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In this article I will briefly analyze the regulation and functioning of the Jury Court in Spain, its material competence, its procedural particularities and the main doctrinal debates on its suitability -especially when the object of the prosecution are complex crimes of public administration (e.g. embezzlement)-. I will examine the recent practical application in the so-called "Begoña Gómez case", and compare the Spanish model with the jury systems of France, the United Kingdom, Germany and the United States. Finally, I will offer a reflection on why, from a legal and strategic point of view, I consider that the president's wife might prefer to avoid a trial before a popular jury.
1. Spanish legal framework: the Organic Law of the Jury Court
The Jury Court in Spain is regulated by Organic Law 5/1995, of May 22, 1995, of the Jury Court (and its subsequent modification in LO 8/1995). Said law delimits the material competence of the jury (art. 1) and establishes the composition and basic rules of the procedure:
Relevant practical aspects:
- Any Spaniard of legal age who can read and write and who is registered in the province where the trial is to be held may be a juror.
- A person convicted of a felony, or prosecuted or accused of a felony, or persons in prison, may not be a juror. Nor may public authorities, judges, prosecutors, practicing lawyers, members of the security forces and active military, or incompetent persons.
- The following may be excused from jury duty (although these excuses may be inadmissible): those over 65 years of age, those who have served on a jury in the previous 4 years, those who have family responsibilities that seriously hinder them, those who reside abroad, or those who can show cause that makes it seriously difficult for them to perform jury duty.
- Jury selection and challenges during the selection process are critical and costly in terms of time and resources. In these, the parties (defense and prosecution), after meeting with the candidates, may challenge four candidates each, without giving any reason for doing so.
- The trial by jury is held (except in the case of persons with a privileged status) before a special Chamber of the Provincial Court and is constituted by a magistrate (professional) who acts as president and moderates the oral trial but does not intervene in the debates or in the voting, and 9 non-professional jurors and 2 substitutes.
- After the oral trial in the presence of the members of the jury, they are asked questions about the facts that are being tried and about the guilt or innocence of the accused, in a questionnaire to which they must respond, briefly reasoning their answers.
- To convict a defendant, the favorable vote of 7 of the 9 jurors is required, and to acquit, the vote of 5 jurors is sufficient.
2. Crimes under the jurisdiction of the Jury Court in Spain
The Organic Law 5/1995, of May 22, 1995, of the Jury Court, in its Article 1, delimits the objective competence of the jury, restricting it to certain criminal offenses, mostly related to fundamental legal rights or to the exercise of public functions. These are:
Crimes against persons
- Homicide (arts. 138 to 140 PC).
- Conditional threats (art. 169.1 PC).
- Omission of the duty to render assistance (arts. 195 and 196 PC).
Crimes against freedom
- Breaking and entering (arts. 202 and 204 PC).
Crimes against collective security
- Arson (arts. 351 to 358 PC).
Crimes against the public administration committed by public officials in the exercise of their duties:
- Infidelity in the custody of documents (arts. 413 to 415 PC).
- Bribery (arts. 419 to 426 PC).
- Influence peddling (arts. 428 to 430 PC).
- Embezzlement of public funds (arts. 432 to 434 PC).
As can be seen, the LO 5/1995 opted for a closed list (in law we call it numerus clausus), excluding most crimes, especially those of a complex economic nature, except in cases expressly provided for (e.g. embezzlement). The doctrine has criticized this restrictive criterion -which contrasts with Anglo-Saxon models where the jury intervenes in practically all serious crimes-, but at the same time has emphasized that it avoids transferring excessively technical matters or those of little social importance to the jury.
The relationship takes on special relevance in the Begoña Gómez case, since the open investigation for embezzlement of public funds automatically connects with this closed list and, therefore, enables the intervention of a popular jury if a trial is finally opened.
