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1990-08-29
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ANSWERING THE HARD QUESTIONS
by Larry Dodge
While on my road trip, in meetings, talk shows, and media
interviews, the same or similar questions came up again and
again, which obliged 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 lawbooks 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 juries 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 the jury is necessarily
responsible 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 them to
bring in a just verdict. That includes evidence, testimony, law,
conscience, circumstances--whatever.
Additionally, any restrictions placed upon the rights and
powers the jury may exercise in fulfilling its responsibility to
the defendant are violations of his right to a fair trial.
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 diminish, since
more people would feel they'd received justice at 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, at least with respect to some sorts of offenses.
Abortion, drugs, pornography, gun ownership, etc. might find more
acceptance in some communities than others. We think it's wrong
to try to force a diverse society into a homogeneous mold, and
force every person or every community to conform to someone
else's notions of how to behave. Nevertheless, the overall
thrust and effect of FIJA will be to promote tolerance
everywhere. It will be difficult for majorities to deny the
rights of minorities, since minorities (and we're all minorities)
can defend themselves with jury veto power.
American society has disintegrated into a multitude of
hostile camps, each trying to control the others, and each
fearful of restrictive and oppressive laws passed by the others.
And there's a vulture out there, feeding on the carnage.
Otherwise known as the government, this vulture feeds on fear,
distrust and intolerance, growing ever larger and more powerful,
at the expense of the liberty and the rights of all of us. FIJA
is the magic bullet that may save the day.
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?"
Larry Dodge is the National Field Representative for the
Fully Informed Jury Amendment, P.O. Box 59, Helmville, MT, 59843.