Frequently Asked Questions
Q: I am concerned that juries, if told that they do not have to follow the law, might actually convict innocent people by convicting them of something not against the law, by giving a defendant a stiffer penalty than the law allows, or not following the rules of the court in determining guilt or innocence. Essentially, I am worried that juries not following the law will result in the injustice of innocent people being convicted. What does LS-FIJA say about that?
A: You share the same concern for civil liberties that advocates of jury power do. We work to educate jurors of their power to vote their consciences to prevent innocent citizens from being punished. If you care about civil liberties, then you should join us in working for fully informed juries because they will decrease convictions of the innocent, not increase them. Why?
Jury power only works in the direction of mercy. We are lucky to have sentencing by jury in Texas, something which many states do not have. But, any sentence given by a jury to a convict cannot be greater than that allowed by law. Such an act would violate the prohibition of ex post facto (i.e., after the fact) laws in Article I, Section 9 of the U. S. Constitution and Article I, Section 16 of the Texas Constitution.
Juries can only rule on a case put before them. Before a jury hears a case, a law has to be on the books, a law enforcement officer has to make an arrest, a prosecutor has to decide to bring charges, and a grand jury has to rule that sufficient evidence exists to proceed with a indictment. Juries do not get to charge a defendant with a crime different than that brought before them.
It is true that a jury could decide that evidence for the charge brought before them is insufficient, but that they "know" the defendant is guilty of something else, thereby voting to convict of the charge brought before them, anyway. Juries can do that today. But, judges have the power to overturn a jury conviction by mandating a retrial, reducing charges, or even acquiting if they think a jury has convicted without sufficient evidence.
To make sure that juries are informed properly about their power and use it a way that does not threaten justice, Lone Star FIJA has recommended that the proper way to inform juries of their power in the courtroom is to allow the defendant (or their counsel) to do the informing, and to even choose whether to inform in a particular case. In fact that is how the Fully Informed Jury bill proposed changing the law in 1997.
It is hard to see how information from a defense attorney to jurors about their power to vote their conscience if they think an injustice is being done, will lead a jury to convict without evidence or not to follow rules of procedure designed to protect the defendant's rights.
Q: I believe in a nation of laws, not of men. Won't telling juries that they can ignore the law lead to a nation of men, not of laws?
A: The underlying concern of those who originally coined the phrase "nation of laws, not of men" was liberty and justice. Isn't your concern really to make sure that some men don't have arbitrary and capricious power over you or others?
The main way our nation became one of laws, not men was to prohibit ex post fact laws in the Constitution. That way, no government official or ruler can arrest people and charge them with something no one knew was a crime when they did it. Of course, the other due process Constitutional protections such as Grand Juries, prohibition against self incrimination, etc., also are legal protections against arbitrary power.
Jury power to acquit on conscience is another protection from the sword of government.
Both jury power and a nation of laws are designed to protect liberty and justice, so the two concepts cannot be at odds.
The "laws, not men" concept protects us before a law is written. Jury power protects us after bad law is written.
One thing that "laws, not men" definitely does not mean is that we should mechanistically or robotically apply law, no matter how unjust or inhumane the outcome. The very existence of the jury system was designed to engage the common sense and humanity of the people in the process of administering law.
Our highest commonly held political value in this nation is not reverence for law at any cost. Our highest political values are liberty and justice for all. The law is a means toward the end of liberty and justice, and conscience is our guide toward that end.
We have coined a term for those who think the law is the end-all and be-all, higher than liberty or justice - LAW WORSHIPERS.
Law worshipers worship a false god - man's law (statute law). Our Founding Fathers talked in the Declaration of Independence about "the Laws of Nature and Nature's God". It is that higher law and the unalienable Rights to Life, Liberty, and the Pursuit of Happiness which our system should place at the top of our political values hierarchy.
Q: I am concerned that juries told that they don't have to enforce the law will let perpetrators of hate crimes such as racially motivated violence or anti-gay violence go free. What does LS-FIJA have to say about that?
A: We, too, would be greatly disturbed if a jury acquitted a person who committed violence against another human being.
Fortunately, we know of no jury verdicts in the last two decades where a hate crime defendant has been acquitted by a jury or had a hung jury for reasons of bias against the defendant.
It is true that there were several cases in the deep South in the civil rights revolution of the 1960's where murderers of civil rights workers did not receive convictions. The most notorious of those cases was that of the murder of Medgar Evans and the trials of Byron de la Beckwith. Beckwith received two hung juries in the 1960's before a third jury years later convicted.
