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.