JURY TRIALS ARE FAR, FAR BETTER THAN BENCH TRIALS IN DISPENSING JUSTICE TO CITIZENS

In the ongoing discussion of a jury verdict in the United States in favour of investigative journalist Anas Aremeyaw Anas, against Mr. Kennedy Agyapong in a defamation suit, the respected lawyer, Mr. Thadeus Sory shared a beautiful opinion on social media. With all due respect to Senior Sory, I disagree on a few points, especially, to the extent that his opinion suggests that jury trials may be somehow deficient in applying the law, and therefore inferior to bench trials in dispensing justice to citizens.

In his words, senior Sory stated: “Though guided by legal principles, jury decisions tend to be more discretionary and may be ungovernable.” I am not too sure about this view because jury deliberations and decisions are not guided only by legal principles, but are more importantly, guided strictly by the law, and based on nothing else but the evidence and law presented to them in court.

In every jury trial, it is a judge, who always presides and applies to the fullest, the relevant legislation, and particularly, the law of evidence (on the admissibility or otherwise of a piece of information in court). It is the judge who allows or disallows any piece of evidence, questions, exhibits, and submissions by parties or their lawyers. It is a judge who determines all issues of law in the trial. The jury only determines the issues of facts and applies the law to them as shall be instructed by the judge. (I shall revert on this).

If a smart lawyer cunningly drops in information that may be inadmissible, with the intention to sway the jury unduly, the judge shall expunge that information from the records and specifically instruct the jury not to consider that piece of information in their final deliberation and decision. The party or lawyer may also be reprimanded in front of the jury, and in extreme instances, a mistrial may be granted depending on which party plays that dangerous trick.

At the end of the presentation of all the evidence, and before the jury will begin deliberation of the evidence, the jury shall be instructed on how to apply the law to the facts they will believe. The judge shall first request each side of the case to present their instructions, and the judge, together with lawyers from both sides shall examine the instructions from both sides and fashion the final instructions, which shall be read and explained to the jury in court, and a copy given to them for their deliberation room. The jury’s decision must be based on nothing else but the evidence and law presented to them in court.

To understand why I believe jury trials are better than bench trials in dispensing justice, we must first understand how judicial decisions are arrived at. It is simply an application of the law to a set of facts that were collected in court as evidence and believed by the one making the decision. The decision maker must first determine which of the information or evidence given in court makes sense to him, and he believes. This is crucial because this is what the law must be applied to.

Now, when evidence or information is given in court in the form of stories by witnesses, between one person (a judge) and a group of 5, or 8, or 9, or 12 persons (a jury), which can we trust to do a better job in processing the information and determining its authenticity? There is no law here yet. This is just the making of sense of certain information given in court.

For instance, if a person is accused of committing a crime, and he pleads alibi (i.e. claims to be somewhere else, perhaps at multiple places other than where the crime was committed, at the time the crime was alleged to have been committed), and the accused narrates his story and circumstances in court, between one person (a judge) and five or more persons (a jury of ordinary educated or fairly educated persons from the community), which may make a better sense of this information and determine its authenticity or otherwise with a greater degree of certainty?

I have defended a good number of criminal defendants and observed others, and I can say that many people have been jailed in this country based on the ridiculous and outrageous beliefs of single judges who presided over their cases. We still have many such unfortunate persons in our prisons, and many still go in daily only because one judge determines all the facts and laws, in recent times, we are even hearing that some judges can be bribed to decide cases before them in one way or the other. I said before that our legal icon, Mr. Tsatsu Tsikata, and the accused persons in the Quality Grain case would never have been convicted had their cases been heard and determined by a jury.

The protagonists of jury trials believe that the core principles underlying jury trials include ensuring a fair and impartial process, promoting public trust in the justice system, and allowing for community involvement in the administration of justice. I agree fully with them. It is not for no reason that in the United States, all trials, whether civil or criminal are jury trials unless the parties request otherwise in certain cases.

In paragraphs 5 to 7 of Senior Sory’s piece, the impression was created that financial awards are somehow arbitrary, too discretionary, and not guided. I humbly disagree with this notion. Juries are duly instructed on awards as well, and the instructions are not baseless. I agree with the learned senior that juries may be more generous in giving awards than single judges. But that is why the law in the US provides for the process of remittitur. Senior Sory’s education to us on “remittitur” is apt, except that I wish to provide a little more information on it in my next paragraph.

A remittitur is a procedural process by which an excessive verdict of a jury is reduced. As a matter of law, a judge may order a plaintiff to remit a portion of an award which is considered as grossly excessive. In the alternative, the judge may order a complete new trial or trial limited to the issue of damages only.

The one last issue before I conclude is another impression I got from the opening paragraphs of Senior Sory’s piece that he is making some excuses for the Ghanaian courts in failing to properly adjudicate Anas’ earlier defamation suit against Mr. Kennedy Agyapong in Ghana. It indeed appears to me that paragraphs 1 to 3, and 8 of Senior Sory’s piece seek to calm the nerves of those who are unhappy with the Ghanaian courts’ attitude in Anas’ earlier case. I don’t think he must succeed in this purpose, and I hope he did not.

My reason is simple. Senior Sory did not establish any differences in the standards of adjudicating defamation cases in Ghana on the one hand, and the US on the other hand. Senior Sory’s focus was on the awards of a jury as against a single judge in a bench trial. As for the jurisprudence and trial standard, there must be no marked difference because the law of defamation is common law and made by the courts. It is more difficult to win a defamation suit in the US than in Ghana, and so the expectation that the Ghanaian court must have found Mr. Kennedy Agyapong liable in the earlier suit with similar facts is right and reasonable.

Thank you all for reading.

Eric DELANYO Alifo, Esq.

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