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The implementation of trial by jury in Argentina : the analysis of a legal transplant as a method of reform

University of British Columbia

This thesis examines the implementation of trial by jury in Argentina as an encouraging example of a successful transplant. It further considers how jury implementation became a powerful instrument to transform justice. The transplanted Anglo-American jury model to a civil law country with a rooted inquisitorial heritage – one that has been slowly transitioning to adversarial procedures for over three decades – represented a major enterprise. Through literature review, case law analysis and the study of local jury laws, this thesis tracks the history of a legal reform whose path has been affected by military governments, economic crises, and socio-political events. It also examines the characteristics of Argentine legal culture, including the dominant burden of the inquisitorial heritage from Continental Europe. The thesis explains that Argentina’s National Constitution was inspired by the United States Constitution -and has guaranteed the right to trial by jury since 1853- and yet jury trials were only implemented in Argentina in the 21st century. It argues that the transplant of the jury represents the culmination of a series of reforms that started more than 30 years ago. Through the analysis of case law, and study data collected in surveys conducted by other groups in two Argentine provinces, the thesis concludes that a more accountable, open and legitimate judiciary has been advanced by the implementation of a justice system with lay participation. These sources also help to explain why the imported system was adapted to fit local needs. The implementation of equal gender composition of the jury panel and the adoption of a rule regarding Indigenous representation are examples of innovation and adaptation of foreign rules to the local culture. Finally, beyond its domestic significance the thesis also argues that this transplant conveys an important message that surpasses the Argentine borders. At a time when the use of jurors is in decline in many common-law jurisdictions, the Argentine jury puts lay participation into a place of prominence. It works as a reminder of the significance of the benefits of this form of justice.

Text

2020-02-03

Attribution-NonCommercial-NoDerivatives 4.0 International

http://hdl.handle.net/2429/73468

Law

University of British Columbia

UBCV

http://creativecommons.org/licenses/by-nc-nd/4.0/