central role in every legal system. But what precisely is that role? What of the political function of judges? What of their appointment, election, and accountability? Is the jury system a valuable element in the administration of criminal justice, especially in complex commercial criminal trials? Is the adversarial system of common law countries superior to the inquisitorial system of civil law jurisdictions? Are courts the best forum for resolving disputes? Can judges be genuinely impartial or objective? What is the purpose of a criminal trial? Are certain courts—such as the United States Supreme Court—too political? Should judges be elected? Is the jury system effective and fair? This chapter will attempt to answer some of these questions.
What do judges do?
In seeking to unravel the mysteries of how judges decide cases, we are engaged in a quest for the meaning of law itself: a theory of what constitutes law is, of necessity, presupposed in the act of judging, as well as any account of it. The orthodox, so-called ‘legal positivist’ model perceives law as a system of rules; where there is no applicable rule or there is a degree of ambiguity or uncertainty, the judge has a discretion to fill in the gaps in the law. This view is most closely associated with Professor H. L. A. Hart. Legal positivists such as him generally describe law by reference to formal rather than moral criteria. In their pursuit of a ‘scientific’ approach to law and legal rules, they argue that the law as laid down (positum) should be kept separate—for the purpose of study and analysis—from the law as it ought morally to be. In other words, that a clear distinction must be drawn between ‘ought’ (that which is morally desirable) and ‘is’ (that which actually exists). Positivists do share the view that the most effective method of analysing and understanding law and the legal system involves suspending moral judgment until it is established what it is we are seeking to explain.
This view has been challenged most forcefully by Professor Dworkin, who denies that law consists exclusively of rules. In addition to rules (which ‘are applicable in an all-or-nothing fashion’), there are non-rule standards: ‘principles’ and ‘policies’ which, unlike rules, have ‘the dimension of weight or importance’. A ‘principle’ is ‘a standard that is to be observed, not because it will advance or secure an economic, political, or social situation … , but because it is a requirement of justice or fairness or some other dimension of morality’. A ‘policy’, on the other hand, is ‘that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community’.
When the judge can find no immediately applicable rule, or where no settled rule dictates a decision, the judge is called upon to weigh competing principles, which are no less part of the law for their not being rules. In such ‘hard cases’, since a judge is not expected to resort to his personal preference in arriving at a decision, he has, contrary to the positivist view, no real discretion. There is always one right answer, and it is the judge’s task to find it (in ‘hard cases’) by weighing competing principles and determining the rights of the parties in the case before him.
This model of adjudication has an obvious appeal to democratic theory: judges do not legislate; they merely enforce those rights that have in the main already been enacted by a representative legislature. Indeed, Dworkin’s thesis springs from a concern to ‘define and defend a liberal theory of law’ and, in contradistinction to the positivists, to ‘take rights seriously’. It is principally an argument from democracy; Dworkin’s concern to eliminate strong judicial discretion is premised on the offensiveness of judges, who are generally unelected officials unanswerable to the electorate, wielding legislative or quasi-legislative power.
What is a court?
The ubiquity of conflict among humans necessitates some forum in which disputes might be fairly resolved (see Box 12). Courts of some kind are a prerequisite of all legal systems. They have power, authority—or what lawyers called ‘jurisdiction’—over specified criminal, civil, and other matters. This entails that their decisions (which are ultimately supported by force) are accepted as authoritative by the parties—who would be unlikely to do so if they did not trust in the independence and impartiality of the professional judges on the bench.
Box 12 Right to a fair hearing
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
Article 14(1) International Covenant on Civil and Political Rights
Courts err. Judges are not exempt from human frailty, and there is thus a need for their mistakes to be rectified. The obvious injustice of a wrongly convicted defendant is assuaged by granting him the right of appeal. Equally, the losing party in a civil case may have legitimate legal grounds upon which to argue that the trial court was mistaken in its interpretation of the law. Appealing to a higher court requires a hierarchy that distinguishes between courts ‘of first instance’ and appellate courts. Some trial courts operate with a judge and a jury: juries are responsible for making findings of fact under the direction of the judge, who decides the law. This combination constitutes the judgment of the court. In other trial courts, both fact and law are decided by the judge.
