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socrateaser
socrateaser, Attorney
Category: Business Law
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Experience:  Retired (mostly)
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1. What are the advantages and disadvantages to the modern

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1. What are the advantages and disadvantages to the modern jury system?
2. What would you say to critics who advocate having only the judicial officer (court judge) make the findings of fact and application of the law?
3. What are the advantages and disadvantages to the two-party adversarial system where the attorneys ask the questions in a trial? In many countries only the judge may ask a question of a witness.
4. Why would this possibly be the case?

1. What are the advantages and disadvantages to the modern jury system?

Advantages: A jury system assists the judge in remaining neutral concerning the outcome of the case. It further advances the idea that the community at large is the final determinor of whether or not an individual will be required to suffer liability for his or her actions. Finally, a jury is less succeptible to tampering than is a single person, so a jury decision is likely the least biased of all possible systems.

Disadvantages: Jurors are almost always ignorant of the law, and their decisions may deviate substantially from what the law would otherwise permit. Jurors are also, frequently more interested in "going home," than in rendering a fair decision. Finally, while a jury system is generally fairly random in composition, there is no guarantee that the jurors will be sufficiently intelligent to consider the evidence in any meaningful fashion -- which could lead to an unfair verdict.

2. What would you say to critics who advocate having only the judicial officer (court judge) make the findings of fact and application of the law?

Anyone who has been through a divorce in a jurisdiction where no jury trial is permitted on the facts associated with the dissolution of marriage, can testify to the fact that judges are incredibly biased in their decision making. Despite their knowledge of law and rules of evidence, judges frequently "kick the law to the curb," do whatever they want and challenge litigatants to appeal (which in most cases, is far too expensive for the litigants). A jury, while potentially biased, is, at least, able to debate among its members before deciding on a verdict.

3. What are the advantages and disadvantages to the two-party adversarial system where the attorneys ask the questions in a trial?

Advantages: By having an advocate for each side, there can be significantly more preparation in determining what questions to ask and what evidence to submit. Moreover, it's simply impossible for one person to moderate the proceedings of a hearing and simultaneously ask questions and receive evidence. One person will allow his or her biases to creep in, while three persons can argue about it on the record, so that if a serious error occurs, the record will show the dispute and how it occured.

Disadvantages: The adversarial system is incredibly expensive. Trial preparation requires time and frequently destroys the finances of the litigants, making any true "due process" only available to wealthy indiiduals and large business organizations.

4. In many countries only the judge may ask a question of a witness. Why would this possibly be the case?

In many nations, the court system is a surrogate for a totalitarian regime. Argument is anathima, because outcomes are generally predetermed by external political environs.

Even in more democratic nations, but where the Roman "civil law" system exists, judges cannot make decisions where a question of law remains unanswered, and must instead refer such questions to the legislative branch. This basically reduces the judge's roll to that of a factfinder, rather than a neutral decisionmaker -- which tends to obviate the need for attorney advocates.

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