Implementing jury trials in Argentina: Is it possible
Paper submitted at the 2005 Annual Meeting of Law and
(June 3, 2005, Las Vegas, Nevada, U.S.A.)
SOCIETY’S PARTICIPATION IN CRIMINAL TRIALS AS A
Participation of laymen in criminal procedure can be
seen from the perspective of a cultural phenomenon.
Under that light, it is
clear that the issue deals with a genus
that encompasses a great deal of
There are many different forms of participation: the classical
English and American jury, made up of twelve members; the mixed court of
various Western European countries, composed of lay jurors and professional
the courts of
the Eastern European countries integrated
the Magistrate’s courts of England and Wales,. These
are all examples of lay participation that
belong to the same class along with many others which are apparently more
In a comparative and political analysis
courts of very different cultures, Martin Shapiro affirms that the custom of
judgment by the chief of a social group, or by councils of advisers or by the
elders, acting publicly and surrounded by a participating crowd, is not only
characteristic of tribal organizations but was used by the primitive Germans,
and was also a custom adopted by the courts of imperial China in 200 BC. 
In this last case, the judges had to pay
attention to the expressions, utterances and demonstrations of the public at
Lynching is another form of
the same type of practice, although it means
the absence of a legal process. It emerged
during the American Revolution, and can be compared with certain old customs
from the English borders, certain Medieval Germanic courts and the ones of the
Holy Brotherhood in Spain.
The nature of this cultural phenomenon is so widely spread that all cultures, in all places and in
all ages, those of most ancient times, those studied ethnographically or those
of present day societies, are aware of some type of lay participation in criminal
procedure. In countries that lack organized systems of participation –as is the case of Argentina, in which trial by jury
has not been established, nor has any other form of lay participation been
this is expressed in an inadvertently manner, in
some cases, one could even say surreptitiously.
I set forth an example. Not many years ago, there was
a case in Argentina that touched practically the entire population: the murder
of a teenager in the Province of Catamarca where it was suspected that
influential local politicians had been involved.
While there 10
was no clear proof
of what had occurred, two defendants were
adjudged based on circumstantial evidence.
The trial began in March 1996 and stirred
the attention of the public that followed the alternatives, not only through
the newspapers, but also through live television broadcasts.
After a few days’ hearings, the court, made up of three
professional judges, decided that it was inconvenient and resolved to prohibit
This gave rise to the indignant claims of the public who
expressed themselves, among other forms, by means of public demonstrations in the streets of many different places of the
country, some of which, as occurred in the city of Buenos Aires, were at a
distance of more than one thousand miles from Catamarca.
So strong was the
pressure of public opinion, that only twenty four hours after the announcement
of the prohibition of the television broadcasts, the maximum judicial authority
of the Province, the Supreme Court of Catamarca, intervened and ordered they be
The following day, the president of the court that had ordered the
suspension quit, thus giving rise to the necessity of a new trial, which could
only occur more than one year later with a new panel of judges.
The reflection that stems from this episode is that
society is never absent from criminal procedure.
Its influence can be
channeled in one way or another: it can be
quite chaotic, from cheers and hooting of the assembly surrounding the judges,
to lynching, to street demonstrations that call for the presence of the mass
media; or it can be channeled through an institution: juries, lay magistrates,
popular councils of advisers, or other variations of this kind. It is clear
that this deals with two very different customs, one spontaneous and primitive
and the other one formally established and organized. And, paradoxically, the
influence of the citizenry where it is not regulated is much greater than where
There is no need to explain how uncontrollable the pressure of public opinion
can become in cases of spontaneous participation like the one described above.
From this follows the conclusion that the only way to resist the interference
of public opinion and the mass media, is to
strengthen the participation of citizens in criminal procedure where it already
exists, or to establish it where it still does not exist.
THE SITUATION IN ARGENTINA
I.- THE FEDERAL CONSTITUTION: INTERPRETATION
AND PRESENT SITUATION
Three provisions of the 1853 Argentine Constitution
mandate jury trials.
Article 24, in the Chapter “Declarations, Rights and
Guarantees” (equivalent to the American Bill of Rights), reads: Congress
shall promote… the establishment of jury trial.
Article 75, Section
12, gives Congress the power to pass any law required to establish jury trials.
Finally, in the Chapter on the Judiciary, article 118 provides: All criminal
proceedings…shall be decided by jury, once this institution has been established in the (Argentine) Republic.
