Story #1 -- +quot;HARDONES+quot; ANSWERING THE HARD QUESTIONS ABOUT+quot;FIJA+quot;,THE FU
Story #1 -- "HARDONES"
ANSWERING THE HARD QUESTIONS
ABOUT"FIJA",THE FULLY INFORMED
JURY ACT by Larry Dodge
As National Field Representative for the Fully Informed Jury
Association, I face the same or similar questions again and again--in
front of legislative committees, during media interviews, speaking to
groups, etc. This has encouraged me to come up with a repertoire of
satisfying answers. I want to share these with you, since you may need
to respond to similar questions as you become increasingly active on
behalf of FIJA, though I make no claim that mine are the best or only
answers.
Most of these answers are to questions which arise from a basic
misunderstanding --that fully informing jurors will somehow give them
new rights and powers. It will not, of course. But it's been so long since
jurors were told the truth about their right to judge both law and fact,
and to vote according to conscience, that the idea seems novel--and is
new to many people.
That is why it is important to make it clear that FIJA would require
trial judges to "resume the practice of reminding jurors of their rights."
It's important to maintain the high ground here, because the doctrine of
jury nullification and the right of a jury to bring in a general verdict are
already the law of the land. To argue against informing jurors about
their rights is therefore to contend that justice is better served if trial
jurors are kept ignorant and/or misinformed by the court!
Won't FIJA lead to anarchy, with juries judging the law?
FIJA is actually an antidote to the kind of "anarchy" we're already
experiencing as a result of passing more laws than people can or will
obey, especially laws prohibiting "victimless" or "political" crime (crimes
against the government, not people). When the government makes
victimless activities into crimes, the result is often more crimes with
victims, too. For example, making certain drugs illegal causes their
price to rise, which in turn causes users to "push" drugs onto new
customers and to engage in violent crime to raise money to buy them.
This kind of "anarchy" thus yields both soaring crime rates and
overcrowded prisons, but the usual response by lawmakers is to pass
still tougher laws against victimless acts, which in turn causes still more
anarchy.
That is why the "cure" is more likely to begin with juries than with
legislatures. Juries are made up of ordinary people who are more likely
to know a bad law (or a bad application of a good law) when they see
it than the lawmakers. That's because they develop their opinions more
from common sense and experience than from interest-group pressure.
Then, after a series of juries consistently refuses to convict
people of breaking a certain law, the incentive is for lawmakers to
change or erase it--lest they lose the next election. In other words,
juries supply the lawmakers with non-political, real-world information
about the laws they've passed.
Eventually, when the law books become cleansed of unpopular or
confusing laws that juries won't use, the rate of compliance with the
remaining laws will be high because they will enjoy public respect and
understanding.
Additionally, whenever jurors end up apologizing to a defendant for
convicting him or her of breaking a law they themselves don't agree
with (which is quite often, nowadays), only to find out later that they
had the power to vote according to conscience, but were not told
about it (or worse yet, were instructed they could not resort to
conscience), their own respect for the law and our justice system can
only diminish. In other words, failure to inform juries of their rights
breeds anarchy.
Four states (Indiana, Oregon, Maryland, & Georgia) have long had
general provisions in their constitutions acknowledging that juries may
judge the law, and over twenty other states allude to that right in their
sections on freedom of speech or libel. To my knowledge, no "anarchy"
has resulted because of these provisions.
Couldn't the jury convict someone of a worse crime than the one
charged?
No. Juries do not and would not have the power to escalate or
invent charges against a defendant. Their power may only be exerted
in the direction of mercy, never of vengeance. The latest versions of
FJA make this explicit.
Nor can juries "make law" by which to convict a defendant. That
remains the job of the legislature. They may, however, reduce the
charges against an accused person, so long as the lower charge is a less
serious form of the same crime he/she was originally charged with.
(Definition of charges "wholly contained" in an original charge is
ordinarily determined by the state's high court, then revealed to the jury
by law or upon the motion of either the prosecutor or defense
attorney.)