We believe that juries cannot always correct for deficiencies in the power structure of a community. In the South in those times, minorities were not represented on juries, and corrupt officials could stack the system against civil rights. Today's juries are much more diverse and representative of the community, thereby greatly decreasing the chances of injustice by jury.
Even if an occasional acquittal did occur due to instructions about the powers of jurors, the good that can come from jury power for civil liberties and minority rights far outweighs an occasional failure. No one guarantees perfection with jury independence. All human institutions are fallible. But randomly chosen juries have proven over time to be less racially biased than other participants in the criminal justice system.
Q: Isn't what LS-FIJA talking about called jury nullification?
A: The enemies of the concept of jury power have called it jury nullification. Sounds negative, doesn't it?
We prefer to call the practice of using one's conscience in the jury room to achieve liberty and justice: jury power, jury independence, jury discretion, jury veto, or jury referendum.
Q: I saw on the 20/20 television show that jury nullification is defined as the practice of jurors voting to acquit a defendant based on race rather than the evidence. They had a George Washington law school professor named Paul Butler on who advocates that black people use jury power to acquit blacks accused of non-violent crimes. I believe that one should judge people on the content of their character, not the color of their skin. Does LS-FIJA support racial nullification?
A: LS-FIJA believes that principles of justice should be applied equally to all, regardless of race. Had Professor Butler left out the racial aspect of his presentation and reasoning and focused on victimless (instead of non-violent) crimes, we would have had little disagreement with his message. We believe he does untold damage to the prospects for jury power helping everyone, including blacks, by presenting the concept in racial terms.
When 20/20 defined jury nullification in racial terms it was like defining free speech as "the Ku Klux Klan speaking on why their race is superior." Or defining religious freedom as "the practice of cultists giving cyanide-laced Kool Aid to their members."
Proponents of racial nullification are proponents, not of voting one's conscience in the jury room, but of voting one's biases.
Just because some misuse freedom of speech or freedom of the press does not mean we should eliminate those institutions of liberty. Neither should we stop the advocacy of the use of jury power because of misuse.
Q: I have always heard and thought that if you don't like a law, you should change it. And you should obey it until it is changed. It sounds like LS-FIJA disagrees with that.
A: If we want to increase respect for the law, we have to make sure that our laws are respectable and broadly agreed to.
We at LS-FIJA do not take a position on civil disobedience. If you believe it wrong to break an unjust law, you do not in that regard disagree with LS-FIJA. (Although that belief does differ from those of the revolutionary founders of this nation.)
The question that LS-FIJA asks is whether we should prevent juries from finding out that they don't have to collaborate with the government when it attempts to enforce a law unjustly or an unjust law.
Would you participate as a juror with the government in unjustly punishing a fellow citizen?
Besides, how many bad laws have you personally been responsible for repealing? Surely, you don't believe that all of the laws on the books past, present, or future have been, are, or will be just. It is incredibly difficult to repeal a law. And if you do manage to fight the good fight on a single law, thousands more new laws will be passed in the meantime.
Special interest pressures and the disposition of legislatures always lean to pass new laws, but rarely to repeal bad ones.
Another response to the assertion that we should not use jury power to stop bad law is, "Why?" Why shouldn't we use every power we as citizens have to achieve liberty and justice. The engines of government growth are very powerful. We need as much countervailing power as possible. The Founding Fathers knew we would need this power. We are simply reclaiming a lost tool that they believed in.
Jury power is the true American tradition of what is proper. Those who deny it are rejecting tradition, not supporting it.
Q: I can see how jury power can protect some people from injustice, but isn't telling people about their power really a double edged sword?
A: Jury power is not a sword. It is a shield against the sword of government. It is possible for a jury to err by letting someone go free who deserves to have the sword of government used on them. But, our criminal justice system was designed on the belief that it is better to let some criminals go free than it is to jail the innocent.
Commitment to restoring the jury system to the way the Founding Fathers envisioned by informing jurors of their power to acquit based on conscience is a commitment to a process of law, not necessarily to any predetermined outcome. It may well be that some laws which you think are right and proper will not be supported by enough of the community to achieve convictions from fully informed juries.
Commitment to jury power is putting trust in the citizens of your community that they will do what is right more often than not. Jury independence is a profoundly democratic institution in that it puts power in the hands of the people. It is a republican institution in that it protects inalienable rights. The alternative to putting your trust in the citizens is to trust the elite who control the government to always act in the interest of the people.