Those provisions notwithstanding, Argentina has yet to establish jury trials. The issue regarding the right to be tried by a
jury was brought before the courts in very few cases. The Federal Supreme Court
always ruled against that right. For instance, in 1911, when a defendant of
criminal charges challenged the trial court’s jurisdiction and requested a jury
trial, the Federal Supreme Court denied the motion and held that the
Constitutional provisions “do not require Congress to immediately establish
The Court stated that any action was excluded until Congress passed the
required legislation. The basis for that statement were the last words in
article 118 of the Constitution: […] once this institution has been established in the Republic.
opinion is supported by some scholars on an alleged lack of “self-executing”
effects of article 118. On that rationale, the Federal Supreme Court quashed
similar motions in 1932
No other case discussing the issue has been reported
in the Federal Supreme Court records. It means that the provisions of the
Argentine Constitution have not been enforced by the Legislature and neither
have they been enforced by the Judiciary.
The reasons why such an omission has endured
for such a long time
been the subject of much research. It is possible to theorize that they
are of various kinds. One author,
circumscribed to the XIX century, thinks that the philosophy of liberalism, in
spite of its clear relationship with the jury system, is not sufficient to
explain Argentine history on the subject. Heikki Pihlajalmäki, in an article
referred to the debate on jury and evidence law in Argentina at the end of XIX
says it was quite curious that the judiciary remained always reluctant to its
renewal. He suggests that the jurists were divided into two opposite trends.
One of them favourable to reforms and jury system and the other inclined to
tradition and conservatism. This last one felt threatened by lay participation. They thought Argentine people
–both country gauchos and townsmen—were not educated. Then, by the end of XIX century, with the immigration tide
that started in 1880, the traditionalists became more fearful of any kind of
people’s participation in the justice system.
Such a trend is, apparently, in the way
of changing. In 1991, a trial judge in the city of Buenos Aires granted a
defendant motion requesting trial by jury, annulled the proceedings and urged
Congress to enact legislation implementing jury trials. The Court of Appeals,
through one of its panels of three judges, reversed the decision on the same
theory used by the Federal Supreme Court, making no effort to conceal its
disappointment with the trial judge.
I the same year, another Court of Appeals,
based on similar reasons, affirmed the ruling of a trial judge quashing an
identical motion. But in this last case, the Court not only recognized the
mandatory meaning of the Constitution articles referred to jury trials: there
was a dissenting opinion of one of the three members of the tribunal sustaining
the challenge of the trial judge jurisdiction based on such mandates.
Again in 2005 the same Court
ruled in the same way with the same dissenting opinion and, in this case,
taking a very important step forward, the majority of the Court decided to
request the Federal Supreme Court to ask Parliament the enactment of the
necessary laws establishing jury trials.
II.- CRIMINAL PROCEDURE IN ARGENTINA
The 1853 Constitution organized Argentina as a federal country. The Argentine federal organization is similar to that of
the USA, with a significant difference: all “substantive” (as opposed to
“procedural”) legislation is enacted by the Federal Congress, and enforced by
provincial (state) courts pursuant to rules of procedure enacted by that
province (state). Therefore, in Argentina there is only one Criminal Code but
as many procedural codes as provinces there are.
The ordinary criminal cases
must be decided by provincial courts. Anyway,
as a result of a common cultural background, the development of the criminal
procedure in Argentina shows a great deal of uniformity. That procedure is
divided into two stages. The initial one is conducted through the inquisitorial
method; the second, conducted pursuant the adversarial method.
In 1888 the first Federal Code of
Criminal Procedure adopted the pattern of old Spanish laws that had already
been abrogated in Spain. The main features of that legislation were: (a) the proceedings only in writing and, (b) a
long period of secret. Most of the provinces adopted similar Criminal Procedure
codes. As trial courts assumed that what was done in the inquisitorial stage
was reliable, the trial was little more than a formality. The whole system
remained purely inquisitorial.
In 1939 a new code of criminal procedure in the province of Cordoba initiated a revision trend. The
Cordoba Code followed legislation in continental Europe, mainly the Italian
laws of 1913 and 1930. It maintained the inquisitorial stage but allowed a
trial in the form of an oral debate before three professional judges. That code
exerted a significant influence on other
provinces and, eventually, led to a 1992
revision of the Federal Code of Criminal Procedure.
