Organized by the Institute of Judicial Studies and the Criminal Cassation Court of the Province of BS AS, a new training on jury trials was carried out at the headquarters of the 43rd Street Court by Dr. Andrés Harfuch, who spoke on “Trial by Juries: Perspectives on the Review Jurisprudence of the Court of Criminal Cassation”. Drs. Ricardo Maidana – president of the Tribunal – and Mario Eduardo Kohan – Judge of room IV – were also present at the venue.
With a large number of attendees at the conference, a new day took place in which not only Judges and Prosecutors but also different lawyers from the license plate who wish to be educated meet, month after month. On this occasion, the guest speaker was none other than Andrés Harfuch – vice president of the Jury Trial Association; General Defender of the Judicial Department of San Martín, Lawyer from the University of Buenos Aires. Member of the INECIP Board of Directors, among others.
In 2013, Law 14543 implemented the trial by jury in the Province of BS AS, thus complying with the constitutional precept and causing a historic change in the administration of justice in the Province. In September the Law will be ten years old. In this regard, Dr. Harfuch stated at the beginning of the meeting that “the Jury Trial Law cannot be rolled back and, for example, lower the number of jurors. Or, for example, file an appeal with the Prosecutor or the complainant. Or abolish the “Voir Dire” -to tell the truth- (which is the jury selection hearing) and this is what I propose to discuss today”.
He also highlighted the importance of the jurisprudence of the Court of Criminal Cassation in which he began to explain that the trial by jury is not a play on words since the Law that regulates it, both in the Province of BS AS and in others, They are for the Constitution to be directly applied.
Andrés Harfuch explained that today “we are faced with movements that maintain that certain crimes such as femicides and sexual abuse must leave the orbit of the jury. To do that you have to change the Constitution. And this is what I believe to be the natural ground for Cassation. This is what was discussed in a certain way in the “Ramos v. Louisiana” ruling of the United States Supreme Court of the year 2020 regarding whether or not “unanimity” is a constitutional guarantee. And the Court said yes.
The ruling handed down by the North American Court puts into discussion the relative to unanimity for the validity of the condemnatory verdict in matters of trial by jury. Its relevance also lies in the fact that the Court makes a parallelism with the “Canales” ruling of the CSJN -of our country- on the matter and exposes the conclusions in favor of unanimity. In the “Canales” ruling, the CSJN cleared up all doubt regarding the constitutional interpretation that can be made regarding the majority necessary to validly express a verdict of guilty or innocence in a jury trial. Thus, the Court had warned that “…there is no constitutional mandate that imposes in our country a certain number of votes to affirm the guilt or innocence of a defendant by the jury (…) Furthermore, if the jury trial expresses —in essence— the right to judge at the head of the people, considering it the most apt legal subject to ponder the criminality of the actions or omissions of others, and if —in turn— the verdict is considered as a conclusion that is assumed after going through a deliberative process forged by a plurality of opinions that express appreciations in which the multiplicity of gender, ages, trades, life experiences, etc. congregate, it does not seem unreasonable to require a special majority of two thirds of its members to generate the decision”
From this analysis it follows, then, that the Court concludes that the presumption of innocence cannot be jeopardized by the mere existence of dissenting votes from the jury. Therefore, according to the court, the popular will can be validly expressed through a majority decision.
For Dr. Harfuch, the jury is a guarantee that has its own internal content to highlight among those he mentioned: “twelve lay citizens, that the decision be unanimous, firmness, that there is a voir dire to be able to select the jury… and those are not They are procedural aspects, they are guarantees” he also added that since “we are beginning with the jury trial system, it is something that I believe that the reviewing courts of this country have begun to do. Without going any further, the issue of firmness in the verdicts had very important consequences in the Cassation. We have to try not to lower the standards regarding this jury trial law, which for the year 2013, the date of its creation, has been very innovative”.
OTHER BACKGROUND
The correct thing is that every time a sentence or a guilty verdict of a jury is reviewed, article 118 is applied and not only the law 14543 of trial by juries. In November 2020, the Court of Cassation of the province of Buenos Aires issued another memorable ruling: “Álvarez c/Telechea”. The court had reversed a jury conviction for serious errors in the instructions of the technical judge and the private defense on the applicable substantive law that conditioned the jury’s decision. And it is that, for the first time since the Buenos Aires jury system was put into operation, the highest provincial Criminal Court annulled the conviction of a jury trial.
Among the grounds for the ruling, Judge Daniel Carral stated that “the only body authorized to determine the facts in accordance with the law, which the judge explains based on the instructions, is the popular jury in its verdict (…) likewise it is the responsibility of the technical judge to offer the jury a correct and complete catalog of crimes (…) If the judge does not do so, he would be hiding legally and factually viable options from the jury and, with this, illegitimately meddling in his function of determining the facts, by taking away the possibility of opting for plausible verdicts for the case.”
The jury trial and the impeachment trial are the only two -trials- developed in the National Constitution and it is for this reason that the detailed analysis of the conduct of jury trials in Argentina and especially that of the rulings emanating from the Court of Criminal Cassation allow to standardize the jurisprudence around the application of the law for a better development of the processes in which citizens participate as “judges”. Trial by jury is nothing other than the direct control of the people over the entire judicial machinery.
