"HARDONES"

ANSWERING THE HARD QUESTIONS ABOUT "FIJA"

THE FULLY INFORMED JURY ACT by Larry Dodge

As National Field Representative for the Fully Informed Jury Association, I face the same or similar questions again and again ­­ in front of legislative committees, during media interviews, speaking to groups, etc. This has encouraged me to come up with a repertoire of satisfying answers. I want to share these with you, since you may need to respond to similar questions as you become increasingly active on behalf of FIJA, though I make no claim that mine are the best or only answers.

Most of these answers are to questions which arise from a basic misunderstanding ­­that fully informing jurors will somehow give them new rights and powers. It will not, of course. But it's been so long since jurors were told the truth about their right to judge both law and fact, and to vote according to conscience, that the idea seems novel­­and is new to many people.

That is why it is important to make it clear that FIJA would require trial judges to "resume the practice of reminding jurors of their rights." It's important to maintain the high ground here, because the doctrine of jury nullification and the right of a jury to bring in a general verdict are already the law of the land. To argue against informing jurors about their rights is therefore to contend that justice is better served if trial jurors are kept ignorant and/or misinformed by the court!

Won't FIJA lead to anarchy, with juries judging the law?

FIJA is actually an antidote to the kind of "anarchy" we're already experiencing as a result of passing more laws than people can or will obey, especially laws prohibiting "victimless" or "political" crime (crimes against the government, not people). When the government makes victimless activities into crimes, the result is often more crimes with victims, too. For example, making certain drugs illegal causes their price to rise, which in turn causes users to "push" drugs onto new customers and to engage in violent crime to raise money to buy them.

This kind of "anarchy" thus yields both soaring crime rates and overcrowded prisons, but the usual response by lawmakers is to pass still tougher laws against victimless acts, which in turn causes still more anarchy.

That is why the "cure" is more likely to begin with juries than with legislatures. Juries are made up of ordinary people who are more likely to know a bad law (or a bad application of a good law) when they see it than the lawmakers. That's because they develop their opinions more from common sense and experience than from interest­group pressure.

Then, after a series of juries consistently refuses to convict people of breaking a certain law, the incentive is for lawmakers to change or erase it­­lest they lose the next election. In other words, juries supply the lawmakers with non­political, real­world information about the laws they've passed.

Eventually, when the law books become cleansed of unpopular or confusing laws that juries won't use, the rate of compliance with the remaining laws will be high because they will enjoy public respect and understanding.

Additionally, whenever jurors end up apologizing to a defendant for convicting him or her of breaking a law they themselves don't agree with (which is quite often, nowadays), only to find out later that they had the power to vote according to conscience, but were not told about it (or worse yet, were instructed they could not resort to conscience), their own respect for the law and our justice system can only diminish. In other words, failure to inform juries of their rights breeds anarchy.

Four states (Indiana, Oregon, Maryland, & Georgia) have long had general provisions in their constitutions acknowledging that juries may judge the law, and over twenty other states allude to that right in their sections on freedom of speech or libel. To my knowledge, no "anarchy" has resulted because of these provisions.

Couldn't the jury convict someone of a worse crime than the one charged?

No. Juries do not and would not have the power to escalate or invent charges against a defendant. Their power may only be exerted in the direction of mercy, never of vengeance. The latest versions of FJA make this explicit.

Nor can juries "make law" by which to convict a defendant. That remains the job of the legislature. They may, however, reduce the charges against an accused person, so long as the lower charge is a less serious form of the same crime he/she was originally charged with. (Definition of charges "wholly contained" in an original charge is ordinarily determined by the state's high court, then revealed to the jury by law or upon the motion of either the prosecutor or defense attorney.)

Furthermore, the decisions of juries do not and would not establish legal 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 it happens periodically with or without the jurors being informed of their right to judge the law.