Appellate courts in common law jurisdictions review the decisions of trial courts or of lower appellate courts. Their task is generally restricted to considering questions of law: did the trial court, for example, apply and interpret the law correctly? Normally they do not hear evidence of factual issues, though should new evidence have emerged, an appeal court may evaluate it in order to determine whether the case should be remitted to a court of first instance to be retried.
Courts everywhere naturally follow procedures which, in some countries, have grown bulky and Byzantine. In criminal trials, these procedures are broadly differentiated on the basis of the role of the judge. The common law adopts an ‘adversarial’ system, while civil law countries adopt an ‘inquisitorial’ (or ‘accusatorial’) system. While this distinction is frequently exaggerated, the two approaches do differ in a fairly fundamental way. The common law judge acts as a disinterested umpire who rarely descends into the dust of the fray. Civil law judges, on the other hand, play a more active role in the trial.
The Continental juge d’instruction is directly involved in the decision whether to prosecute. The office originated in France, and exists in a number of other European countries, including Spain, Greece, Switzerland, the Netherlands, Belgium, and Portugal. They are often portrayed as a cross between a prosecutor and a judge, but this is not strictly accurate, for they do not decide whether to lay a charge; that is a matter for the public prosecutor, from whose office they are completely independent. Their principal duty is, as the title implies, to investigate the evidence both for and against the suspect, who they have the power to interrogate. They will also question victims and witnesses. They may visit the crime scene and attend any post-mortem. In the course of his investigation, they may authorize detention, grant bail, and order searches and seizures of evidence.
It is important to note that their job is not to determine the merits of the case, but to examine the evidence in order to decide whether the suspect should be charged. If they rule in the affirmative, the case is transmitted to a trial court with which they have no connection, and which is not bound to follow their decision. Their function is thus not wholly unlike common law committal proceedings or the American grand jury, both of which are designed to screen the evidence to establish whether it crosses the threshold of chargeability. Though supervised by a judge, a grand jury is presided over by a prosecutor. It has the power to subpoena witnesses in pursuit of evidence against the suspect.
Both major systems have their virtues and shortcomings. It is generally asserted—particularly by common lawyers—that the common law attaches greater significance and value to the presumption of innocence by placing a heavier burden on the prosecution to prove its case ‘beyond reasonable doubt’. This is doubtful. A defendant in an Italian or French court is afforded essentially the same rights and protections as one in Florida. All democratic states recognize the presumption of innocence; indeed, it is a requirement of Article 6 of the European Convention on Human Rights which applies to the forty-seven Council of Europe member states.
Criticism of the adversarial system is not confined to civil lawyers. The occasionally grotesque conduct of criminal trials, especially in America, is an embarrassment to common lawyers. The process sometimes descends into burlesque in which the attorneys abuse the adversarial process and appear to lose sight of the purpose of the institution. This is mainly evident in high-profile, televised celebrity trials with overpaid lawyers histrionically playing to the cameras and the jury. Many civil lawyers are also astonished by the way in which the common law criminal justice system appears to benefit affluent defendants who are able to afford large legal teams. The trials of O. J. Simpson and Michael Jackson are only the most conspicuous recent examples.
Common law prosecutions are generally pursued by way of a charge or indictment against the defendant in the name of the government, the state, or, in Britain, the Crown. This normally follows a preliminary hearing of some kind to determine whether the prosecution evidence is adequate. To discharge its burden of proof, the prosecution will call witnesses and present its evidence against the defendant. The defence may then argue that there is ‘no case to answer’. If this fails (as it normally does), witnesses and evidence are presented by the defence. Witnesses are cross-examined by the opposing counsel, but the defendant has the ‘right of silence’: he or she need say nothing in their defence, but should they decide to give evidence, the defendant is required to submit to cross-examination. In the United States this right is protected by the Fifth Amendment to the constitution. Both sides then present their closing arguments. Where there is a jury, the judge gives them their instructions. Its members then deliberate in private. Some jurisdictions require the jury to return a unanimous verdict, in others a majority suffices.
