ANSWERING THE HARD QUESTIONS ABOUT PROPOSED "FIJA" LEGISLATION by Larry Dodge As National Field Representative for the Fully Informed Jury Association, I used to 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 existing power and right to judge both law and fact, and to vote according to conscience, that the idea seems novel--even scary--to many people. That is why I make it clear, early in any presentation, that FIJA legislation would simply restore the right of the defense team to inform the jurors about their right to judge the law, and to argue its merits. 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 have been the law of the land for centuries. To argue against fully informing jurors about their power is therefore to contend that justice is better served if trial jurors are kept ignorant and/or misinformed by the court! The "hard questions": Won't jury judgment of law lead to anarchy? Fully informed juries are 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" shows up both as 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 interest-group 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 it--lest they lose the next election. In other words, juries supply the lawmakers with non-political, real-world 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. It has worked before. Jury nullification instructions were standard courtroom practice for the first decades of this country's history. The juries understood their rights and exercized them responsibly. As a result, laws were enacted, revised, repealed and enforced according to community standards and expectations, and were therefore generally respected. A law which caused anarchy, such as Prohibition, did not hold up for long as jury after jury refused to convict people under it. Four states (Indiana, Oregon, Maryland, Georgia) have long had general provisions in their constitutions acknowledging that juries are judges of 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 from these provisions, though it must be admitted that none of these states has any provision for telling trial jurors what's in their constitution. Finally, and very importantly, 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 regularly, 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 short, failure to inform juries of their rights has been breeding anarchy; fully informing them would help restore social order. Couldn't a fully informed jury convict someone of a worse crime than the one charged? No. Juries do not now have, nor would they acquire, the power to escalate or invent charges against a defendant by being told about their power to nullify. Their power may only be exerted in the direction of mercy, never of vengeance. As now, if a jury tried to escalate charges, or convicted despite poor-quality evidence, the judge would have a responsibility to call a mistrial. And if that should not occur, the option of appeal remains, with good grounds. Yes, some "mistakes" might still be made, but there is no reason to expect more wrongful convictions just because juries are being made aware of their power. Generally, the more trust people are shown, the more responsibly they behave, so the usual outcome of trusting jurors with the truth should be an improvement in the delivery of justice by jury. Nor can juries "make law" by which to convict a defendant. Lawmaking would remain the job of the legislature. Jurors 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. The list and definition of "lesser included charges" contained in an original charge is ordinarily determined by the state's high court, and may be revealed to the jury either 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 or case law for future trials. Because jury-room deliberations are not a matter of public record, and jurors do not have to explain how they reached their decision, verdicts have no direct effect upon the law itself. A series of acquittals under a certain law will tend to deliver a powerful message to lawmakers, however, encouraging them to revise or repeal laws that the people aren't using. So the jury has a major role in democratic process, but is not directly involved in lawmaking. 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 has happened and will happen 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. Selection of a corrupt jury requires corruption on the part of both the prosecutor and judge: it means that neither of them took any steps to see that at least some of the jurors were not biased of prejudiced in favor of the defendant. When the prosecutor deliberately allows a pro-defense jury to be selected, it amounts to a betrayal of the public trust, but it can happen. In any case, if the defendant is tried in front of a judge, prosecutor, defense attorney and jury, 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 could vote according to his own conscience, no matter what the law says or how the other jurors vote, as proposed FIJA legislation 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. 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 jury-room 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 also 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, because all rights, powers, and responsibilities of jurors derive from the right of the defendant to a fair and impartial judgment by peers, any restrictions placed upon the options the jurors may exercise in performing their task as fully and fairly as possible violate not only their rights, but infringe upon 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 (therefore) most frequently broken laws would increase--until frustrated and poltically conscious 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 jury-room 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 places--with ample time and resources to devote to serious matters, like jury trials for people accused of crimes against people and property. Additional time and cost would be saved by the reduced incidence of appeals by those who felt they did not get a fair trial the first time through: more people would feel they had received justice at their original trials, and it would take a very good argument to convince an appeals court to acquit after a fully informed jury had delivered a verdict of "guilty". Ultimately, though, one must ask what's more important, quick and cheap service at your local courthouse, or [1] justice for accused individuals; [2] citizen-jury feedback to the lawmakers; and [3] increased respect for the laws of the land in general? 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. For that reason, I think it's poor guesswork to expect that if all juries were from now on given similar additional information, concerning their power to nullify, they would suddenly begin delivering wildly inconsistent verdicts. But to the extent that observable patterns of variation did emerge, they might have great social benefit. Local variations in conviction rates for similar types of offenses would probably be greatest with in cases involving controversial laws, victimless crimes, and/or behaviors which enjoy "constituencies". If laws were nearly identical around the country, but areas where the probability of conviction under this or that law became known, people who felt that the law in question was wrong would likely be attracted to that area. For example, people who oppose laws requiring seatbelt use might prefer to live in an area where no one cares. Same with those who enjoy pornography, or use recreational drugs, or like to gamble, or need an abortion, or believe in unrestricted gun ownership, or want to practice home schooling without state regulation, or don't want to hide their homosexuality, or who seek alternative medical treatment, etc. In other words, certain parts of the country might then become renowned for their level of tolerance of this or that behavior, as much as for their weather, job opportunities, quality of schools, etc., and people to whom tolerance of their own particular points of view or other differences means much could move to places where they would not get in trouble. This is important in a land where rule by the majority, alias democratic process, has long since replaced the original plan for a constitutional republic. Democracy easily degenerates into "love-it-or-leave-it" majoritarianism, but rarely provides cultural minorities a place to go and escape harassment and homogenization. Fully informed jury legislation might help, and relieve society of the strains and pressures that legal standardization creates. Variation in verdicts can also illuminate general developments 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 back to her senses on the issue of Prohibition. Would FIJA give interest groups and other minorities another arena in which to fight? Most people, I 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 special-interest groups, on a winner-takes-all basis, the name of the game will be rancor, and the long-term result will be mutual coercion. The overall thrust and effect of fully informed jury legislation should be to counteract this negative-sum game, by promoting self-interested tolerance. Fully Informed Jury Association members include people of many different types. They are willing to join together in unusual coalitions to re-empower our nation's juries. My observation is that 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, unharassed--a "win-win" game, then. FIJA legislation 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 more criteria) will be able to defend itself better when jury veto power is "taught in court". 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-and-balance function, and "live and let live" re-emerges 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., a jury of 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 professional--the 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 reasoning--and perhaps to show some leadership--during 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 jury--more 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 ever-evolving 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 media-assisted 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 powers--not 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 moral-philosophical 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 better-quality 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 jury--no 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 jury-stacking 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 and impartial 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 go 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 standards--changes 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 laws--only 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 common-law trial jury. It is their own profound power and responsibility that we want jurors to appreciate before sitting in judgment of fellow human beings, which is why there is a FIJA movement. * * * From 1989 until he stepped down from the position for health reasons in 1994, Larry Dodge served as National Field Representative for the Fully Informed Jury Association, P.O. Box 59, Helmville, Montana 59843. (406) 793-5550 ??