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ANSWERING THE HARD QUESTIONS by Larry Dodge While on my road trips, in meetings, talk shows, and media interviews, the same or similar questions come up again and again, which has encouraged me to come up with a repertoire of satisfying answers. These I want to share with you, since you may need to answer similar questions during the campaigns ahead, though I make no claim that mine are the best or only answers. Won't FIJA lead to anarchy, with juries judging the law? FIJA is actually an antidote to the anarchy we've already got, where there are too many laws for people to obey, and we're experiencing soaring crime rates and overcrowded prisons as direct results. When juries consistently refuse to convict people of breaking a certain law, the incentive is for lawmakers to change or erase it, lest they lose the next election. When the law books are cleansed of unpopular laws, the rate of obedience to the remaining laws will be high, thus reducing anarchy. Likewise, whenever jurors feel compelled to apologize to a defendant for convicting him (which is quite often, nowadays), and then later find out they had the authority to vote according to conscience, but weren't told about it, their own respect for the law and our legal system can only diminish. In other words, failure to inform juries of their rights breeds anarchy. Four states (Indiana, Oregon, Maryland, and Georgia) already have general provisions in their constitutions acknowledging that juries may judge law, and 26 states have the same provision included in their sections on freedom of speech and libel. To my knowledge, no chaos has resulted because of these provisions. Couldn't the jury convict someone of a worse crime than the one he is charged with? No. Juries do not and would not have the power to escalate charges against a defendant. Their power may only be exerted in the direction of mercy, never of vengeance. Nor can juries "make law" by which to convict a defendant. That remains the job of the legislature. They may, however, reduce charges against an accused person, provided the lower charge is a less serious form of the same crime he was originally charged with. The decisions of juries do not and would not establish 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 happens periodically with or without jury instruction in the right to judge law. Any jury so poorly selected that all its members are determined to acquit a guilty person 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, taking no steps to see that at least some of the jurors are not prejudiced. In short, 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 instructed that each of them could vote according to his own conscience, as FIJA provides, there is at least a possibility that one or more jurors would not go along with the rest, thus hanging the jury with one or more 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 fair success, been able to sue perpetrators for damages. In other instances, crime victims who were 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 demand to know why they reached that verdict. 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 a corresponding right. In this case, that is the right to consider everything necessary for him or her to vote for a just verdict. That includes evidence, the defendant's motives, testimony, law, circumstances--whatever, including the juror's own conscience. Additionally, any restrictions placed upon the options the jury may exercise in fulfilling its responsibility to judge the defendant may be considered violations of his or her 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 possible that trials involving some of the worst and most frequently broken laws would increase, until prosecutors began choosing not to attempt convictions on them any more, police began letting up on enforcement, and legislators began reading the writing on the jury-room walls. But the peak should soon pass. And appeals to higher courts should soon diminish, since more people would feel they'd received justice from their original trials. Ultimately, though, one must ask what's more important, fast service at the courthouse, or justice for the individual and real-world feedback to the lawmakers? Wouldn't there be a lot of variation from place to place in jury verdicts, according to community standards? Perhaps, though it could hardly compete with the variations in verdicts and sentences handed down by different judges... It may prove true that jury verdicts would vary more from place to place with respect to certain types of offenses. Abortion, drugs, pornography, gun ownership, etc. might find more acceptance in some communities than others. But then, what's the merit in trying to force a diverse society into a homogeneous mold, in obliging every person or every community to conform to some centralized notion of how to behave? We suggest that if your act doesn't go over locally, walk. Actually, the overall thrust and effect of FIJA should be to promote consistency--in the form of tolerance--everywhere. It's already happening, as "unholy" coalitions form to make FIJA into law. Most people, it turns out, would rather secure their own liberty than damage someone else's--it's just that currently, our political system fosters competing interest groups, where one group's gain is generally another's loss. Beyond unstrategic, FIJA will also make it more difficult for majorities to deny the rights of minorities, because any minority (and we're all minorities) will be able to defend itself via jury veto power. The real payoff is that government, which grows in power and intrusiveness with every escalation of distrust and intolerance between warring factions of citizens, may lose its grip as trial juries resume their check-and-balance function, and "live and let live" re-emerges as the American ethos. What happens 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 enforced by jurors. Maryland and Indiana report good success with nullification instructions. It is elitist to accuse the ordinary people of this country of not being able to govern themselves. Political science studies demonstrate that rarely do people exhibit such conscientious concern, such caution and such responsible behavior, as when they sit on a jury. What would become of the practice of basing verdicts upon legal precedents? The role of case law, or precedent, would remain useful as advice for all parties to a trial, but its use as a basis for verdicts in current jury trials would end. A major objective in fully informing juries of their rights and powers is to provide ever-evolving feedback to our lawmakers, so that regular adjustments can be made in the rules that we live by. The idea is to match our laws to our standards of right and wrong on an ongoing basis, so that gaps no longer develop between them. This kind of consistency 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 get too large, we risk "anarchy" on the one hand, totalitarian intervention on the other. Would 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 defenders who may come to play 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 regularly pushed upon defendants by prosecutors and judges outside the courtroom (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 the problem only to the extent that both prosecution and defense have done everything in their power to select the least knowledgeable and most manipulable jurors possible. That is, equal treatment by trial juries, when it happens at all, may do so as much by default as design. Still, 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 because information begets fairness, but for at least two other reasons: (1) if jurors are lied to (equally) about their rights and powers, a certain percentage of them can be expected to see through the lie, then to rationalize reciprocating that dishonesty by lying to one or both attorneys and the judge during the selection process. What they may be covering up, and why, will certainly vary from jury to jury, and that's exactly what the doctrine of equal protection rails against; (2) When both prosecution and defense 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 capable 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 equality under the laws that they work with. Wouldn't FIJA cause a great increase in the number of hung juries?" Probably yes, at least in the short run, as laws which are hard for people to understand, identify with, or apply came into question by juries. But juries always face a built-in incentive for consensus, because their members generally have to explain themselves afterward in their communities. On the one hand, they are, sociologically speaking, a mercy buffer between the power of the state and the accused individual. But on the other, they have a responsibility sanction people who damage the social fabric of their communities. Fully informed or otherwise, they can be expected to try to achieve unanimity. Additionally, a series of hung juries on cases involving a particular law sends a powerful message to lawmakers that reform is necessary. Such a series may clamor for more precision, fairness, latitude, appropriateness or other attributes of the law, but the beauty of feedback from juries is that it is rarely a statement of special interest: hardly ever do all twelve people on a jury share a single political goal or viewpoint, and the chances that all the people on a series of juries will do so are infinitesimal. The relative frequency of hung juries should therefore be read as a valuable measurement of public sentiment about the law. The more responsive the legislature is to that measurement, the closer the association between community moral standards and the law will become, and the fewer hung juries there will be. Larry Dodge is the National Field Representative for the Fully Informed Jury Association, P.O. Box 59, Helmville, Montana 59843.