Sentence
If convicted, the defendant is sentenced. This normally occurs after the court is apprised of her previous criminal record, if she has one, as well as other information about her character. Where she faces the prospect of a custodial sentence, reports may be submitted to the court concerning the defendant’s background: education, family, employment history, and so on. Psychological or medical reports may also be presented, along with evidence, including witnesses to testify to her unimpeachable integrity. This may be followed by a moving plea in mitigation of sentence in which his lawyer attempts to convince the court that the accused is a victim of the cruel vicissitudes and privations of life: poverty, manipulation by others, poor parenting, and other equally powerful forces that were beyond her control and are where the true responsibility for her crime lies.
Every legal system will, of course, have a different range of sentences available to a trial court. These may include imprisonment, a fine, a probation order, a community service order, or a suspended sentence of imprisonment (the term of imprisonment is suspended for, say, two years; if he commits an offence during this period, it may trigger the original sentence).
It is always open to the convicted defendant to appeal to a higher court, which does not hear the case again, but peruses the record of the proceedings in search of any mistakes that could justify a retrial. In certain circumstances, the prosecution may appeal a sentence that it considers too lenient.
Civil trials
The disparity between the common and civil law approaches is less marked in civil trials. French law, however, has come close to eliminating civil trials: the extensive pre-trial preparation undertaken by the juge de la mise en état results in the pleadings and evidence being reduced to writing. The lawyers merely present brief summaries of what the court already has before it. Moreover, the standard of proof in French civil trials is no lower in civil cases than it is in criminal trials.
In civil law countries ‘ordinary’ judges preside over ‘ordinary’ courts. Their jurisdiction, broadly speaking, involves the application of the civil, commercial, and penal codes, and the legislation that complements the codes. In France, the highest court in the ordinary court structure is the Cour de Cassation (Supreme Court of Cassation) which comprises eighty-five trial judges (conseillers) and some forty deputy judges who sit in six rotating specialized panels (five civil and one criminal) and, in certain circumstances, in combined panels or plenary sessions. It has discretion to review only questions of statutory interpretation. Germany has a number of independent judicial systems, each with its own supreme court. Most civilian systems also incorporate a group of administrative courts with separate jurisdiction.
Common law systems adopt an adversarial procedure in civil trials as well. Instead of the government or Crown proceeding against the defendant, an aggrieved plaintiff (or ‘claimant’) sues the defendant, usually for damages, i.e. monetary compensation (for a tort, breach of contract, or other civil wrong). Both sides are free to call witnesses, and the rules of evidence are broadly the same as in criminal trials. An important difference, however, is that whereas, as we saw, the burden of proof in a criminal trial is ‘beyond reasonable doubt’, the plaintiff in a civil case need only prove his case ‘on a balance of probabilities’.
Who are the judges?
Common law judges are, with the conspicuous exception of the United States, appointed from the ranks of senior lawyers, while European Continental judges are recruited in the style of the civil service. They are generally employed directly from university through some form of public examination with no requirement of previous professional experience. Successful candidates are appointed at the bottom of the career ladder; professional training occurs within the judiciary, with promotions depending on merit. Public competition is considered the most effective method of maintaining the professional standing and the independence of the judiciary. It checks political partiality and nepotism, but the fear of prejudicing promotion may inhibit a true spirit of independence from the executive branch. There is also the likelihood that since private practice is normally significantly more lucrative than a career on the bench, the more gifted law graduate may be discouraged from entering the service.
The position in the United States is complex. The federal courts are divided into three tiers: the Supreme Court, the Circuit Court of Appeals, and the District Court. Under the US Constitution, the president has the power to nominate and, in conjunction with the senate, appoint judges of all three courts. He nominates candidates to the senate after receiving recommendations from the Department of Justice and White House staff. The Department of Justice screens prospective nominees, followed by an investigation of the candidate by the FBI. Views are sought on the nominee’s suitability from the American Bar Association.
The White House Counsel’s Office also plays a role; it works together with the Department of Justice and members of the senate, and considers recommendations by members of the House of Representatives, state governors, bar associations, and other bodies. The Senate Judiciary Committee scrutinizes the credentials of candidates. Should it reject a nomination, it is returned to the president to produce another name. Nominations by the Senate Judiciary Committee are considered by the senate in executive sessions. Non-controversial candidates tend to be unanimously confirmed. When a contentious nomination is made, however, a debate ensues. An adverse recommendation by the Senate Judiciary Committee inexorably results in rejection of the candidate by the senate. Of the 151 potential judges nominated so far, only twelve have been formally rejected by the senate. A successful nominee is formally appointed by the president.