Furthermore, the decisions of juries do not and would not
establish legal precedent for future cases.
What if the jury is prejudiced in favor of the defendant, and lets him go
even though he's clearly guilty?
This is the "corrupt jury" problem, and it happens periodically with or
without the jurors being informed of their right to judge the law.
What to do? First, improve the selection process. Jurors should
be randomly selected from the population as a whole. If, instead, a jury
is selected so that all its members are biased in favor of acquitting a
guilty person, it is likely to do just that, no matter what it's told or not
told.
For this to happen virtually requires that both the prosecutor and
judge be corrupt, as well, and take no steps to see that at least some of
the jurors are not prejudiced. In sum, if the defendant faces fourteen
people, all of whom favor letting him go free regardless of the
evidence, he will go free.
Even under these circumstances, if jurors were informed that each
of them may vote according to his own conscience, no matter what the
law says or how the other jurors vote, as FIJA provides, there would
at least be a possibility that one or more jurors would not go along with
the rest, thus hanging the jury with their "guilty" votes. Chances for
justice might then improve, via another trial, perhaps a change of venue,
or a different judge, and certainly another jury.
Further, victims of crimes who do not find satisfaction in a criminal
trial verdict have, with occasional success, been able to sue
perpetrators for damages. In other instances, crime victims unhappy
with verdicts handed down in state courts have been able to have
defendants tried in federal courts on other charges, often for violating
their civil rights.
Do jurors have the right, or just the power, to judge the law?
They have both. They have the power, because in a jury system, no
one can tell the jury what verdict it must reach, nor restrict what goes
on in jury-room deliberations, nor punish jurors for the verdict they
bring in, nor make them explain why they reached the verdict they
reached. It is no accident that our nation's founders provided for
appeals of guilty verdicts, but not of acquittals: they intended the jury
to have the power to halt a prosecution.
They have the right, because each juror is partially responsible for
the verdict returned, thus for the fate of the accused individual-- and
for every responsibility there is an equal and corresponding right. In
this case, that is the right to consider everything necessary for him or
her to determine a just verdict. That includes physical evidence, the
defendant's motives, testimony, the law, circumstances-- whatever,
including the juror's own sense of right and wrong.
Additionally, any restrictions placed upon the options the jury may
exercise in fulfilling its responsibility to judge a case as fully and fairly
as possilble may be considered not only as encroachments upon the
rights and powers of the jurors (i.e., jury tampering at its worst), but
also as violations of the defendant's right to a fair trial.
Finally, when one gets right down to it, there is precious little
difference, except in academic legal discourse, between a right and a
power. Most dictionaries recognize this by listing them as synonyms.
Wouldn't our courts be flooded with jury trials if FIJA were to become
law?
It's probable that the number of jury trials involving some of the least
popular and most frequently broken laws would increase--until
prosecutors began choosing not to attempt convictions under them any
more, police began letting up on enforcement, and the legislators
began reading the writing on the jury-room walls.
But the peak should soon pass, and with it, the laws responsible
for it. Without cases involving or resulting from victimless/political
crime laws, the courts would be very quiet and uncrowded places--with
ample time and resources to devote to serious matters, like jury trials
for people accused of crimes against people and property.
Under those circumstances, most defendants would no longer ask
the jury to judge the law, though they might still want their motives
heard and considered. This could add a little time to an occasional trial,
but nothing compared to the time wasted in today's courts trying
crimes against the state.
Additional time and cost would be saved by the reduced incidence
of appeals by those who feel they did not get a fair trial the first time
through: more people would feel they'd received justice at their original
trials, and it would take a very good argument to sway an appeals court
to acquit after a fully informed jury has delivered a verdict of "guilty".
Ultimately, though, one must ask what's more important, quick and
cheap service at your local courthouse, or justice for accused
individuals, with citizen-jury feedback to the lawmakers as a byproduct
essential to the proper operation of democratic proces?
