Juries or mixed tribunals in Argentina

As I mentioned in my presentation at the annual meeting of the Law & Society Association in Las Vegas on June 2005, one of the twenty three provinces of Argentina –Córdoba province— enacted law 9182 in force since January 1st
First experiences with mixed tribunals in Argentina

As I mentioned in my presentation at the annual meeting of the Law & Society Association in Las Vegas in June 2005,[1] one of the twenty three provinces of Argentina (Córdoba province) enacted law 9182 in January 2005, creating a mixed court composed of three professional judges and eight jurors.
Starting in September 2005 and until May 2006 seven cases were tried in Cordoba under such law. Nine out of eleven defendants were found guilty, the other two were adjudged innocent. At least other twelve cases are now in progress to be tried by mixed jury courts in this province. These are the first experiences of lay participation in the history of the judicial system in Argentina and, of course, up to this time, almost nobody is aware of its true meaning. Nevertheless, in accordance with newspaper information, all of the participants expressed satisfaction with the experience. Both judges and lawyers said that they had wondered at first whether the system was going to work, but in the end they were all favorably impressed.
At the federal level, as I have also mentioned in my previous presentation, the Government has been taking steps endeavored to the establishment of trial by jury all over the country. A joint committee appointed by the House of Senate produced a draft law establishing jury trials following the style of the classical American-English twelve-juror jury. In spite of these developments and notwithstanding the announcement made by the Government in April 2004,[2] this draft project was not considered by the House and the term for so doing has expired after two years.

Argentina Supreme Court comments on jury trials

In the meanwhile, another branch of the Federal Government, the National Supreme Court, has addressed the issue of trial by jury. In a decision dated September 20, 2005,[3] the Court made several highly significant comments. Even though it was only by way of a “dictum” and by a majority of four out of seven of its members, the importance of these comments is great. It should be pointed out that since 1853 the Argentine Constitution has ordered the establishment of trial by jury but until now no tribunal has enforced such order. The right to be tried by a jury was always denied on the basis of lack of “self-executing” effects of article 118 of the constitution, which refers to the jury by saying: “[…] once this institution has been established in the Republic”. The National Supreme Court is the highest authority in the interpretation of the constitution and its decision of September 20, 2005 was the first to address the subject since 1947.
Three items of the Court’s comments deserve our attention. One is the historical background of Criminal Procedure legislation in Argentina. The Court says that the laws enacted in the nineteenth century were inspired in the worst inquisitorial Spanish model of the time. It also says that the judiciary of the European-Napoleonic model is vertically organized while the aim of the Argentine Constitution is to establish a horizontal organization. This conclusion derives from the clauses that mandate trial by jury. Pursuant to the Court’s opinion these clauses mean that criminal proceedings must be public, oral and in an adversarial style. Another item that may be stressed is some sort of collateral comment made by the Court: it says that it is possible to make a “progressive construction” of the constitution clauses about juries because nowadays there are different ways of lay participation. They are suggesting, of course, that it is possible to establish mixed courts following the European style.
The historical commentary is quite remarkable. It is not frequent to acknowledge that the United States criminal procedure model and not the European one is mandated by the Argentine constitution. Even though this acknowledgement is indisputable, it is something that Criminal Procedure authors tend to ignore. In their works, they usually employ bibliography coming from Italy, France, Germany or Spain.
The conclusion that when the Argentine constitution orders to establish trial by jury, it also orders to establish criminal proceedings with three particular characteristics (public, oral and adversarial) is also remarkable. The last characteristic, the adversarial one in particular, has not been completely achieved until now, even when several provinces have enacted new Criminal Procedure Codes expressly addressing this point. They maintain the idea of one initial stage of criminal proceedings just to investigate the truth before the trial, and most of them attribute this function to one “investigating judge”.

Jurors and inquisitorial practices

There is some kind of historical paradox in the identification of jurors and adversarial proceedings. In his “History of Lay Judges”, John P. Dawson explains that lay participation in old England had its origin in the practice of the “inquest” which was developed by royal judges called “Justices in Eyre”. This practice was the equivalent to the French “enquete” or the canonical procedure of the Holy Inquisition. It was through their role as inquisitors that Justices in Eyre, says Dawson, presided over each local assembly of “presenting juries” and had their greatest impact in the thirteenth century society.[4]
Another paradox concerns the investigating judge institution. Its origin dates back to seventeenth-century France when Louis XIV entrusted the judges with the task of preparing the “information” which consists of hearing the witnesses in secret. After the 1789 revolution a similar task was performed by the “Justices of the Peace” and the 1808 “Code d’Instruction Criminelle” finally created the rank of “juge d’instruction”. The paradox, in this case, is that nowadays in France the role of the “juge d’instruction” is practically limited to certain cases of felonies called crimes (as opposed to simple “delicti”). These cases are, precisely, the ones that must be tried by juries. Both examples (the Justices in Eyre of old England and the “juge d’instruction” in France at present) show that jurors and inquisitors are not necessarily incompatible.

