This is the text of my presentation in our colloquium "Testing expertise" in Brussels (on Thursday 21 October 2004). I give an overview of debates about the participation of laypeoples’ juries court proceeding and come to the main conclusion that such juries can be considered as a public under construction.

My original idea for this short intervention was to analyze the differences between the Anglo-Saxon common law and the continental European legal systems, as well as their underlying concepts of truth, in relation to the respective position taken up by experts in both judicial systems. Let me brush a very rough portrait of these differences.

The common law, which is essentially judge made law, is characterized by the initiative of the parties who confront each other with their views and construction of the facts. This happens under the passive eye of the judge who acts as an arbiter or umpire, and possibly also under the passive eye of a jury. From this adversarial perspective the parties decide which evidence they bring up and which they do not, and which experts they mobilize to establish and confront their respective truths. Hence, the experts are linked to a party and they support a cause. As such the judicial truth is a relative or contextual one : it depends from the elements that have been brought up by the parties during the judicial process, from the way the parties put each others views to test, … Moreover, experts involved in the proceedings will be contested and take the risk of being refuted.
The decision or closure is thus reached as the result of a procedurally organized controversy. Remedies, thus, precede law. The common law trial is historically less focused on implementation of a pre-existing substantive law than on the resolution of a conflict, less focused on legal rules than on the case at hand. This explains why, in Anglo-Saxon legal practice, very often the cases do not reach the stage of the verdict but get solved on a consensual basis, outside the court as a result of plea bargaining.

In the continental or civil law, on the other hand, the written statute law is the core of the system. This is linked to the fact that the law is seen as an expression of the general interest. A case must be solved by application of the relevant written laws and the judge is assumed to rest his decision upon the truth of the facts. Here, the legitimacy of the judgment is dependent on the truthful and objective establishment of the facts. The judge is an active player in the process which is inquisitorial: the judicial process and the totality of its state agents are deemed to participate in the discovery and establishment of the truth of the facts. This applies to the experts as well: they are appointed by the court to bring objective and specialized information. With their scientific background they are supposed to bring the truth about the facts, a truth whereupon the judge will base his verdict. Closure here is reached when the substantive truth has been established by the judge. One could say that this form of process implicitly endorses an objectivist approach of the facts.

If such contrasting descriptions of common and continental law certainly point to a number of fundamental cultural and political differences between Anglo-Saxon liberal Protestantism and continental catholic republicanism , they are nevertheless too bold. For instance, they disregard the ongoing osmosis between Anglo-Saxon and Continental-European legal systems and their respective practices. Today more and more inquisitorial aspects percolate into the English legal system, while adversarial aspects are coming up even in Dutch or Belgian law. Furthermore the development of international and supranational law is stimulating the implementation of a harmonizing mixed form of procedure, namely the ’fair trial’ wherein both adversarial and inquisitorial elements are articulated. And finally, statute law’s importance grows in common-law countries, while conversely, case-law plays a major role in Continental countries, to such an extent that whole branches of positive law are largely the outcome of decisions of the courts (ex : the French administrative law).

This articulation of adversarial and inquisitorial processes can also be felt in the field of expertise, because on the one hand continental European courts increasingly become the theater of controversies amongst experts and of a mobilization of a plurality of experts, while on the other hand in the United States and England both the exclusion of experts by the judge and the official accreditation of court-experts do exist or have been proposed. So while I hoped to make a point by distinguishing the respective regime of experts in court in common and civil law, I found out that the differences are fading away. As the court of Strasbourg already did conclude in the Kruslin (1990) case: "it would be wrong to exaggerate the distinction between common-law countries and Continental countries" .

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Meanwhile, however, during my explorations of the testing of experts in courts, I got again intrigued by another presumed fundamental difference between the common law and the continental law, namely the jury. Indeed, the jury embodies the participation of laypeople in the judicial process where they are confronted both with professional legal expertise and with the assertions of the experts and witnesses in court. Nevertheless, it is this laypeople’s jury that will make the decision about the facts of the case (for example: the issue of guilt in criminal cases).

Trials with a jury do put on stage a triangular communication process between laypeople, legal professionals and expert-scientists. Hence, they might well tell us something interesting about the involvement of laypeople in the testing of expertise. My hypothesis is thus that the way legal juries deal with expertise can teach us something about our objects of interest, namely the bringing of sciences and expertise in the democratic constitutional state and the democratization of expertise. Another way to put the question is to wonder if court proceedings including juries can be considered as hybrid fora in the sense of Callon, Lascoumes and Barthe ?