Wouldn't there be a lot of variation from place to place in jury verdicts,
according to local community standards?
Perhaps, though it could hardly compete with the variations in
verdicts already being handed down by different judges in bench trials
(i.e.,without juries) and in the sentences they give, even in jury trials.
Nor could the variations in thinking between this or that group of
twelve citizens ever compare with variations in the quality of the
prosecution or defense efforts. What little research there is on this
issue shows that there is indeed high consistency between jury verdicts
in similar cases around the nation.
It might even prove true that fully-informed- jury verdicts would
show more local variation than jury verdicts currently do with respect
to actions which are somewhat controversial, or which have
"constituencies". FIJA could help identify places where, say, failure to
wear seatbelts, pornography, recreational drug use, gambling, abortion,
gun ownership, home schooling, homosexuality, or any of many other
values, preferences and behaviors will be tolerated.
This is important in a land where majority
rule, alias democratic process, has long since replaced the original plan
for a constitutional republic. Democracy easily degenerates into
"love-it-or-leave-it" majoritarianism, but rarely provides minorities a
place to go and escape harassment and homogenization. FIJA might
help illuminate some viable destinations.
Variation in verdicts can also illuminate general movements in
moral philosophy, and lead society from various dark corners into
enlightenment. Let us not forget that slavery was dying at the hands of
jurors well before any laws were changed or the Civil War was fought,
that our freedoms of speech, press, and peaceable assembly all trace
to refusal of juries to apply laws against these behaviors, and that juries
brought America to her senses on the issue of Prohibition.
Would FIJA give interest groups and other minorities another arena in
which to fight?
Most people, we hypothesize, would rather guarantee and enjoy
their own liberty than damage someone else's. But as long as most
laws are passed to please or appease special-interest groups, on a
winner-takes-all basis, the name of the game will be rancor, and the
usual result will be mutual coercion.
The overall thrust and effect of FIJA should be to counteract that
game, by promoting self- interested tolerance. We're already finding
people are willing to join together in unusual coalitions to make FIJA
into law. This is not so much because they've come to appreciate each
other's culture, race, point of view, or activities (though we see
evidence of this,too), but because they're willing to let the other guy
"do his thing", as long as they may also do theirs, unharassed--a
"win-win" game, then.
FIJA should also make it more difficult for majorities to deny the
rights of minorities even if they never choose to tolerate each other,
because any minority (and we're all minorities by one or another
definition) will be able to defend itself via jury veto power.
The real payoff is that government, which tends to grow in power
and intrusiveness with every escalation of distrust and intolerance
between warring factions of citizens, may become less essential to the
maintenance of social order as trial juries resume their check-
and-balance function, and "live and let live" re-emerges as the American
ethos.
What if the jury nullifies a good law?
This is not generally a problem. We have centuries of experience
with jury veto power, and generally laws that protect people against
invasions of their property or threats against their safety are supported
by the community as a whole, and are dependably enforced by jurors.
Maryland and Indiana report good success with nullification
instructions, allowed under their constitutions since the nineteenth
century.
Can we trust jurors to make intelligent decisions about the law,
especially when the lawyers try to dismiss anyone who seems to have
brains or education?
Neither intelligence nor education is a prerequisite to
understanding right and wrong, and many an excellent verdict has
resulted from the observations or opinions offered by
persons of modest mental capacity and/or minimal academic
achievement. E.g., twelve illiterate Englishmen decided William Penn
had done no wrong by preaching a Quaker sermon, though doing so was
illegal in 1670.
In short, if a jury can understand the law, it can certainly judge the
merit of applying it. If a jury cannot understand the law, then no one
should be expected to obey it. Instead, the legislature should make it
understandable.
If a defendant worries that a jury will not be able to understand
the law he's accused of violating, he can opt for trial by a trained legal
professional--the judge. But a better bet may be to argue to a fully
informed jury that the law is confusing.
