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NEW HOPE FOR FREEDOM: FULLY INFORMED JURORS DON DOIG
America's Founders were worried that the government they
created might someday grow too powerful, and begin to pass laws
which would violate the rights of the very people the government
was supposed to protect: ordinary, peaceful, productive
Americans. But they had an "ace in the hole" which they believed
would suffice to hold the government in check. That was the
right to a trial by a jury of one's peers.
Since when, you might ask, can a jury protect people from
arbitrary and unjust prosecutions, or from bad laws? The
legislature creates laws. Aren't we supposed to obey them, and
lobby our legislatures for any changes that need to be made?
Traditionally, Americans have had more substantial and
direct means by which to protect against governments grown too
ambitious, and by which to resist oppressive laws. America's
Founders realized that the temptations of power were too great to
leave it to the legislature, to the executive, and to the
judicial branches of government to define what the rights of the
citizens of this nation were. Ultimately, citizens at the local
level, acting according to the dictates of individual conscience
were to have the final say, the final check and balance. The
people would need veto power over bad laws.
And they provided just such a veto, a centuries-old
tradition carried over from England to the colonies, which holds
that jurors could judge whether a law was a good law, a law that
did not violate the rights of free men and women. If, according
to the dictates of conscience, jurors did not think a law was
just, or if they thought the law had been misapplied, they could
refuse to convict an otherwise "guilty" defendant. Even a single
juror could prevent a conviction, by voting not guilty.
And if the jury as a whole decided to acquit the defendant,
that decision was and is final. A verdict of innocent cannot be
overturned, nor can the judge harass the jurors for voting for
acquittal. Jurors cannot be punished for voting according to
conscience.
These principles date back to the time of the Magna Carta.
In 1670, Willian Penn was arrested for preaching a Quaker sermon,
and in so doing breaking the law of England, which made the
Church of England the only legal church. The jurors in his
trial, led by Edward Bushell, refused to convict him, and were
themselves held without food, water, tobacco or toilet
facilities. Four were put in prison for nine weeks. When they
were finally released by court order, the decision established
that jurors could no longer be punished for their verdicts.
This case helped establish freedom of religion, and the right to
a trial by a jury of one's peers, a jury free from government
coercion.
The trial of John Peter Zenger, in the American colonies,
was another landmark case. Zenger had been arrested for
publishing materials critical of the Royal Governor of New York
colony and his cronies, accusing them of corruption. While the
charges were true, under the law, truth was no defense. Zenger's
attorney, Andrew Hamilton, argued to the jury that they were
judges of the merits of the law, and should not convict Zenger of
violating such a bad law. The jury agreed. Zenger was
acquitted, and this case helped establish the right to freedom of
speech.
The Founding Fathers were clear about where they stood on
the issue of the rights of jurors:
"The right of the jury to decide questions of law was widely
recognized in the colonies. In 1771, John Adams stated
unequivocally that a juror should ignore a judge's instruction on
the law if it violates fundamental principles:
'It is not only...[the juror's] right, but his duty, in that
case, to find the verdict according to his own best
understanding, judgment, and conscience, though in direct
opposition to the direction of the court.'
There is much evidence of the general acceptance of this
principle in the period immediately after the Constitution was
adopted." Note (anon.) The Changing Role of the Jury in the
Nineteenth Century, Yale Law Journal, 74, 174, (1964).
Thomas Jefferson said in a letter to Thomas Paine in 1789:
"I consider trial by jury as the only anchor ever yet imagined by
man, by which a government can be held to the principles of its
constitution."
And yet, during the nineteenth century, judges chipped away
at this fundamental right of free citizens, transferring more and
more power to themselves, contending that jury review of law was
no longer necessary, now that democratic elections had replaced
Monarchy. By the end of the century, the Supreme court had
decided to leave it up to the judge to decide if the jury should
be told of its right to judge law as well as fact. Today, jurors
are generally told that they must accept the law as the judge
explains it, and may not decide to acquit the defendant because
their consciences are bothered by what seems to them an unjust
law. Judges falsely tell them that their only role is to decide
if the "facts" are sufficient to convict the defendant. Defense
attorneys are not allowed to encourage jurors to vote to acquit
because they believe the law is unjust or unconstitutional, and
defendants are generally not allowed to even discuss their
motives.
In plain words, in what comes down to a power struggle
between the people and the judicial system, the people have been
losing.
In fact, jurors still, to this day, have the right to
veto, or "nullify" bad laws. They are just not told this by the
courts. And judges and prosecutors exclude people from serving
on juries who indicate a willingness to nullify the law. This
violates the protections jurors were supposed to be able to give
their fellow citizens against unjust prosecutions. A jury is
properly a cross-section of the community as a whole.
What can be done? The Fully Informed Jury Amendment (FIJA)
was designed to return to the people this basic and very
important right.
The idea of the Fully Informed Jury Amendment is to amend
state constitutions, or enact statutory changes, to require
judges to inform jurors that if they think a law is unjust or
unconstitutional--or just misapplied-- they need not convict an
otherwise "guilty" defendant.
FIJA does not give jurors the right to act as a legislature,
since their decisions affect only the case at hand and do not set
precedents for future cases. Nor can jurors create new offenses.
If a jury convicts a defendant unjustly, the judge may set aside
the conviction, and in addition the defendant has the right of
appeal.
People from all walks of life and from across the political
spectrum are organizing to enact FIJA amendments. FIJA activists
are lobbying state legislators to support FIJA legislation or
referendums. FIJA legislation has been submitted to the
legislatures of several states, and legislators are prepared to
introduce FIJA in several others. Ballot initiatives are being
pursued elsewhere. And in all areas of the country, people are
spreading the word.
The judges and others within the government's courts have
long been waging a campaign of disinformation, so that jurors
won't even know what their rights are. We think it's past time
that the people themselves begin to demand that their rights as
jurors be respected. It's not just jurors whose rights are being
denied. Defendants, too, have the right to a fair trial by a
jury of their peers, and they have not been getting fair trials
because government judges have been systematically misinforming
jurors. In fact, this campaign to deny juror's rights has been
going on for so long now that many attorneys (and probably some
judges) are not even aware that these rights exist.
We have the opportunity to take back control of this country
and return the ultimate safeguard of the rights of the people
back where it belongs, to the people. Please join us in the
campaign to pass the Fully Informed Jury Amendment.
As one participant in the debates over the ratification of
the constitution put it:
"If a juror accepts as the law that which the judge states
then that juror has accepted the exercise of absolute authority
of a government employee and has surrendered a power and right
that once was the citizen's safeguard of liberty,--For the
saddest epitaph which can be carved in memory of a vanished
liberty is that it was lost because its possessors failed to
stretch forth a saving hand while yet there was time." 2
Elliot's Debates, 94, Bancroft, History of the Constitution, 267,
1788.