What to do? First, improve the selection process. Jurors should be randomly selected from the population as a whole. If, instead, a jury is selected so that all its members are biased in favor of acquitting a guilty person, it 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, and take no steps to see that at least some of the jurors are not prejudiced. In sum, 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 informed that each of them may vote according to his own conscience, no matter what the law says or how the other jurors vote, as FIJA provides, there would at least be a possibility that one or more jurors would not go along with the rest, thus hanging the jury with their "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 occasional success, been able to sue perpetrators for damages. In other instances, crime victims 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 jury­room deliberations, nor punish jurors for the verdict they bring in, nor make them explain why they reached the verdict they reached. It is no accident that our nation's founders provided for appeals of guilty verdicts, but not of acquittals: they intended the jury to have the power to halt a prosecution.

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 an equal and corresponding right. In this case, that is the right to consider everything necessary for him or her to determine a just verdict. That includes physical evidence, the defendant's motives, testimony, the law, circumstances­­ whatever, including the juror's own sense of right and wrong.

Additionally, any restrictions placed upon the options the jury may exercise in fulfilling its responsibility to judge a case as fully and fairly as possilble may be considered not only as encroachments upon the rights and powers of the jurors (i.e., jury tampering at its worst), but also as violations of the defendant's 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 probable that the number of jury trials involving some of the least popular and most frequently broken laws would increase­­until prosecutors began choosing not to attempt convictions under them any more, police began letting up on enforcement, and the legislators began reading the writing on the jury­room walls.

But the peak should soon pass, and with it, the laws responsible for it. Without cases involving or resulting from victimless/political crime laws, the courts would be very quiet and uncrowded places­­with ample time and resources to devote to serious matters, like jury trials for people accused of crimes against people and property.

Under those circumstances, most defendants would no longer ask the jury to judge the law, though they might still want their motives heard and considered. This could add a little time to an occasional trial, but nothing compared to the time wasted in today's courts trying crimes against the state.

Additional time and cost would be saved by the reduced incidence of appeals by those who feel they did not get a fair trial the first time through: more people would feel they'd received justice at their original trials, and it would take a very good argument to sway an appeals court to acquit after a fully informed jury has delivered a verdict of "guilty".

Ultimately, though, one must ask what's more important, quick and cheap service at your local courthouse, or justice for accused individuals, with citizen­jury feedback to the lawmakers as a byproduct essential to the proper operation of democratic proces?


Wouldn't there be a lot of variation from place to place in jury verdicts, according to local community standards?

Perhaps, though it could hardly compete with the variations in verdicts already being handed down by different judges in bench trials (i.e.,without juries) and in the sentences they give, even in jury trials. Nor could the variations in thinking between this or that group of twelve citizens ever compare with variations in the quality of the prosecution or defense efforts. What little research there is on this issue shows that there is indeed high consistency between jury verdicts in similar cases around the nation.

It might even prove true that fully­informed­ jury verdicts would show more local variation than jury verdicts currently do with respect to actions which are somewhat controversial, or which have "constituencies". FIJA could help identify places where, say, failure to wear seatbelts, pornography, recreational drug use, gambling, abortion, gun ownership, home schooling, homosexuality, or any of many other values, preferences and behaviors will be tolerated.

This is important in a land where majority

rule, alias democratic process, has long since replaced the original plan for a constitutional republic. Democracy easily degenerates into "love­it­or­leave­it" majoritarianism, but rarely provides minorities a place to go and escape harassment and homogenization. FIJA might help illuminate some viable destinations.

Variation in verdicts can also illuminate general movements in moral philosophy, and lead society from various dark corners into enlightenment. Let us not forget that slavery was dying at the hands of jurors well before any laws were changed or the Civil War was fought, that our freedoms of speech, press, and peaceable assembly all trace to refusal of juries to apply laws against these behaviors, and that juries brought America to her senses on the issue of Prohibition.

Would FIJA give interest groups and other minorities another arena in which to fight?

Most people, we hypothesize, would rather guarantee and enjoy their own liberty than damage someone else's. But as long as most laws are passed to please or appease special­interest groups, on a winner­takes­all basis, the name of the game will be rancor, and the usual result will be mutual coercion.