Besides, knowledge that the jurors are going to be informed of
their right to judge the law and to consider the justice of applying it
would give an incentive to attorneys on both sides of a case to select
at least a few jurors who appear able and willing to apply moral/
philosophical reasoning--and perhaps to show some leadership--during
jury deliberations. In short, FIJA should have a positive impact on the
quality of juries and their verdicts.
Finally, it is both elitist and erroneous to accuse the ordinary citizens
of this country of not being able to govern themselves when the
opportunity or need arises. Political science research has several times
shown that people become extremely conscientious, cautious and
responsible when they sit on a jury--more so than at any other time in
their lives.
What would become of the practice of basing verdicts upon legal
precedents?
Case law, or precedent, would remain useful as advice and
information open for consideration by all parties to a trial, but its use
as a basis for verdicts in current jury trials would end. One major
objective in fully informing juries of their rights and powers is to
provide ever-evolving jury feedback to our legislators, so that regular
adjustments can be made in the rules that we live by, instead of relying
on historical precedent in the courts.
A match between the law and community standards cannot be had
when "precedent requires" that the same verdict be found for a modern
case as was found in similar cases in the past. When gaps between
what's moral and what's legal become too large, we invite anarchy,
which in turn invites totalitarianism.
Wouldn't FIJA violate our Fourteenth Amendment right to equal
protection under the law?
"Equal protection" is already tough to guarantee, given the
differences in quality between judges, prosecutors and defense
attorneys who may become involved in any given case. Add to them
our media-assisted fads and fashions in law enforcement, and the very
unequal kinds of "deals" which are so regularly pushed upon defendants
by the prosecutor and/or the judge outside of the courtroom (too often
based upon the accused person's appearance, background, and ability
to pay), and "equal protection" takes on the appearance of an ideal
which draws a lot more lip service than real concern.
Juries generally become part of this problem only to the extent that
both the prosecution and the defense have done everything in their
power to select the least knowledgeable and most manipulable jurors
available. If those trying to make an "equal protection" argument
against FIJA really cared, they'd ask for laws ensuring random selection
of jurors from as broad a base as possible.
FIJA may provide partial remedy, because the chances of equal
treatment of defendants would appear to increase if the jury were to
receive complete and accurate instruction in its veto powers--not just
because information makes fairness more possible, but for at least two
other reasons:
(1) if jurors are lied to about their rights and powers, a certain
percentage of them can be expected to see through the falsehood, then
to rationalize reciprocating that dishonesty by lying to one or both of
the attorneys and the judge during the selection process. Just what
they may be covering up or misrepresenting, and why, will certainly
vary from jury to jury, and that is exactly what the doctrine of equal
protection rails against;
(2) When both the prosecution and defense attorneys know in
advance that the jurors will be fully informed of their power to judge
both law and fact, their jury selection criteria can be expected to
change accordingly. Both sides would face an incentive to find jurors
able and willing to consider not only factual but also
moral-philosophical questions in search of justice, especially in those
cases where the merits or the applicability of the law may be at issue.
The result should be both better-quality juries and more equal
treatment of defendants under the laws that those juries work with.
Could FIJA cause a great increase in the number of hung juries?
In the short run, perhaps, as laws which are hard for people to
understand, identify with, or apply are evaluated by juries. As "mercy
buffers" between the power of the state and the accused individual,
and between majorities and minorities, a certain frequency of inability
to reach a consensus is to be expected.
But that's the point: it's important that there remain at least one
strong institution of government which must achieve unanimity in order
to make a decision, since most series of usurpations of rights in general
begin with majority attacks on the rights of unpopular minorities or
individuals. In other words, hung juries can be worth their weight in
justice and prevention of government excess.
On the other hand, juries always have a responsibility to match, and
in some states to determine the degree of punishment for those they
convict. When the trial is over, other members of the community often
want to know how and why the verdict was reached, or the punishment
agreed upon. This can provide a strong incentive for the jurors to make
a serious attempt at unanimity.
