Implementing jury trials in Argentina: Is it possible

Paper submitted at the 2005 Annual Meeting of Law and Society Association
(June 3, 2005, Las Vegas, Nevada, U.S.A.)

SOCIETY’S PARTICIPATION IN CRIMINAL TRIALS AS A CULTURAL PHENOMENON

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 species. 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 judges; the courts of the Eastern European countries integrated with lay assessors, and 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 primitive.

In a comparative and political analysis of the 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. [1] In this last case, the judges had to pay attention to the expressions, utterances and demonstrations of the public at large.[2] 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.[3]

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 contemplated--[4] 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.[5] 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 the broadcasts. 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 resumed. 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.[6]

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 it is. 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.[7]
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 jury trials”.[8] 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. This 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[9] and 1947.[10] 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 have not 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 century,[11] 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.[12] 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.[13] 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.[14]

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.[15]

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 transparent.

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 instruccción” (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” function 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 participation provisions.

The mixed court established by the Córdoba code in 1991 was not implemented until April 1^st 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 1^st 2005. The first clause of this new law states that it is endeavored to the establishment of jury trials according to 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[16]. 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 30^th, 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.


CONCLUSION

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.

---