The overall thrust and effect of FIJA should be to counteract that game, by promoting self­ interested tolerance. We're already finding people are willing to join together in unusual coalitions to make FIJA into law. This is not so much because they've come to appreciate each other's culture, race, point of view, or activities (though we see evidence of this,too), but because they're willing to let the other guy "do his thing", as long as they may also do theirs, unharassed­­a "win­win" game, then.

FIJA should also make it more difficult for majorities to deny the rights of minorities even if they never choose to tolerate each other, because any minority (and we're all minorities by one or another definition) will be able to defend itself via jury veto power.

The real payoff is that government, which tends to grow in power and intrusiveness with every escalation of distrust and intolerance between warring factions of citizens, may become less essential to the maintenance of social order as trial juries resume their check­ and­balance function, and "live and let live" re­emerges as the American ethos.

What 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 dependably enforced by jurors. Maryland and Indiana report good success with nullification instructions, allowed under their constitutions since the nineteenth century.

Can we trust jurors to make intelligent decisions about the law, especially when the lawyers try to dismiss anyone who seems to have brains or education?

Neither intelligence nor education is a prerequisite to understanding right and wrong, and many an excellent verdict has resulted from the observations or opinions offered by

persons of modest mental capacity and/or minimal academic achievement. E.g., twelve illiterate Englishmen decided William Penn had done no wrong by preaching a Quaker sermon, though doing so was illegal in 1670.

In short, if a jury can understand the law, it can certainly judge the merit of applying it. If a jury cannot understand the law, then no one should be expected to obey it. Instead, the legislature should make it understandable.

If a defendant worries that a jury will not be able to understand the law he's accused of violating, he can opt for trial by a trained legal professional­­the judge. But a better bet may be to argue to a fully informed jury that the law is confusing.

Besides, knowledge that the jurors are going to be informed of their right to judge the law and to consider the justice of applying it would give an incentive to attorneys on both sides of a case to select at least a few jurors who appear able and willing to apply moral/ philosophical reasoning­­and perhaps to show some leadership­­during jury deliberations. In short, FIJA should have a positive impact on the quality of juries and their verdicts.

Finally, it is both elitist and erroneous to accuse the ordinary citizens of this country of not being able to govern themselves when the opportunity or need arises. Political science research has several times shown that people become extremely conscientious, cautious and responsible when they sit on a jury­­more so than at any other time in their lives.

What would become of the practice of basing verdicts upon legal precedents?

Case law, or precedent, would remain useful as advice and information open for consideration by all parties to a trial, but its use as a basis for verdicts in current jury trials would end. One major objective in fully informing juries of their rights and powers is to provide ever­evolving jury feedback to our legislators, so that regular adjustments can be made in the rules that we live by, instead of relying on historical precedent in the courts.

A match between the law and community standards 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 become too large, we invite anarchy, which in turn invites totalitarianism.

Wouldn't 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 defense attorneys who may become involved in any given case. Add to them our media­assisted fads and fashions in law enforcement, and the very unequal kinds of "deals" which are so regularly pushed upon defendants by the prosecutor and/or the judge outside of the courtroom (too 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 this problem only to the extent that both the prosecution and the defense have done everything in their power to select the least knowledgeable and most manipulable jurors available. If those trying to make an "equal protection" argument against FIJA really cared, they'd ask for laws ensuring random selection of jurors from as broad a base as possible.

FIJA may provide partial remedy, because the chances of equal treatment of defendants would appear to increase if the jury were to receive complete and accurate instruction in its veto powers­­not just because information makes fairness more possible, but for at least two other reasons:

(1) if jurors are lied to about their rights and powers, a certain percentage of them can be expected to see through the falsehood, then to rationalize reciprocating that dishonesty by lying to one or both of the attorneys and the judge during the selection process. Just what they may be covering up or misrepresenting, and why, will certainly vary from jury to jury, and that is exactly what the doctrine of equal protection rails against;

(2) When both the prosecution and defense attorneys 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 able and willing to consider not only factual but also moral­philosophical 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 better­quality juries and more equal treatment of defendants under the laws that those juries work with.


