The political moment has been demanding from those who have some electoral pretension the generation of ideas, hopefully novel, in the most diverse fields possible. Justice and its exercise, by the way, have been the subject of attention.
One of the ideas that has emerged in recent days is the introduction of “trial by jury” in Chile. The argument that usually surrounds this proposition looks at “citizen participation” in the administration of justice and, with it, at the creation of a direct “democratic” or “deliberative” context.
It is even assumed that the introduction of the jury should have a leading place in the debate of the Constitutional Convention that is to propose a new Constitution for Chile, since that would be a key point of a democratically committed vision of justice in our country.
This way of understanding the debate concerning the justification of procedural institutions is, at best, a rhetorical ploy. In a country that has a long-standing tradition of professional judges and faces so many pressing demands for institutional reform, the question to be faced is: why does the jury represent progress in itself? In other words, what makes it advisable to insert them? What is corrected by the existence of juries? To what extent and in what dimensions would the decisions of juries be better than those of professional judges?
There are few arguments present in the public discussion in this regard, but we can at least recognize three: the first looks at the evaluation of the current Judiciary. It is often said that the judiciary does not have high levels of support, and that the index of confidence in the judiciary is at very low levels in our country. The jury would serve to improve this low approval rating.
The second is an argument about empirical success: the jury has worked in other countries, so it should work in Chile. There we find from abstract references about the jury in the world to the citation of local experiences (for example, which would be successfully implemented in part of Argentina). As it exists in other places, it should exist in Chile.
The third argument is about the democratic improvement of the justice system. There would be among us a “citizen demand for greater participation and democratization in the justice system” that this institution would come to satisfy. In other words, through juries we would have more and better deliberation than with professional judges.
The first argument is actually a representation of what is known as a non-sequitur fallacy, that is, an argument that offers a conclusion that is not derived from its premises. No one disputes that the level of trust in the judiciary in Chile is low, but it is an unjustified logical leap to suggest that such a phenomenon is due to the professional nature of our judges or that the institution of jury trial is the sure remedy to generate that trust.
On the contrary, the only institutional trust study that offers comparable results among Latin American countries (Latinobarómetro, 2018) shows that confidence rates in the Judiciary are lower in those with juries (21.30%, on average) than in those that have exclusively professional judges (25.47% on average). In the same vein, it is striking that the two Latin American countries with the best confidence rates in the judiciary (Costa Rica and Uruguay) do not have a jury trial, and the country with the worst confidence index (El Salvador) does have them. We do not intend to offer these data as evidence that professional judges guarantee higher rates of trust in the Judiciary than juries, but they do strongly suggest that there is no relationship of any kind between the institution of the jury and the levels of trust in the Judiciary.
The second argument argues that jury trial is good, because “across the Cordillera they have jury trial and it works.” To support the latter statement, some statistical data are usually provided on, for example, the high percentage in which juries in the province of Buenos Aires hand down sentences. The truth is that the indiciary nature of these data to demonstrate the proper functioning of the institution, in that country, is beyond our comprehension. But beyond that, the fundamental problem is that this argument constitutes what is known as an authority fallacy. The fact that there is a jury in some Argentine provinces or anywhere in the world does not in any way validate the need for chilin order to have such an institution.
The third and final argument attributes to the institution of the jury the virtue of “democratizing” justice. This is an attribution of meaning to the concept of democracy with which we definitely disagree. That a group of people are drawn to participate in the decision of some criminal cases cannot be considered as an improvement in the levels of democratic participation, not only because of their low statistical importance but because juries are not called to participate in political deliberation. Where democracy must have a relevant impact is in the design of the rules, but it is the judges, from their technical role, who must attribute the central role in serving as a vehicle for the democratic agreements of the community, making empirical the decisions expressed in the abstract rules of law.
In short, to persuade of the need to establish trial by jury in Chile, its supporters have the burden of demonstrating that lay judges, that is, people without formal education in law and to whom we assign the function of judging for the first and only time in their lives, will perform that function better than professional judges. , that is, people trained in law and with daily experience in conflict resolution.
The arguments we have been given so far are far from satisfying that burden.
Daniela Accatino Scagliotti, lawyer
Flavia Carbonell Bellolio, lawyer
Julián López Masle, lawyer
Jonatan Valenzuela Saldías, lawyer
The content of this opinion column is the sole responsibility of its author, and does not necessarily reflect the editorial line or position of El Mostrador.
