One of the most fundamental ideals of our system of laws is that we use a jury of peers to determine the facts of a case. This principle is found in the US and our state Constitution. Generally, we know that regular people can be trusted to weigh the evidence and come to a reasonable resolution. We also believe that a jury is a way to keep power from being consolidated too much in the hands of just one person. Judges are people and they are as susceptible to a swollen head as anyone else. Judges also may have a tendency to be "too legal minded." By that I mean they may bee so accustomed to dealing with the technicalities of the law that they lose vision of the big picture. This point is illustrated when we look at the family court where there is no jury. When the issue of dependency arose there was a question of whether a jury should be impaneled. The court decided that no jury should be used because the constitution only guarantees a jury in those cases where a jury was use used at the time of the drafting of the constitution, and since an action for dependency did not exist at that time the court was free to go on without a jury. This reasoning has a logic to it but fundamentally ignores the purposes of a jury discussed above.
In any event, we have no right to a jury when the state makes a claim that our children are dependent or worse when the state files an action to terminate parental rights. This means that a judge will here our case and make a judgment of the facts operating under the handicaps listed above. Then when he issues an opinion the appeals court will overwhelmingly uphold that opinion based on the ore tenus rule because they themselves were not present to judge the credibility of witnesses. This is a source of major frustration for family court litigants who feel that the judge got it wrong on the the most important issues in their lives.
A simple remedy for this frustration would be to mandate that all family court cases are recorded by video. Video equipment is not terribly expensive and is already installed in many courtrooms. Further, the cost of installing video equipment could be offset by eliminating the need for a court reporter to be present at these trials as a video could be used in place of a transcript. The video could then be transmitted to the appeals court and they would have the advantage of being able to review it and make an opinion of the facts by viewing what the trial judge viewed. In football we use instant replay because we want to get it right. We should do the same in court.
In any event, we have no right to a jury when the state makes a claim that our children are dependent or worse when the state files an action to terminate parental rights. This means that a judge will here our case and make a judgment of the facts operating under the handicaps listed above. Then when he issues an opinion the appeals court will overwhelmingly uphold that opinion based on the ore tenus rule because they themselves were not present to judge the credibility of witnesses. This is a source of major frustration for family court litigants who feel that the judge got it wrong on the the most important issues in their lives.
A simple remedy for this frustration would be to mandate that all family court cases are recorded by video. Video equipment is not terribly expensive and is already installed in many courtrooms. Further, the cost of installing video equipment could be offset by eliminating the need for a court reporter to be present at these trials as a video could be used in place of a transcript. The video could then be transmitted to the appeals court and they would have the advantage of being able to review it and make an opinion of the facts by viewing what the trial judge viewed. In football we use instant replay because we want to get it right. We should do the same in court.