Could FIJA cause a great increase in the number of hung juries?

In the short run, perhaps, as laws which are hard for people to understand, identify with, or apply are evaluated by juries. As "mercy buffers" between the power of the state and the accused individual, and between majorities and minorities, a certain frequency of inability to reach a consensus is to be expected.

But that's the point: it's important that there remain at least one strong institution of government which must achieve unanimity in order to make a decision, since most series of usurpations of rights in general begin with majority attacks on the rights of unpopular minorities or individuals. In other words, hung juries can be worth their weight in justice and prevention of government excess.

On the other hand, juries always have a responsibility to match, and in some states to determine the degree of punishment for those they convict. When the trial is over, other members of the community often want to know how and why the verdict was reached, or the punishment agreed upon. This can provide a strong incentive for the jurors to make a serious attempt at unanimity.

When that incentive isn't strong enough,

and a long series of hung juries on cases involving a particular law occurs, it sends a powerful message to lawmakers that reform is necessary. Such a series may reflect public demand for more simplicity, clarity, precision, fairness, latitude, relevance or other important attrributes in that law. A beauty of feedback from juries is that it is rarely a statement of special interest: hardly ever do all twelve (or even all six) people on a jury share a single political goal or viewpoint, and the chances that all the people sitting on a series of juries will do so are utterly remote.

The relative frequency of hung juries can therefore be read as a measurement of true public sentiment about the law. The more responsive our legislatures become to that measurement, the stronger the association between community moral standards and the law will become, and the fewer hung juries there will be.

Some versions of "FIJA" specify that a person cannot be disqualified for jury duty because he expresses a willingness to judge both law and fact. Wouldn't this make it hard for prosecutors to eliminate people they consider "soft" on a given law, or on particular punishments which go with being found guilty of breaking it?

First, this objection begs the question of whether jurors should ever be screened for service on the basis of how they feel about certain laws and/or punishments. In some nations with a tradition of trial by jury, the first twelve people selected by lot or other random method serve as a jury­­no voir dire process, no dismissals for cause (other than evidence that the person selected has a direct interest

in the outcome of the case), no peremptory challenges, nothing. Some argue that this is the best way to approximate the "jury of one's peers" specified by our Constitution.

So, in answering this, I always make it clear that I do so "only for sake of argument", because I believe that once we begin to set "criteria" for eliminating potential trial jurors, beyond disqualifying those who have a "direct interest", there is no logical way or place to stop, or to keep the selection process from turning into jury­stacking contest between the prosecution and defense.

The idea of this provision in FIJA is to eliminate one major impediment to honoring the defendant's right to trial by a fair andimpartial jury of peers. When we allow the prosecution to weed out people who might have qualms about the law in question, or about the punishment which the state says should accrue to those convicted of breaking it, we indirectly endorse trial by government, not by jury: only those who agree with the government are allowed to serve.

But the voir dire process is not going to go away because of FIJA, nor will the effort and money which currently goes into building "favorable juries" by both sides, because our adversarial system of justice demands it.

Therefore, one good answer to those who attack FIJA because "you might not be able to get the death penalty", or "some nut on the jury might hold out for acquittal just because he doesn't think drugs should be illegal", is to remind them that peremptory challenges would still be allowed, even if all the "objectionable" potential jurors could not be dismissed for "cause".

And should the prosecution use up all of its peremptory challenges, and still be unable to purge a given jury of all those who might possibly have objections to a particular law or punishment, it may be time for the state to recognize that such extensive reluctance to use a certain law, or apply certain sanctions, may be a reflection of changes in community standards­­changes to which prosecutors, as public servants, should be more responsive than antagonistic.

"We are a nation of laws, not men."

Some who oppose FIJA utter this one­ line cliche as though it should stop us in our tracks, once we fully appreciate its profundity.