When that incentive isn't strong enough,
and a long series of hung juries on cases involving a particular law
occurs, it sends a powerful message to lawmakers that reform is
necessary. Such a series may reflect public demand for more
simplicity, clarity, precision, fairness, latitude, relevance or other
important attrributes in that law. A beauty of feedback from juries is
that it is rarely a statement of special interest: hardly ever do all twelve
(or even all six) people on a jury share a single political goal or
viewpoint, and the chances that all the people sitting on a series of
juries will do so are utterly remote.
The relative frequency of hung juries can therefore be read as a
measurement of true public sentiment about the law. The more
responsive our legislatures become to that measurement, the stronger
the association between community moral standards and the law will
become, and the fewer hung juries there will be.
Some versions of "FIJA" specify that a person cannot be disqualified
for jury duty because he expresses a willingness to judge both law and
fact. Wouldn't this make it hard for prosecutors to eliminate people
they consider "soft" on a given law, or on particular punishments which
go with being found guilty of breaking it?
First, this objection begs the question of whether jurors should
ever be screened for service on the basis of how they feel about
certain laws and/or punishments. In some nations with a tradition of
trial by jury, the first twelve people selected by lot or other random
method serve as a jury--no voir dire process, no dismissals for cause
(other than evidence that the person selected has a direct interest
in the outcome of the case), no peremptory challenges, nothing. Some
argue that this is the best way to approximate the "jury of one's peers"
specified by our Constitution.
So, in answering this, I always make it clear that I do so "only for
sake of argument", because I believe that once we begin to set "criteria"
for eliminating potential trial jurors, beyond disqualifying those who
have a "direct interest", there is no logical way or place to stop, or to
keep the selection process from turning into jury-stacking contest
between the prosecution and defense.
The idea of this provision in FIJA is to eliminate one major
impediment to honoring the defendant's right to trial by a fair
andimpartial jury of peers. When we allow the prosecution to weed out
people who might have qualms about the law in question, or about the
punishment which the state says should accrue to those convicted of
breaking it, we indirectly endorse trial by government, not by jury: only
those who agree with the government are allowed to serve.
But the voir dire process is not going to go away because of FIJA,
nor will the effort and money which currently goes into building
"favorable juries" by both sides, because our adversarial system of
justice demands it.
Therefore, one good answer to those who attack FIJA because
"you might not be able to get the death penalty", or "some nut on the
jury might hold out for acquittal just because he doesn't think drugs
should be illegal", is to remind them that peremptory challenges would
still be allowed, even if all the "objectionable" potential jurors could not
be dismissed for "cause".
And should the prosecution use up all of its peremptory
challenges, and still be unable to purge a given jury of all those who
might possibly have objections to a particular law or punishment, it may
be time for the state to recognize that such extensive reluctance to use
a certain law, or apply certain sanctions, may be a reflection of changes
in community standards--changes to which prosecutors, as public
servants, should be more responsive than antagonistic.
"We are a nation of laws, not men."
Some who oppose FIJA utter this one- line cliche as though it
should stop us in our tracks, once we fully appreciate its profundity.
I like to point out that Nazi Germany was a "nation of laws", too,
and that when its war
criminals were brought to trial in Nuremburg, they tried to hide behind
those laws--only to find that the rest of the world insisted that they be
judged according to conscience!
The point is, until the Great Spirit or Creator or Lord of Lords
comes down and sets us all straight, it is we ourselves who will not
only have to make the laws we live by, but take responsibility for them.
So far, the best institution ever devised for so doing is the
common-law trial jury. We want everyone to know that before sitting
in judgment of fellow human beings, which is why there is a FIJA
movement.
* * *
Larry Dodge is the National Field Representative for the Fully Informed
Jury Association, P.O. Box 59, Helmville, Montana 59843. (406)
793-5550
Story #2
WON'T FIJA LEAD TO ANARCHY?