To begin with I would like to stress upon the fact that juries are not only an Anglo-Saxon affair. They also exist in most Continental European countries, exception made for the Netherlands, Sweden, Luxemburg and Lithuania. But it is beyond doubt that the jury has a predominant Anglo-Saxon connotation. In England, the Magna Carta of 1215 already recognized that "no freeman shall be taken, or imprisoned, or disseized, or outlawed, or in any way harmed (…) save by the lawful judgments of his peers". After that -to make an enormous shortcut- the English jury evolved into an autonomous body in the judicial proceedings, which evaluates the evidence and proof presented by the parties. For long years the English jury enjoyed a monopoly of the substantive judicial decision making: deciding the case was deemed to be the work of the jury, not of the judge. In the US, at the end of the eighteenth century, the founding fathers were fervent proponents of the popular jury and considered it to be a institution of the highest importance in the new republic, for they deemed it to materialize the ideals of the people’s sovereignty, public virtue, participation and federalism. In the Federalist papers Hamilton wrote that only one point made unanimity amongst the founding fathers: the jury. So it was, and in 1791 the jury was constitutionally entrenched in the sixth and seventh amendments of the American constitution, respectively for civil and criminal affairs .
But on the other hand, during the last 100 years the role of the jury has significantly been reduced, particularly in England, where juries today are no longer implied in civil cases, while in criminal cases the proportion of affairs that end up before a jury is somewhere between one and two percent. In the United States juries are still widespread en very popular both in civil and criminal cases, but procedures do exist that empower judges to limit the role of the jury and many voices and proposals of legal reform tend to scale down the intervention of juries in the judicial process. The American juries are also under attack of the big business because of the very high punitive damages that have been decided, particularly in mass tort actions concerning environmental, toxic and health damages (as the movie Erin Brokovich and a few Grisham novels nicely exposed).

In continental Europe the jury was promoted during the revolutionary years and the Enlightenment. The juries were praised and put forward in the process of reform of the criminal law because it was believed they guaranteed the openness and the immediate/oral character of the trial as well as the admissibility of witnesses and the freedom of proof and evidence. But above all the juries were seen as an instance of democratic control of the judges, who at that time were thoroughly distrusted, especially in France. From that point of view, the jury can be seen as another player in the system of balancing of powers or checks and balances
Today, juries are still active in a vast majority of continental European states, including Belgium. They generally are called upon to deal with the most serious crimes (which remarkably is de facto also the case in England)

Next to this, it should shortly been remembered that legal juries do exist and proceed in very different forms and settings. These differences pertain to such aspects as :
- 1. the selection of jurors and thus of their representativeness : are they selected at random ? is there a quality check ? is participation to the jury limited to local citizens ? can the jurors be challenged by the parties ? And if yes, if this challenging subject to motivation or does it take the form of a discretionary repudiation ? …
- 2. the organization of the jury’s work : is the jury totally passive or can the jurors ask questions or require further inquiries ? Is there a cooperation between the judges and the jury or not ? Are jurors isolated from the world during the proceedings or are the limitations of their freedom rather shallow ?
- 3. their powers and competencies : do the juries participate into other judicial actions than deciding upon the merits, such as the determination of the punishment ? Are it grand juries that decide whether a person can be accused and prosecuted or verdict-juries which decide about the merits of the case …

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The institution of the jury has been and still is heavily debated. The criticisms are mainly proffered by professionals of the judicial system (judges and public attorneys) who first hold that juryprocedures have a very low costeffectiveness as they last much longer and they imply high costs. But secondly -and here they are joined by some human rights organizations and advocates- they argue that the jury bears the danger of popular vindictiveness, irrationality, emotionality and revenge, of ignorance and incompetence and of a lack of independence and democratic representativeness. In this vein juries are seen as anachronisms and rare pieces of antique. This negative vision is widespread and seems often to predominate. It is for example expressed by the fact that the newly established International Criminal Court does not foresee a jury, or by the fact that both France and Belgium recently issued laws which reduced the reach of jury-based case law (respectively in cases pertaining to terrorism and racist offences).

The arguments of the proponents of the juries can be of four different natures.

1. First they can be historical and constitutional, focussing upon the fact that juries are there to counterbalance the power of judges and to cope with the people’s distrust of the judicial players (judges, prosecutors and advocates). From this point of view juries are essentially seen as political institutions of a liberal nature aiming at the further limitation and counterbalancing of governmental action.

2. Secondly, and in the line of de Tocqueville and Mill, juries can be seen as strong educational engines obliging individuals to interest themselves and to participate into the functioning of the polity. Today some authors see this participation in real court proceedings, directly deciding about the future of real persons, as a very welcome counterforce against the indirect and passive ingestion of the media coverage of judicial matters.

3. The third argument is the democratic argument, according to which juries are enhancing the democratic content of the polity. This argument however is harshly disputed from the perspective of representation, deliberation and participation. According to the traditional concept of representation, indeed a jury is not representative because it is not elected and hence it does not mirror the population. A jury does not represent the ’general public’ in the traditional meaning of a parliamentary democracy. Moreover, juries are generally assigned a passive role and they are held to answer a limited and precise list of questions with a simple ’yes’ or ’no’, without motivation, after a closed and secluded deliberation. Hence, the participative and deliberative surplus value of jury procedures can easily be minimized. But on the other hand one can argue that the jury’s primary function is to infuse public concerns and values in the legal system. This implies, as Wakeford writes, "the belief that once a small sample of a population has heard the evidence, their subsequent deliberations can fairly represent the conscience and intelligence of the community". This of course is especially the case when unanimity is required. Furthermore, in the US, for example, rules were developed to assure that a jury represents "a fair cross section of the community". One of this rules is that members of a cognizable group should not be systematically excluded from the jury pools. Finally, and still in defense of the democratic argument, the juries can be seen as an example of active participation in decentralized self-government.

