Just after William the Conqueror organized the “king’s courts” that would administer justice throughout the realm in a more consistent manner than what he had come upon, the judges would be asked to resolve cases the factual antecedents of which they practically knew nothing about. At that time, jurists had not yet cultivated the prejudice that the uninformed mind was most fair. A juror today must not have actively sought information on a case for which she is to sit as juror, much less formed an opinion about the merits thereof, or the guilt or innocence of the parties involved. The slightest hint of any of these can result in a challenge—which, to many potential jurors, comes as a relief anyway. At that time, what judges needed was precisely the opposite: people who could supply them background information on the case with which they could work and start to sift the evidence that would come before them!
Most Americans have a romantic attachment to the jury. They believe it to be an entailment of the kind of democracy for which they have opted as a people: for a person to be tried by his peers. The problems I have with the jury, however, come in many respects from the American practice and use of the system. There has emerged in recent times a very peculiar occupation: Experts in jury selection who advise lawyers on who of the potential jurors should be peremptorily challenged, and who should be questioned and on what. In other words, a jury can be so constituted as to be favorably inclined towards a party, which also means that law and evidence need not be the bases of jury findings.
Jurors themselves attest to what happens behind the locked doors of the jury room: making relevant the irrelevant, compromising to avoid hung juries, advertence to impertinence and so much else that stands in the way of what we usually take justice to require. Even the looks, the manner and the demeanor of counsel can become relevant to the outcome of a jury’s deliberations.
My other problem is that while it is true that the judge rules on what evidence goes to the jury and what does not, ultimately it is the jury that weighs the evidence, because it must arrive at findings of fact. Any law student will tell you that Evidence is one of the toughest subjects in law school —provided of course that it is taught competently and covers the subjects that ought to be covered. No matter that the instructions given by the judge to the jury may be comprehensive and clear, a one or two-hour instruction cannot make up for a whole course —and the skill that experience cultivates— on evidence!
Not too long ago, I watched a children’s singing contest. Results were largely by popular vote. The crowd favorite was a street child who was, vocally, not the superior candidate. But she won because of our propensity to favor the underdog. Certainly, this will factor into the reliability of our juries!
The unfortunate incident in Ferguson is not the point here, because it was Grand Jury and the matter on hand was indictment, not trial. But I do recall a not-too-friendly exchange that I had with an American law professors at a conference in Dublin. After he had asked me about our judicial system in the Philippines, he quipped, rather patronizingly: “I shudder at the thought that a person’s fate should be entrusted to only one person seated on the bench.” And easily piqued, I replied: “I am more in dread of entrusting the fate of one person to twelve men and women who have not studied the complexities of evidence.” Such is my prejudice!
rannie_aquino@sanbeda.edu.ph
rannie_aquino@csu.edu.ph
rannie_aquino@yahoo.com
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