.
[1] FIJA may be an antidote to the current anarchy, crime rates, &
prison crowding caused by victimless/political crime laws:
.
[a] long series of jury refusals to apply such laws will advise
legislatures to rescind or modify them;
.
[b] respect for/compliance with remaining laws will increase,
as they more accurately reflect community standards;
.
[c] secondary crime, caused by victimless crime laws, will
necessarily subside, for lack of motive;
.
[d] respect for the criminal justice system, including trial by
jury, will increase as jurors are told the truth by courts.
[2] Maryland, Georgia, Indiana, and Oregon constitutions have
general provisions guaranteeing the right of jurors to judge law as
well as fact, and have had no resultant "anarchy" .
Story #3
COULD FULLY INFORMED JURIES ESCALATE OR ADD NEW
CHARGES?
[1] No. Juries have never had such powers, and FIJA does not
create, grant or reveal them. Jury judgment of law can operate
only in the direction of mercy, which may include a reduction of
charges, provided the charge they choose is
"wholly contained" within the original charge. Most recent
versions of FIJA make this explicit, though it is not actually
necessary to do so.
[2] Juries cannot "make law" or "set precedent" either. Their
power to judge the law and its application is limited to the case at
hand.
Story #4
.
WOULD FIJA ENCOURAGE JURIES WHO ARE PREJUDICED AGAINST
THE VICTIM TO ACQUIT GUILTY DEFENDANTS?
.
[1] Prejudiced juries are a result of prejudiced jury selection, not of
informing jurors of their right to judge both law and fact. If both
attorneys and the judge and all twelve jurors are bent on acquitting
a guilty defendant, it will happen, regardless of the charge to the
jury.
.
[2] If jurors were encouraged to follow their own consciences
when the law or fellow jurors seem wrong, as FIJA would inform
them they have the right to do, it might actually reduce the
(already rare) instances of jury corruption: one or more
conscientious jurors might decide to thwart the prejudice of the
others, by voting "guilty".
.
[3] Victims unsatisfied by a criminal trial jury verdict may seek
relief via civil suit, perhaps a federal civil rights action.
Story #5
.
DO JURORS HAVE THE RIGHT OR JUST THE POWER TO JUDGE THE
LAW ITSELF?
.
[1] They have both. They have the power, because (a) no one can tell
the jury what verdict it must reach, nor restrict what goes on in
jury-room deliberations; (b) no one can punish jurors for the verdict they
bring in; (c) jurors can't be forced to explain themselves or otherwise
account for their decisions; and (d) a verdict of not guilty cannot be
appealed by the government.
.
[2] They have the right, because (a) they bear the responsibility for
deciding on a just verdict for the accused person; (b) the defendant has
a right to a full and fair hearing, which depends upon the jury knowing
all its rights and responsibilities; and (c) the authors of the U.S.
Constitution recognized it as a right.
.
[3] Whether we like the idea or not, there is very little real-world
difference between a right and a power: generally, if someone has the
power to do something with impunity, it's considered a right, ipso
facto. Dictionaries treat the words as synonymns.
Story #6
.
WOULD PASSAGE OF FIJA FLOOD THE COURTS WITH JURY
TRIALS?
.
[1] For a time, demand for trials by jury might increase from the current
3-5% of all cases, until those laws which the public finds least relevant
to its safety are no longer used by juries, enforced by police, applied by
prosecutors, or espoused by lawmakers.
.
[2] Once the courts again focus on trying crimes against persons and
property, it will become pointless and rare for defendants to ask juries
to nullify the law, because laws against actions which inflict damage
are inevitably supported by the community.
.
[3] Big savings in court time and cost could be realized via fewer
appeals, expectable as fully informed juries deliver justice in the first
place. Defendants are likely to be both more satisfied and less inclined
to try an appeal after conviction by jurors who knew they could have
nullified the law and acquitted, but did not.
.