I like to point out that Nazi Germany was a "nation of laws", too, and that when its war

criminals were brought to trial in Nuremburg, they tried to hide behind those laws­­only to find that the rest of the world insisted that they be judged according to conscience!

The point is, until the Great Spirit or Creator or Lord of Lords comes down and sets us all straight, it is we ourselves who will not only have to make the laws we live by, but take responsibility for them. So far, the best institution ever devised for so doing is the common­law trial jury. We want everyone to know that before sitting in judgment of fellow human beings, which is why there is a FIJA movement.

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Larry Dodge is the National Field Representative for the Fully Informed Jury Association, P.O. Box 59, Helmville, Montana 59843. (406) 793­5550


Story #2

WON'T FIJA LEAD TO ANARCHY?

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[1] FIJA may be an antidote to the current anarchy, crime rates, & prison crowding caused by victimless/political crime laws:

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[a] long series of jury refusals to apply such laws will advise legislatures to rescind or modify them;

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[b] respect for/compliance with remaining laws will increase, as they more accurately reflect community standards;

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[c] secondary crime, caused by victimless crime laws, will necessarily subside, for lack of motive;

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[d] respect for the criminal justice system, including trial by jury, will increase as jurors are told the truth by courts.

[2] Maryland, Georgia, Indiana, and Oregon constitutions have general provisions guaranteeing the right of jurors to judge law as well as fact, and have had no resultant "anarchy" .

Story #3

COULD FULLY INFORMED JURIES ESCALATE OR ADD NEW CHARGES?

[1] No. Juries have never had such powers, and FIJA does not create, grant or reveal them. Jury judgment of law can operate only in the direction of mercy, which may include a reduction of charges, provided the charge they choose is

"wholly contained" within the original charge. Most recent versions of FIJA make this explicit, though it is not actually necessary to do so.

[2] Juries cannot "make law" or "set precedent" either. Their power to judge the law and its application is limited to the case at hand.

Story #4

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WOULD FIJA ENCOURAGE JURIES WHO ARE PREJUDICED AGAINST THE VICTIM TO ACQUIT GUILTY DEFENDANTS?

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[1] Prejudiced juries are a result of prejudiced jury selection, not of informing jurors of their right to judge both law and fact. If both attorneys and the judge and all twelve jurors are bent on acquitting a guilty defendant, it will happen, regardless of the charge to the jury.

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[2] If jurors were encouraged to follow their own consciences when the law or fellow jurors seem wrong, as FIJA would inform them they have the right to do, it might actually reduce the (already rare) instances of jury corruption: one or more conscientious jurors might decide to thwart the prejudice of the others, by voting "guilty".

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[3] Victims unsatisfied by a criminal trial jury verdict may seek relief via civil suit, perhaps a federal civil rights action.

Story #5

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DO JURORS HAVE THE RIGHT OR JUST THE POWER TO JUDGE THE LAW ITSELF?

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[1] They have both. They have the power, because (a) no one can tell the jury what verdict it must reach, nor restrict what goes on in jury­room deliberations; (b) no one can punish jurors for the verdict they bring in; (c) jurors can't be forced to explain themselves or otherwise account for their decisions; and (d) a verdict of not guilty cannot be appealed by the government.

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[2] They have the right, because (a) they bear the responsibility for deciding on a just verdict for the accused person; (b) the defendant has a right to a full and fair hearing, which depends upon the jury knowing all its rights and responsibilities; and (c) the authors of the U.S. Constitution recognized it as a right.

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[3] Whether we like the idea or not, there is very little real­world difference between a right and a power: generally, if someone has the power to do something with impunity, it's considered a right, ipso facto. Dictionaries treat the words as synonymns.

Story #6

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WOULD PASSAGE OF FIJA FLOOD THE COURTS WITH JURY TRIALS?

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[1] For a time, demand for trials by jury might increase from the current 3­5% of all cases, until those laws which the public finds least relevant to its safety are no longer used by juries, enforced by police, applied by prosecutors, or espoused by lawmakers.

