Agenda item 7: Juries

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Agenda item 7: Juries

Post by Justice Soothsayer »

[quote:3l3gxl3w]7. Juries
Should we have juries?[/quote:3l3gxl3w]
Comments?
Beathan
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Post by Beathan »

We have real trouble having meetings. People who go out of their way to serve on an institution -- the RA, or SC, or somesuch -- cannot attend all meetings because of real timezone differences. If we can't get committed people to consistently participate in the work they chose to undertake, how can we realistically expect compulsory service, through juries, to work.

Further, the courts will only have control over CDS citizens. Thus, only citizens will be compelled to serve on juries. If the justice system becomes popular with the SL community at large, our citizens will be busy being jurors to do anything else on SL. That would cause me, at least, to surrender my citizenship.

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Post by Oni Jiutai »

I agree completely with Beathan on juries. It's just an awful lot to ask of people and very difficult to organise.

RL governments have to compel people to attend juries, ultimately through criminal sanctions. Even if this was plausible here, I don't think it would be very nice.

The only argument for juries, I think, is that they (in general terms) are supposed to improve public trust in the system, through public participation in it. I don't think that is convincing here, because (a) the value would be outweighed by the logistical difficulties and (b) we're just as likely to undermine public trust by annoying everybody with constant demands for jury service.

One thing to consider though, is using juries in very narrow circumstances. Maybe where permanent banishment of a citizen is possible?
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Post by Patroklus Murakami »

I see no reason to exclude the option simply because it may be difficult. We don't choose to abandon inworld meetings for the Representative Assembly; the CSDF has been holding faction meetings (almost) weekly for months. Rudy, and others, hold regular meetings inworld. The limiting factors are: motivation to attend; scheduling due to different time zones; frequency of meetings/need for jury service.

If we assume that most people don't want to do jury service, time zones will be an issus and there will be lots of jury trial then yes, it may be unworkable. If, on the other hand, we assume that people will be keen to participate in the first jury trials in synthetic worlds, that we can find enough people in roughly the right time zone and that the need will be infrequent then there may be few problems.

I like Oni's idea of limiting jury trials to 'serious' cases but I hope we can do this without putting provisions in the Constitution :) Could the RA provide general guidelines for what constitutes a 'serious' case worthy of a jury trial and then review the situation once we've had experience with the system?

It would be a shame to deprive our justice system of one of its most integral parts - the right to have your fate decided by a jury of your peers - before we've even given it a fair wind.
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Post by Beathan »

Pat --

The way you are describing juries, there will be an inherent cultural bias on juries. If we only sit juries based on comparable timezone, then we will have juries of Americans (to the exclusion of others; of Europeans (to the exclusion of others); of Japanese and Koreans (to the exclusion of others). This strikes me as a problem. The way to avoid this problem is to disregard timezone. This strikes me as a problem.

However, I don't think that we should necessarily rule out juries, even though I think that they will prove unworkable. We should test them in SL, just like we should test all possible procedures in SL, before we accept or reject them. Let the question of whether there should be a jury, and whether that jury should be monocultural or multicultural, as a matter of the pretrial procedure and scheduling order.

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Post by Ranma Tardis »

I can not see how the cds government can force a citizen to be on a Jury. Myself I have a real world job (the one that puts food on the table) and refuse to take my vacation time to be on a possible endless stream of trials.
Can not see how a workable system can function. I am not able to attend RA meetings at the current time due to real world. I have duty during that timeframe.
If you call me for jury duty most likely I would just not be able to attend. What time is the trial in cases between Europeans and North Americans? For whose convience is the trial scheduled?
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Post by Diderot Mirabeau »

Make it opt-in.
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Post by Ashcroft Burnham »

[quote="Oni Jiutai":2ddyzuck]I agree completely with Beathan on juries. It's just an awful lot to ask of people and very difficult to organise.

RL governments have to compel people to attend juries, ultimately through criminal sanctions. Even if this was plausible here, I don't think it would be very nice.