[4] More courts and juries could be provided to meet demand, if ever
necessary--at less cost than more police and more prisons.
Story #7
.
WOULD CONSISTENCY IN JURY VERDICTS BE
SACRIFICED?
No two trials are ever "alike" anyway, but...
.
[1] It is unlikely that alleged "variation" in jury verdicts rendered in
different places and times for similar crimes can compete with
variations in verdicts--and in sentences--given for similar crimes by
different judges. This is because group decisions are less likely to be
extreme or unique than individual decisions. Telling jurors the truth
about their rights is not likely to change this.
[2] Different juries are likewise inherently more consistent than
different individual attorneys, whose relative competence can vitally
affect how a case turns out in one time or place, and how a similar case
concludes elsewhere, with different attorneys.
[3] Variation in verdicts can help people whose values contrast with the
majority find supportive surroundings, and can initiate socially
beneficial evolution of the laws we live by.
Story #8
WOULD MINORITY & INTEREST GROUPS ABUSE EACH OTHER
WITH FIJA?
[1] Experience to date tells us "no". FIJA is quite unique in its
attractiveness to groups who have opposing political views. It is
probably because, unlike most issues, everyone wins if anyone wins.
The FIJA organization is thus an "unholy coalition", which seems to
encourage tolerance among those in hot pursuit of a common goal:
"justice for me...and, incidentally, you too."
[2] Even if this kind of tolerance never extends beyond the FIJA
organization itself, fully informed juries will make it easier for
minorities (and we're all minorities by one or another definition) to
defend themselves in court against any majoritarian attempts to take
advantage of them, so long as verdicts either of "guilty" or "not guilty"
require a unanimous vote of the jurors, and jury selection is reasonably
random.
Story #9
WHAT IF THE JURY NULLIFIES
A GOOD LAW?
.
[1] Unless the lawyers and judge have conspired to stack the jury with
people they can count on to let prejudice or bigotry guide their
deliberations, this is a straw man. Juries generally are very supportive
of laws they see as essential to the safety and security of their
communities--i.e., "good laws". And all the jurors would have to agree
to nullify a good law in order to get an acquittal on that basis, so the
chances are infinitesimal.
[2] Research has shown that people tend to be more responsible and
conscientious as jurors than at any other time in their lives. This is
probably why none of the states whose constitutions have explicit
provisions acknowledging the right of jurors to judge the law have
reported problems in administering justice as a result of jurors being
informed of that right.
Story #10
.
ARE JURORS GENERALLY INTELLIGENT & EDUCATED ENOUGH TO
JUDGE LAW?
.
[1] Neither intelligence nor education is a prerequisite to judging right
and wrong, which is what juries do. Twelve illiterate men decided it
was not wrong for William Penn to deliver a Quaker sermon, even
though it was illegal at the time. Many excellent verdicts have come
from people of ordinary mental capacity. In short, if a jury can
understand the law, it can certainly judge it.
.
[2] If the jury cannot understand the law, then it's unreasonable to
expect ordinary people to obey it, which is an excellent reason to
acquit anyone accused of breaking it, and to continue to do so until the
legislature makes the law understandable.
.
[3] Any defendant who doubts the ability of a jury to understand the
law he/she is accused of violating can always opt for trial by judge, and
thus be tried by a trained legal professional--but may be better off
arguing that the law is vague or confusing to a fully informed jury.
Story #11
.
HOW WOULD FIJA AFFECT CASE LAW, OR "PRECEDENT"?
.
[1] Previous court decisions would remain useful as examples of earlier
applications of a law, but no jury should be expected to base its
decision on how a law has been interpreted in the past.
.
[2] Community standards tend to evolve slowly, so that radical
departures from previous interpretations of law by juries would be rare,
and always in the direction of mercy. But standards do evolve, and
must evolve, or we might still be hanging "witches", sending runaway
slaves back to their owners, or prosecuting people for operating a
tavern. One of FIJA's main objectives is to provide an orderly, routine
basis for evolution of law, to keep the gap between what's moral and
what's legal to a minimum. We believe the most appropriate and least
political way to reach that objective is to institutionalize feedback to
legislatures from citizen juries. To insist that juries follow precedent
would defeat
that goal, encourage anarchy, and invite totalitarianism.
