sábado, 13 de junho de 2009

Jury Trials

Written by Fabiano Lins
Attorney at Law / Advogado
Dlm2 Advogados Associados.



From time to time we have heard that someone is about to be sentenced in a jury trial. What could have possibly happened to a man or a woman to put him or her in the situation of being judged by the society in a so-called jury trial? Our first thought as civilians in the Brazilian judicial system is that it must have been a crime. Moreover, we realize as professional lawyers that it must have been a crime against life such as a homicide, infanticide, assistance or inducement to a suicide, or abortion.

In Brazil, as opposed to what outside viewers possibly think, the jury trial has been utilized frequently to prosecute and sentence those who break criminal laws. The idea of single judges solely trying cases in Brazil does not comport with the reality. Although Brazil, as part of the civil law system, uses more often bench trials, criminal cases tried in a jury trial fashion represent a large number of sentences pronounced during any given year. In other words, the jury trial in Brazil has been used for restricted purposes, yet it has represented a no less important role in our judicial system.

Important cases have been decided by jury trial in Brazil and these certainly include cases that the international community has not yet forgotten. One example was “the massacre of Candelaria” in Rio de Janeiro, a place where poor boys and girls were killed by the police. The reasons for the slaughter consisted of the macabre deal between merchants of the neighborhood and the police guard to oust and eliminate mendicants and teenagers on drugs who were negatively affecting the commerce of the area.

Then, to have the whole place cleansed of traffic dealers, drug dealers and mendicants, the Rio de Janeiro police executed seven people ranging from 11 to 22 years old. This particular case was considered outrageous in the Brazilian society and the international media covered the entire story for years. Moreover, a jury panel tried the Candelaria case and some of the policemen involved were convicted of the crime of murder and sentenced to more than 15 years in prison without right to parole.

Another case called “the massacre of the Eldorado dos Carajas” was tried in a jury trial courtroom and today is in the appellate court pending for decision. The case also involved policemen as the authors of the crime where 19 people were killed. The facts showed that the governor of Pará (a north Brazilian state) ordered the police to unblock a barricade formed by landless people (sem-terras) on the PA 150 state road. The protestors blocked the road and threatened with sticks, knife and guns anyone who tried to pass through the barricade. The police abused their authority and killed not only armed people, but also innocents that were just making their protest against the bad distribution of land in Brazil. The international media covered the case and the result was that the Brazilian government has been accused of a criminal charge against life brought in the International Human Rights Tribunal where the case still pending.

In contrast, jury trials are used more frequently as a resort to solve criminal and civil conflicts in the society in the United States, which is recognized by the rest of the world for its jury trial system. There are many criminal cases that have turned international media attention to US criminal trials. For example, the prosecution of OJ Simpson, which was one of the most famous criminal trials in the US, was broadcast to the world in detail. The results obtained in the end of the trial finding OJ not guilty for the double murder nevertheless did not convince the American people and the world of his innocence.

However, US criminal jury trials are not only reputable for unconvincing decisions; in fact, many of the criminal scholars think that criminal trials usually achieve legitimate decisions that a single judge would probably not have sufficient sensibility to interpret the facts upon the basis of actual circumstances. They say that the jurors are more inclined to a better analysis of the facts based on their life experiences. In fact, US criminal trials are effective and often send a clear message to the society of what criminal justice is about.

Brazilian criminal trials also are considered by the scholars to be a great “tool” against the spread of crimes among the Brazilian society. They think that society, when called on to participate in jury trials, tends to trust more in justice, which transforms jury trials into an efficient mechanism of crime prevention.

Thus, the importance of jury trials in US and Brazilian societies is without a doubt greater than an unaware fellow can possibly tell about it. Jury trials are so important that they are protected and demanded by the American and Brazilian Constitutions. They are a right entrusted to the society and exercised by the people when judging their equals in jury trials. Jury trials are no less precise or relevant in terms of the quality of justice than bench trials. There are a number of procedural laws, principles, and specific rules that qualify jury trials to the same level of any actual justice practiced upon the law.

