Discussion Groups / English Usage / January 2010

That statement completely ignores the existence of the magistrates court
which deal with lesser criminal offences[1].
http://www.hmcourts-service.gov.uk/aboutus/history/magistrates.htm

   The part played by magistrates in the judicial system of England
   and Wales can be traced to the year 1195. Richard I in that year
   commissioned certain knights to preserve the peace in unruly areas.
   They were responsible to the King for ensuring that the law was
   upheld. They preserved the "King's Peace", and were known as Keepers
   of the Peace.
   
   The title Justices of the Peace derives from 1361, in the reign of
   Edward III. An Act of 1327 had referred to "good and lawful men" to
   be appointed in every county in the land to "guard the Peace".
   Justices of the Peace still retain (and occasionally use) the power
   conferred or re-conferred on them in 1361 to bind over unruly
   persons "to be of good behaviour". The bind over is not a
   punishment, but a preventive measure, intended to ensure that people
   thought likely to offend will not do so.
   
   For the following 600 years, and continuing today, Justices of the
   Peace have undertaken the greater part of the judicial work carried
   out in England and Wales on behalf of the Sovereign.

See [1] regarding the "Diplock" courts.

[1] An official report:
http://www.criminal-courts-review.org.uk/ccr-ap4.htm

   1. In 1999, the courts of England and Wales dealt with nearly two
   million criminal cases. All of these cases had at least one hearing
   in a magistrates’ court. A minority were subsequently committed,
   transferred or sent to the Crown Court. The table below shows the
   level of court at which cases were completed:
   
   Crown Court [with a jury]
   97,000
   5%
   
   Magistrates’ Court [no jury]
   1,789,000
   95%

   2. All criminal offences currently fall into one of three
   categories. _Summary offences_, which include most motoring offences
   and other relatively minor matters such as drunkenness, common
   assault and prostitution, are triable only in a magistrates’ court.
   _‘Either-way’ offences_, including theft, drugs offences and some
   involving violence against the person, are triable either by a
   magistrates’ court or by the Crown Court. And _indictable only
   offences_, such as murder, rape and robbery, must be tried by the
   Crown Court.

In an _Either-way_ case the accused can ask for a jury trial, or the
magistrates court can itself transfer the case to the Crown court. The
magistrates can try a case, reach a verdict and then refer it to the
Crown court for sentencing if they consider that the offence might
warrant a larger sentence than they are empowered to impose.

[2] In a no-jury "Diplock" court the case is heard by a judge alone. The
judge renders the verdict in writing with a detailed explanation of how
and why the verdict has been reached. A person convicted has an
automatic right of appeal. The Appeal Court is entitled to consider the
judge's assessment of evidence and decision-making. The acceptability of
evidence, the standard of proof and so on are the same as for the jury
trial of other serious offences.

However, the production by the judge of a reasoned verdict and its
potential critical scrutiny by a Appeal Court alongside the transcript
of the evidence have much in common with non-criminal proceedings.

Very few cases tried by non-jury courts in Northern Ireland seem to have
gone to appeal. The thoroughness of the consideration of the evidence
imposed by the need for the judge to explain his/her verdict seems to
maintain a high standard of decision-making.

The US 6th Amendment specifies the right to trial by jury.
When we possess a right like this, we can usually waive
it (viz. opt for trial by a judge alone) at our discretion.

But this is not a universal  rule.  In Ontario, Canada (I was
told a few years ago by a policeman) the law establishes
which of any two vehicle drivers has the  right of way, and
this right cannot be waived or given away.  The case
concerned driver A, attempting to turn across a line of
traffic led by driver B, who stopped and politely waved
driver A across, leading to a collision between A and
driver C, who was going in the opposite direction.

Drivers B and C had the right of way because both
were proceeding straight ahead in opposite directions,
crossing no one.  Driver A wanted to cross both lines
of traffic at right angles, thus did not have the right of
way.  Driver B's "politeness" in halting to let A cross
was a crime, in that he attempted to give away his
own right of way, which the law prohibits.

Thus (in Ontario traffic law) the right (to go first) is
also a duty (to go first).   The event above (collision
between A without right of way and C with right of
way) demonstrates why voluntarily surrendering
the right of way is not allowed.

[ ... ]

In Virginia, the prosecution may demand a jury

True.  I'm talking about something lurking in the interstices of the
Fourteenth Amendment -- due process, equal protection, and all that.
One assumes that if the prosecution wants a jury in a criminal case
and the defendant doesn't, it's because the defendant thinks he'll
have a better chance to persuade the judge than the jury of his
innocence (or, more correctly, his not-guilty-ness).  But if he's
denied the choice and the prosecution gets to try the case before a
jury that the defendant doesn't want, that could be considered an
unfair advantage for the prosecution, hence not due process.

I don't have any knowledge of how this has played out in the courts.
Since the practie continues, it's nearly certain that any
constitutional attacks on it (if there have been any) have been
rebuffed.  But my ignorance allows me to speculate.  Taking advantage
of my own lack of information, as it were.

I'm a bit rushed tonight, so I'm not going to do the research now.
Maybe I'll come back later with a report.

I don't think so.  My experience, at least, is that the jury is
informed by the judge of what has transpired and is then dismissed.
In one trial I sat on, we proceeded to deliberate anyway as there were
still some counts remaining to be decided.

There are some circumstances in which, in some systems, the judge can
instruct the jury to make a particular finding.  There are occasional
controversies when the jury does not do so.

-GAWollman

Thu, 14 Jan 2010 14:12:42 -0600 from Mark Brader <msb@vex.net>:

Yes, that's exactly right.  The Supreme Court took the most
unambiguous word imaginable, "all", and reinterpreted it to mean
"some".  Charles Rembar is scathing on this topic in /The Law of the
Land/.

I believe the current rule is that you are entitled to a jury trial
if the potential penalty is more than a year in prison (or, maybe,
more than six months; it's a while since I checked).  It doesn't
matter whether the crime is called felony or misdemeanor; what
matters is the potential penalty.  Some individual states probably
have a broader guarantee of trial by jury for state crimes.

It's easy to see the motivation for the reinterpretation: if you
could have a jury trial over every speeding ticket,the courts would
work even less well than they do now.  But it's not easy to see a
*legal* justification.