ANSWERING THE HARD QUESTIONS Sometimes people offer objections to FIJA, and need convincin

---
Master Index Current Directory Index Go to SkepticTank Go to Human Rights activist Keith Henson Go to Scientology cult

Skeptic Tank!

ANSWERING THE HARD QUESTIONS Sometimes people offer objections to FIJA, and need convincing that it's a good idea. Here are Larry Dodge's shortest and best answers to fourteen of the usual questions: DO JURORS HAVE THE RIGHT OR JUST THE POWER TO JUDGE THE LAW ITSELF? [1] They have both. They have the power, because (a) no one can tell a jury what verdict it must reach, nor restrict what goes on in jury-room 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. [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. [3] Whether we like the idea or not, there is very little real-world 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 synonyms. WOULD MINORITY AND INTEREST GROUPS ABUSE EACH OTHER WITH FIJA? [1] Experience to date tells us "No". FIJA is quite unique in its appeal 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 very different people 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 of "guilty" or "not guilty" require a unanimous vote of the jurors, and jury selection is reasonably random. WOULD CONSISTENCY IN JURY VERDICTS BE SACRIFICED? No two trials are ever "alike" anyway, but...[1] it is unlikely that alleged "variation" in jury verdicts rendered in different places and times for similar crimes can compete with variations in verdicts--and in sentences--given 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 assist people whose values contrast with the majority in finding supportive surroundings, and can initiate socially beneficial evolution of the laws we live by. WOULD FIJA VIOLATE THE 14TH AMENDMENT ("EQUAL PROTECTION")? (Equal protection under the law is a conceptual ideal which is regularly "reality checked" by our judicial system: judges have their biases, attorneys theirs, jurors theirs. Media often make matters worse, by setting and aggravating fads in law enforcement. The worst offenders are prosecutors whose plea bargaining 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.) 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. WON'T FIJA LEAD TO ANARCHY? [1] FIJA may be an antidote to the current anarchy, crime rates, and prison crowding caused by victimless/political crime laws: (a) long series of jury refusals to apply such laws will advise legislatures to rescind or modify them; (b) respect for/compliance with remaining laws will increase, as they more accurately reflect community standards; (c) secondary crime, caused by victimless crime laws, will necessarily subside for lack of motive; (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". WOULD PASSAGE OF FIJA FLOOD THE COURTS WITH JURY TRIALS? [1] For a time, demand for trials by jury might increase from the current 3-5% 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. [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 law, because laws against actions which inflict damage are inevitably supported by the community. [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. [4] More courts and juries could be provided to meet the demand, if ever necessary- -at less cost than more police and more prisons. WHAT IF THE JURY NULLIFIES A GOOD LAW? [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 communities--i.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. WOULD FIJA VOID SOME GROUNDS FOR DISMISSING POTENTIAL JURORS? [1] Yes. Jurors could no longer be dismissed for "cause" simply for expressing willingness to judge the law itself, or qualms about the punishment a convicted defendant might receive. Juries were invented in order to provide a buffer between the accused and the state--to find 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. [2] An attorney can also use a peremptory challenge (without reason) to dismiss a juror, though the number of peremptory challenges is typically limited to just a few. If there are not enough such challenges to dismiss everyone willing to judge law and/or punishment, it may indicate that the citizenry sees the law as defective in some way--and 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. "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 common-law trial jury, which has a right to judge both law and fact in search of justice. We want every one to know that before serving as a trial juror. That's why there is a FIJA movement. HOW WOULD FIJA AFFECT CASE LAW, OR "PRECEDENT"? [1] Previous court decisions would remain useful as examples of earlier application of a law, but no jury should be expected to base its own decision on how law has been interpreted in the past. [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. COULD FIJA CAUSE A BIG INCREASE IN THE NUMBER OF HUNG JURIES? [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 percentage of population in prison, and why there could be many hung juries following passage of FIJA this should be regarded positively, as a necessary part of adjusting our legal and moral priorities. [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 is time for changes in the law. When those changes have been made, hung juries will again be rare. [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. ARE JURORS GENERALLY INTELLIGENT AND EDUCATED ENOUGH TO JUDGE THE LAW? [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. [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. [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 professional. 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. WOULD FIJA ENCOURAGE JURIES WHO ARE PREJUDICED AGAINST THE VICTIM TO ACQUIT GUILTY DEFENDANTS? [1] Prejudiced juries are a result of prejudiced 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. [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 a 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." [3] Victims unsatisfied by a criminal trial jury verdict may seek relief via a civil suit, perhaps a federal civil rights action.

---

E-Mail Fredric L. Rice / The Skeptic Tank