The only argument for juries, I think, is that they (in general terms) are supposed to improve public trust in the system, through public participation in it. I don't think that is convincing here, because (a) the value would be outweighed by the logistical difficulties and (b) we're just as likely to undermine public trust by annoying everybody with constant demands for jury service.

One thing to consider though, is using juries in very narrow circumstances. Maybe where permanent banishment of a citizen is possible?[/quote:2ddyzuck]

The problem with that suggestion is that it is not always obvious in advance which cases will result in banishment. It might be only during the course of a hearing that evidence suggesting that the matter is more serious than originally thought emerged, or pleadings might be amended near to the time; it would then be a serious problem if banishment were not available because a jury had not been empannelled.

Furthermore, the system could be open to abuse: suppose that a party thought that he or she would get a better run under a jury; he or she could make a spurious claim that the other party ought be banished in order to secure a jury.

Lastly, juries are beneficial and highly important in themselves. They are not case-hardened, and are themselves an important check on the power of the judiciary (see Grexinimo's posts). A panel of several ordinary citizens deciding factual issues is an important way of ensuring fairness in the long run.

It would be extremely unfortunate to deprive our citizens of such a beneficial device because we speculate that it is unworkable. If it transpires in practice to be unworkable, that is a different matter, but we have nothing to lose by trying in a system where a jury trial is only required (1) where one of the parties wants one; and (2) where it is not manifestly impractical to have one.
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Post by Beathan »

Ash wrote [quote:2bnzty9a]The problem with that suggestion is that it is not always obvious in advance which cases will result in banishment. It might be only during the course of a hearing that evidence suggesting that the matter is more serious than originally thought emerged, or pleadings might be amended near to the time; it would then be a serious problem if banishment were not available because a jury had not been empannelled. [/quote:2bnzty9a]

Here we might have reached another difference between the way law is done in American and in Britain. It makes no sense to me that a criminal punishment cannot be predicted at the outset of the case. A fair criminal system provides for clearly described punishments. If says, if you do X, your punishment will be Y. Although Y could be a range of things, the punishment for X will never be something other than one of the Y options.

In the US, what a person is proxecuted for is determined at the very outset by a clear description of the charge in some charging document. This document is prepared by the Prosecutor and approved, either by Grand Jury or by a judge in a process called an "Information." The trial proceeds on the basis of the official charge only. The charge cannot be changed or expanded as part of the process of the case (although a dismissal without prejudice an refiling might be proper).

To allow a criminal charge to change because of things that happen at a trial strikes me as very dangerous and very frightening. It also allows for gamemanship. A citizen could be charged with a nonbanishable offense -- a minor matter -- and might not treat it seriously as a result. Then at the hearing, the citizen might be surprised by a sudden escalation of the charge to a banishment offense -- which the citizen had not notice of and which the citizen had not prepared for. This would be truly awful. If this is an implication of the current system, at least as administered by the current judge, it is far worse than I thought -- and we need to get rid of it before it hears a single criminal case.

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Post by Oni Jiutai »

I don't think that's a UK / US difference but a RL / SL difference.

In RL we have a criminal / civil distinction (at least the US / UK do, and I'm not familiar with an exception). That doesn't exist, so far as I can tell, in the CDS legal system or either of the procedures.
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Post by Beathan »

Oni --

My concern does not involve a distinction between criminal and civil law -- unless you are raising the even more disturbing possibility that someone can be sued and have the judge convert the case into a criminal proceeding at the trial, imposing criminal penalties. I recall an historic UK case on this point -- one that American's chuckle over until we realize the horror of the thing.

Apparently two thieves (I think they were highwaymen) had worked out a deal under which they would split their loot. One of the thieves did not do so. The other thief sued for breach of contract, arguing that he was entitled to his half. They each hired lawyers, who presented their contract theories and defenses. As I recall , the court's ruling was "parties shall be hanged, counsel shall be transported as accessories to theft." This, of course, would never have happened under the American system, even in its infancy.

The problem is, I think, a violation of Article 11 of the UDHR.


