[DRAFT] the right to trial by one’s peers

[Greater Thamesholm Concilliar Republic]

The World Assembly,

Considering that, even in countries with a mostly independent judiciary, there has to be someone (whether the electorate, a politician or another judge or group of judges) who appoints judges,

Noting that, as sapients cannot be perfect and that, even in the best countries, government officials are not always perfectly unbiased,

Hereby:

• Defines "defendant’s peers" as those who are similar in qualities likely to lead to prejudice between groups, provided twelve or more of them can be found in the nation’s population.
• Requires trial by juries of a defendant’s peers in civilian criminal trials where another judge (unconnected to the trial) at a pre-trial hearing on the matter, requested by the defendant, has identified the risk of judicial bias, which shall not be taken to prejudice either the use of jury trials in other cases or the lack thereof.
• Nothing in this resolution shall be taken to require the enrolment of convicted criminals, the unabashedly racist or minors on juries nor shall it be taken to require the enrolment of those mentally unfit for the duties involved.

[Hulldom]

Duplication (in part) of GAR #37 most likely.

[Greater Thamesholm Concilliar Republic]

Duplication (in part) of GAR #37 most likely.

Couldn’t find GAR#37.

[Tsaivao]

Duplication (in part) of GAR #37 most likely.

Couldn’t find GAR#37.

viewtopic.php?p=416#p416

There is both a thread in this very forum called "Passed General Assembly Resolutions" and the actual list of resolutions on the WA front page. Just because you could not find it does not mean it isn't illegal.

[Imperium Anglorum]

GA 37 does not require jury trials.

[Port Ames]

Vis a vis GAR#37, see here.

I could very much be totally wrong, but they don't seem to duplicate. GAR#37 doesn't do much in relation to jury trials specifically instead of "commend them to the attention" of nations.

That said, on a more philosophical level, I would encourage the author to consider that many common law jurisdictions don't use jury trial as much as the United States, but still maintain free and fair trial systems. There are pros and cons to jury trial that are worth considering. I definitely think that systems with widespread jury trial are preferable, but I don't know if they should be forced on every nation.

Couldn’t find GAR#37.

viewtopic.php?p=416#p416

There is both a thread in this very forum called "Passed General Assembly Resolutions" and the actual list of resolutions on the WA front page. Just because you could not find it does not mean it isn't illegal.

That seems a bit harsh, no?

[Hulldom]

GA 37 does not require jury trials.

Ah, my misunderstanding then. That’s how I took the “Commends” clause.

[Greater Thamesholm Concilliar Republic]

Vis a vis GAR#37, see here.

I could very much be totally wrong, but they don't seem to duplicate. GAR#37 doesn't do much in relation to jury trials specifically instead of "commend them to the attention" of nations.

That said, on a more philosophical level, I would encourage the author to consider that many common law jurisdictions don't use jury trial as much as the United States, but still maintain free and fair trial systems. There are pros and cons to jury trial that are worth considering. I definitely think that systems with widespread jury trial are preferable, but I don't know if they should be forced on every nation.

viewtopic.php?p=416#p416

There is both a thread in this very forum called "Passed General Assembly Resolutions" and the actual list of resolutions on the WA front page. Just because you could not find it does not mean it isn't illegal.

That seems a bit harsh, no?

“One of the cons was discrimination.
The details of this resolution address that by implying jurors should come from a similar background to the defendant (with the caveat that countries are free to exclude ex-convicts). This is never mandated for judges.
In addition, this is specifically for cases where a trial without juries would probably be unfair as assessed by a judge.”

[Xanthorrhoea]

“One of the cons was discrimination.
The details of this resolution address that by implying jurors should come from a similar background to the defendant (with the caveat that countries are free to exclude ex-convicts). This is never mandated for judges.
In addition, this is specifically for cases where a trial without juries would probably be unfair as assessed by a judge.”

TBH I’d say the cons of juries outweigh the benefits. Civil cases often hinge on specific application of precedent and require a thorough understanding of the law. Juries are truely awful at this, and much more likely to have bias than a judge. I cannot think of a single example where a judge would be more unfair than a jury. Do you have one so I can understand your reasoning?
Also, point of terminology, there’s no such thing as a defendant in civil cases. The word you’re looking for is respondent.
Hard no from me.

[Greater Thamesholm Concilliar Republic]

“One of the cons was discrimination.
The details of this resolution address that by implying jurors should come from a similar background to the defendant (with the caveat that countries are free to exclude ex-convicts). This is never mandated for judges.
In addition, this is specifically for cases where a trial without juries would probably be unfair as assessed by a judge.”

