Monday, January 22, 2018

The verdict on trials by jury

Express editorial logo484

Mark Fraser

In an interview last week with the respected international news magazine The Economist, Chief Justice Ivor Archie pointed to functional illiteracy as a key reason for wanting to abolish trial by jury in Trinidad and Tobago.

 Mr Archie had raised this issue at last year’s opening of the law term, when he noted that jury trials were too expensive and inefficient. The CJ’s suggestion, however, did not receive widespread support, largely on the basis that abolishing a jury of peers would, somehow, be undermining democracy.

This objection, however, lies on the widespread error of conflating the moral argument for democracy (that the majority should decide how their society is run) with the wisdom argument of democracy (that decisions made by the popular will are always correct).

In fact, decades of research in social psychology demonstrate that the group mind is prone to error and amorality. Additionally, political philosophy from the time of the ancient Greeks 2,000 years ago pointed to the dark side of democracy—mob rule. This is why the rule of law is an essential handmaiden to democracy, since only then can the rights of minorities be upheld.

But, as also noted by political scientists, this system can only work with an informed citizenry. Justice Archie’s argument, as presented in The Economist, implies that educated professionals would be better jurors. Yet this is only partly true. Even in countries which, unlike T&T, actually have a 97 per cent literacy rate, the jury system is being revamped in order to make justice both fairer and more efficient. And the basic reason for such reforms is the human tendency toward bias. 

Decades of research have shown that a defendant’s class, race, sex, and even clothing can decide guilt or innocence more than the facts or the law. This problem, however, is not necessarily solved by leaving court cases to be decided by judges, magistrates, or even trained lay assessors. The trial system would be improved only if these individuals underwent rigorous training to make them aware of their own biases and how to overcome them. Additionally, training in topics like statistical probability, forensic accounting, and cognitive psychology would be necessary for certain kinds of cases.

The Economist article also pointed to the issue of jury intimidation, but this would become even more of an issue if judges alone were deciding verdicts. Thus, for a non-jury system to retain public confidence, judges in particular would have to be both protected and audited far more rigorously than now obtains.

All these are difficult challenges, but none is insurmountable. What is beyond doubt, however, is that the jury system in its present form does not effectively serve justice.