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IF YOU'RE CALLED FOR JURY DUTY...
Show up, of course. If this happens before FIJA becomes
law, just remember that it is always your right to decide on the
justice of any law you're being asked to apply to the accused.
So if the judge insists that you must consent to follow and apply
the law as he or she describes it, do not be intimidated: you may
in fact safely follow your conscience.
You can't be punished for voting your conscience, but may be
harassed (interrogated before or after serving, reprimanded, or
possibly even disempaneled if you urge other jurors to do
likewise; unbelievably, it has happened). But jurors are not
bound to do anything against their wills, nor bound by oaths
given under duress, nor required to return a unanimous verdict.
You shouldn't look at jury duty as an onerous task which is
to be avoided if possible. For one thing, it's your chance to do
some real good for yourself and the community. In many cases,
this may mean voting to convict someone whose behavior is truly
dangerous to life, liberty, and pursuit of happiness.
In other cases, it may mean acquitting someone because the
evidence to convict is not convincing, or because the law or its
application to the accused person appears wrong. Defense of the
rights of the citizens of your community is the whole point of a
jury system, and those include the rights of the accused and of
the jurors themselves. Justice therefore demands that common law
jurors insist on their right to consider both the facts of the
case and the merits of the law.
For these reasons, we urge you to regard jury service as an
opportunity, a right worth defending, or a personal duty, despite
whatever obstacles may be thrown in your path. Since most states
select jurors from voter registration lists, consider the chance
to serve on a jury as another reason to register to vote!
GUIDE TO THE LEGAL TRADITION: REFERENCES
Anonymous, "Note: The Changing Role of the Jury in the Nineteenth
Century", Yale Law Journal 74, No.1, 170-192 (Nov. 1964).
Focuses on the erosion of jury veto power during this period.
Barkan, Steven E. "Jury Nullification in Political Trials",
Social Problems 31, No.1, 28-44 (Oct. 1983). Also in Mike
Timko, Jury Nullification... History of the impact of jury
veto power on important political conflicts, in which the
people resisted oppressive government policies and were
arrested, only to be freed by their fellow citizens.
Particular emphasis on the Vietnam war protest movement, and
denial of jury nullification as a means to suppress dissent.
Gray and Shiras (Justices), Dissent: Sparf and Hansen v. U.S.,
156 U.S.51, October Term, 1894. These are the opinions of
the two dissenting justices on the case which effectively
ended routine instruction of juries in their right to judge
both law and fact. The majority ruled that while jurors do
have the power to nullify the law, judges need not tell them
about it.
Green, Thomas Andrew, Verdict According to Conscience:
Perspectives on the English Trial Jury, 1200-1800; The
University of Chicago Press, (1985). History of the English
common law jury.
Hans and Vidmar, Judging the Jury, New York: Plenum, (1986).
Discussion of empirical evidence that jurors behave
responsibly when given a nullification instruction.
Horowitz, Irwin A., "The Effect of Jury Nullification Instruction
on Verdicts and Jury Functioning in Criminal Trials", Law
and Human Behavior, 9, No.1, 25-36 (1985). Controlled study
of the effects of jury nullification instructions;
responsible behavior is seen to be the norm.
Horowitz, Irwin A., "The Impact of Judicial Instructions,
Arguments, and Challenges on Jury Decision Making", Law and
Human Behavior, 12, No.4, 439-453 (1988). See above.
Howe, Mark DeWolfe, "Juries as Judges of Criminal Law", Harvard
Law Review 52, 582-616 (1939). Good discussion of the
history of state constitutional provisions for jury veto
power and attacks upon this power by the judiciary.
Jacobsohn, Gary J., "The Right to Disagree: Judges, Juries, and
the Administration of Criminal Justice in Maryland",
Washington University Law Quarterly, Vol.1976, 571-607.
Discussion of current practice with regard to instruction on
nullification required by the Maryland constitution.
Lehman, Godfrey D., The Ordeal of Edward Bushell, Lexicon, San
Francisco, 274pp (1988). Available from the author, 333
Kearny St., San Francisco, CA 94108. (Historical novel
about the trial of William Penn and the imprisonment of the
recalcitrant jurors. Absorbing story.)
Scheflin, Alan W., "Jury Nullification: The Right to Say No",
Southern California Law Review 45, 168-226 (1972).
Excellent general legal history of the doctrine of jury
nullification.
Scheflin, Alan and John Van Dyke, "Jury Nullification: Contours
of a Controversy", Law and Contemporary Problems 43, 51-115
(1980). The best, and most up-to-date general study of the
legal tradition of jury nullification, and the attacks on
this fundamental right of free citizens.
Spooner, Lysander, An Essay on Trial by Jury, 224 pp (1852);
available as part of Mike Timko, Jury Nullification....
Lysander Spooner was a Massachusetts lawyer whose writings
are classic defenses of individual liberty. This book-
length essay on the common law jury is a passionate
defense of the fully empowered jury as a final barrier
against tyranny.
Timko, Mike, Jury Nullification, Volume 1, Libertarian Mutual
Press, Los Angeles (1987). Contains reprints of the Spooner
and Barkan articles, above, and Timko's own lead piece on
using the initiative process to require by law that juries
be given a nullification instruction. Order from Mike Timko,
Box 25908, Los Angeles, CA 90025. Quantity prices available.