Story #12
.
WOULD FIJA VIOLATE THE FOURTEENTH AMENDMENT (EQUAL
PROTECTION)?
.
(Equal protection under the law is a conceptual ideal which is
regularly "reality-checked" by our judicial system: judges have their
biases, attorneys theirs, jurors theirs. Media often make matters
worse, by setting & aggravating fads in law enforcement. The worst
offenders are prosecutors whose plea-bargaining is too often based
on race, creed, politics, and ability to pay. At least juries are likely to
contain people of different backgrounds, so that at least some
"averaging" takes place in the direction of equal treatment of
defendants. To improve upon this, we urge that every effort be made
to more randomly select trial jurors.)
.
FIJA might help: (1) people who lie during voir dire in retaliation for
being misinformed about their rights by the judge might be truthful if
told the truth; (2) the lawyers, knowing they'll be facing a fully informed
jury, might pick at least some jurors they believe capable of moral
philosophical debate, fairness, and leadership.
Story #13
.
COULD FIJA CAUSE A BIG INCREASE
IN THE NUMBER OF HUNG JURIES?
.
[1] There is a backlog of laws which have escaped jury review since the
Supreme Court allowed judges to withhold information about the right
of jurors to judge both law and fact. That may be why America leads
the world in % of population imprisoned, and why there could be many
hung juries following passage of FIJA-- but if so, it should be regarded
as a sign of relief from injustice.
.
[2] Juries hung because some of their members disagree with the law
are actually performing a service for society: they are sending
messages to lawmakers in a peaceful, routine, and institutionalized way
that it's time for changes in the law. When those changes have been
made, hung juries will again be rare.
.
[3] The wrong way to deal with discrepancies between current moral
standards and the law is to avoid hung juries by allowing juries to
convict without reaching unanimity. This threatens the individual rights
of minorities, and fosters tyranny of the majority.
Story #14
.
WOULD FIJA VOID SOME GROUNDS FOR DISMISSING POTENTIAL
JURORS?
.
[1] Yes. Jurors could no longer be dismissed for "cause" if they express
a willingness to judge the law itself, or qualms about the punishment a
convicted defendant might receive. But juries were invented in order
to provide a buffer between the accused and the state--to find their
verdicts after review of both law and fact, and to match the
punishment to the crime. So there is no valid reason to dismiss jurors
for saying they might want to take the law and/or the punishment into
account in their deliberations.
.
[2] An attorney can also use a peremptory challenge to dismiss a juror,
though these are usually few in number. If there are not enough such
challenges to dismiss everyone willing to judge law and/or punishment,
it may indicate that the citizenry sees that law as defective in some
way--and the government should listen. .
[3] Ideally, voir dire should be abolished. It's just a costly fight to see
who can best "stack" a supposedly "impartial" panel.
Story #15
.
"WE ARE A NATION OF LAWS, NOT MEN."
[1] So was Nazi Germany. And when Nazi war criminals were tried
in Nuremburg, they tried to hide behind the laws of that land, only
to find that the rest of the world insisted that they be judged
according to conscience.
[2] We not only have to make the laws we live by, we have to take
responsibility for them. So far, the best institution ever devised for
so doing is the common-law trial jury, by judging both law and fact
in search of justice. We want everyone to know that before
serving as a trial juror. That's why there is a FIJA movement.
Story #16
Duncan--I've condensed each of these questions and answers onto a
series of fourteen "flashcards", and will show you a set when we meet
later this week. I'd have to make separate calls to fax them at this
point, and besides, they don't add any new information to the
above--just lots of pages. LD
E-Mail Fredric L. Rice / The Skeptic Tank