The protracted nature of the process, including filibustering by senators, as well as the predictable ideological dimension of the system, has attracted considerable criticism. Its detractors contend that it undermines the independence of the judiciary. Defenders of the method, however, claim that the president and senate exercise a vital and legitimate check on the composition and standing of the federal judiciary.
At the non-federal level, judges are elected in twenty American states; this is a rarity, not encountered in any other common or civil law jurisdiction. Although it may appeal to the democrat, it unavoidably transforms judges into politicians who, to keep their jobs, must appeal to popular sentiments and prejudices. While it may be true that an elective system is preferable to one of nomination under a corrupt government which appoints compliant judges regardless of their ability, few lawyers support what John Stuart Mill called ‘one of the most dangerous errors ever yet committed by democracy’.
Dissatisfaction with the method of judicial appointment, based largely on the unrepresentative nature of appointees (few women or members of racial minorities), has led to the adoption of judicial appointments commissions which seek to bring greater transparency and fairness to the process (see Figure 7). The commissions are charged with responsibility for selection. They exist in some states of the United States, as well as in Canada, Scotland, South Africa, Israel, Ireland, and in a number of other European countries, including England and Wales, where since 2006 it functions as an independent non-departmental public body. Applicants for judicial office are required to submit a nine-page application form; short-listed candidates are interviewed. They are evaluated according to five criteria: intellectual capacity; personal qualities (integrity, independence, judgment, decisiveness, objectivity, ability, willingness to learn); ability to understand and deal fairly; authority and communication skills; and efficiency.
7. Members of the Supreme Court of Canada, four of whom are women, including the Chief Justice.
The politics of the judiciary
Though the US Constitution nowhere explicitly confers on the Supreme Court the power of judicial review, it has, since the seminal case of Marbury v Madison in 1803, asserted the right to strike down laws that it regards as in conflict with the provisions of the Constitution. This, the most muscular form of judicial review, entails a court of appointed judges (albeit with senate approval) exercising control over democratically enacted laws. In doing so, the court has effected major social and political transformations by declaring as unconstitutional a wide range of legislation by states on matters as diverse as abortion, contraception, racial and sexual discrimination, and freedom of religion, speech, and assembly.
In the United Kingdom, the court of final appeal is the Supreme Court, which in 2009 replaced the Judicial Committee of the House of Lords. Its principal function is to hear appeals from the UK’s three legal systems: England and Wales, Northern Ireland, and Scotland. Despite its name it lacks the power of the Supreme Court of the United States to overturn legislation enacted by parliament. It may, however, declare legislation to be incompatible with the rights specified in the European Convention on Human Rights, and it can set aside secondary legislation which, for example, it finds to be ultra vires (beyond the powers) of the body purporting to pass it.
The Supreme Court of India has, with broad public support, exhibited a high degree of judicial activism in a number of areas of social, political, and economic life, including marriage, the environment, human rights, agrarian reforms, and the law governing elections. The judges have frequently described the constitution as more than a political document; it is considered an abiding declaration of ‘social philosophy’. And this philosophy is steeped in egalitarian values that represent a commitment to reform society to correspond to the principles of social justice that inspired the framers of the constitution.
One striking feature of the court’s jurisprudence is the concept of public interest litigation, whereby the poor obtain access to the courts. The court has held that legal redress for the deprived should not be encumbered by the restrictions of the adversarial system. Similarly, it has accorded a liberal interpretation of Article 21 of the constitution which provides that ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’ This has engendered a considerable expansion in substantive individual rights.
Under its post-apartheid constitution, the South African Constitutional Court has the power to interpret the constitution and has handed down far-reaching decisions, including declaring capital punishment to be unlawful and upholding the right to housing, the state’s constitutional duty to provide effective remedies against domestic violence, and the right to equality.