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[2] Once the courts again focus on trying crimes against persons and property, it will become pointless and rare for defendants to ask juries to nullify the law, because laws against actions which inflict damage are inevitably supported by the community.

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[3] Big savings in court time and cost could be realized via fewer appeals, expectable as fully informed juries deliver justice in the first place. Defendants are likely to be both more satisfied and less inclined to try an appeal after conviction by jurors who knew they could have nullified the law and acquitted, but did not.

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[4] More courts and juries could be provided to meet demand, if ever necessary­­at less cost than more police and more prisons.

Story #7

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WOULD CONSISTENCY IN JURY VERDICTS BE SACRIFICED?

No two trials are ever "alike" anyway, but...

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[1] It is unlikely that alleged "variation" in jury verdicts rendered in different places and times for similar crimes can compete with variations in verdicts­­and in sentences­­given for similar crimes by different judges. This is because group decisions are less likely to be extreme or unique than individual decisions. Telling jurors the truth about their rights is not likely to change this.

[2] Different juries are likewise inherently more consistent than different individual attorneys, whose relative competence can vitally affect how a case turns out in one time or place, and how a similar case concludes elsewhere, with different attorneys.

[3] Variation in verdicts can help people whose values contrast with the majority find supportive surroundings, and can initiate socially beneficial evolution of the laws we live by.

Story #8

WOULD MINORITY & INTEREST GROUPS ABUSE EACH OTHER WITH FIJA?

[1] Experience to date tells us "no". FIJA is quite unique in its attractiveness to groups who have opposing political views. It is probably because, unlike most issues, everyone wins if anyone wins. The FIJA organization is thus an "unholy coalition", which seems to encourage tolerance among those in hot pursuit of a common goal: "justice for me...and, incidentally, you too."

[2] Even if this kind of tolerance never extends beyond the FIJA organization itself, fully informed juries will make it easier for minorities (and we're all minorities by one or another definition) to defend themselves in court against any majoritarian attempts to take advantage of them, so long as verdicts either of "guilty" or "not guilty" require a unanimous vote of the jurors, and jury selection is reasonably random.

Story #9

WHAT IF THE JURY NULLIFIES

A GOOD LAW?

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[1] Unless the lawyers and judge have conspired to stack the jury with people they can count on to let prejudice or bigotry guide their deliberations, this is a straw man. Juries generally are very supportive of laws they see as essential to the safety and security of their communities­­i.e., "good laws". And all the jurors would have to agree to nullify a good law in order to get an acquittal on that basis, so the chances are infinitesimal.

[2] Research has shown that people tend to be more responsible and conscientious as jurors than at any other time in their lives. This is probably why none of the states whose constitutions have explicit provisions acknowledging the right of jurors to judge the law have reported problems in administering justice as a result of jurors being informed of that right.

Story #10

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ARE JURORS GENERALLY INTELLIGENT & EDUCATED ENOUGH TO JUDGE LAW?

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[1] Neither intelligence nor education is a prerequisite to judging right and wrong, which is what juries do. Twelve illiterate men decided it was not wrong for William Penn to deliver a Quaker sermon, even though it was illegal at the time. Many excellent verdicts have come from people of ordinary mental capacity. In short, if a jury can understand the law, it can certainly judge it.

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[2] If the jury cannot understand the law, then it's unreasonable to expect ordinary people to obey it, which is an excellent reason to acquit anyone accused of breaking it, and to continue to do so until the legislature makes the law understandable.

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[3] Any defendant who doubts the ability of a jury to understand the law he/she is accused of violating can always opt for trial by judge, and thus be tried by a trained legal professional­­but may be better off arguing that the law is vague or confusing to a fully informed jury.

Story #11

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HOW WOULD FIJA AFFECT CASE LAW, OR "PRECEDENT"?

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[1] Previous court decisions would remain useful as examples of earlier applications of a law, but no jury should be expected to base its decision on how a law has been interpreted in the past.

