Get Rid Of The Criminal Jury - From England By Way of Australia

 Good thing that Indiana's Constitution protects the right to a jury trial, particularly since the United States Supreme Court seems to be giving up on the Constitution and the law.

Constitution of the State of Indiana, Art. 1, § 13 

Section 13. (a) In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.

(b) Victims of crime, as defined by law, shall have the right to be treated with fairness, dignity, and respect throughout the criminal justice process; and, as defined by law, to be informed of and present during public hearings and to confer with the prosecution, to the extent that exercising these rights does not infringe upon the constitutional rights of the accused.

 Constitution of the State of Indiana, Art. 1, § 19 

In all criminal cases whatever, the jury shall have the right to determine the law and the facts.

 § 19 has confused judges, lawyers, and legal writers for over a century, if not longer. Some things I have read in the distant past seemed to indicate the writer taking offense that mere citizens have such power.

Jury's Role Under the Indiana Constitution 

 Abstract

Despite existence of a provision which constitutionally mandates jury determination of the law as well as the facts since 1851, no definitive explanation exists of what a jury should do when it 'determines law.' Further, only minimal attention has been directed toward the role counsel can play in the constitutional scheme. Avoidance of these issues by the appellate courts of Indiana only detracts from the effectiveness of trial judges, juries, and counsel. To incorporate the positive implementation it has effected and to reconcile or eliminate the contradictions and inconsistencies which have appeared in the case law, the State supreme court should develop an operation model on the basis of theoretical placement of the jury in the judge's role, with modifications to accommodate the jury's collegial nature. The jury's attention could routinely be directed to legislative intent and be instructed to apply canons of construction. Such commonsense rules of interpretation would provide useful guidelines to the jury which until now has been forced to operate in a vacuum. In addition, the suggested model would provide a useful analogy in impressing jurors with the seriousness of their responsibility. However, some findings of law or fact, are not delegated to the jury under the model. Footnotes are included.

That full article is here: The Jury's Role Under the Indiana Constitution, Carolyn White Spengler (Indiana University School of Law).

But of England, Ralph Leonard's article The Strange Death of English Justice  (Quillette) describes what is going on there:

 This has been coming for some time. In July, the government commissioned an Independent Review of the Criminal Courts. The review, chaired by Brian Leveson, made some recommendations as to how to deal with the ever-growing backlog of cases in the Crown Court. These proposals include reclassifying some “either way” offences as “summary only” offences, meaning they will be heard in a magistrates’ court with no jury present. For other either way offences, where defendants previously had the option of choosing trial by jury, all juries will be replaced by a judge and two magistrates. Serious and complex fraud cases will also be assigned to judges only.

There is a contradiction at the heart of the revised justice system that is about to come into being. If trial by jury remains our method of trying the most serious crimes, this implies that it is the best way of litigating criminal cases. If so, then we are accepting that “non-serious” cases are going to be tried using an inferior form of litigation. That will create a two-tier legal system.

The irony is that, over the past year, public discourse has been obsessed with what some are calling a crisis of national identity. Does “Englishness” exist? If so, is it good? What are its ethnic boundaries?. Yet, jury trial, something that is very important to English history, identity, and our understanding of ourselves—something that has been an ancient, even ancestral, English right, is facing a wrecking ball. People outside the Anglosphere may not understand why this is such a big deal. But you cannot understand the English psyche without understanding the symbolic value of this practice, which has deep roots in English history.

 We should expect the same wreckage here, if anyone were foolish enough to make such a proposal.

As the American conservative thinker Russell Kirk observed when examining the “British roots” of American order: “The English people looked upon common law as their law, the product of their historical experience; it was not something imposed upon them from above.” He further speculated that “representative government” arose in England first because juries taught “free men to assert a share in public concerns.” 

The English Marxist E.P Thompson put it differently. Trial by jury, he explained, “rests upon a total view of the relation between the legislature, judiciary and the people; upon a notion of justice in which the law must be made to seem rational and even humane to lay jurors... and upon a particular national history of contests between ‘the people’ and the Crown or state.” 

Whether you accept Kirk’s Burkean organicism or Thompson’s Muggletonian Marxism, both were right to stress that civil liberty depends on involving the people in the judicial process. Juries are a popular restraint on arbitrary power. The legitimacy of the law comes from its embeddedness in our social relations, and the rule of law is the institutionalisation of the general will of civil society. 

And so in 1851, the Indiana Constitutional Convention made jurors judges of law and fact to keep the government honest.

sch 12/25