Weaker forms of judicial review exist which permit the legislature and executive to reject the court’s rulings, provided they do so publicly. They are increasingly incorporated in constitutions and legislation. So the Canadian Supreme Court has a role in constitutional interpretation, but without its judgments having an authoritative status. Should the legislature dissent from the court’s interpretation it is free to re-enact the impugned legislation. Section 33 of the Canadian Charter of Rights permits the legislature to decide that a statute should survive notwithstanding its possible conflict with specified provisions of the Charter.
The New Zealand Bill of Rights of 1990 directs the courts to interpret all legislation in order to render it compatible with the Bill of Rights, but grants the courts no power to refuse to enforce statutes that are inconsistent with the Bill of Rights. Similarly, the UK’s Human Rights Act of 1998 combines the interpretive directive with a judicial power to declare a statute inconsistent with guaranteed rights and a ministerial power to amend the statute speedily to comply with those rights.
Critics of strong judicial review consider objectionable the power of judges over democratically elected legislators. But even if legislative bodies were genuinely representative, the arguments in support of their being in a stronger position than courts to protect and preserve our rights are, at best, uncertain. Not only are the vicissitudes of government and party politics notoriously susceptible to sectional interest and compromise, to say nothing of corruption, but it is precisely because non-elected judges are not ‘accountable’ in this manner that they are often superior guardians of liberty. Moreover, the judicial temperament, training, and experience, and the forensic forum in which rights-based arguments are tested and contested, tend to tip the scales towards their adjudicative, rather than legislative, resolution. Indeed, it is hard to see how the latter would operate in practice. Since the rights in question are, by definition, in dispute, what role could elected parliamentarians play?
Sadly, one’s trust in lawmakers is not often vindicated. Though sometimes contentious, certain fundamental rights are best kept off-limits to legislators, or at least beyond the reach of normal party political machinations. Would the civil liberties of African Americans have been recognized sooner without the Supreme Court’s historic Brown v Board of Education decision in 1954, which held that separate educational facilities for black and white pupils was ‘inherently unequal’? (See Chapter 6.)
Is the South African Constitutional Court not more likely to defend human rights than its new, democratic parliament? Have the judgments of the European Court of Human Rights (which, sitting in Strasbourg, considers complaints concerning alleged violations of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by States Parties) not enhanced civil liberties in, say, Britain? The court has ruled against the British government on frequent occasions, requiring it to amend its domestic law on a variety of Convention-protected rights, including the right of privacy, the right against the use of corporal punishment, and the rights of mental health patients.
Trial by jury
In common law systems the notion of being tried by a jury of ‘one’s peers’ is frequently regarded as an article of faith. Its importance is reflected in the words of the judge, Lord Devlin, who in 1956 wrote: ‘Trial by jury is more than an instrument of justice and more than a wheel of the constitution; it is the lamp that shows that freedom lives.’
Jurisdictions differ in respect of the use of juries. Some restrict them to criminal, and not civil, trials (e.g. France where the judges sit together with the jury, who are also involved in determining the sentence to be imposed); others prescribe juries for trials of serious crimes (e.g. Canada); while in some countries (e.g. England and Wales) they are used in criminal cases and limited to a few specific civil cases (e.g. fraud).
South Africa abolished juries in 1969 largely on the ground that since they comprised only white persons, they were intrinsically prejudicial to ‘non-white’ defendants. Many who watched the homicide trial of the athlete Oscar Pistorius on television expressed surprise at the absence of a jury. Instead, in criminal trials, the judge is assisted on questions of fact by two lay ‘assessors’ (see Figure 8).
8. Oscar Pistorius on trial for killing his girlfriend.
Most conspicuous are the jury trials in the United States, where juries are available for both civil and criminal proceedings. More than 60 per cent of jury trials are criminal trials, the rest are civil and other trials such as family court proceedings.
Among the much-vaunted virtues of the jury trial is the extent to which it operates as a curb on the power and influence of the judge. By involving (usually twelve) ordinary citizens in the administration of justice, it is argued, the values of the community may be expressed. A group of randomly selected laypersons, it is claimed, is a more democratic arbiter of guilt than a judge, who is perceived, rightly or wrongly, as an agent of the government.
