Jury As Part Of The Italian Legal System

Introduction

Legal orders and legal systems, manifested in institutional forms and having their own particular geographical, linguistic and cultural outlooks, have a close and practical impact upon our lives. Legal norms and principles play a fundamental part in guaranteeing different freedoms and possibilities. What seems to be predictability in social cooperation depends, in the end, on the possibilities for systematized legal orders to intervene in cases of the malfunctioning of social interaction through positive laws. On the other hand, the use of force and restrictions upon our freedom of movement and action do not usually occur, in a visible way, in a society, which seems to function well, and which seems to satisfy individual demands of equality. The idea that different people think differently seems to be the rudimentary idea behind the reason why we compare different legal systems. These systems can be compared and studied, as the basis for different types of justifications of acting. If comparative law seems to be a somewhat haphazard account of individual experiences, there have been attempts to formalize and systematize comparative legal research and practice. In a way, comparative law helps us to find solutions for our problems or maybe even appreciate our legal system.

What is the Jury?

Observing the common law system, the first difference that is immediately noticed is the presence of a fourth power during trials, the jury. Studying civil law for years wasn’t used with the idea that there is a group of twelve people, free from outside influences and decide if the defendant is guilty or liable. Reading more, I was thinking by myself, why common law countries have put the biggest responsibility to a group of people who haven't study law when they already have a judge that can decide either the defendant is guilty or not. Trial by jury has long been recognized as a most effective weapon in “democracy ‘arsenal to combat tyranny”. Jurors in Athens sentenced Socrates to death for religious crimes against the state, but in England, jurors went to prison themselves rather than convict the Quaker William Penn. Jury trials today, provoke cynicism about the ability of ordinary citizens to understand the law. Law is massive and mysterious, inaccessible to the uninitiated. It takes professional study, not just natural reason, to understand and its intricacies and details. As Greece was the cradle of liberty, so it was the place of origin of the jury system, or at least, the forerunner of it. The key to the Greek system was the use of dikasteries, which consisted of more than two thousand people group, to find if a person was guilty or not. Inevitably, even the Romans, as a great society, used a form of a jury. The Roman system was broken into two parts; the issues of the dispute were defined by a judge. The decision as to how to dispose of the issues was referred to as one or more private persons, known as judex. These private persons corresponded roughly to the juries today. The exact time of the introduction of the jury trial into England is a question much discussed by historians, some of them contending it was developed from laws brought over by William the Conqueror, while others point to certain evidence of its existence, in an embryo state, among the Anglo-Saxons prior to the Norman Conquest;[footnoteRef:6] and still others suggest even an earlier date. The right to a trial originated in England years later. Only with the Magna Carta, that jury was included. Before, jurors have always represented the community, although their specific role has changed over time. At first, they gathered information about their neighbors and judged cases about which they knew. Later, they were required not to know about the case or parties involved. In all cases, juries acted as the “sole judge of fact” and possessed the “right to give a verdict according to conscience,” whether the presiding judge agreed or not. During its early history, the jury in England acted as a check against the government and often decided cases based on its view that law was unfair rather than specific evidence of guilt.

Why We Would Need a Jury Trial in Our Country?

Unlike other criminal justice systems, the Italian system does not include juries composed of laypeople only. On the contrary, in Italy, lay jurors are always supported by professional judges. In the legislator's mind, such a mixed composition aims to ensure common's people participation in the administration of justice and to fulfill the defendant's right to be judged by one's peers. Professional judge's technical judgments are meant to be integrated with lay juror’s common feelings and opinions and such complementarity is expected to enhance the quality of jury decision making. Italian mixed juries pass judgment only for offenses that have major importance, either because of the severity of the punishment or because they have been committed against the state. Juries are used today to decide a multiplicity of questions. Criminal cases are the first thing that comes to mind. But this is not all, lawsuits over contracts accident cases, claimed debts, hearings to determine sanity, all these and many more issues may be tried before juries. Name the problem and it has probably been tried before a jury somewhere, sometime. Today, the jury continues both to attract and to repel us precisely because it exposes the full range of democratic vices and virtues. No other institution of government rivals the jury in placing power so directly in the hands of citizens. A trial by jury is a better choice for several reasons. First, the standard of proof in a civil case is much lower than in a criminal one. While judges have a firmer grasp on the burden of proof and how that burden can shift based on proofs and defenses made throughout a case, juries usually do not. The burden that they usually understand and adhere to is that of a preponderance of the evidence (i. e. , that something is more likely than not). As a result, the vast majority of juries will find plaintiffs have shown a preponderance of the evidence in favor of their position in any case that has survived to the point of going to trial. That makes a plaintiff's job much easier and allows one to focus more on maximizing the available recovery than dealing with the legal intricacies of every possible defense that might need to be overcome. Juries also tend to be much easier for audiences than judges. Communicating with a jury is more about telling a compelling story. Juries tend to be more interested in assessing fault more as one would analyze the story of a good play or book. They listen to the drama unfold through the arguments and testimony and then decide the case based on who they believe should win under the circumstances. Judges, on the other hand, are much less swayed by the emotional appeal of a case and tend to decide based on legal nuances and understandings of the law, that would ever occur to the average juror. Thus, they may render a different verdict than a jury simply because they analyze the case not as a normal layperson, but as a highly trained and experienced legal professional. The biggest advantage of a jury trial is the amount that juries tend to award. Juries are much more ruled by their biases or feelings than judges, so a particularly compelling story about how a victim suffered injury or harm at the hands of the defendant can lead to different verdict than a dispassionate judge would grant. Thus, it is no surprise that the biggest verdicts in UK history have all come from jury trials.