[quote:a4ckxbpn](1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.
(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed. [/quote:a4ckxbpn]

To me, knowing the nature of criminal charges against you, including the maximum punishment possible for those offense, is essential to provide you with the know to provide for your own defense. Thus, I think that any criminal charge must be specified in a charging document -- and unless the charges are dismissed and new charges laid -- the charges in the charging document are the only ones on which penalty should be imposed, no matter what comes out at trial. Further, I favor adopting some kind of protection from double jeopardy, so that the prosecutor can't just turn around and file new and additional charges after trial.

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Post by Ashcroft Burnham »

[quote="Beathan":319ncxi8]My concern does not involve a distinction between criminal and civil law -- unless you are raising the even more disturbing possibility that someone can be sued and have the judge convert the case into a criminal proceeding at the trial, imposing criminal penalties. I recall an historic UK case on this point -- one that American's chuckle over until we realize the horror of the thing.[/quote:319ncxi8]

The original Code of Procedure made it very clear that culpability could not be found unless it was pleaded in advance, and the constitution makes clear that a finding of culpability is a prerequisite to penal orders, including banishment. Incidentally, under our current ultra-vague notice pleading system, that horrendous idea [i:319ncxi8]is[/i:319ncxi8] a real possibility.

What would be more workable is to have jury trial available only in culpability cases, but even that, I think, is an unnecessary restriction when we do not have the empirical data upon which to claim that there would be any problem in having jury trial in other cases.
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Post by Beathan »

Ash --

I think that the remedy under the current system is to have the judge, in the procedure order, require the prosecutor of a criminal offense to specify the offense, the required elements of proof for that offense, the evidence for each of those elements, and the maximum penalty that can be sought or imposed. This then would become the law of the case -- and conversion of an nonbanishment case to a banishment case would not be possible without dismissal and refiling of new charges.

I agree that the new procedures allow us experiment in this regard. I agree that an unsophisticated, unrepresented criminal defendant could be tricked into agreeing to a case procedure that let's the prosecution, or even the judge, switch a petty crime to a capital offense at the last moment by amendment. However, if this happens, it should be the first place on which we do work to improve and expand the procedures. Nothing in those procedures indicates that they are the last word on the subject. Anyone -- including members of the Judiciary -- can request changes by making asking the RA to do it.

That said, I don't think that this is actually a serious problem. The current procedures requires notice of the case. The notice is simple -- based on "notice pleading" concepts -- but the essential feature of "notice pleading" is that the trial can only occur on theories and claims that could be reasonably understood as being in play based on the pleadings. This safeguard is, I think, enough, provided we do not allow willy-nilly switching and amendment of claims during the trial (or any time after filing). The problem is not so much that a judge could do this switch under the current rules (he can't -- not lawfully, at least), it is that our only current judge seems to think that he could.

Beathan
Last edited by Beathan on Wed Dec 13, 2006 11:29 am, edited 2 times in total.
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Post by Dexter Leopold »

A bit off the topic, but have we considered having a full-time prosecutor, or prosecutors, to bring such "criminal" charges against defendants? I think this may assist, to some degree, in avoiding over-the-top charges with a SL professional who shall become intimately familiar with such "criminal" proceedings. This could also provide a (potential) buffer to overzealous alleged victims bringing claims on their own behalf, or potentially worse, private lawyers hired to bring a claim on behalf of an alleged victim.

I would propose that any such position be unpaid of course, and that the appointed prosecutor not be permitted to practice in any other area of law in the CDS during his/her tenure. Someone devoted to the people and the legitimacy of the system.
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Post by Beathan »

Dexter --

I am partial to your idea. However, before we decide on it, we should experiment with private prosecution first to see if it works and, if so, within what limits it best works. We should also experiment with public prosecution -- but that would require creation of a not-yet-existing institution, an office of "public prosecutor." We should also consider whether we want to make defense counsel available, at public expense, to citizens accused of crimes. However, these are refinements on the current system that would require further expansion of government. We need to consider such things carefully -- and only after testing the ideas, and their alternatives, in real cases under the current rules.

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