I'd like to hear Randy and Donald Snook (and any other lawyers in the
group) comment on this:
It's extremely unlikely the judge will tell you this, because the law
doesn't require it.
Instead, expect the judge to tell you that you may consider "only the
facts" of the case and you are not to let your conscience, your opinion of
the law, or the defendant's motives affect your decision.
Many people don't get fair trials. Too often, jurors actually end up
apologizing to the person they've convicted - or to the community for
acquitting when the evidence clearly established guilt.
Something is definitely wrong when jurors feel badly about their verdict.
They should never be ashamed of their decision, or explain " I wanted to
vote my conscience, but the judge said we had to apply the law as it was
given to us, like it or not."
Most Americans are aware of their right to trial by jury, but how many know
that the jury has more power than anyone else in the courtroom - and that
in pursuit of a just verdict, jurors are free to judge the merits of the
law itself, its use in the case at hand, or the motives of the accused.
If jurors were supposed to judge "only the facts", their job could be done
by a computer. It is precisely because people have opinions, wisdom,
experience, and conscience that we depend on jurors, not machines, to judge
In a trial by jury, the judge's job is to referee the trial and provide
neutral legal advice to the jury, but judges rarely advise jurors of their
rights. And judges are not supposed to dismiss prospective jurors because
they admit having qualms with the law, or know about their right to judge
the law and its application. But such dismissals are routine.
We can only speculate on why: disrespect for the vital concept of
"government of, by and for the people?" Unwillingness to part with their
powers? Ignorance of jurors rights? (Yes, some judges do not even know
about the rights of jurors.)
Worse, many judges and prosecutors, apparently anxious to reassure the
public that they stand for law and order, do their best to select jurors
they know from prior experience to be "conviction prone." Then the judge
(wrongly) "instructs" them that they must reach a unanimous decision, and
soon, to avoid "overburdening the taxpayers."
Jurors are very rarely informed they may vote according to conscience, even
after swearing to "apply the law as given" - or told that it's better to
"hang" the jury than to violate one's conscience in order to reach
consensus. These are some of the reasons FIJA was formed.
FIJA stands for Fully Informed Jury Association. We are a network of
jury-rights activists and groups. Our current project is also known as
FIJA, the Fully Informed Jury Act or Amendment.
As law, FIJA would require that trial judges resume the former practice of
telling jurors about their right to judge both law and fact regarding each
and every charge against a defendant. We want the judge, like everyone else
in the courtroom, to tell the whole truth and nothing but.
Yes, it was normal in the early days of our nation and before, in colonial
times. America's founders realized that trials by juries of ordinary
people, fully aware of their rights as jurors, would be essential to
preservation of our freedom. As long as juries had the final say on the
laws of the land, the government would remain the servant, not the master,
of the people.
Our third president, Thomas Jefferson, put it like this: "I consider trial
by jury as the only anchor yet imagined by man by which a government can be
held to the principles of its constitution."
John Adams, our second president, had this to say about the juror: "It is
not only his right, but his duty...to find the verdict according to his own
best understanding, judgement, and conscience, though in direct opposition
to the direction of the court."
Yes. Only decades had passed since the freedom of the press was established
in the colonies when a jury decided John Peter Zenger was "not guilty" of
seditious libel. He was charged with this crime for printing true, but
damaging, news stories about the Royal Governor of New York Colony.
"Truth is no defense", the court told the jury! But the jury decided to
reject bad law, and acquitted.
Why? Because defense attorney Andrew Hamilton informed the jury of its
rights: he told the story of William Penn's trial - of the courageous
London jury which refused to find him guilty of preaching what was then an
illegal religion (Quakerism). His jurors stood by their verdict even though
they were held without food, water, or toilet facilities for four days.
They were then fined and imprisoned for acquitting Penn - until England's
highest court acknowledged their right to reject both law and fact, and to
find a verdict according to conscience. It was exercise of that right in
the Penn trial which eventually led to recognition of free speech,
religious freedom, and peaceable assembly as individual rights.
American colonists regularly depended on juries to thwart bad law sent over
from England. The British then restricted trial by jury and other rights
which juries had helped secure. Result? The Declaration of Independence and
the American Revolution!
Afterwards, to protect the rights they'd fought for from future attack, the
Founders of the new nation placed trial by jury - meaning tough, fully
informed juries - in both the Constitution and the Bill of Rights.
Bad law - special-interest legislation which tramples our rights - is no
longer sent here from Britain. But our own legislatures keep us well
supplied... Now, more than ever, we need juries to protect us!
In the 1890's, powerful special-interest pressures inspired a series of
judicial decisions which tried to limit jury rights. While no court has yet
dared to deny that juries can "nullify" or "veto" a law, or "bring in a
general verdict", some - hypocritically - have held that jurors need not be
told their rights!
That is why it is nowadays a rare and courageous attorney who will risk
being cited for contempt of court for informing the jury of its rights
without obtaining the judge's prior approval. It's also why the idea of
jury rights is not taught in (government) schools.
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