The law expressly includes among the headings of competence of the jury the crimes committed by civil servants in the exercise of their office: bribery, influence peddling and embezzlement of public funds (arts. 432 et seq. Penal Code). Therefore, when in an investigation the pieces to be prosecuted are circumscribed to facts typified in these headings, the investigating judge can transform the cause so that, if it reaches oral trial, the knowledge corresponds to a Jury Court.
In the Begoña Gómez case , Judge Juan Carlos Peinado has precisely pointed out that the piece investigating an alleged embezzlement could be tried by the jury if the proceedings reach the oral trial stage. This does not mean that there is already a sentence nor that the trial is immediate: first the case must reach trial and the Audiencia (by reason of competence and resources) must validate the procedure.
3. Practice: jury trials in Spain
Jury trials are relatively new (since 1995), since Spain, unlike other countries where the jury is historically rooted, are quite infrequent in Spain in comparison with Anglo-Saxon countries, but there have been episodes of great media repercussion.
In our country less than 500 jury trials are held per year, e.g. during the year 2024, 453 jury trials were held and there are no statistics with respect to ordinary trials (judged by professional judges), but it can be stated that the cases initiated in the criminal jurisdiction were 826,256 cases but this data does not equal the number of trials held since many cases do not reach trial because they are archived, are resolved by agreements, agreements...
However, practical experience shows that the jury can provide democratic legitimacy to the verdict but raises questions about the assessment of technical and complex evidence (expert opinions, economic documentation, corporate structures), and about the influence of publicity on impartiality.
4. Doctrinal debates and criticisms: the jury for complex offenses.
Both the specialized doctrine and the media have reiterated two main criticisms when a jury trial is proposed in cases of embezzlement or corruption:
Technical complexity: critics (professors and legal practitioners) argue that cases with abundant documentary evidence, complex transactions and economic peripheries may be difficult for lay jurors to understand, so that the assessment could become more emotional or simplifying than technical. One Professor of Procedural Law went so far as to ironically compare the entrustment of such cases to "putting nine citizens on a jury to operate on an appendicitis".
Risk of politicization and press: in matters with high political content or high media exposure, there is a risk that public opinion and political narrative will influence jury deliberation; jury selection, challenge and guardianship can become strategic tools of the parties or the media environment. Comparative studies also highlight the greater sensitivity of the jury to the publicity of the case.
In response to these criticisms, its defenders argue that the jury incorporates citizen participation (art. 23 CE) and that its verdict -being the result of collective deliberation- adds democratic legitimacy to the criminal decision, avoiding technocracies and bringing justice closer to society.
5. International comparison: The Spanish model versus models from other countries.
The following are distinctive comparative features with some relevant countries:
- France (Cour d'assises): the Cour d'assises tries serious "crimes" with a mixed court: professional judges (3 judges) and citizen juries (6 in first instance, 9 on appeal). For a long time the Cour d'assises had an important role; in recent years reforms and alternative procedures have been introduced for certain serious crimes. The French system is mixed -layjurors + magistrates- and decisions are taken jointly.
- United Kingdom (England and Wales): The hung jury (usually 12 members) is central to serious crimes heard in Crown Court. A majority verdict is permitted in certain circumstances (regulated) and there is a long tradition of case law on jury selection, instructions and guardianship. The British system relies on juries as guarantors of the criminal trial in the first instance.
- United States: the sixth amendment enshrines the right to a jury in federal and, by incorporation, many state criminal trials; the jury is a key pillar of the adversarial process and has broad powers. Selection(voir dire), the possibility of highly politicized trials and media strategies turn high-profile trials into social phenomena (e.g., trials of public figures). Rules (number of jurors, unanimity) vary by jurisdiction, although the Supreme Court has been unifying criteria (e.g. unanimity required in some contexts).
- Germany: There is no people's jury in the Anglo-Saxon way; instead there are courts with professional judges (1 or 3 judges, depending on the seriousness of the crime) and 2 or 3 Schöffen (lay judges) who actively participate and vote in the deliberation and sentencing as permanent members of the court. It is a mixed system but with lay judges professionalized by terms and appointment.