Mixed tribunals and evidence rules

As regards mixed tribunals, it must be remembered that France, Germany, Italy and other European countries created them during the 20th Century by transforming classical juries of English style that had been established in the 19th Century. The doubtless reasons for these transformations were the great difficulties experienced by those countries in following the English model. Why have these difficulties arisen is one question that can be answered by historians both from England and Germany. French writers also provide similar explanations.
Sir James Fitzjames Stephen, the great English Criminal Law historian, in his comparison of French and English Criminal Procedure, points out that the former lacks any rules of evidence. He stresses that “…rules of evidence…give their whole colour to English trials…” and that they are “…what is wanted to bring French trials into a satisfactory shape…” He also provides one historical explanation: the old rules of evidence which were in use in France before the Revolution came from the Middle Age version of the Roman law and the evils of such old system were so strongly impressed on the authors of the Code d’Instruction Criminelle of 1808 that they decided its whole destruction.[5]
On the French side, another historian, A. Esmein, tells us about the arguments that were offered at the Assembly in 1791 in order to suppress any rules of evidence. The argumentation was that the old French laws of “legal proof” were completely different from the English law of evidence and that it was incompatible with jury trials. The same reasons were expressed repeatedly, says Esmein, always in favor of maintaining trial by jury in France. At the time when they were preparing the Code d’Instruction Criminelle, the opinion expressed was that only jury trials were compatible with a system of “moral proof”, which means a system with no “legal proof” and, by consequence, no evidence rules. [6]
Also on the French side, it was noticed that such opinion was mistaken. Francois Gorphe, one of the few authors from continental Europe that have written on the matter of evidence, points out that the English experience shows the very important function of rules for admitting or rejecting proofs.[7] The same view was expressed by a famous German jurist in the 19th century. Karl Mittermaier clearly indicated that for the correct performance of jury duties it was necessary to have rules of evidence and that French law was in need of them.[8]

Trial practices in Argentina and the hearsay rule

The first trial by jury that took place in the province of Cordoba, Argentina, in 2005, [9] gives clear example of the differences between the mixed court system and the classical jury trial. These differences are particularly meaningful because the former lacks any rules of evidence. The defendant in that case was charged with murder. The evidence was based almost exclusively on a written deposition taken at the police station. Although during the trial the witness that had signed the deposition denied the charges saying that he had seen nothing, the defendant was declared guilty. The reasons for the verdict were expressed by one of the professional judges. An American lawyer reading the opinion of this judge was puzzled. Mr. William R. Maynard, Federal Public Defender at the Western District of Texas wrote: in the United States courts the rule against hearsay and the right of confrontation would have determined a verdict of not guilty.[10]
In his comparative research on the hearsay rule, Mirjan Damaska found that the diverging views of continental European and English-American jurists are changing and becoming less different. But the same author suggests too that the exclusion of hearsay evidence at the stage of the trial is psychologically more unreal for a mixed court than it is for a bifurcated tribunal where judge and jury work separated one from the other.[11] The research made by John Langbein has shown that excluding hearsay evidence made no practical difference at the time when the English jury was routinely present in court together with the judge.[12]

Are jury verdicts autocratic?

The idea that mixed tribunals pronounce decisions supported by reasoning and based on law is one argumentation frequently emphasized to point out its difference and advantage over classical juries. Of course this means that one professional judge is in charge of preparing and wording such reasoning and explaining the law applied in the case. But this advantage has also its drawbacks. What happens when professional judges are outvoted by the majority? Christoph Rennig suggests serious doubts in such a case about the sincerity of professional judges formulating the judgment.[13]
The reasons for the preference of mixed tribunals are well known. They are mainly centered in the frequently objection made to the way jurors pronounce their verdicts in the classical English model: they do not express their motives. This is a practice many authors criticize because they say that it means arbitrarily decision making and that it leaves off the possibilities of arguments in appeal. The famous Criminal Law book written in the 19th century by the well known Italian jurist Francesco Carrara referred to that practice taking for granted that it is the way it is: jurors are not to justify their verdicts.[14]
The objection is not, in my opinion, as serious as it seems. Each jury verdict is based on a whole set of instructions given by the presiding judge. These instructions encompass necessarily the statement of the rules and principles of law that govern the case. Appeals should be and are usually grounded on criticism or on the pointing out of perceived flaws in those instructions. The opinions expressed by higher courts also illustrate how important these instructions are and, at the same time, they show what the very grounds for the jury verdict have been.
In order to refute the objection, it is possible to try an experience: to imitate (just utilizing for that purpose a set of instructions addressed by a judge to a jury) the wording that a bench of professional judges usually employ to express the grounds for their decision. The similarities to be found by the experience are so many that it is quite probable for an inadvertent reader to take one for the other.

