NEW HOPE FOR AMERICA: 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 option, 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. 



     But  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.    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 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, 
to  escalate the charges against the defendant, or to create  new 
offenses  which  they think he has  committed.   Their  decisions 
affect only the case at hand and do not set precedents for future 
cases.   And if a jury convicts a defendant unjustly,  the  judge 
may  set  aside the conviction, or the defendant  may  choose  to 
appeal.



     People from all walks of life and from across the  political 
spectrum  are organizing to put FIJA on the election  ballot,  in 
up  to twenty states over the next two years.  We welcome  aboard 
anyone wanting to help in the campaign to put the Fully  Informed 
Jury Amendment on the  ballot.











Don Doig is National Coordinator for the Fully Informed Jury 
Amendment, P.O. Box 59, Helmville, Montana 59843. Phone (406)793-
5550.