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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.