Term Paper on "Jury Selection Comparison of U.S. and European Systems"

Term Paper 7 pages (1984 words) Sources: 1+

[EXCERPT] . . . .

U.S. And European Jury Systems

The two principal legal systems in the world are the two forces at work in the world today: the civil law and the common law (Messitte 1999) (Andrews). Continental Europe, Latin America, most of Africa and several Central European and Asian nations are under the civil law system. On the other hand, the United States, England and other countries, which used to be part of the British Empire, are under the common law system. These two forces and opposite legal systems select their jurors quite differently. The common law jury traditionally consists of 12 randomly selected ordinary individuals who determine the facts in a lawsuit, with the judge merely informing them about the law (Adams 2003). Under the European civil law, the judiciary is subject to the executive branch and only enforces its decisions (Andrews). Certain natural rights, protected by common law, are violated by the European civil system and comparison shows that these two legal systems are in exact opposition.

Civil Law vs. Common Law

The civil law system originated from ancient Roman law in the 6th century under Emperor Justinian and later modified by French and German jurists (Messitte 1999). On the other hand, the common law system began in England almost a thousand years ago when royal judges in the Parliament based their decisions on customary law common to the people, with capable lawyers giving support. In Europe, Justinian's law books and the legal system of the Catholic Church harmonized a thousand local laws, but England was constructing its own flexible legal system. It rejected the sentiment of the French Revolution that the power of judges should be controlled and that judges should limit the application of the law to the intent of the legislature (Messitte).

British colonists in America were deprived of their rights by the English king who demanded that colonial judges should depend solely on his will, fixed their tenure and denied the people the benefits of trial by jury (Messitte 1999). After the American Revolution, the newly independent states embraced common law, which, for more than two centuries, has undergone economic, political and social evolution in technique and adjudication.

Although the U.S. legislature "makes" laws, judicial decisions create common law, especially concerning property, contracts and torts (Messitte 1999). There are also enacted laws by Congress and the state legislatures and constitutions. Judicial decisions interpret constitutions and these enactments and become sources of law themselves. This makes clear that the American justice system is a judge-made law variety that observes the concept of precedent. This concept holds that the decisions of a higher court in the same jurisdiction as a lower court must follow the same or similar cases decided by the lower court (Messitte). In contrast, higher courts in civil law countries do not bind succeeding cases

The American common legal system forms or provides for a jury to try both civil and criminal cases. The jury traditionally consists of 12 randomly chose citizens for the task of establishing the facts in a lawsuit (Messitte 1999) on a temporary basis. The judge informs the jury about the law, but the jury determines the facts and the fate of the case in a matter of days. The jury hears oral testimony and considers documentary evidence. Lawyers prepare the case and question witnesses at trial, while the judge acts as referee. Testimonies are electronically recorded word-for-word (Messitte).

In civil law systems, most jury trials are unknown and court hearings are held over an extended period (Mesitte 1999). The judge actively investigates and also does the questioning. He takes down notes on the proceedings and establishes the facts for the record. Documents are also given greater weight than testimony.

The development of the jury system was an innovation in medieval English jurisprudence (Adams 2003) and a solution to certain problems at the time. It was intended to restrain unsupervised circuit judges who would make biased, arbitrary or incompetent decisions. It also allowed the application of local customs and standards, often unknown or little known by a transient judge. The jury system was incorporated into the American Constitution in the 18th century. The choice of jurors and adapting the trial to the jury's deliberations require a longer, more complicated process and expenses incurred by the conflicting parties and the taxpayer. Civil law has never used a jury, nor are there hints that Europe has an inferior justice system or envies the American justice system (Adams).

Under the common law system, a citizen cannot be arrested or harassed by the police or other government officials without evidence; under the civil system, a person can be arrested even without evidence (Andrews). No person can be detained beyond a fixed and very limited imprisonment for reasons other than criminal, unless charges are filed in open court; the civil system allows indefinite detention; common law gives the accused the right to face his or her accuser and to examine evidence; the civil system allows anonymous accusations and the fabricated testimonies. Common law requires public trial so that the offender may be held accountable and given the chance to examine evidence filed against him or her; civil law allows fabricated evidence and denies the accused the right to prove it false. Civil law also allows unknown accusers and the accused does not have the right to examine evidence (Andrews).

Common law reserves the really important matters to the people to decide (Andrews). Otherwise, a jury is constituted to represent them and to put a final legal check on the government in case the law itself proves unjust or is unjustly applied and in limiting sentencing of criminals. Trial by jury shows that the people are themselves judging a case in court and to deprive trial by jury is to deprive people their final legal means of counteracting government action (Andrews). There is no inquisitorial counterpart in civil law. The defendant's right to an open court under common law protects him or her from secret or illegal witnesses through public and free access to the trial. In civil law, lawsuits are heard and tried in closed circuits. Common law considers the accused innocent of the charges until proven guilty and always favors freedom for him or her. In contrast, civil law assumes the guilt of the accused until proven innocent (Andrews).

Common law protects the accused against double jeopardy or repeat trials for the same offense, while civil law allows repeat trials for the same charges until found guilty (Andrews). Common law places the burden of proof on the prosecutor, gives the accused the right to remain silent and cannot force him or her to testify against himself or herself. Common law primarily tries the charges themselves and then the integrity of those who bring these to court. Under the civil system, the defendant who must prove his innocence can be subjected to many oppressive accusations and without access to resources for his or her defense (Andrews).

Common law binds the government to the people to whom and to whose constitution it is inferior (Andrews) and derives. Civil law provides that the people may undertake and change the Constitution but the government may not change. It states that Parliament gives expression to these rights affirmed by the Constitution. Parliament's duty is, therefore, to observe procedural law and not turn out substantive law, abolish or create rights, or give up sovereignty (Andrews). The British Constitution declares that Parliament cannot make or unmake any law and that no person or group is recognized by its law with the right to override Parliament's legislation. Neither is Parliament allowed to bind its successors, which means that Parliament may not sign agreements that would weaken or eliminate its supremacy or bind future generations to agreements or laws they cannot investigate (Andrews).

The European Union acts according to a doctrine called acquis communautaire, which states that once it acquires legislative authority on a given area, it never gives it back. The EU is, thus, more centralist and diametrically opposed to the British Constitution and the nature of Parliament itself (Andrews). Parliament is inconsistent with sovereignty and there is no such thing as Parliament sharing sovereignty. Sovereignty resides exclusively in the individual who alone may give it away or retain it.

The EU Constitution declares primacy over the law of its member states in assuming responsibility over the peace and development in the world (Andrews). The Constitution appears more prohibitive than enabling, makes law rather than a framework for law-making. It does not allow for checks and balances in order to control future lawmakers and consolidates power into a system of government of a self-perpetuating bureaucracy. It also places the elite above the law and then imposes itself on all. Furthermore, it reduces member-states into colony status and without voting rights, while retaining their obligations to the EU in the event of violating human rights and the rule of law (Andrews). It contains an exit clause for member states who may wish to withdraw but… READ MORE

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