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THE BILL OF JURY RIGHTS
The following six points were approved for inclusion in the
Bill of Jury Rights by voting delegates at the St. Louis "BJR"
Conference. Time ran out before several other items proposed for
the Bill could be debated and voted upon.
Conference participants were subsequently asked to send us
their signatures if they wanted us to attach them to the six
points that were approved, for publication in this issue of the
FIJActivist. The "signed" Bill, then, is to date as follows:
1. The inherent right of jurors to be informed of their duty
to judge the law as well as the facts in all cases shall not be
infringed.
2. In all criminal trials, a jury of at least twelve persons
must be seated unless declined by the defendant.
3. The jury must be told that unanimity is not required, but
if not achieved, a retrial is possible.
4. A guilty or innocent verdict must be established
unanimously by the jury.
5. Jurors must be randomly selected from the widest
possible base.
6. Jurors may not be disqualified from service except by
reason of conflict of interest.
Signatures of those who've signed to date will be reproduced
in the next FIJActivist. So far, we've received signatures from:
David S. Curland, NH; Toni L. Black, SC; Frank Nugent, MO;
Red Beckman, MT; Honey Lanham Dodge, TX; Ken Bush, MO; Godfrey D.
Lehman, CA; Sasha D. Kennison, SC; Marjorie C. Davies, OH;
Richard B. Boddie, CA; Dick Sunderman, WY; Norma D. Segal, NY;
Dave Dawson, WY; Paul Carroll, AZ; Eon Marshall, CA; Barbara
Anderson, NH; Bro. Jim Lorenz, CA; Dennis Kurk, MN; Beatrice
Kurk, MN; Walter A. Murray, Jr. WY; Richard Tompkins, AZ; Darlene
Span, AZ; Jerry Span, AZ; Larry Dodge, MT; Don Doig, MT.
BJR Conferees and Speakers note: If you haven't done so
already, you can still "sign" the Bill of Jury Rights, as
presented above. Just send us your signature. We'll cut it out
and paste it up with the others. We'll send you a master copy of
the signed document, and print it in the next FIJActivist!
"DRAFTERMATH"
Since the St. Louis conference, Texans for FIJA met to draft
a "Texas version", which proposes item 1 of the Bill of Jury
Rights as an amendment to the section of that state's
constitution dealing with trial by jury, and includes BJR items
2-5 as part of a list of proposed statutes by which to implement
and supplement that section, as amended.
The Texas version also divided the statutes into those which
would apply to all trials, and those which would apply only to
criminal trials. After discussing the Texas version with FIJA
activists in Colorado and Wyoming, collecting from them still
more suggestions, Larry Dodge brought the accumulated commentary
to FIJA HQ in Montana, where he and Don Doig added still a third
battery of statutes, applicable only to civil cases, and rewrote
the entire document, using as many suggestions as possible.
After some debate over whether some of the items in the list
should be separated out as "rights of the defendant", as opposed
to "jury rights" (resolved by deciding that all rights of the
jury are derivative of the right of defendants to trial by jury,
so that it makes no sense to separate them), a more-or-less
comprehensive Bill of Jury Rights was developed:
Proposed Constitutional Amendment, (either by legislative
referendum or citizen initiative) to the state constitutional
section on Trial by Jury:
"The inherent right of jurors to be informed of their duty
to judge the law as well as the facts in all cases shall not be
infringed."
Proposed statutes to implement the above amendment, and to
supplement state constitutional sections dealing with Trial by
Jury or with Rights of the Accused:
1. In all trials:
a. a jury of at least twelve persons must be seated
unless declined by the defendant.
b. jurors must be selected randomly, from the widest
possible base.
c. jurors may not be disqualified from service except
by reason of conflict of interest.
d. no evidence which either side wishes to present to
the jury may be withheld, provided it was lawfully obtained.
e. jurors may take notes in the courtroom, have
questions posed to witnesses, and take reference materials into
the jury room.
f. during selection, jurors may refuse to answer
questions which they believe violate their right of privacy,
without prejudice.
2. In all criminal trials:
a. the court must inform the jury of its right to judge
both law and fact in reaching a verdict, and failure to so inform
the jury is grounds for mistrial. The jurors must acknowledge by
oath that they understand this right, no party to the trial may
be prevented from encouraging them to exercise it, and no
potential juror may be disqualified from serving on a jury
because he expresses a willingness to judge the law or its
application, or to vote according to conscience.
b. the jury must be told that it is not required to
reach a unanimous verdict, but that failure to do so will produce
a hung jury, and a retrial will be possible.
c. A unanimous vote of the jury is required in order
for it to render a verdict of guilty or innocent.
d. the jury must be informed of the range of
punishments which can be administered if the defendant is found
guilty, and what, if any, exceptions to that range may be
available to the convict.
e. the court may grant no motions which limit the
individual rights of the defendant, most particularly his right
to have the jury hear whatever justifications for his actions the
defense may wish to present.
