Full Informed Juries Jury Rights
|October 21, 2005||Posted by Staff under Progress Report, The Progress Report|
Fully Informed Juries
by Fred E. Foldvary, Senior Editor
Juries have the Constitutional and common-law right to judge both fact and law. This right is proper, because in this way, the law is ultimately enforced by the people, not by the rulers of the government. Juries are a check on the arbitrary and corrupt power of government. As the 19th-century political philosopher Lysander Spooner wrote, juries provide a trial by the country rather than a trial by the government authorities. If a law is unjust, juries have the legal right to refuse to enforce it.
Some argue that the law should be set only by the elected representatives, and if a law is unjust, then it is up to the people to change it via their representatives. One problem with this proposition is that a minority might not be able to change a law that a majority desires. Also, the way that democracies are structured today, special interests influence legislation that is often not in the public interest. With mass democracy, it can be very difficult for an individual to change a law. With a jury, a minority can block the enforcement of an unjust law.
Another argument against letting juries judge the law is that a jury may let a guilty man free because it is prejudiced in favor of the defendant and against the victim. A racist jury, for example, might refuse to convict someone even when the facts show he is guilty. But in this case, the jury is not really judging the law, but only enforcing it selectively. They can be asked whether they agree with the law in general, and then if so, whether they would apply the law in this particular case.
Although juries in the United States and other countries with a heritage in English law have the legal right to judge law as well as fact, judges do not so inform them. Even worse, judges often tell juries the opposite, that they must only judge the facts. I was called to jury duty in 1997, and the judge asked the selected panel (which I was not a member of) whether they agreed that they should judge fact and not law. If a jury member says that he thinks a jury should also judge the law, he is typically expelled from the jury, contrary to proper Constitutional law.
In a proper legal system, a jury should be informed that they have the right and duty to judge both the law and the facts. The legality of this was shown by Lysander Spooner in his book An Essay on the Trial by Jury, written in 1852. He demonstrates with historical legal texts that the right of juries to judge the law goes back to the Magna Carta, the English constitutional charter dating from the year 1215. Spooner also points out that when the U.S. Constitution recognizes the right to the trial by jury, it provides the common law trial by jury. This applies to both criminal law and to civil law suits “according to the rules of the common law” as specified by the Seventh Amendment.
Indeed, it is impossible for a jury to only judge facts. The facts that are presented to juries are bound by law, by legal rules of evidence. If the government can dictate the law, it can dictate which facts the jury is allowed to hear and consider. The government can then arbitrarily bias any case. Also, one’s interpretation of facts is colored by one’s view of the law.
As Spooner wrote, “there can be no legal right to resist the oppressions of government, unless there be some legal tribunal, other than the government, and wholly independent of, and above, the government, to judge between the government and those who resist its oppressions.” Since it is not the current practice to have juries judge the law, juries in the United States today are not legally proper. There is probably no truly legal jury in the United States at the present time. The common-law rights of juries have been usurped in Great Britain and other English-heritage countries as well.
But juries can restore justice in a particular case, despite the biased jury-selection process. Juries in practice do judge the law and practice jury nullification simply by voting “not guilty.” However, I am not suggesting or recommending that any juror or potential juror not tell the truth in response to questions. It is the system that needs to be changed, back to the original English common-law right to be the ultimate protector of justice.
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Copyright 1998 by Fred E. Foldvary. All rights reserved. No part of this material may be reproduced or transmitted in any form or by any means, electronic or mechanical, which includes but is not limited to facsimile transmission, photocopying, recording, rekeying, or using any information storage or retrieveal system, without giving full credit to Fred Foldvary and The Progress Report.