Jury Trials in Argentina (2005)

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.)

SOCIETYS 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
layassessors, and the Magistrates 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 proceedingsshall 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 courts 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 Pihlajalmki, 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 townsmenwere 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 peoples 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 Crdoba 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 instrucccin(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, Tucumn 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 instrucccin
function was and still is where it is maintainedreminiscent of the job of inquisitors"
of old times. However, none of these provinces imitated Crdoba in the lay
participation provisions.

The mixed court established by the Crdoba 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
Crdoba 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 Crdoba
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 Ros 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 voters 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.




[1]Martin Shapiro COURTS. A comparative and political analysis, The University of
Chicago Press, 1982

[2]Op. cit. p. 57; id. at p. 179

[3]According to the Encyclopedia Britannica (edition 1994-1998: Lynching)

[4]That was the situation prior to the recent changes in the province of Cordoba

[5]Was a victim of the fact of Maria Soledad Morales and the accused surnames were
Luque and Tula

[6]The information regarding all of these events can be found in the daily newspaper
of the city of Buenos Aires, La Nacion. On March 30 and April 1, 2, and 3, 1996, the
news made the front page ofthe editions of the newspaper, thus giving an idea of the
magnitude of the matter

[7] Those provisions were maintained verbatim by the 1994 amendment to the
Constitution. Only the number of two of those three provisions changed: former Article
67 is now Article 75, and former Article 102 is now Article 118. I shall use in this paper
the after-amendment numeration

[8] December 7
th
. 1911 "Vicente Loveira v. Eduardo Mulhall" Fallos 115:92

[9] March 22
nd
. 1932 "Ministerio Fiscal v. Director Diario La Fronda" Fallos 165.258

[10] June 9
th
. 1947 "Tribuna Democrata" Fallos 208:21; August 25
th
. 1947 "David
Tieffemberg" Fallos208:225

[11] Heikki Pihlajamki (Researcher from Helsinki University). Democracia, derecho y
ciudadano. El debate sobre el jurado y sobre el Derecho de la prueba en la Argentina a
fines del siglo XIX in Revista de historia del derecho# 30, Buenos Aires, 1995, pp.
167/182.

[12] February 2
nd
. 1992 Cmara en lo Criminal y Correccional Sala I. E.D. 148:589

[13] April 30
th
. 1991 "Gino Martellos" Cmara en lo Penal Econmico, Sala II (1991-E
La Ley, p.215). As a member of the Court of Appeals I was the author of the dissenting
opinion.

[14] March 22nd. 2005 Sesto, J.L. et al in re Valicenti Cmara en lo Penal
Econmico, Sala A (file reg. 110/2005, El Derecho: daily print of April 19, 2005)

[15] Law Act 23984

[16] There is no felony-murder rule in Argentine law. Instead, there are increased
punishments for several crimes when somebody gets killed. Those are the cases of
rape, kidnapping, tortures and robbery mentioned in Crdoba law Act 9182. On the
equivalence of these cases with the felony-murder rule, see Edmundo S.
Hendler Derecho penal y procesal penal de los Estados Unidos, Buenos Aires, 1996,
Ad-Hoc Publishers, pp. 145/147