                ANSWERING THE HARD QUESTIONS
                         by Larry Dodge

     While on my road trips, in meetings, talk shows, and media 
interviews, the same or similar questions come up again and 
again, which has encouraged me to come up with a repertoire of 
satisfying answers.  These I want to share with you, since you 
may need to answer similar questions during the campaigns ahead, 
though I make no claim that mine are the best or only answers.


Won't FIJA lead to anarchy, with juries judging the law?

     FIJA is actually an antidote to the anarchy we've already 
got, where there are too many laws for people to obey, and we're 
experiencing soaring crime rates and overcrowded prisons as 
direct results.  When juries consistently refuse to convict 
people of breaking a certain law, the incentive is for lawmakers 
to change or erase it, lest they lose the next election.  When 
the law books are cleansed of unpopular laws, the rate of 
obedience to the remaining laws will be high, thus reducing 
anarchy.

     Likewise, whenever jurors feel compelled to apologize to a 
defendant for convicting him (which is quite often, nowadays), 
and then later find out they had the authority to vote according 
to conscience, but weren't told about it, their own respect for 
the law and our legal system can only diminish.  In other words, 
failure to inform juries of their rights breeds anarchy.

     Four states (Indiana, Oregon, Maryland, and Georgia) already 
have general provisions in their constitutions acknowledging that 
juries may judge law, and 26 states have the same provision 
included in their sections on freedom of speech and libel.  To my 
knowledge, no chaos has resulted because of these provisions.

     
Couldn't the jury convict someone of a worse crime than the one 
he is charged with?
     
     No.  Juries do not and would not have the power to escalate 
charges against a defendant.  Their power may only be exerted in 
the direction of mercy, never of vengeance.  Nor can juries "make 
law" by which to convict a defendant.  That remains the job of 
the legislature.  They may, however, reduce charges against an 
accused person, provided the lower charge is a less serious form 
of the same crime he was originally charged with. The decisions 
of juries do not and would not establish precedent for future 
cases.


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 happens periodically 
with or without jury instruction in the right to judge law.  Any 
jury so poorly selected that all its members are determined to 
acquit a guilty person is likely to do just that, no matter what 
it's told or not told.  For this to happen virtually requires 
that both the prosecutor and judge be corrupt, as well, taking no 
steps to see that at least some of the jurors are not prejudiced.  
In short, if the defendant faces fourteen people, all of whom 
favor letting him go free regardless of the evidence, he will go 
free.

     Even under these circumstances, if jurors were instructed 
that each of them could vote according to his own conscience, as 
FIJA provides, there is at least a possibility that one or more 
jurors would not go along with the rest, thus hanging the jury 
with one or more guilty votes.  Chances for justice might then 
improve, via another trial, perhaps a change of venue, or a 
different judge, and certainly another jury.

     Further, victims of crimes who do not find satisfaction in a 
criminal trial verdict have, with fair success, been able to sue 
perpetrators for damages. In other instances, crime victims who 
were unhappy with verdicts handed down in state courts have been 
able to have defendants tried in federal courts on other charges, 
often for violating their civil rights.  


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 demand to know why they 
reached that verdict.

     They 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 a 
corresponding right.  In this case, that is the right to consider 
everything necessary for him or her to vote for a just verdict.  
That includes evidence, the defendant's motives, testimony, law, 
circumstances--whatever, including the juror's own conscience.

     Additionally, any restrictions placed upon the options the 
jury may exercise in fulfilling its responsibility to judge the 
defendant may be considered violations of his or her 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 possible that trials involving some of the worst and 
most frequently broken laws would increase, until prosecutors 
began choosing not to attempt convictions on them any more, 
police began letting up on enforcement, and legislators began 
reading the writing on the jury-room walls.  But the peak should 
soon pass.  And appeals to higher courts should soon diminish, 
since more people would feel they'd received justice from their 
original trials.

     Ultimately, though, one must ask what's more important, fast 
service at the courthouse, or justice for the individual and 
real-world feedback to the lawmakers?  
   

     Wouldn't there be a lot of variation from place to place in 
jury verdicts, according to community standards?

     Perhaps, though it could hardly compete with the variations 
in verdicts and sentences handed down by different judges...

