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              NEW HOPE FOR FREEDOM: FULLY INFORMED JURIES
                              By Don Doig

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With the resurgence of the ideals of free markets and individual liberty
throughout the world, an English and American common-law tradition is
being resurrected in the United States which has profound implications
for emerging democracies. This idea, incorporated into the constitutions
of nations, can provide a lasting barrier against the assumption of
arbitrary power by government.

The founders of the United States were worried that the government might
someday grow too powerful, and pass laws which would violate the rights
of the very people the government was created to protect: ordinary,
peaceful, citizens. They knew there was one institution which might hold
the government in check: the right to a trial by a jury of one's peers.

How can a jury protect people from arbitrary and unjust prosecution, or
from bad laws? The legislature creates laws. Aren't citizens supposed to
obey them, and lobby their legislators for any changes that need to be
made?

Traditionally, U.S. citizens have had a more substantial and direct
means by which to protect themselves from oppressive laws. The Founders
of the United States realized that the temptations of power were too
great to leave it to the legislature, executive, and judicial branches
of government to define citizens' rights. Ultimately, citizens acting in
accordance with the dictates of individual conscience were to have final
say. The people would have a veto power over bad laws.

The U.S. Founding Fathers provided a veto in the right to a common-law
jury trial. This is a centuries-old common-law tradition, carried over
from England. It means that jurors can judge whether a law is a good law
-- a law that does not violate the rights of free men and women. If,
according to the dictates of conscience, jurors did not think that a law
was just, or if they thought that a law had been misapplied, they could
refuse to convict an otherwise ``guilty'' defendant.

A single juror could prevent a conviction, by voting ``not guilty''.

If the jury acquitted the defendant, that decision was final. In the
English and American common-law tradition, a verdict of innocent cannot
be overturned, nor can a judge harass jurors for voting for acquittal.
Jurors cannot be punished for voting according to conscience.

These principles date back to the Magna Carta in 1215. However, since
this time, they have been under attack by government. In 1670, William
Penn was arrested for breaking the law of England by preaching a Quaker
sermon. English law decreed that the Church of England was the only
legal church. Jurors refused to convict him, and were held without food,
water, tobacco or toilet facilities. Four were put in prison for nine
weeks. When they were finally released by court order, the decision
established that jur ors could no longer be punished for their verdicts.
This helped establish freedom of religion, the right to a trial by a
jury of one's peers, and a jury free from government coercion.

The trial of John Peter Zenger in the American colonies, was another
landmark case. Zenger had been arrested for publishing accusations that
the Royal Governor of New York colony and his cronies were corrupt.
While Zenger's allegations were true, under the law truth was no
defense. Zenger's attorney, Andrew Hamilton, argued to the jury that
they were the judges of the merits of the law, and should not convict
Zenger for violating such a bad law. The jury agreed. Zenger was
acquitted, and this case helped es tablish the right to freedom of
speech.

The Founders of the United States were clear where they stood on the
rights of jurors.

``The right of the jury to decide questions of law was widely recognized
in the colonies. In 1771, John Adams stated unequivocally that a juror
should ignore a judge's instruction on the law if it violates
fundamental principles:

``It is not only . . . [the juror's] right, but his duty, in that case,
to find the verdict according to his own best understanding, judgment,
and conscience, though in direct opposition to the direction of the
court.'

``There is much evidence of the general acceptance of this principle in
the period immediately after the Constitution was adopted.' Note (anon.)

The Changing Role of the Jury in the Nineteenth Century, Yale Law
Journal, 74, 174, (1964).

Thomas Jefferson said in a letter to Thomas Paine in 1789:

``I consider trial by jury as the only anchor ever yet imagined by man,
by which a government can be held to the principles of its
constitution.''

During the debates over the ratification of the U.S. constitution, one
participant noted:

``If a juror accepts as the law that which the judge states then that
juror has accepted the exercise of absolute authority of a government
employee and has surrendered a power and right that once was the
citizen's safeguard of liberty, -- For the saddest epitaph which can be
carved in the memory of a vanished liberty is that it was lost because
its possessors failed to stretch forth a saving hand while yet there was
time.''

2 Elliot's Debates, 94 Bancroft, History of the Constitution, 267, 1788.

Yet another authority put it this way:

``For more than six hundred years -- that is, since Magna Carta, in
1215, there has been no clearer principle of English or American
constitutional law, than that, in criminal cases, it is not only the
right and duty of juries to judge what are the facts, what is the law,
and what was the moral intent of the accused; but that it is also their
right, and their primary and paramount duty, to judge of the justice of
the law, and to hold all laws invalid, that are, in their opinion,
unjust or oppressive, and al l persons guiltless in violating, or
resisting the execution of such laws.''

Lysander Spooner, An Essay on The Trial By Jury, 1852 p.11

During the nineteenth century, American judges attacked this fundamental
right of free citizens, transferring more and more power to themselves
and contending that jury review of law was no longer necessary, now that
democratic elections had replaced Monarchy. By the end of the century,
the U.S. Supreme Court decided to let the judge decide if the jury
should be told of its right to judge the law as well as fact.

Today, jurors are generally told that they must accept the law as the
judge explains it, and may not acquit a defendant if their consciences
are bothered by an unjust law. Judges falsely tell them that their only
role is to decide if the ``facts'' are sufficient to convict the
defendant. Defense attorneys are not allowed to encourage jurors to vote
to acquit a defendant if they believe the law is unjust or
unconstitutional. And defendants are generally not allowed even to
discuss their motives.

In plain words, it is a power struggle between the people and the
judicial system -- one in which the people have been losing.

Jurors still have the right to veto, or ``nullify'' bad laws. They are
just not told this by the courts. Judges and prosecutors exclude people
from serving on juries who indicate a willingness to nullify the law.
This violates the right of jurors to protect their fellow citizens
against unjust prosecutions. A jury is properly a cross-section of the
community as a whole. Laws that endure should be those that are
supported by the community. Jury veto power guarantees that majorities
cannot use the force of la w to violate the rights of minorities.

Judges and other court officers have long been waging a campaign of
disinformation to prevent jurors from knowing their rights. The people
must now demand that their rights as jurors be respected. It's not just
jurors whose rights are being denied. Defendants have the right to a
fair trial by a jury of their peers. They have not been getting fair
trials because judges have been systematically misinforming jurors. This
campaign to deny juror's rights has been going on for so long now that
many attorneys (and probably some judges) in the U.S. are not even aware
that these rights exist.

We need to reestablish the ultimate safeguard of rights. People
everywhere should be informed of their rights as jurors. Join us in
restoring the rights of juries so governments may no longer abrogate
individual liberty with impunity.

Who determines the rights of the people: the government, or the people
themselves? I contend that individual jurors rightfully determine which
laws are just and which laws violate their rights as free citizens.

Don Doig is National Coordinator for the Fully Informed Jury Amendment,
P.O. Box 59, Helmville, Montana, USA 59843. Tel: (406) 793-5550. FIJA is
a campaign to amend U.S. state constitutions to require that judges
inform jurors that they may vote according to conscience and refuse to
convict defendants ``guilty'' of violating unjust laws. FIJA
headquarters is prepared to assist people from nations worldwide in
pursuit of Fully Informed Jurors everywhere.

                       RECOMMENDED READING

An Essay On Trial By Jury (Lysander Spooner) ...............  $8.00
So You Have Been Called For Jury Duty
(32-page booklet by Godfrey Lehman)  .......................  $1.00
The Ordeal of Edward Bushell (Lehman) ...................... $14.95

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