TBH I’d say the cons of juries outweigh the benefits. Civil cases often hinge on specific application of precedent and require a thorough understanding of the law. Juries are truely awful at this, and much more likely to have bias than a judge. I cannot think of a single example where a judge would be more unfair than a jury. Do you have one so I can understand your reasoning?
Also, point of terminology, there’s no such thing as a defendant in civil cases. The word you’re looking for is respondent.
Hard no from me.

“I said civilian not civil, civilian meaning cases excluding court-martials.
In this case the jury are unlikely to be biased against the defendant because of the definition of peers I gave.
In a society where there is significant prejudice between ethnic groups, the jurors shall be composed of people of the same group. The same with any other likely cause of prejudice, bias or conflict.”

[The New Nordic Union]

'Why the deliverance of justice ever should be placed in the hands of laypeople instead of those who have been educated in the matter is beyond me. Categorically opposed.'

[Xanthorrhoea]

“I said civilian not civil, civilian meaning cases excluding court-martials.
In this case the jury are unlikely to be biased against the defendant because of the definition of peers I gave.
In a society where there is significant prejudice between ethnic groups, the jurors shall be composed of people of the same group. The same with any other likely cause of prejudice, bias or conflict.”

Good to hear the clarification, however I still take issue with the proposal. First of all, civilian law encompasses both civil and criminal law, so my above objections remain. I suggest limiting this proposal to criminal law only.

Secondly, defendants in criminal matters should have the right to request a judge trial instead of a jury trial. The proposal as written removes this ability.

Thirdly, this proposal effectively bans inquisitorial judicial systems, which are common throughout nations both IRL and in NS. I feel like you should limit the proposal only to adversarial courts.

Also, bias can easily exist in a group of peers. Unless you’re having someone be their own jury, the jury will be made up of people with differing opinions and philosophies to the defendant, many of which could lead to bias. I struggle to see exactly why a jury of peers will be less biased than a judge.

Speaking of peers, what exactly counts as a peer for the purposes of this proposal? You’ve defined a peer as someone who is “the same as the defendant in all factors likely to be linked to prejudice…” This is far too narrow. Predjudice can reasonably occur due to ethnicity, language, family, education level, wealth, sexuality, gender, height, “attractiveness,” disability, politics, religion, spirituality, employment… The list goes on. How do you plan on filtering the jury pool? If a female French mechanic is on trial, can the jury only be made up of other female French mechanics? Or can a male German mechanic and an intersex French optometrist participate? Even in enormously large countries, finding someone who fits all of these characteristics is extremely difficult. This is to say nothing that you will likely end up with juries with significant bias for the defendant, which is almost as bad as bias against. I do not want the jury trying a nazi gun nut who shot a huge number of people at a mosque to be made up exclusively of similarly psychotic nazis.

Lastly, what criteria are judges using to assess whether bias would exist? What is to stop a biased judge from just saying ‘there’s no bias’ and proceeding with a trial? The proposal is too vague at the moment and needs stronger definitions and clarification of its scope, reasoning, and mechanically how it will be applied.

[Greater Thamesholm Concilliar Republic]

If a female French mechanic is on trial, can the jury only be made up of other female French mechanics?

“Assuming a mechanic would be discriminated against by an electrician and thus need this, what is the problem with that?
As the issue with multiple causes of prejudice, a whole country could easily find twelve people who fit all the likely criteria, provided they select said jurors from any area of the country they are present not simply the local area.”

I do not want the jury trying a nazi gun nut who shot a huge number of people at a mosque to be made up exclusively of similarly psychotic nazis.

“Incitement to genocide, which an openly pro-Nazi individual would be guilty of,
would count as a crime under WA Law.”

Even in enormously large countries, finding someone who fits all of these characteristics is extremely difficult.

“Is it? You just need to pick twelve people who fit said characteristics in the entire country.”

Lastly, what criteria are judges using to assess whether bias would exist? What is to stop a biased judge from just saying ‘there’s no bias’ and proceeding with a trial? The proposal is too vague at the moment and needs stronger definitions and clarification of its scope, reasoning, and mechanically how it will be applied.

“It is too vague, you’re right I will change it. For example clarifying the pre-trial hearing needs a different judge.”

”Secondly, defendants in criminal matters should have the right to request a judge trial instead of a jury trial. The proposal as written removes this ability”

“Ok. I will change that part of it.”