Champions of the jury system also claim that fact finding is a matter of common sense that requires no legal training. And they often defend the jury’s unaccountability on the ground that it fosters greater independence. It is also asserted that by acquitting a defendant against the weight of the evidence a jury can express its criticism of a bad or unpopular law.
Critics of the jury, on the other hand, generally express unease about the fact that juries, unlike judges, are not required to give reasons for their decision—made in secret—thereby opening the door to emotion and prejudice. Doubt is also voiced in respect of the ability of the average juror to comprehend complex scientific or other technical evidence. Complex commercial fraud trials, for example, generate an enormous quantity of highly specialized information. This has led to controversial proposals in Britain and elsewhere to abolish juries in these sorts of trials. Recently an exasperated judge in England dismissed a jury that had put a number of questions to him that demonstrated a ‘fundamental deficit in understanding’ of its role.
In addition it is sometimes thought that a jury is susceptible to domination by one or two of its more opinionated or tenacious members. The film 12 Angry Men illustrates dramatically how juries can be swayed by a single individual’s persistence. There is evidence that juries tend to acquit more often than judges or magistrates. Some suggest that this weakness may spring from jurors’ perverse sympathy with the defendant.
Alternative dispute resolution (ADR)
Dissatisfaction with court-centred resolution of disputes has long been sounded by critics who regard it as, among other things, expensive, lengthy, complex, rigid, and excessively formal. ADR is increasingly available in a number of countries where, in some cases, courts actually require the parties to attempt mediation before they allow the matter to be tried. There is little doubt that, in addition to the previously mentioned drawbacks of litigation, it also lacks the confidentiality and opportunity to select the arbiter of a dispute.
There are three principal forms of ADR: mediation (in which a mediator proposes a solution without imposing it on the parties), arbitration (where parties submit their dispute to a third party who imposes a resolution upon them), and negotiation (which is voluntary without a third party to resolve the dispute).
Several university law and business schools, particularly in the United States, offer programmes on dispute and conflict resolution. Though there are a number of problems to be overcome (including, for example, poor standards and training of and funding for mediators, inadequate regulation, and limited transparency as to performance and ethics), ADR would seem to have a promising future. In the words of one of its leading protagonists:
[M]ediation has (on our best days) some of the transcendence of religious experience but without having to go to services. This is mostly uncharted territory for ADR practitioners today, but I predict that in thirty years, it will no longer be considered strange to think of mediators as serving some of the needs that village elders served in days long ago.
Tomorrow’s courts
In the future, though it is unlikely that judges will be replaced by computers, the administration of justice in many advanced societies has already undergone significant changes and will continue to do so. The courts of several jurisdictions already benefit from access to legal materials that previously would have consumed long hours of research. Virtual law libraries with sophisticated search facilities enable judges, lawyers, legal academics, and ordinary members of society to obtain rapid access to statutes, cases, and other sources of law. This will be especially helpful to less affluent countries with limited legal resources. Increasingly, judgments of the courts are posted on the Internet almost immediately after they have been handed down. There are already several excellent online legal databases such as findlaw.com and austlii.edu.au.
The electronic transcription of court proceedings, the management of cases, and the standardization of electronic documents will continue to enhance the judicial process, streamlining and reducing notorious delays. The sight of a judge laboriously taking written notes is already disappearing, but voice-recognition technology will obviate the need for note taking of any kind. Both evidence and legal sources can effortlessly be retrieved electronically. A more radical development might be the establishment of virtual courts in which the parties conduct proceedings without the need for corporeal proximity, thereby decreasing cost and delay.
Many of these advances (and there will be others) are likely to generate significant advantages for the ordinary individual seeking access to justice. Once legal information and services become more widely available, it ought to follow that the grandiose ambitions of the law and legal system will be more effectively realized.
The parties submit their dispute to one or more arbitrators by whose decision (called an ‘award’) they agree to be bound. Among the perceived advantages of ADR are its speed, lower cost, flexibility, and the provision of specialist arbitrators in disputes of a highly technical nature. But delays are not infrequent, and the cost may be enhanced by the requirement that the parties pay for the arbitrators. In some jurisdictions the enforcement of arbitral awards is, to say the least, challenging.