Q: You have used a lot of abstract principles in your presentation. What kind of laws do you want juries to refuse to enforce?
A: In many situations, jury power should be used not to stop the application of a bad law, but to stop the misapplication of a good law. Carol Porter of Kid Care in Houston is a good example. She served food from her home to many needy children, and got a commendation from the mayor for doing so. The city health officials heard about it, and went to inspect her. She was operating without a food preparation license. They told her she had to do several items to get her kitchen up to standard. She complied with some, but refused to pay to have a hood put over her stove because a hood's purpose is to prevent fried food preparation from splattering grease and creating unsanitary conditions, and she did not fry food. The officials brought charges for serving food without a license. Good law - bad application.
The supporters of jury independence come from across the political spectrum, and are a diverse coalition. The only item the coalition members are guaranteed to agree on is the process of jury consideration of both the law and the facts. So, the answer to the question of specific laws that motivate a person to support jury power is very diverse.
Lone Star FIJA takes no official position on which laws juries should oppose. We can point to historical examples of the use of jury power. (See our Jury Summary.)
We also point out that because of the trends in increasing government power, you may want to support jury power because the laws have the potential to be bad in the future. (What if they outlawed going to any doctor except a government program doctor in the future? Would you punish someone who sold quality vitamins if vitamin sales had been made illegal?)
And we can list some of the current, past, or potential future laws that are opposed at least by some of our supporters on one side of the political spectrum, or another:
Q: I am concerned that juries might let drug users and dealers go if we told jurors that they could vote their consciences.
A: See the comments about commitment to process in the response to the double-edged sword question above.
The ranks of fully informed jury supporters include those who would like to see the repeal of drug prohibition. The question is whether drug prohibition repeal supporters are numerous enough to stop drug convictions if we obtain fully informed and non-filtered juries.
If the legislation currently being supported by Lone Star FIJA passes, the court will no longer be able to automatically strike a panelist opposed to a law. But, the prosecutor and the defense would still have a number of their own (peremptory) strikes for whatever reason (outside race bias) they wish. Once the Fully Informed Jury act passed, a prosecutor could still ask if people opposed the law being prosecuted.
Because peremptory strikes can be used to eliminate a significant percentage of those opposed to a particular law, the process will work so that people charged with breaking laws that enjoy broad popular support support will generally be convicted. If the law is not supported by a majority, convictions will become difficult. And that is the sort of feedback to legislators that will help bring back respect for the law in our state and nation.
There is some evidence that the majority Texans support drug prohibition. In a recent vote in San Marcos on whether local law enforcement should consider medical circumstances when enforcing marijuana laws, more than 70% opposed weakening existing laws. And the percentage of San Marcos citizens who are pro-marijuana is probably higher than most other Texas communities.
The way for either side of the drug prohibition debate to acheive their objective is to persuade the public of their viewpoint.
Q: Won't the law be applied inconsistently if jurors are informed of their power to vote their conscience?
A: First, it is important to recognize that laws are not enforced consistently today. Each player in the system has discretion on whether to apply a law to a defendant, or not. Those players include law enforcement, prosecutors, grand juries, judges, and juries. In addition, defendants get varying quality defense attorneys. Informing jurors of their power, may lead to a wider range of outcomes for some laws.
However, juries, because they reach decisions through the consensus of a group, are more consistent across juries than the individual players in the system.
If a law is unjust, would you rather see it consistently applied, or would you want at least some victims of the law to have a chance at justice? We at LS-FIJA choose inconsistent, sometimes justice over consistent tyranny.
When inconsistent verdicts become noticable, legislators should use this information as evidence of weakening support for the law experiencing difficulties.
Q: Don't you think letting jurors know they don't have to apply the law will create anarchy?
A: England and America both informed their jurors about their powers from the late 1600's until the late 1800's. Do you think those were "anarchic" times? Maryland and Indiana have explicit constitutional statements protecting jury rights. (Indiana: "all criminal cases whatsoever, the jury shall have the right to determine the law and the facts." Maryland: "In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.") Do you think of Maryland and Indiana as "anarchic" places?
We can reach true chaos in our country. That could happen if enough people become alienated from our government to engage in violence against it. If people believe voting is not a solution to their grievances, jury power is one of the few tools left short of violence for citizens to influence their government.
A person who doesn't think the process for creating law is fair, the law itself is fair, or the process of enforcing it is fair is someone ready to think violence is a solution to his problems. Choking off jury power can lead to true anarchy, while informed juries throughout our nation can put government in touch with the will of the people, thereby producing harmony.
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