IF YOU ARE FACING CHARGES
The following is not intended to substitute for competent legal assistance,
nor is it to be construed as specific legal advice. However, we offer some
observations which may be of general interest.
First: it is important that you ask for a jury trial immediately upon being
charged. Ask to sign the relevant paperwork.
The prosecutor is likely to put pressure on you to accept a plea bargain
(guilty, but to a lesser charge). He or she may threaten to escalate or multiply
charges if you do not give up your right to trial by jury. Too often,
defendants are warned that if they insist on going before a jury, and then
lose, the punishment will be much worse than if they make a deal.
There are at least two good reasons to resist this intimidation, if you believe
injustice is being done to you. First, if you plead guilty to an unpopular law
or acquiesce to pressure when you are actually innocent (it happens!), you will
never know whether a fully-informed jury would have let you go scot free.
Or whether one tough juror would have been able to stand strong. If you
plead guilty to a felony, you can no longer vote, or serve on a jury, serve in
office, or own a firearm.
Secondly, if you are a "freedom fighter" consider that freedom never comes
cheaply. Yes, there is a chance you could go to the greybar hotel, having
failed to convince a jury. But if you would like to bequeath to your children
a freer society than we now have, and not a tyranny, fight the charges! Trial
by jury, like a muscle, will grow stronger with use, and has the clear potential
to rid our body politic of a lot of very abusive laws.
A "FIJA defense" is gaining in popularity as we see more and more "hung
juries" and outright acquittals of individuals charged with violating unpopular
laws, as well as more and more unconstitutional police procedures, and more
prosecutions which sometimes suspiciously resemble persecutions.
What is a "FIJA defense"? It is two pronged: the first phase is to inform the
community--especially the pool of jurors called to represent it--about the real
extent of the power that jurors wield; the next is to inform the jurors who
are actually seated to hear your case.
FIJA activists have used a number of approaches to inform the community.
FIJA "True or False?" brochures and other materials have been distributed at
many events where large numbers of people are gathered, usually with
enthusiastic response. Radio, television, and local newspapers have been
used to spread the message. Letters-to-the-editor seem to be especially
good, as are call-in talk radio programs. Frequently defendants, their friends
and family have done excellent jobs of educating each other and their
Friends can be encouraged to stand out front of the courthouse, or in the
juror's parking lot, and distribute FIJA brochures to all passersby. The best
time to be there is when the whole jury pool is first assembled (often on
Monday mornings; be there bright and early).
Thousands of people have now done this, the vast majority without any
trouble. Although a few people have been hassled, some even arrested, we
have never had anyone convicted of anything for passing out FIJA brochures.
Once the authorities discover there is nothing they can actually do to stop
brochure distribution, they stumble over themselves in their haste to dismiss
charges or otherwise back down. Perhaps they come to realize that
prosecuting you will mean giving FIJA brochures to your jury as evidence...
and they realize that distributing political/informational brochures in a public
place is a clearly protected first amendment right.
You're more likely to encounter trouble if you insist on distributing brochures
inside the courthouse, but it has been done successfully. In any case, if the
powers that be react at all, expect them to warn you first and ask that you
leave. Some of our activists have refused to leave because they were trying
to be arrested, but couldn't induce an arrest. And some "arresting
authorities" are now facing civil suits brought by FIJA supporters.
If you can rally some allies to help, you can quickly spread information about
jury power and how it puts the law on trial just as much as the defendant,
how some laws are much better than others and it's time the legislature got
a direct hit of public opinion, straight from the local jury's mouth. And all of
this can come out in letters-to-the-editor, fliers, talk show appearances, etc.,
which encourage jurors to do what's right, according to their own best
judgment and conscience.
You can also spread information about why the law you're accused of
breaking is a poor one, though FIJA is interested only in the process of
justice, and therefore doesn't take sides on any law or laws, at issue or
otherwise. You'll have to find a source of materials which pertain to your
case/cause, and if you do, you'll probably find that they mix well with FIJA
Trial by jury is actually being denied to people accused of committing any of
the ever-enlarging number of actions which are being classified as crimes
nowadays. The government merely establishes new, special jurisdictions to
process "certain types" of crimes, and makes sure that said jurisdiction
comes complete with no provision for trial by jury.
Jurisdictions like these operate at both state and federal levels. Consider:
you cannot now get a jury trial in administrative law courts, most state
family courts, nor when accused of major misdemeanors in some
jurisdictions, nor in most tax cases. We are seeking reform in this area (see
"MaxiFIJA"). Meanwhile, it may be in your best interest to make as much
noise locally as you can via media, etc., concerning any attempt to deny you
a trial by jury.
The other major approach to "telling" the jury is to get the message out during
voir dire (jury selection) and during closing arguments. Generally the judge
will not allow you or your attorney to come right out and tell the jurors that
they are judges of the law as well as the facts (more than once, anyway). Nor
will you be permitted to argue the merits or constitutionality of the law, at
least not until "telling" becomes mandatory--via FIJA legislation! Continued
attempts to tell these things to the jury may result in contempt of court
charges (for which charges, guess what: you don't get a jury!). In any case,
you may choose to "walk the line".
If you're trying to make a point by breaking the law, don't expect your point
to be made in court. You will not even be allowed to tell the jury why you did
it or what's wrong with the law or what the Constitution says. The jury will
hear and see only the evidence and testimony allowed by the judge, as
persuaded by the prosecutor, and you'll be facing a jury which has been told
in no uncertain terms it must follow the law as stated by the judge and
should (sometimes even "must") convict if the evidence supports a
However, you're not too likely to be stopped from simply reminding your
jurors about their role as the "conscience of the community", how the jury is
an important player in our system of justice, that juries stand as an important
buffer between the accused person and the power of the government, that
each juror has the power (and the responsibility) to do what is just, according
to his or her own conscience. Look them in the eyes if you believe you are
right, and let them know that you did nothing wrong.
You might tell them that without the jury's conscience and independent
judgment, the courts might as well substitute a computer for the jury. But
that they are in fact responsible only to themselves, their community, and
Saying these things can help the jury gain self confidence, and independence,
and may start them thinking about why they're there. Besides, everything
you're saying is not only true, it shows your respect for the jurors and the
FIJA stocks and sells tapes of talks by attorney Tony Serra and law
professor Steve Herzberg on how to talk to the jurors about their power,
intended primarily for other attorneys, but...
Finally, if in fact justice in your case means exoneration, then we wish you