It’s a question that lawyers and academics have devoted volumes to, but for the purposes of this discussion I’d like to focus on:
- • An independent, disinterested decision-maker; and
• A somewhat predictable, rules-based approach to decision-making.
When it comes to who will decide the facts, there are two methods typically presented: trial by jury, or trial by judge.
But that’s a false choice. If social engineers sat down today to create a working trial system, they would surely survey the array of available options and seriously consider the viability of an amalgam of the two: trial by one judge sitting as trier of fact, and another sitting as the trier of law. One would have full knowledge of the pleadings and rule on procedural matters, while the other would remain passive and concentrate only on the evidence presented.
The advantages of a two judge system over the traditional trial by jury include: it’s cheaper (always a plus, these days); less court time would be spent with instructions and charges since the ‘fact judge’ would already understand their role; the decider of fact would be less prone to distraction, would be able to provide reasons for their decision, and would be incapable of reaching a ‘hung’ verdict; and the ‘law judge’ would be freed up to take a more active role in proceedings (if they wanted to).
Of course there are also downsides to removing juries from the system, not least of which is even further reduced public participation in our system of justice. But those problems exist now anyway when a judge sits alone as decider of law and fact. The only added problem I can see is, in the event of a matter needing to be adjourned, ensuring the availability of both judges for the next occasion. But even that seems more manageable than trying to coordinate the movements of six or twelve jurors.
What do you think? Do you see other disadvantages to a trial by a judge and a judge-as-jury?