FIJA TO THE RESCUE...Of Liberty and Justice for All.
by 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 intended to protect: ordinary, peaceful, productive Americans.
But they had an "ace in the hole", a trump they believed would suffice to hold this new,
experimental government in check. That was the right to a trial by a jury of one's peers.
You might wonder how a jury can restrain a government. The key is the fact that juries
can protect people from arbitrary and unjust prosecutions--and from bad laws. But, you
counter, the legislature creates laws. Aren't we supposed to obey them, and then ask our
legislatures for any changes that need to be made?
Traditionally, American citizens have had to use more substantial and direct means by
which to protect against governments grown too ambitious, and to resist oppressive laws
than to ask lawmakers for reforms. They have been and still are outgunned by wealthy,
powerful special interests, whose fortunes too often depend upon forcing people to
observe laws that are not in the public interest.
From the outset, America's Founders realized that the temptations of power and
corruption would someday be too much for any of the three branches of government to
resist, let alone check and balance in the other branches. They foresaw the folly of trusting
the government to protect individual rights, and realized that ultimately, citizens at the local
level, acting according to dictates of their individual consciences, would need to have the
final authority, the final check and balance, expressed as veto power over bad laws.
So they provided for just such a veto, a centuries-old legal doctrine carried over from
England to the colonies, via the common law, which holds that jurors may judge whether
a law is a good law, a law that does not violate the rights of free men and women. By this
doctrine, if according to the dictates of their consciences, jurors do not think a law is just,
or if they think the law has been misapplied, they may decide not to convict an otherwise
"guilty" defendant. Even a single juror can thus prevent a conviction, by voting not guilty.
English common law also provides that if the jury as a whole decides to acquit a given
defendant, that decision is final. A verdict of "not guilty" cannot be overturned, nor can the
judge harass the jurors for voting for acquittal. Jurors can never be punished for voting
their consciences, even if they have taken a (false) oath to follow the law as stated by the
These principles date back to the time of the Magna Charta. In 1670, William Penn was
arrested for preaching a Quaker sermon, by so doing breaking the law of England, which
made the Church of England the only legal church. The jurors in his trial, led by Edward
Bushell, refused to convict him, despite being detained for days and held without food,
water, tobacco or toilet facilities. The most adamant
four of them were then put in prison for nine weeks.
When it eventually released the four by court order, the highest court of England
both acknowledged and established that trial jurors could not be punished for their verdicts.
Our freedoms of religion, peaceable assembly and speech thus all trace to our right to a
trial by a jury of peers, a jury unintimidated by the government.
The sedition trial of John Peter Zenger, in the American colonies, was another landmark
case. Zenger was arrested for publishing materials critical of the Royal Governor of New
York colony and his cronies, accusing them of corruption. While the charges were true, the
jury was told that under the law, truth was no defense.
Zenger's attorney, Andrew Hamilton, argued to the jury that they were judges of
the merits of the law, and should not go against good conscience to convict Zenger of
violating such a bad law. The jurors agreed. Zenger was acquitted in about fifteen minutes,
and his case helped establish the right to freedom of the press.
The Founding Fathers were clear about where they stood on the issue of the rights
"The right of the jury to decide questions of law was widely recognized in the colonies.
In 1771, John Adams stated unequivocally that a juror should ignore a judge's instruction on
the law if it violates fundamental principles:
'It is not only...[the trial juror's] right, but his duty, in that case,
to find the verdict according to his own best understanding, judgment, and conscience,
though in direct opposition to the direction of the court.'
There is much evidence of the general acceptance of this principle in the period
immediately after the Constitution was adopted." ("The Changing Role of the Jury in the
19th Century", Yale Law Review 74, 174 (1964.)
And Thomas Jefferson said, in a letter to Thomas Paine in 1789: "I consider trial by jury
as the only anchor yet devised by man, by which a government can be held to the principles
of its constitution."
However, during the nineteenth century, judges began chipping away at this vital and
fundamental right of free citizens, transferring more and more power to themselves, often
contending that jury review of law was "no longer necessary"--now that free, democratic
elections had replaced monarchy.
Then, in 1895, the Supreme Court said it should be up to the judge to decide whether
the jury would be told of its right to judge law as well as fact, unless a state's constitution
or statues provide otherwise. The Court acknowledged that jurors have the power to judge
the law, but jurors should already know that, and so need not be told. Today, jurors are
generally told that they must accept the law as the judge explains it, and may not decide
to acquit a person because their consciences are bothered by what seems to them to be
an unjust law.
Judges falsely tell jurors that their only role is to decide if the "facts" are sufficient
to convict the defendant, and that if so, they "must" convict. Defense attorneys are not
allowed to encourage jurors to vote to acquit because they believe the law is unjust or
unconstitutional, and defendants are usually stopped short and rebuked if they so much
as mention their motives to the jury.
In plain words, in what comes down to a power struggle between the people and the
judicial system in these United States, we, the people, have been losing.
In fact, jurors still, to this day, retain 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 admit that they believe they can judge the law, or who have doubts about the
justice of the law. This destroys the protections jurors were supposed to be able to muster
on behalf of fellow citizens against unjust prosecutions: How can our right to a trial by an
impartial jury be fulfilled if those who may have qualms about the law are routinely
excluded from jury service?
What can be done? The Fully Informed Jury Association (FIJA) was formed in order to
remind the American people of their rights and responsibilities as trial jurors, and promote
reforms which would reinforce our right to a common law jury. Strategies include
encouraging amendments to state constitutions, or the passage of state laws which will
require trial judges to inform jurors that if they think a law is unjust or unconstitutional--or
just confusing or misapplied--they need not convict even an otherwise "guilty" defendant.
People from all walks of life and points clear across the political spectrum are now
organizing to bring back to life the traditional institution of trial by jury, fully informed and
fully empowered. Legislative sponsors have been identified in dozens of states,
grassroots FIJA organizations have been formed in most states and local activists have
handed out hundreds of thousands of pieces of FIJA literature in front of hundreds of
courthouses, so that everyone ( jurors, judges, jailers, janitors--anyone who will take a
brochure) can learn more about the rightful power of jurors.
FIJA activism also includes advertising, participation in talk shows, lobbying, making
and broadcasting videotapes (ranging from half-minute public service announcements to
half-hour programs), writing letters to editors, questioning and endorsing candidates, and
publishing newsletters. Media coverage has been substantial and generally fair, as the
clippings reproduced herein demonstrate.
Judges and others within the government's courts have for too long been waging a war,
a campaign of disinformation, so that jurors will have no idea what their rights are, and trial
by jury is reduced to mere formalities, mere window dressing for what are really trials by
We think it's past time that the people themselves begin to demand that their rights
as jurors be respected. These are rights which accrue when people accept their civic
responsibility to judge another human being. They derive directly from the defendant's
right to trial by jury, and are therefore "unalienable".
It's not just jurors whose rights are being denied. Every time jurors' rights are ignored
or overridden, the defendant gets a less-than-fair trial. This is now a pervasive, constant
problem, because judges have been so busy systematically misinforming jurors for so long
that many attorneys--and judges--are not even aware that these rights exist.
FIJA represents a real opportunity for the citizens of this country to regain control of
the government and once again to function as the ultimate safeguard of our individual
rights. Let me close by urging you to become a member of Fully Informed Jury Association,
and work with us to reestablish "freedom and justice for all".
Don Doig is National Coordinator for the Fully Informed Jury Association.