The procedures involving criminal trials in Brazil and the US are very peculiar and distinct from other forms of procedures even when compared to US civil trial procedure. The procedural steps are designed to provide a fair trial by adopting important features to fit lay persons into the court system, such as jury selection, and particular principles guiding the trial pace and due process. Criminal jury trials in Brazil or in the US praise the same purposive objective: justice.

However, sometimes justice is not attained, but this is not an issue intrinsically related to jury trials. Any kind of criminal procedure is susceptible to mistakes and they are not exclusively found in jury trials.

Our study is limited to some important differences and convergences between Brazilian and American criminal jury trial systems concentrating on several particular features such as pre-trial procedure, trial procedure and jury selection process.

Right to a Jury Trial

Brazil and the United States have the right to a jury trial ensured by their Constitutions. However, these rights are somewhat different as encountered in both Constitutions regarding the extension and possibility of waiver.

In the US, the right to a jury trial is guaranteed by the Sixth Amendment which states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by a impartial jury of the State and district wherein the crime shall have been committed….”

The defendant nonetheless may waive his right to a jury trial and have his judgment rendered by a single judge. This election for a bench trial is not prohibited by the US Constitution and it is ready for use depending upon the defendant’s desire, at least in a great number of state jurisdictions.

The right to a jury trial extends to the majority of criminal matters with only a few exceptions, such as crimes perpetrated by youths, yet most of the states have enacted statutes providing jury trial for juvenile delinquency. For example, a teenager named “Brazill” was recently condemned to life imprisonment in a jury trial decision in Broward County, Florida due to the murder of his high school teacher in the school hallway.

In Brazil, the right to a jury trial exists, but no waiver is permitted. The Brazilian Constitution states in Article 5°, XXXVIII, that all crimes against life shall be tried in jury trials. This article stands for the rights and guarantees of the individuals and the criminal jury trial is under the aegis of this categorization. Thus, the criminal jury trial is the legitimate instrument of democracy and liberty when the people judge their equals.

The Brazilian Criminal Procedural Code regulates in Article 74 caput and § 1°, which are the crimes against life, and states them essentially as homicide, infanticide, inducement or help to some other suicide and abortion.

The Framers of the Brazilian Constitution did not intend that the crimes against life should be the only ones tried in jury trial courts forever and that no changes to include other type of crimes would be permitted. At any time, the number of crimes listed to be judged by jury tribunals can change; everything depends upon the willingness of the legislator. However, the crimes against life shall not be erased from that list without changes to the Constitution. This interpretation is fully accepted by the Brazilian Supreme Court.

Some Differences Between Brazil and US: before and during the trials

In the US, before the trial, there are pre-trial procedural matters to prepare the accused for a fair trial, which we are going to analyze since the formal accusation in both jurisdictions. To initiate a formal accusation, a series of steps has to be followed.

The very first step is the appearance before a judge for analysis of the “complaint” against the defendant. The single judge shall look to the complaint and verify whether there is probable cause to require the accused to answer formal charges before a grand jury or judicial officer, depending upon the state’s provision. The second step is the formal charge procedure itself when a grand jury or judicial officer, to indict the defendant or not, shall hear the accused and the proof against him. Before the second step, there is a point at which the prosecutor has the opportunity to dismiss the charges against the defendant, depending upon substantial facts found during the investigative period.

The grand jury or the judicial officer shall look and reproduce all evidence necessary to sustain a formal charge against the accused and, in order to have their task accomplished, they may ask for discovery, including testimonies or material evidence at issue. The grand jury is a panel of usually 23 people from the community that may vote for the indictment of the accused, transforming him into a defendant.

The grand jury can be substituted by a preliminary hearing before a judicial officer. There is no constitutional obligation for the use of a grand jury for all criminal matters; consequently, states in the US use a judicial officer to designate a formal indictment. The grand jury apparently has more power, due to its constitutional characteristics to investigate additional evidence and compel testimonies under oath, than the judicial officer.

