Hold Fast to the Traditions and Institutions of Liberty

In Defence of Juries

Why juries?  They appear to be a peculiar anglo-saxon institution, at least in terms of their origin.  Every so often a talking-head stands up to suggest there has to be a “better way”.  The assessment of evidence and the determination of guilt would surely be better served by those trained to evaluate evidence and reason to a sound conclusion.

Juries necessarily reflect the general state of society at large.  That is offered as one of the great benefits of juries: it is a trial of one’s peers.  That is one of their perceived benefits.  Juries are not made up of elites who control just about everything else.  But that also means that if education standards in society generally fall and folk are unable to reason clearly, let alone articulate, juries risk falling into a situation where they are little more than corporate expressions of brute prejudice, self-righteous sanctimony, and general ignorance.  We have served on juries and have “insider” knowledge, so to speak.

Yet, strangely enough, more often than not–by a long, long shot–juries get it right.  Their decisions reflect not just the evidence, but its weight.  Yet, this alone, is not the sole argument for juries.  There is a far, far more important principle at work (which, more often than not, contributes to their effectiveness).  Peter Hitchens puts it this way:

The jury is more noble in theory than in reality.  There is nothing especially elevating in the sight of twelve people crammed into a room trying to decide whether to ruin a fellow human being’s life.  Yet for once, the idea is more important than the practice.  As long as these strange committees continue to exist, governments are less powerful and citizens are more free.  [Peter Hitchens, The Abolition of Liberty: the Decline of Order and Justice in England (London: Atlantic Books, 2003), p.180.]

Checking the power of governments and buttressing the freedom of citizens is a worthy, Christian principle.  For that alone, jury trials are a wonderful Anglo-Saxon institution and a definite contributory institution to the emergence and growth of the first Christendom.  Power corrupts and always needs checking and limitations.  Amongst humankind, the state is the highest and therefore the most minatory of all human institutions.  It has the power to kill the body.  Whilst ordained as a minister of God (Romans 13: 4,5) in corrupt times and hands it can wreak (and repeatedly has wrought) destruction and havoc.  Therefore, the institution of the jury is not just a national treasure: it is vital to our collective future.  Hitchens explains how this works:

Two things happen to trails when a jury is present.  First there is the element of doubt about the outcome that is quite beyond the control of the state.  This turns the presumption of innocence from a mere slogan into a real possibility.  Some on the jury may actually be prepared to believe that the police have the wrong man.  Secondly, the prosecution’s huge advantage over the defence is greatly reduces.  The defence is not an interloper among officials but one of the two contestants before a panel that owes nothing to either side. (Ibid.)

The jurors are the gods of guilt; before them the state must (figuratively) bow.  Ergo the godly state will defend the institution of the jury with the fury and tenacity of a she wolf defending her young. If she were to fail, the future of her cubs would become decidedly bleak.

In a criminal court, the powers have been carefully divided–at least in our Christian tradition.  The judge (representing the Crown, and therefore a power of the State) will decide on matters of law.  The jury will decide on matters of evidence, as to guilt or innocence.  The authority of the judge with respect to the law is limited and checked by the institution of the appeal to wider and higher courts.  The authority of the jury is limited and checked by the very high standard of proof required viz a vis the evidence: the matter must be proven “beyond reasonable doubt”. 

The alternative is not just sub-standard, it is positively dangerous. 

Without a jury, the legal process is like any other government action. Strip the process of arrest, trial, conviction, sentence and appeal down to its basic parts and it is quite simple.  A series of state employees, few of them especially brave or intelligent or perceptive, are asked to approve the original decision of another state employee.  The chances are strong they will do so at every stage, and will feel that this is what they are paid to do.  [Hitchens, op cit., p. 181.]

And, we may add, these government functionaries are not just paid to support their employer, but most are career employees.  To oppose, to diverge, to act the contrarian is likely  to become a career limiting move–and that right quickly. The presumption of bias and prejudice on their part is necessarily conclusion to be drawn by anyone who understands the human heart and the fallibleness of mankind and yet insists upon liberty for man as the image-bearer of God Himself.

One argument against juries persistently put forward is the limitations of many people that serve on juries.  As noted above, we have experienced it first hand. But this argument proves far too much, to where it actually becomes a telling and convincing argument for the institution of the jury.  Every observation to be made about the limitations and cant of jurors can be multiplied several times over when it comes to politicians, career bureaucrats, and ambitious state-functionaries.  In addition, every argument about the cant and limitations of jurors applies equally well to the democratic system itself.  If jurors cannot be trusted, neither can voters. 

Jurors might well have their weaknesses, but in comparison to the alternatives, they positively shine like beacons upon a dark, sinister sea. 

Liberty is a Fragile Treasure

The Politics of Guilt and Pity Trump Justice

People charged with a crime have to be proved guilty beyond reasonable doubt to be convicted.  This is not a tangential, but a fundamental, component of our system of justice.  The burden of proof is on the accuser, and his agents–the police and inquisitorial agencies of the State.