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[2] Community standards tend to evolve slowly, so that radical departures from previous interpretations of law by juries would be rare, and always in the direction of mercy. But standards do evolve, and must evolve, or we might still be hanging "witches", sending runaway slaves back to their owners, or prosecuting people for operating a tavern. One of FIJA's main objectives is to provide an orderly, routine basis for evolution of law, to keep the gap between what's moral and what's legal to a minimum. We believe the most appropriate and least political way to reach that objective is to institutionalize feedback to legislatures from citizen juries. To insist that juries follow precedent would defeat

that goal, encourage anarchy, and invite totalitarianism.

Story #12

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WOULD FIJA VIOLATE THE FOURTEENTH AMENDMENT (EQUAL PROTECTION)?

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(Equal protection under the law is a conceptual ideal which is regularly "reality­checked" by our judicial system: judges have their biases, attorneys theirs, jurors theirs. Media often make matters worse, by setting & aggravating fads in law enforcement. The worst offenders are prosecutors whose plea­bargaining is too often based on race, creed, politics, and ability to pay. At least juries are likely to contain people of different backgrounds, so that at least some "averaging" takes place in the direction of equal treatment of defendants. To improve upon this, we urge that every effort be made to more randomly select trial jurors.)

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FIJA might help: (1) people who lie during voir dire in retaliation for being misinformed about their rights by the judge might be truthful if told the truth; (2) the lawyers, knowing they'll be facing a fully informed jury, might pick at least some jurors they believe capable of moral philosophical debate, fairness, and leadership.

Story #13

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COULD FIJA CAUSE A BIG INCREASE

IN THE NUMBER OF HUNG JURIES?

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[1] There is a backlog of laws which have escaped jury review since the Supreme Court allowed judges to withhold information about the right of jurors to judge both law and fact. That may be why America leads the world in % of population imprisoned, and why there could be many hung juries following passage of FIJA­­ but if so, it should be regarded as a sign of relief from injustice.

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[2] Juries hung because some of their members disagree with the law are actually performing a service for society: they are sending messages to lawmakers in a peaceful, routine, and institutionalized way that it's time for changes in the law. When those changes have been made, hung juries will again be rare.

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[3] The wrong way to deal with discrepancies between current moral standards and the law is to avoid hung juries by allowing juries to convict without reaching unanimity. This threatens the individual rights of minorities, and fosters tyranny of the majority.

Story #14

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WOULD FIJA VOID SOME GROUNDS FOR DISMISSING POTENTIAL JURORS?

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[1] Yes. Jurors could no longer be dismissed for "cause" if they express a willingness to judge the law itself, or qualms about the punishment a convicted defendant might receive. But juries were invented in order to provide a buffer between the accused and the state­­to find their verdicts after review of both law and fact, and to match the punishment to the crime. So there is no valid reason to dismiss jurors for saying they might want to take the law and/or the punishment into account in their deliberations.

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[2] An attorney can also use a peremptory challenge to dismiss a juror, though these are usually few in number. If there are not enough such challenges to dismiss everyone willing to judge law and/or punishment, it may indicate that the citizenry sees that law as defective in some way­­and the government should listen. .

[3] Ideally, voir dire should be abolished. It's just a costly fight to see who can best "stack" a supposedly "impartial" panel.

Story #15

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"WE ARE A NATION OF LAWS, NOT MEN."

[1] So was Nazi Germany. And when Nazi war criminals were tried in Nuremburg, they tried to hide behind the laws of that land, only to find that the rest of the world insisted that they be judged according to conscience.

[2] We not only have to make the laws we live by, we have to take responsibility for them. So far, the best institution ever devised for so doing is the common­law trial jury, by judging both law and fact in search of justice. We want everyone to know that before serving as a trial juror. That's why there is a FIJA movement.

Story #16

Duncan­­I've condensed each of these questions and answers onto a series of fourteen "flashcards", and will show you a set when we meet later this week. I'd have to make separate calls to fax them at this point, and besides, they don't add any new information to the above­­just lots of pages. LD
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