Thus, the probable cause is checked twice before the trial. First, it is quickly observed by a single judge and subsequently analyzed in more detail by the grand jury or judicial officer. Indeed, the prosecutor can, at any time before the trial, drop the accusations if the probable cause was not satisfactorily reached.

In Brazil, the approach is very different from the American pre-trial procedure. There is no jury or judicial officer to propose an indictment.

However, the first step to reach an indictment is very similar when the judge checks upon the facts brought by the prosecutor to verify whether the action has “minimal requirements”(not only probable cause) to proceed its normal course. At this stage, the judge can simply dismiss the action because it does not have “generic” or “specific” conditions to proceed.

Some specific conditions would be lack of authorization from the Congress to proceed in an action against federal senators or deputies, or any gross substantial error in the petition that make it void, for instance. The generic causes are summarized into three categories: the facts visually do not consist in crime, the prosecutor has no authority to propose such action or there is no probable cause.

After analysis of the “minimal requirements” inquiry, if there are still indicia that the accused could have possibly committed the crime by the facts, the judge shall initiate the second procedural phase for indictment. It is necessary to advise that the criminal jury procedure is very peculiar and totally different from other criminal procedural forms. This phase of the procedure is a mixture of procedural and substantive challenges. It is in reality a trial, but it is not yet a jury trial.

For the American attorneys, it is totally understandable that they do not perceive any intrinsic relationship between the US and Brazil on that matter because there is no possible close explanation to the American jury system that could conceivably be drawn.

In a few words, this procedural stage is a specific time during the proceedings to certify whether or not the defendant can be sent to a jury trial and even absolve him, depending on the facts presented. Thus, a single judge shall provide four different decisions upon the case:

I – Jury trial;
II – No jury trial;
III - Summary absolution;
IV – Declassification of the crime.

The first decision happens when the judge finds out that the prosecutor has achieved sufficient evidence to convince the court that one crime against life was possibly perpetrated and the defendant has not satisfactorily shown inappropriate jury trial procedure or insufficient evidence for any kind of criminal prosecution. In this occasion, the judge orders that the defendant be judged before a jury when all the evidence shall be reproduced once again but now for the jurors’ appreciation of the facts.

The second type of decision (no jury trial) occurs when the judge reaches no conclusion of whether the alleged perpetrator committed one of the crimes against life listed on the aforementioned Procedural Criminal Code. This decision does not decide the case on the merits; thus, the prosecutor can try the case de novo when he has some other evidence.

The third decision occurs when the judge, based upon clear evidence, has either not considered the defendant the author of the crime or the evidence is clearly undisputed to infer that there was no crime committed (i.e., lack of probable cause).

The last type of decision is very interesting and sometimes causes a jurisdictional problem. The judge can sort out the case by finding that the evidence presented consists of a possible crime, yet he finds that the jury trial jurisdiction is not appropriate because the crime committed was a crime other than a crime against life. Consequently, the judge sends the case to another jurisdiction, which can reject the determination of the prior judge. In such situation, a great problem of jurisdiction can arise when both jurisdictions involved do not accept the case.

However, the problem is often solved by common agreement between the judges or, if that consensus was not achieved, a superior court must decide.

The Brazilian pre-trial procedure also has a double check on probable cause for criminal action by the judge. The prosecutor can drop the accusations, but in the Brazilian criminal procedure, only until he has filed the petition. In the American counterpart, the prosecutor can drop the accusation until the trial actually begins. By the way, in Brazil the formal indictment is prepared after the judge’s decision to proceed with a jury trial.

The Jury Trial: overview.

In the US, the criminal jury trial is based upon the adversarial system, but in criminal cases there is an important difference from civil cases with regard to the role of the prosecutor. The defense attorney bears the responsibility of a vigorous representation, yet the prosecutor has two duties to observe: one as attorney of the state and the other as minister of justice. As the latter, the prosecutor has an interest in protecting the society against unfair prosecutions, which means that criminal cases are based on an adversarial system, but not as adversarial as in civil cases.

