By: Ralph G. Smith and Daniel Smith
Even though its use is increasing, the jury system is viewed with suspicion in most Latin American countries. There is a feeling among much of the populace that the laymen who compose the jury are ill-prepared to decide legal questions, which are the province of the lawyers and the judges, even though they, the populace, may be apprehensive about the ability of these specialists to be both fair and competent. In small countries such as Guatemala, many persons, both laymen and lawyers, feel that a jury system is unworkable because of the probability, bordering on certainty, that jurors would be either threatened or bribed, or both, by friends, family and cohorts of the accused or of the victim. Some lawyers resist the introduction of the jury system because they have never been required to participate in an oral proceeding and are uncomfortable in such a setting.
Despite the general lack of confidence in them, juries, or something similar, are in use in a number of Latin American countries. However, the jury systems there seem to be a rather far cry from the system in the United States. Most Latin American juries are small. In Colombia they are composed of three persons. In El Salvador the number is five. In both of these countries, only a majority is necessary to convict. In some countries, the “jury” consists of a judge aided by two laymen, usually known as conjueces (co- judges). Guatemala does not presently have any provision for trial by jury, but a proposed new criminal procedure code which has the very aggressive support of the Chief Justice of the Supreme Court, provides for the three-man judge-layman system just mentioned.
Juries, where they exist in Latin America, do not operate under the same rules as common law juries. They decide the entire matter, with no separation of law and fact. The judge does not instruct the jury as to the law.
In El Salvador, the jury trial consists of the lectura, a reading to the jury of the record, or the parts of it deemed to be important. There may or may not be witnesses called at the trial to reaffirm their prior declarations, and new witnesses may be suggested by the fiscal or the defense counsel. If there is examination of witnesses, or the accused, the questions are asked by the judge. The accused, the fiscal, and even the jurors may submit questions which the judge will ask if he deems them appropriate. The jurors, the fiscal, and the judge may also interrogate the accused in this fashion.
The jury, before it goes into deliberation, picks from its number a presidente and a secretario, the equivalent of a foreman and a clerk. The presidente is then required to read to the jury following instruction, which is also required to be prominently displayed on a sign in the jury room:
“The law does not demand from jurors and account of the means through which they have come to form their decision; the law does not prescribe the rules from which they must deduce
the sufficiency of a proof; it instructs them to question themselves in silence and recollection, and to search in the sincerity of their conscience what impression the evidence produced has made on their reason, both against and in defense of the accused. The law does not say to them: ‘You shall take as true such-and-such a fact;’ it asks only this question which embraces the full extent of their duties: ‘Do you have an innermost conviction?'”
After this announcement, the jury deliberates, and at the close of the deliberations, each juror casts a secret vote by placing in a receptacle one of two tokens with which he is furnished, one of which bears the word “SI” and the other “NO”. The remaining token is placed in another receptacle, secretly, so that theoretically no juror knows how another juror has voted. As mentioned above, the majority vote decides, and since the law provides that no juror may abstain from voting, there is no problem with hung juries!