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TOWARD A BILL OF JURY RIGHTS
The original idea for a Bill of Jury Rights came from our
ever-escalating appreciation for the role the common law jury
plays in defending liberty and resisting government oppression--
combined with apprehension that its powers are being destroyed.
As we studied jury power, campaigned for the Fully Informed
Jury Amendment, and talked with more and more knowledgeable
individuals, it became alarmingly clear that our entire jury
system is under continuous and concerted attack on a number of
fronts. Assaults on the jury system have become sophisticated
and strategic, especially during this century, and mostly during
the past twenty years.
Our goals thus broadened to include more than just requiring
that trial judges inform juries of their right to judge both law
and fact. We began to consider how to repair related damages to
the jury system, such as the fact that nowadays, our government
can and often does 1) restrict the evidence which jurors will be
allowed to examine; 2) reduce the size of juries; and 3) ignore
the requirement that a guilty verdict be unanimous; 4) abuse the
civil law and undermine the authority of civil trial juries for
purposes of persecution; and 5) deny a defendant's right to a
jury trial altogether.
These problems, among others, prompted a group of former
judges, practicing attorneys, and political activists to gather
at a FIJA-sponsored conference in St. Louis, Missouri over
Veterans' Day weekend, 1990, to compose and sign a "Bill of Jury
Rights", and to develop a strategy for implementing it. (See
following article for results.)
A closer look at the problems addressed by the "BJR":
1) Evidence manipulation: many participants in the court
process lament that even though the jury has the clear job of
examining the evidence, or the "facts", in practice vital
information is routinely withheld from them. The lawyers on both
sides and the judge filter so much of the available evidence,
withholding vital information from the jury, that the jury is
forced to decide cases based on partial information which may be
insufficient to produce a just verdict. Given that so much is
at stake, many observers are convinced that the jurors ought to
have access to the whole story if they are going to pronounce
judgment on a person, and perhaps determine the future course of
his or her life.
2) The need for twelve: Incredibly, by virtue of a Supreme
Court decision in 1970 [Williams v. Florida 399 U.S.78 (1970)]
state courts are now allowed to use juries of less than twelve in
criminal cases! And some twenty-five states have done just that
(at least twenty use six-person juries in felony cases), and most
federal criminal trials are now held with six jurors.
For centuries, the jury has consisted of twelve (or more)
"peers" of the defendant, for good reason: Juries which are
smaller than twelve are unlikely to represent a true cross-
section of the population of the community as a whole, especially
people representing minority groups or viewpoints.
Studies of "mock trials" show that minorities of one on the
jury are more likely to cave in to pressure to conform to
majority opinion than minorities of two or more. Therefore, the
smaller the jury, the more likely is the minority to consist of
one person, and majority pressure to result in an apparently
"unanimous" verdict.
Given that attacks on the fundamental rights and liberties
of the population as a whole generally start with attacks by
political authorities on unpopular minorities, it becomes in
everyone's best interest to preserve the full-sized jury. We are
all less vulnerable to tyranny to the exact degree that minority
members of the community can protect each other from majority
prejudice, avarice or hysteria, simply by arguing, while on the
jury, for toleration and understanding--or, if that doesn't work,
by using their vote to "hang the jury."
3) Unanimous verdicts: similarly, once we allow people to be
found guilty by a jury vote that is anything less than unanimous,
we open the door to losing the right of trial by jury altogether.
As when juries of less than twelve persons are allowed, chances
that a minority-group member will get a fair trial are reduced if
minorities on the jury can be outvoted. And we all belong to
minorities of one sort or another.
The danger notwithstanding, the U.S. Supreme Court has
opened that very door [Johnson v. Louisiana 406 U.S. 356 (1972)
and Apodaca v. Oregon (1972)]. Hence, at least two states,
Louisiana and Oregon, now allow non-unanimous guilty verdicts.
It is time for the people of this nation, who have more power
ultimately than even the Supreme Court, to insist that our jury
system remains the one institution which is immune to "tyranny of
the majority."
4) Abuse of civil procedure: The government now regularly
uses litigation as a means of persecuting politically vulnerable
defendants, often in addition to seeking their conviction on
criminal charges. In such cases, the value of a jury trial is
badly diminished, and skewed in the direction of finding the
defendant liable, by the fact that judges are allowed to overturn
civil-trial jury verdicts. It's called "directing a verdict",
but it can and often does make a mockery of the jury's decision.
5) Access to juries: it is becoming harder to get a jury
trial for many offenses, as rules of court procedure and other
kinds of laws keep elevating the level of offense "below which a
jury trial isn't appropriate, and just wastes taxpayers' money".
In addition, the federal government has created numerous
administrative bureaucracies which not only develop rules and
penalties without benefit of public control, but come complete
with their own administrative court systems which do not seat
juries. Reform in this area is clearly a worthwhile goal, but it
will probably have to wait until the problem is more widespread
and well known.
All of the reforms noted above need to be made in the
federal court system, as well, but for the present it appears
more practical to change state-level court practice first, and
build a constituency for federal change while at it.
The Fully Informed Jury Association hereby presents the
American people and their political representatives with its
handiwork to date: The Bill of Jury Rights. Let us hope the
reforms it lists can play a part in rescuing those rights of
jurors that necessarily accompany their responsibility to decide
the fate of another human being.