For that reason, the Brazilian criminal trial seems more convergent than divergent from the American system. During the trials, the Brazilian prosecutor has the same two obligations as his American counterpart: attorney of the State and active protector of justice. However, one of the major differences between the US and Brazil consists of the role of the judges during the trials.

Brazilian judges have an active participation in formulating or adding questions to the defendant or prosecutor inquiry. During the trial, the American judge probably has a more passive role in hearing cases and deliberating about interlocutory motions or objections that may occur during the trial proceedings. However, for example, the American judge in criminal cases may ask questions in a pre-trial evidentiary hearing.

In jury trials, US attorneys and prosecutors are permitted to formulate direct questions to the witnesses and cross-examine them. In contrast, in Brazil only direct examination is permitted, yet those questions have to be addressed to the judge and he addresses them to the witnesses. The trial in Brazil, as in the US, is totally based on oral arguments by the parties, prosecutors and defendant attorneys.

In Brazil, the defense attorney and prosecutor have no right to present objections or interlocutory motions during the trial. However, there are other “tools” available to the parties, either through a “specific appeal” before the trial (recurso em sentido estrito) or also through habeas corpus, depending on the situation presented. There are other recourses available such as an appeal to the upper court (asking for a new trial) or a “special appeal” in the case that the appellate court in its decision disrespects any federal law. There is also a strange appeal to the upper court level, called ‘ex officio’ (before the trial), when the judge by law is obliged to appeal from his own decisions in case of summary absolution (see item III on page 9).
Jury Trial Selection: overview.

In Brazil, the jury system composition is: a judge called “President-judge” and “seven jurors” chosen from a list of 21 reputable citizens or naturalized persons. Those persons actually form the so-called “Sentence Council”.

Annually, the president-judge organizes a “general list” in the community wherein the number of persons varies from jurisdiction to jurisdiction. Normally, the judge chooses more than one hundred. There are some state courts that organize a list of a thousand. It is necessary to explain that the “general list” is the major list where the 21 persons are chosen though a lottery process by the President-judge.

The 21 people are picked from the “general list” are necessary to perform a “jury trial session” when 7 jurors are chosen to judge the cases. However, that number can be reduced to a minimum of 15 people and the jury trial session would not be invalidated.

The jury trial session occurs during a determined period of time that usually runs in one or two days when several cases may possibly be tried together with the same 15 to 21 listed persons. The President-judge can establish a “supplementary list” in case that the number of listed prospective jurors may drop below the minimum number required by law.

In Brazil, the 7 jurors shall be chosen randomly from a list of 21 persons, yet prosecutors and defendant have two types of challenges to strike people from the jury:

(1) Challenges for cause
(2) Peremptory challenges

The Brazilian jury selection permits that prosecutors and defense lawyers to peremptorily strike out three jurors from the list. No cause is necessary to this challenge.

However, for the challenges for cause, it is necessary show an actual bias or partiality from the jurors. There is no limit for such challenges.

In the US, as opposed to Brazil, the peremptory challenges are not limited in most of the state jurisdictions, yet the judge can determine limits if he wishes. Another interesting difference is that US attorneys, prosecutors and judges together choose a list of prospective jurors (ranging from to 16 to 40 prospective jurors). In contrast, the President-judge in Brazil is in charge of selecting randomly from the general list 21 prospective jurors. In the US, twelve (12) jurors serve as actual jurors. In Brazil, only seven (7) jurors decide cases though.


There are several differences between American and Brazilian jury trials, but the purposive objective of both systems is equally achieved: provide a fair trial even if the fairness is perhaps not accomplished.

Jury trial system is more than a bunch of rules selected to the proceedings; it is a right ingrained in the society when the people judge their equals on important issues such as homicide. Murder, for instance, is a disruptive fact that provokes an outrageous sensation into the communities that have suffered such misdeeds.

To the people should be given the right to judge whom has broken the peace and killed their equals. It is not a religious prayer, but otherwise a right to the people to face other human beings and apply the community social values to the facts. In so doing, the community can reestablish peace in their minds and hearts, knowing that justice is not matter of an abstract law, but a concrete object in their hands.

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