”Why the deliverance of justice ever should be placed in the hands of laypeople instead of those who have been educated in the matter is beyond me. Categorically opposed”

“So people can be tried by their peers. For example a working-class black man shall be tried by a working class black man in a modern western country rather than ‘you’re Black so you’re a mugger/rapist/thug’, ‘you’re a man so you’re lying.’ or ‘Oh look, a pleb. Kill it.’

[The New Nordic Union]

“So people can be tried by their peers. For example a working-class black man shall be tried by a working class black man in a modern western country rather than ‘you’re Black so you’re a mugger/rapist/thug’, ‘you’re a man so you’re lying.’ or ‘Oh look, a pleb. Kill it.’

'And what leads you to assume the judiciary would hold this bias? If this is a problem in your nation, I suggest better education for the judiciary and a better selection process. How anyone without a legal education would be competent to apply the law correctly is still a mystery that cannot be solved. Just as a judge is usually not able to build a wall, a builder is usually not competent to apply the law. An appeal to a notion of Western-ness is irrelevant and off topic. Nations are located in all four or more corners of their respective worlds.'

[Xanthorrhoea]

I’m not sure you understand just how small some minorities are, and exactly how fast your jury pool will be whittled down when those minorities intersect, especially with so many factors at play.There will frequently be cases where you will not be able to find enough jurors to fill the bench. Especially if you consider the fact that there are extremely valid reasons to delay or refuse duty duty (personal tragedy, being an essential worker etc), as well as many reasons to disqualify otherwise qualified jurors from a case (personal connection to the case, mental incapacity, exposure to media reports, previous lived experience with similar cases etc). Even if you find 12 such jurors spread around the whole country, you need to transport them and provide accomodation for them. Now imagine doing that every single time someone gets a speeding ticket or drives drunk. The burden is so high as to be ridiculous.

Also, you’ve failed to address several points I raised, including those about inquisitorial justice systems, and those about bias towards defendants. For reference, the nazi example was just that, an example to illustrate an underlying flaw in your proposal. To use another example, do you want a politician on corruption charges to be tried by a jury of their fellow party members? Or a fraudulent stockbroker tried by other stockbrokers who may just decide not to convict any of their peers so they can all get away with it? Your system invites corruption, which is far worse than bias.

[Attempted Socialism]

"We are opposed for several reasons. First, while the removal of bias is the explicit aim, jury trials introduce more bias and arbitrary rule. 'Peers', even when not defined this shoddily by the drafting delegation, will enable e.g. groups to acquit in-group members for transgressions against out-group members. Racist lynch-mobs everywhere will be delighted with this resolution. Expanding on that point, if a defendant is accused of a horrendous crime, and one which there is clear prejudice against, such as cannibalism, paedophilia, or slavery, a clever defendant will request a jury trial and argue that any non-cannibals, non-paedophiles, or non-slavers, will be innately prejudiced, thus creating a 'peer class' of those convicted of that crime. We will either have to deal with seating criminals to judge their own, or make them ineligible to sit in jury at which point no person can be tried by their peers for those crimes."
Comrade Ambassador MacBeth pauses for dramatic effect.
"However, that is just the particular way in which this draft will, despite professed aims to the contrary, ruin justice and introduce racist faults. The general issue with jury trials is the concept of jury nullification. If an accused cannot be retried, due to principles of double jeopardy, limited appeals, or the like, and a jury's ruling cannot be countered, a jury can effectively annul laws against the accused, or convict those whom the jury knows to be innocent. By voting guilty or not guilty based on their subjective view of the law, the accused, or any victims, rather than the objective clauses of the law and the evidence presented, a jury can rewrite the legal system based on their own, private feelings. A number of randomly selected people, filtered by arbitrary criteria or capricious advocates, and whose political views may be in the minority, should not hold that power."
She looks sternly over her glasses at the proposing delegation.
"The capitalist class will ask for a trial by jury because they can obfuscate the matter, play on emotions, or like the Bernsteins of old, appeal to man's idea of justice," she said the last bit with as much scorn as she could muster, "but we should know better. Understanding the material foundation of society, that crimes of exploitation is as much a violent crime against the person as physical violence, and the ability to delve into complicated matters of law and evidence, requires education, practise, and dedication, in a way that most people can't get, because they work in some other field than law. Rather than trying to introduce a trial by jury, which will serve raise arbitrary biases in judgements to new heights, exactly what the proposing delegation claims they oppose, put aside your populist, anti-judicial conviction and look at this anew: What can you propose to improve on the education and selection of judges, which may reduce the issues you perceive? Because I can assure you, introducing the most biased judicial system, short of fiat verdict from a monarch, will do no good and will alleviate no issues."