Risks of Establishing a Jury in Our Country

In a sense, a trial is a show, highly stylized, with a form of script, through the script must be fluid, the lines unsure and constantly surprising. Looked at this light, the jury constitutes both the audience and the critics, listening and deciding. A strict examination of the function the jury, would not be complete without an inquiry into the functions of the other participants in the drama, the judge serving as a director of the piece, the lawyers as the protagonists, and the witnesses as supporting cast, sometimes even stealing the show. If we want to establish a modern jury, in our civil law system, could it solve our justice problems? Firstly having a jury in our legal system, would have a lot of costs. If justice equal with costs, it could be the beginning of a debate. The pro-jury supporters would say: 'Justice is more prevalent than costs, so we have to pay if we want to feel secure in our society”. The non-jury supporters can counter-attack: 'Why we need a jury if we have codified laws, why we need a jury if we have a judge, who expresses the same decision as to the jury?'. And I’m pretty sure that most of the people that proclaim justice or even those that don't participate in legal debates, wouldn't be so happier to pay extra costs for a jury, but that’s not all. Secondly, another problem would be the role of the lawyer during a trial with a jury. Lawyers are an indispensable part of the trial system as well. For me it is very difficult to imagine a lawyer that has studied civil law system, should play a double role during a trial, being a lawyer as we know and being a narrative of the facts, a story that his client has told to him. There are lawyers can do both roles at the same time and there are lawyers can do none of those roles. A lawyer in a common law system, when talks in front of a jury, have to attract them and so he plays with their emotions, their feelings and should have an inner side inherited from Freud. Jury trials are essentially a mix of highly effective layering combined with the drama of a stage production, so finding the right kind of attorney to handle a particular case can be the difference between a mediocre recovery and one which may be truly life-changing. The lawyer or even the prosecutor most of the time, when they are speaking toward the jury, play the role of a psychologist, because all they want, is to be empathetic with them. So their opinion has to be even the opinion of the jury. Concluding my idea, a lawyer in a civil law system, cannot do both roles. They are not trained to deal with a case in front of a jury. It is very difficult to change the way they act during trials. In the Italian mixed jury system, for instance, the professional judge is supposed to avoid using technical language and moderate discussions in the deliberation room, thereby paving the way for the legally trained judge to frame the issues and unduly influence the lay jurors. Moreover, legal professionals and laypeople reason differently, and if some of those individuals are viewed as “experts,” it is easy to see whose ideas could dominate the discussion. [footnoteRef:13] So the main problem would be training the jury. A country where the jury has not existed would cause a lot of tension because they would decide according to their biases, emotions, and sympathy more than according to law and evidence. It’s true, jury represents a value for the society where it is well established, it is even considered the best democracy. But on the other hand, the impartiality required of jurors would be significantly compromised when the jurors would be influenced by the public opinion, becoming almost dominated by this. This problem becomes even more relevant when speaking of the most controversial murders or cases. Nowadays, the media has become a cultural habit, and not only in Italy, but also in other countries, such as England and the States, where we have seen what power boundless that the jury have. The problem becomes even more serious if we consider that the phenomenon held at all levels of communication, so not only in the print media and on television but also on the network, which does not yet have a specific protection discipline.

Conclusions

Long ago, Aristotle suggested that democracy's chief virtue was the way it permitted ordinary persons drawn from different walks of life to achieve collection wisdom' that none could achieve alone. As its best, the jury is the last, best refugee of this connection among democracy, deliberation, and the achievement of wisdom by ordinary persons. [footnoteRef:15] And when I choose to talk about the jury and if the constitution of a jury could solve the problems in our legal systems, I wanted to know if a jury would be a solution to guarantee justice to all citizens. Listening to people complaining about their legal system and principles, we as jurists must find where the problem at our legal system is. And when we hear their unhappy voices, they point out that the problem is the law. There are cases when a law is so unclear and judges in our system, find difficult to apply this kind of law and have to wait time, till the law changes. But most of the time it is not the law the problem. Sometimes it is the fault of the judges, of lawyers, of prosecutors why justice delays. Juries in the world, have become an endangered species. In England and Wales, which represent even from a ideological and systemic point of view, in the countries where the role of the jury is untouchable, there have been several proposals to reduce the number of treatable before a jury and to strengthen the functions and the strengthen of the role of the professional judge, precisely in the light of the new procedural problems related to the issue of scientific proof that requires a very high degree of technicality of the process and, of those who work in its dynamic, to greater reason in the decision case. We, as human beings, most of the time, when something in our society doesn’t work, we always point the finger at others. So the audience, before doing a kind of philosophy and shouting ‘we want justice’ should question themselves, what should I do to solve the problems in our society? In my personal opinion, if we ask ourselves like this, we would have fewer problems and justice would be more efficient. Things cannot change from one day to another. Before looking towards the future, we should look not only the present, but even the past.

References

1. We, The Jury, Jeffrey Abramson The Jury System, Morris J. Bloomstein Comparative Legal Reasoning and European Law, Markku Kiikeri O. J Simpson Trial Juries in Italy: Legal and Extra-Legal Norms in Sentencing, Patrizia Catellani & Patrizia Milesi An Introduction to Comparative Jury Systems, Nancy S. Marder
2. The Advantages and Disadvantages of Juries in Technical Cases, Jack E. Brown https://www. illinoislawreview. org/wp-content/ilr-content/articles/2013/4/Dudzinski. pdf https://www. hg. org/legal-articles/trial-by-jury-may-be-a-better-choice-than-a-bench-trial-6613