4. The fourth and last argument in favor of the jury holds that the laypeople who participate in a jury are no lesser qualified to decide upon the matters of fact than the judges. Judges are of course in a better position to master the legal and procedural issues of a case. But there are no reasons to believe and no research that shows that they are more gifted than laypersons to decide about the facts and about what happened. Why, after all, would there be a difference between judges and laypersons when (in the European criminal process) it comes to develop an intime conviction (an intimate conviction) about the facts, the proof and the guilt, or, when (in the American criminal process) it comes to decide if the guilt of a person can be established beyond reasonable doubt ? As regards the production of evidence by the parties and experts, the judge acts as a guardian of the applicable rules of evidence and proof and as a gatekeeper. But the moment of decision about the facts remains a subjective moment both for a judge and a layperson.
This line reasoning counters the persistent argument that juries are incapable to deal with both the legal and factual complexity of cases. And indeed, voices can be heard in favor of
- "an exception of complexity" which would make it possible to take away the case from jury and to bring it before 3 professional judges
- the appointment of ’special and qualified juries’ in certain specific matters (financial en economic matters)
- the replacement of juries by competent administrative authorities or by experts (for example in antitrust cases)
- a splitting up of the question addressed to the jury in an elaborate questionnaire, making it possible to check its reasoning.

On the other hand we find a line of argumentation defending that juries are even better instances of decision than the judges with regard to the decision on the facts and the coping with expertise. Juries then are deemed to be more accurate deciders precisely because they have to make a collective decision (by unanimity in US criminal juries and by majority e.g. Belgian criminal juries). Indeed, such a collective dimension implies that the juror’s basic intuitions about facts, evidence, expertise and guilt must be discussed, negotiated and mutually put to test within the jury. Furthermore, it has been remarked that the presence of a jury obliges the professional actors of the process, especially the experts, to reduce complexity and to make efforts to improve the clarity of their points. The presence of a jury, and the openness of the court proceedings it implies, constrains the experts to be clear and interesting. Some observers have further noticed that, even if the process turns out to be a long and exhausting road, juries generally get more and more involved and interested in the proceedings. The Dutroux-case in Belgium has in fact, more than everything else, shown the emergence of a very active jury, asking questions and obliging the many experts, witnesses and accused to come to the point. From this perspective a jury can be understood as a public under construction. Finally, the division of powers set up in a jury-court setting, namely that the jury decides upon the facts and that the judges apply the law to these facts, very well fits with Latours ethnographic finding that the law - and thus the judges and other legal actors - is characterized by its eagerness to get rid of the facts in order to start up the serious legal work (which is in Latours view to manage the numerous little bounds that hold us together). From this perspective, the leaving of the decision on the facts to a jury is of course not at all fundamentally problematic.

It is time to end this exploration of the relationship between laypeople and experts and legal professionals in a judicial setting. I have no ready made conclusions about what this all might mean for our common research project, but I have the intuition that the old jury institution exemplifies the relevancy of our challenge to think the relations between the sciences and the democratic constitutional state, especially when it comes to explore the ways the ’public’ can participate into the scientific construction of a common world and a common future. Of course, I know very well that the judicial setting is a peculiar one and that it abides by a number of very specific constraints: the ’fair trial’ rules must be respected and the court must perform closure, which implies it must decide about the facts of the case in order to be able to further proceed and to allow the law to be applied (the French language has a very nice double sensed word express this : arr?ter les faits). This is of course a different challenge than thinking the ways to organize hybrid fora in order to participate to the invention of a politics of concerns, the d?mocratie technique or the cosmopolitiques

But all in all the jury permits to come to a at least four relevant conclusions (which I will list in decreasing order, starting with the conclusions I am more convinced of and ending with the more most risky ones)
Firstly, the experience of the jury-courts convincingly shows that laypeople can fully participate in the decision-making process about complex legal, technical and scientific issues.
Secondly, the success of the jury and its general favorable reception by the larger public question our traditional idea of representation because it appears that even a random selection of jurors can develop into an interested public that translates living concerns and participates in the further construction of the law.
Thirdly, I think that the analysis shows that the success of the participation of the laypeople in the evaluation of evidence and proof in court, is dependent of the procedural fair-trial and real-time mise en sc?ne of the judicial event with its distribution of positions, roles and speeches.
And finally I am tempted to propose the conclusion that a jury trial can sometimes (depending of the case and the number of intervening parties and mobilized experts, and taking in account the specificity of the judicial process which is the closure of the matter at hand and not the installation of a permanent dialogue) meet some of the criteria Callon, Lascoumes and Barthe ascribe to hybrid fora. Saying this I think especially of the openness of the proceedings, the independence of the participants and the quality of the exchanges, for instance the guaranteed ’equality of arms’, the directed confrontation of parties, the possible multiplicity of parties, experts and the amicus briefs, the structured debates about evidence and proof and finally the effect, well described by Sheila Jasanoff, that courts can have upon the further construction of sciences.