- Italy: A mixed system is in place for serious crimes , involving 6 jurors and 2 judges who deliberate jointly and decide by simple majority.
As mentioned above, a qualified majority (7 votes in favor out of the 9 jurors) is necessary to declare guilt, and it is necessary to give reasons for the verdict, even if only succinctly.
However:
- In the USA and UK: unanimity is usually required (12/12 jurors), although some US states allow 10/12 and no reasons for the verdict are required.
- In France, a reinforced majority is required (for example, 6 out of 9 in the first instance).
The Spanish model is relatively close, in idea, to the Anglo-Saxon scheme (citizen jury that freely decides on guilt) but with its own particularities (nine jurors, questions decided by the jury that must be framed within the criminal classification, and the presidency and supervision of a professional magistrate). In contrast to mixed systems (France, Italy or Germany) or fully juried systems (United Kingdom, USA), Spain combines citizen participation with professional judicial control.
6. The "Begoña Gómez case": practical and strategic consequences for a jury
Since the appearance of the preliminary investigation that includes the possibility of embezzlement, the relevant milestones have been: the decision of the investigating judge on the possibility of the case being tried by jury; the public and political discussion that has followed; and the contrast between the defenses that ask for the case to be closed and the popular accusations that ask for it to move forward. Media and reports emphasize that the transformation to jury procedure does not imply the imminent trial, but a forecast on the procedural route that will be used if the case reaches oral trial (Provincial Court must decide and, if necessary, hold the preliminary stages).
After what has been said so far, why would Ms. Gomez prefer to avoid the popular jury? From a legal-strategic analysis, there are several reasonable reasons:
- Evidentiary complexity: embezzlement cases often rely on contractual documentation, accounting techniques and valuation criteria that a technical court (panel of professional judges) could assess in greater technical detail and legal vocabulary. In a jury, the defense fears that complexity favors simplifications or heuristics.
- Media exposure and political polarization: as she is the wife of the President of the Government, the case has a very high political and media load; the jury may be more sensitive to the public narrative, images and emotion, and less to technical legal nuances. This increases the uncertainty of the outcome.
- Unpredictability of the verdict: juries deliberate in secret and their reasoning is not published (in Spain the jury responds to a battery of specific questions proposed by the court), which makes it difficult to foresee exactly how critical evaluative issues will be resolved. Defenders tend to prefer the stability and public reasoning of judicial rulings motivated by magistrates.
- Political advantage of the story: for the prosecution, a jury can offer a more "legitimate" verdict in the eyes of public opinion; for the defense, this can be pernicious if there is fear of a sentence that has more political than legal effect. In the political context, there is also the accusation of lawfare by sectors close to the government, and the political response pits demands for impartiality against accusations of judicial instrumentalization, all of which complicates the evidentiary and strategic space for the defense.
7. Final reflections (legal and procedural)
- The decision that a matter should go to trial by jury is governed by law and by specific procedural rules; it is not an arbitrary "choice" of the judge in an absolute sense, but the effect of the legal-material qualification of the facts. In the specific case, the presence of embezzlement in the indictment makes jury trial possible and legally consistent.
- From the defense practice in corruption crimes, it is common to try to: 1) limit or split pieces to exclude the jury's jurisdictional headings; 2) raise the evidentiary insufficiency in previous phases; 3) manage public communication and try to leave the smallest prejudicial informative footprint for the purpose of jury selection. These strategies seek to reduce the exposure and "emotionality" that can weigh on the decision of lay jurors.
- Finally, the public debate surrounding the jury in political cases highlights a classic tension: citizen participation and democratic legitimacy versus judicial technique and specialization. There is no single answer: each society and each system weighs these values differently. Comparative law shows that outside the Anglo-Saxon orbit and as I have already explained, there are mixed models (such as those of France and Germany) precisely with the intention of combining legitimacy and technique.