3. In all civil trials:
a. civil trial jurors also retain the traditional power
to judge the law, and must be so told by the court whenever the
government or any agent of the government is a party to the
trial, and where the amount in dispute exceeds $20.
b. agreement by three-quarters of the jury constitutes
a verdict.
c. no judge may overturn the verdict of the jury.
Appeals may be made only to another jury, and if these juries
disagree, the case shall be decided by a third jury.
"PLUS THREE"
The St. Louis conference produced three independent
proposals for wording which we would like to reproduce here as
additional food for thought.
FORMER JUSTICE JOHN I. PURTLE'S PROPOSAL
Trial juries shall be composed of 12 or more citizens chosen
at random from a pool consisting of all persons in the judicial
district over the age of 18 years. In criminal cases the verdict
must be unanimous and in civil cases, 75% must agree on the
verdict. Jurors shall be allowed to take notes during the trial
and may take the notes and all evidence into the deliberation
room.
Grand juries shall consist of 16 or more members selected
from the same pool and an indictment must be signed by 75% of the
panel. The grand jury shall have the right to select independent
counsel.
The inherent rights of jurors to be informed of their duty
to judge the law and the facts in all cases shall not be
infringed.
GODFREY DAVIDSBURG LEHMAN'S PROPOSAL
The inherent right of jurors to be informed of their duty
to judge the law and facts by general or special verdicts at
their discretion in all cases shall not be infringed.
Trial juries shall be composed of 12 or more citizens
selected at random from the widest possible community base in the
judicial district without peremptory challenge; challenges for
cause shall be limited only to cases of direct partisan interest.
Verdicts in all criminal trials shall be unanimous and in
civil trial shall be by 75%. Jurors shall be informed of their
options to select the third verdict of "Not Proven" when they are
dissatisfied with the limitations by either an outright acquittal
or conviction.
The court shall not withhold from the jury any evidence
which any of the litigants wish to bring before the jury, except
for evidence illegally obtained. In the case of evidence
obtained under questionable circumstances, the court shall
explain to the jury how the evidence was obtained without
revealing the evidence itself and the judge may express his
opinion as to proper admissibility.
But the evidence shall be allowed only if one-third (?) or
more of the jury so desire provided that a ruling of illegality
by the jury shall constitute an automatic indictment of the
persons who obtained such evidence, and who shall be tried
immediately under the criminal statutes of this state concurrent
with the originating trial.
Should defendants be acquitted in said trial, the suppressed
evidence shall be made immediately available to the jury in the
originating trial; but if said trial be already completed, the
freed evidence shall constitute grounds for a new trial upon the
request of either party.
The Seventh Amendment's proscription that "no fact tried by
a jury shall be otherwise re-examined in any court of the United
States, than by the rules of the common law," shall be understood
that no appellate court in any case may evaluate the jury verdict
neither to overrule nor uphold, being limited only to determine
if the trial was conducted fairly per Constitutional mandate.
If a question appears to the court or in the case of new
evidence, the court shall send the case back to the trial court
for a new trial before a second jury, equal in sovereign rank to
the first jury, which can deliver a new verdict or uphold the
first verdict. If the second jury overrules the first, a third
trial may be held, the final determination being the two agreeing
juries.
FRANK NUGENT'S PROPOSAL
ADMISSIBILITY OF EVIDENCE 1. It being the natural right and
ability of each and every citizen of this state to judge for
himself or herself as to the relevance of evidence, and it being
the natural right and ability of each and every citizen to resist
pre-judging any issue, no evidence shall be declared inadmissible
or otherwise kept from the jury on the grounds of relevance or
irrelevancy, nor on the ground that such evidence would be
prejudicial.
2. Should any judge rule that any evidence being submitted
was obtained illegally, the question of admissibility of such
evidence shall be turned over to arbitration consisting of the
following persons: prosecuting attorney, defense attorney or the
pro se defendant, and three jurors from the general jury pool.
If the arbiters decide by an 80% vote that such evidence was
obtained legally, then such evidence shall be placed before the
jury. A less than 80% vote shall constitute a finding that the
evidence was obtained illegally, and then it shall not be
admitted nor revealed to the jury; provided however, that such a
ruling of illegality shall constitute an automatic indictment of
the persons who obtained such evidence, and who shall be tried
immediately under the criminal statutes of this state concurrent
with the originating trial. Should defendants be acquitted in
said trial, the suppressed evidence shall be made immediately
available to the jury in the originating trial; but if said trial
be already completed, the freed evidence shall constitute grounds
for a new trial upon the prayer of either party.