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1990-04-18
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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.