This revision maintained some of the
criticized features of the former code, like
the inquisitorial proceedings. The record of these proceedings, consisting of
voluminous files full of written formalities,
could be used during the trial. At the same time, the trial lacks transcripts
or records of any type. Cross examination of witnesses and expert witnesses by
counsel is not provided for even at the
trial stage, thus preventing real confrontation between the parties. Despite
those criticisms, the changes were a step forward, since the oral debate at the trial stage made the proceedings more
However, oral trials did not increase the confidence
of the people in the criminal justice system. Far from that, it is notorious
that any criminal sentence is suspected. Judges are acidly criticized by the
public and the media whenever there is any disagreement with the outcome. This
situation creates suspicions that undermine the whole criminal justice system.
To avoid being abused, the criminal courts may choose to please the public and
the media by deciding cases accordingly to emotional reactions.
III.- RECENT DEVELOPMENTS
New developments took place again in Córdoba province
in 1991. The Criminal Procedure Code was replaced by a new one aspiring to
suppress the inquisitorial features of the former. The two main amendments
aimed at this purpose were (a) the disappearance of the “juez de
(investigating judge); (b) the implementation of a mixed criminal court composed of three
professional judges and two lay citizens. The first one of those two amendments
was then followed by several other provinces. Buenos Aires, Tucumán and
Catamarca provinces enacted new Criminal Procedure Codes, all of them
suppressing the so-called investigating judge. It is a big step towards an
adversarial model of proceedings. The “juez de instruccción
was –and still is where it is maintained—reminiscent of the job of
“inquisitors" of old times. However, none of these provinces imitated Córdoba in the lay
The mixed court established by the Córdoba
code in 1991 was not implemented until April 1st
1998. It dealt with serious criminal cases but only on request by the defendant, the public
prosecutor or the victim. Although limited to a few number of cases, this
experience fostered a new development: the enactment, in 2004, of Córdoba Act
Number 9182 in force since January 1st
2005. The first clause of this new law states that it is endeavored
to the establishment of jury trials according
Córdoba Constitution. Anyhow, it creates a mixed court composed of three
professional judges and eight jurors. They are required to deliberate and
decide jointly by majority vote both as regards fact issues and in legal
matters. They are to determine also the sentence and punishment. This new mixed
court deals with cases of aggravated homicide and of various crimes that
resemble “felony-murder” cases
It deals also with cases in which public officials are involved.
Also in 2004 a draft project implementing jury trials in the province of Buenos Aires was introduced into the
provincial House of Senate. The project is
still waiting to be considered. The
Government of Entre Ríos province appointed a special committee that in
December 2003 prepared a similar project. Both of them have chosen the
English-American classical jury and not the European style mixed court system.
The same trend has been followed by several other provinces.
On April 19, 2004, the Federal Government announced the so called strategic plan for justice and safety. One of
its items is the establishment of jury trials. On June 16, 2004 the Executive introduced into the House of Senate of the Federal Legislature a draft bill
dealing with that item. In the meantime, various senators and representatives
introduced their own proposals, aiming at the same purpose, into both Houses of
Parliament. All of these proposals were submitted for
their analysis and study to the corresponding committees in each House.
Finally, the House of Senate Joint Committee of Constitutional Affairs, Justice
and Criminal Matters, on November 30th
, 2004, produced a draft law
endeavored to the establishment of jury trials as ordered in articles 24, 75
and 118 of the National Constitution. This means
that the bill is aimed at the implementation of jury trials
all over the
country. The bill is at this time awaiting consideration at a House session.
The drafted law organizes a jury of
twelve citizens with six alternates, all of them selected by lot from the
voter’s registry. Each party is authorized to challenge peremptorily up to four
jurors and to do it for cause without limitation. Guilty verdicts must be
reached by a majority of nine jurors. The professional judge will not
participate in the deliberations but will previously give instructions
concerning the law of the case. The bill also provides for the implementation
of the system in three gradual stages: i) after one year of its enactment and
during a three year period since then, trials on accusation of murder, or of
crimes resembling “felony-murder” and some species of voluntary manslaughter,
will be tried by jury; ii) after four years of the enactment of the law, all
crimes punished with a maximum of twelve years in prison or more, will be tried
by jury; iii) after six years of the enactment of the law, all crimes punished
with a maximum of eight years in prison or more will be tried by jury.
More than one and a half century has passed since the
enactment of the National Constitution of Argentina and its mandates for the
establishment of trial by jury are still pending. Even though no person can say
whether trial by jury will be a reality in
the near future, it looks like the occasion
has arrived, and for the first time in such a long period, there are signals of political willingness
towards its implementation.