     It may prove true that jury verdicts would vary more from 
place to place with respect to certain types of offenses.  
Abortion, drugs, pornography, gun ownership, etc. might find more 
acceptance in some communities than others.  But then, what's the 
merit in trying to force a diverse society into a homogeneous 
mold, in obliging every person or every community to conform to 
some centralized notion of how to behave?  We suggest that if 
your act doesn't go over locally, walk. 

     Actually, the overall thrust and effect of FIJA should be to 
promote consistency--in the form of tolerance--everywhere.  It's 
already happening, as "unholy" coalitions form to make FIJA into 
law.  Most people, it turns out, would rather secure their own 
liberty than damage someone else's--it's just that currently, our 
political system fosters competing interest groups, where one 
group's gain is generally another's loss.  Beyond unstrategic, 
FIJA will also make it more difficult for majorities to deny the 
rights of minorities, because any minority (and we're all 
minorities) will be able to defend itself via jury veto power.

     The real payoff is that government, which grows in power and 
intrusiveness with every escalation of distrust and intolerance 
between warring factions of citizens, may lose its grip as trial 
juries resume their check-and-balance function, and "live and let 
live" re-emerges as the American ethos.


     What happens 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
enforced by jurors.  Maryland and Indiana report good success 
with nullification instructions.

     It is elitist to accuse the ordinary people of this country 
of not being able to govern themselves.  Political science 
studies demonstrate that rarely do people exhibit such 
conscientious concern, such caution and such responsible 
behavior, as when they sit on a jury.


What would become of the practice of basing verdicts upon legal 
precedents?

     The role of case law, or precedent, would remain useful as 
advice for all parties to a trial, but its use as a basis for 
verdicts in current jury trials would end.  A major objective in 
fully informing juries of their rights and powers is to provide 
ever-evolving feedback to our lawmakers, so that regular 
adjustments can be made in the rules that we live by.

     The idea is to match our laws to our standards of right and 
wrong on an ongoing basis, so that gaps no longer develop between 
them.  This kind of consistency 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 get too large, we risk "anarchy" on the 
one hand, totalitarian intervention on the other.


Would 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 defenders 
who may come to play 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 regularly pushed upon defendants 
by prosecutors and judges outside the courtroom (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 the problem only to the 
extent that both prosecution and defense have done everything in 
their power to select the least knowledgeable and most 
manipulable jurors possible.  That is, equal treatment by trial 
juries, when it happens at all, may do so as much by default as 
design. 

     Still, 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 because information begets 
fairness, but for at least two other reasons: (1) if jurors are 
lied to (equally) about their rights and powers, a certain 
percentage of them can be expected to see through the lie, then 
to rationalize reciprocating that dishonesty by lying to one or 
both attorneys and the judge during the selection process.  What 
they may be covering up, and why, will certainly vary from jury 
to jury, and that's exactly what the doctrine of equal protection 
rails against;

   (2) When both prosecution and defense 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 
capable 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 
equality under the laws that they work with.
 

Wouldn't FIJA cause a great increase in the number of hung 
juries?"

     Probably yes, at least in the short run, as laws which are 
hard for people to understand, identify with, or apply came into 
question by juries.  But juries always face a built-in incentive 
for consensus, because their members generally have to explain 
themselves afterward in their communities.  On the one hand, they 
are, sociologically speaking, a mercy buffer between the power of 
the state and the accused individual.  But on the other, they 
have a responsibility sanction people who damage the social 
fabric of their communities.  Fully informed or otherwise, they 
can be expected to try to achieve unanimity.

     Additionally, a series of hung juries on cases involving a 
particular law sends a powerful message to lawmakers that reform 
is necessary.  Such a series may clamor for more precision, 
fairness, latitude, appropriateness or other attributes of the 
law, but the beauty of feedback from juries is that it is rarely 
a statement of special interest: hardly ever do all twelve people 
on a jury share a single political goal or viewpoint, and the 
chances that all the people on a series of juries will do so are 
infinitesimal.  

    The relative frequency of hung juries should therefore be 
read as a valuable measurement of public sentiment about the law. 
The more responsive the legislature is to that measurement, the 
closer the association between community moral standards and the 
law will become, and the fewer hung juries there will be.


     
Larry Dodge is the National Field Representative for the Fully 
Informed Jury Association, P.O. Box 59, Helmville, Montana 59843.