[Greater Thamesholm Concilliar Republic]

“So people can be tried by their peers. For example a working-class black man shall be tried by a working class black man in a modern western country rather than ‘you’re Black so you’re a mugger/rapist/thug’, ‘you’re a man so you’re lying.’ or ‘Oh look, a pleb. Kill it.’

'And what leads you to assume the judiciary would hold this bias? If this is a problem in your nation, I suggest better education for the judiciary and a better selection process. How anyone without a legal education would be competent to apply the law correctly is still a mystery that cannot be solved. Just as a judge is usually not able to build a wall, a builder is usually not competent to apply the law. An appeal to a notion of Western-ness is irrelevant and off topic. Nations are located in all four or more corners of their respective worlds.'

“I was mainly referring to the behaviour of juries in places without this law but with jury trials rather than judges.
However, a judge is likely drawn from the upper or upper-middle classes (especially in most capitalist nations).
Do you really think judges are completely immune to more subtle and unintentional forms of class bias?”

[Untecna]

My glorious group of edits and comments:

The World Assembly,

Considering that, even in countries with a mostly independent judiciary, there has to be someone (whether the electorate, a politician or another judge or group of judges) who appoints judges,

Noting that, as sapients cannot be perfect and that, even in the best countries, government officials are not always perfectly unbiased,

Hereby:

1. Defines "defendant’s peers" as those who are civilians as well as the defendant, brought to the court to be on a jury.
   
2. Requires trial by juries of a defendant’s peers in civilian criminal trials where another judge (unconnected to the trial) at a pre-trial hearing on the matter, requested by the defendant, has identified the risk of judicial bias, which shall not be taken to prejudice either the use of jury trials in other cases or the lack thereof.
   
3. Nothing in this resolution shall be taken to require the enrolment of convicted criminals or minors on juries nor shall it be taken to require the enrolment of those mentally unfit for the duties involved.

[Greater Thamesholm Concilliar Republic]

My glorious group of edits and comments:

The World Assembly,

Considering that, even in countries with a mostly independent judiciary, there has to be someone (whether the electorate, a politician or another judge or group of judges) who appoints judges,

Noting that, as sapients cannot be perfect and that, even in the best countries, government officials are not always perfectly unbiased,

Hereby:

1. Defines "defendant’s peers" as those who are civilians as well as the defendant, brought to the court to be on a jury.
   
2. Requires trial by juries of a defendant’s peers in civilian criminal trials where another judge (unconnected to the trial) at a pre-trial hearing on the matter, requested by the defendant, has identified the risk of judicial bias, which shall not be taken to prejudice either the use of jury trials in other cases or the lack thereof.
   
3. Nothing in this resolution shall be taken to require the enrolment of convicted criminals or minors on juries nor shall it be taken to require the enrolment of those mentally unfit for the duties involved.

Thank you. I shall add you as a co-author if and when I send this off.

[Untecna]

My glorious group of edits and comments:

Thank you. I shall add you as a co-author if and when I send this off.

Psst...

Use list coding on your clauses.

Code: Select all

[list=1][*]Clause Here[/list]

Sort of like that. Looks rather good and formats a bit better, plus, lets you have subclauses if needed.

Edit: Title probably needs some work as well. Maybe something like "Right to Jury Trial" or something along those lines, with proper capitalization as needed.

[Greater Thamesholm Concilliar Republic]

Thank you. I shall add you as a co-author if and when I send this off.

Psst...

Use list coding on your clauses.

Code: Select all

[list=1][*]Clause Here[/list]

Sort of like that. Looks rather good and formats a bit better, plus, lets you have subclauses if needed.

Edit: Title probably needs some work as well. Maybe something like "Right to Jury Trial" or something along those lines, with proper capitalization as needed.

Done.

[Untecna]

Psst...

Use list coding on your clauses.

Code: Select all

[list=1][*]Clause Here[/list]

Sort of like that. Looks rather good and formats a bit better, plus, lets you have subclauses if needed.

Edit: Title probably needs some work as well. Maybe something like "Right to Jury Trial" or something along those lines, with proper capitalization as needed.

Done.

List... with numbers, like in the code box I provided... and my edits post.

[Greater Thamesholm Concilliar Republic]

Done.

List... with numbers, like in the code box I provided... and my edits post.

I used many of your edits.

[Untecna]

List... with numbers, like in the code box I provided... and my edits post.

I used many of your edits.

Not the numbered list one, which can be made this way:

Code: Select all

[list=1][*]Insert Clause Here[/list]

And for subclauses:

Code: Select all

[list=a][*]Insert subclause here[/list]