Judicature is structured this way–and has been for centuries–because the power, resources, and influence of the State are so much greater than a citizen’s.  There are other principles set in concrete to afford similar safeguards and protections.  The accused cannot be compelled to testify against himself.  Again the reason is the mismatch of power between the State and the accused.  The State has the power to “lean” on an accused, with threats, intimidation, even torture.  “Confessions” under even the hint of duress are thrown out immediately–which is why interviews are extensively videoed and audio-taped.  They provide evidence of no duress by the State.

It is disconcerting, however, when the politics of guilt and pity intrude.  These fundamental principles of justice set down to maintain the integrity of judicature can be tossed overboard in an emotive tsunami.  The NZ Labour Party, polling in the twenties percent range, desperate to strike some resonance amongst the few identity-orientated groups which still maintain lingering vestiges of support, has come forth proposing to dismantle “proof beyond reasonable doubt”.  This from the NZ Herald:

The Labour Party’s plan to reform the criminal justice system would mean that the accused in a rape case would have to prove consent to be found innocent — a change it acknowledges as a monumental shift.  But Labour’s justice spokesman Andrew Little said the current system is broken and in need of a major shake-up. The party favours an inquisitorial system, where a judge interviewed the alleged victim after conferring with prosecution and defence lawyers.  The policy would mean that in a rape case, if the Crown proved a sexual encounter and the identity of the defendant, it would be rape unless the defendant could prove it was consensual.

So, let’s boil this down.  In an allegation of rape, the Crown would have to prove that the accused had sexual intercourse with the alleged victim.  Easy peasie.  DNA will do it every time.  As soon as the DNA test comes back positive, the defendant would then have to prove that the rape was consensual.  How might he or she do that?  Sexual intercourse, by its very nature, tends to be a private matter.  Rapidly, the evidential basis to a case would boil down to a “he said, she said” imbroglio.  In that case, the defendant would be convicted, since he or she could not prove that the sex was consensual.

This change rests on the radical new principle that all sexual intercourse would be presumed to be rape unless proven otherwise.  Oh no, no, no said Labour’s Justice spokesman, Andrew Little.  That’s not what I meant at all.  That’s not it at all.

He said the issue of proof would only apply where allegations of rape had been raised.  “It is pretty radical thing to say that ‘all sex is rape’ unless you prove consent. The reality is that in 99.9 per cent of cases, no one is being asked to prove consent.”

How’s that for a compelling refutation of criticism.  Since in the vast majority of cases, no-one asks you to prove consent, it’s OK.  But if someone should ask, you have to prove it, and then the presumption is that it was rape.  But that’s not to say that the law would proceed on the idea all sex is in principle non-consensual.  Not at all.  It’s only when someone would say it was non-consensual, and then it would become non-consensual de jure and you would have to prove otherwise.  And, by the way, I come from Planet Mars.  

Why, we ask, would Little not argue that this should be applied to all criminal cases.  Take family violence, for example, which now includes verbal abuse.  In the vast majority of verbal communication there is no abuse.  Little, if consistent, would be arguing that in principle all communication between human beings would be regarded as non-abusive.  But if someone should say you have spoken abusively, you would have to prove that you did not.  Otherwise you would be held guilty.  Good luck with that. 

“I don’t accept that that is creating an offence under which the defendant is guilty until proven innocent.”  He acknowledged the change would be a “huge leap”.

You don’t say.  Oh, said Labour’s Justice spokesperson, we know that this is a radical change to the justice system, but it just has to be done.  Why.  Guilt and pity, dear chap. 

“But when you look at the volume of sexual violence cases and the 1 per cent of cases that result in a conviction, there is something wrong with the way we are handling sexual violation cases. The circumstances may well justify doing something radically different.

Andrew Little–and his party–feel guilty that so few sexual violence cases end up with a conviction. That’s because he and his fellow MP’s have doubtless engaged in sexual intercourse, all instances of which would now be implicitly non-consensual. Little and his colleagues feel they, along with everyone else, are guilty of rape.  Under Little’s “reform” they would have to prove that they didn’t. 

To try to create a good impression about their own sexual activity they have concocted a “guilty until proven innocent” approach–to help create the impression that they, of all people, would not be guilty of rape.  Otherwise why would they advance such a radical measure?  They are telling us all (and themselves) that they are the good guys.  They hate rape.  They would never have committed it.  Which is to say they have an abundance of proof in each and every occasion they have participated in sexual intercourse they have documentary or scientific evidence that it was completely consensual. 

This is a mere sop to the last few identity-groups that still support them.  But for politics sake they would merrily dismantle some of the core fundamental foundations of justice and judicature which have served us well for centuries.  Little is a revolutionary, and a stupid one at that. 

We are waiting for the questions in the House:

Has the Labour Justice Spokesman engaged in sexual intercourse? Yes.

Has the Labour Justice Spokesman ever engaged in non-consensual sex?  No.

What proof can the Labour Justice Spokesman table in this House that he has never engaged in non-consensual sex?  None.

Then, we submit, Mr Speaker that the Labour Justice Spokesman is a rapist, and is unfit to sit in this House.

No doubt some readers will take umbrage at the allegation that Andrew Little has been guilty of rape.  Umbrage away.  Little wants the burden of proof to be upon the accused.  We are merely taking him at his word.  Prove away, Andrew.