Are mixed tribunals better suited for Argentina?

The recent experiences with the mixed tribunals of Cordoba province in Argentina reveal another drawback of this way of formulating judgments. The use of the bureaucratic language of the courts makes the reasoning obscure and artificial. Clear example of it can be found in the first case tried in Cordoba, which I have mentioned before.[15] It can also be found in many other cases. One recent judgment pronounced by a mixed court on May 22nd 2006,[16] for instance, is thirty pages long. There are plenty of transcripts; it includes discussions of aspects that were not argued by the parties, like the detailed description of wounds inflicted to the victim, and also word by word narrations and statements made by the defendants.
By contrast, this last judgment falls short of the arguments made by the defendant’s lawyers. These are only mentioned by way of ritual phrasing like: “the lawyers requested verdicts of not guilty for both defendants each one of them expressing their own reasons”. The final result of that kind of sentences is of course completely disappointing. They say very little (if anything) about the true reasons for the verdict. Lay people sign it as a formula. They have obviously no idea of what it means.
To state which one is the best alternative for Argentina is not a simple question. There are reasons in favor and against mixed tribunals and in favor and against classical juries. The National Supreme Court is right in its comments concerning the survival of inquisitorial practices but, as I have mentioned before, there is no necessary relationship between those practices and lay participation in the criminal trial. Neither is there any particular reason for the preference of mixed tribunals as was suggested by the Court. The alternative was mentioned as a comment and it was not illustrated with any other explication.
Notwithstanding its shortcomings and inconveniences, lay participation through the mixed tribunals of Cordoba in Argentina is showing a great deal of approval by the people. As a new born child it is just learning to walk and at the same time awakens the hope of future developments and better functioning. As for now, it just wants encouragement disregarding the question whether there are better alternatives.

[2] See my report in the website quoted in footnote 1

[3] “Casal, Matías Eugenio y otro s/robo simple en grado de tentativa-causa N°1681” C.1757.XL (This is a case on robbery)

[4] John P. Dawson “A History of Lay Judges”, Cambridge, Mass., 1960, Harvard University Press, pp. 116/133.

[5] James Fitzjames Stephen A History of the Criminal Law of England, London, 1883, Macmillan and Co., vol. I, pp. 548/549.

[6] A. Esmein Histoire de la procédure criminelle en France, París, 1882, p. 437, id. p. 510.

[7] Francois Gorphe, Spanish version by D. García Daireaux “La apreciación judicial de las pruebas”, Buenos Aires, 1967, p. 45.

[8] Kart Mittermaier, Spanish version of Hammurabi Editors Tratado de la prueba en material criminal, Buenos Aires, 1979, pp. 118/120.

[9] The verdict and sentence pronounced by the mixed court, in its Spanish version, are available at http://www.catedrahendler.org/leer.php?html=Zysman-JuicioporJurado.htm

[10] I am grateful to Mr. Maynard for addressing me a letter of commentary

[11] Mirjan Damaska Of Hearsay and its Analogues in Minnesota Law Review, 1992, reprint in Spanish version by Romina I. Sijniensky in “Nueva Doctrina Penal”, Buenos Aires, Editores del Puerto, 2004/B, pp. 433/467.

[12] John H. Langbein The origins of Adversary Criminal Trial, Oxford, New York, Oxford University Press, 2003, p. 250.

[13] Christoph Rennig Influence of Lay Assessors and giving reasons for the judgment in German mixed courts included in Revue Internationale de Droit Pénal, year 72, Editions Erés, France, 2001, pp. 481/494.

[14] Francesco Carrara, Spanish version by J.J. Ortega Torres and J. Guerrero “Programa de Derecho Criminal”, Bogotá, 1957, Temis, vol. II, p. 255.

[15] See footnote 1

[16] Criminal Court of the City of Villa María, sentence number 26 “Albornoz, Juan Manuel, Roa, Ariel Luis”