“The right to judge both the facts and the law”
Without fanfare, perhaps the most far-reaching bill the Legislature will address this year has been making its way through the hearing process.
Known as the “Fully Informed Jury Amendment”, this bill would require judges to instruct juries in criminal cases that, in reaching their verdict, they have the right to judge not only the facts in the case, but also the law, itself. In otherwords, jurors would be advised they had the right and the power to simply say “no” to a bad law or an inappropriate application of a law … and could thereby acquit an individual guilty of violating such a law.
Far from a anarchist’s fancy, the concept of the Fully Informed Jury Amendment dates back to the signing of the Magna Carta in 1215, which for the first time laid down the principals of due process and trial by a jury of one’s peers. These ideals, subsequently became the foundation for English Common Law, which, in turn, provided the framework around which our Constitution was designed.
After the Revolution, men like John Adams, Thomas Jefferson, John Jay (the first Chief Justice), and Alexander Hamilton remained dubious about the nature of the government they were creating. They were concerned as its power inevitably grew, laws would be passed which would violate the rights of the people it was designed to protect. However, the guarantee of a trial by a jury of one’s peers was believed the ultimate protection from the excesses of future governments. Inherent in that jury system was the principal of granting to juries the absolute right to judge not only the guilt or innocence of a defendant, but also whether the law under which the defendant was being tried was “just” according to their individual consciences.
During the 1800s, however, judges slowly, but inexorably, eroded this fundamental right, concurrently transferring powers to themselves. Their justification being jury reviews of laws were no longer relevant or necessary under our democratic system. By the turn of the century, the Supreme Court, while not denying juries the right to evaluate laws, ruled decisions to instruct juries on those rights would rest in the hands of presiding judges … leaving the foxes in charge of the chicken coops!
Today, judges routinely instruct juries they must accept the laws as they (the judges) explain them, and the jury may not vote acquittal because a law at question seems unjust or misapplied. The arrogance with which the judicial system has waged its focused campaign of disinformation and effectively lobbied against returning ultimate judicial power to the people is but another example of what happens when unchecked power is concentrated in the hands of government.
Still, there are some bright spots. The Indiana, Maryland, Georgia and Oregon Constitutions all contain provisions permitting or requiring juries in criminal cases to be told they have the right to determine the law and the facts; some 26 other states have similar language on their books; in 1969 the 4th Circuit Court of Appeals ruled, “… for any reason which appeals to their logic or passion, the jury has the power to acquit …”; and dozens bills such as the one confronting the New Hampshire Legislature are filed each year. Judges and prosecutors who will feel threatened by an “infringement” on their “turf” and their allies will parade out a litany of horror stories about the consequences of enacting this legislation. But, close scrutiny of jurisdictions where fully informed jury rules are the norm suggest a different story.
Permitting juries to rule on both the law as well as the facts has not led to judicial anarchy, nor does it permit juries to escalate the charges against defendants. Rather, the decisions of “fully informed” juries can have the positive effect, tending to encourage a more tolerant social environment and providing a feedback mechanism to legislators, advising them of those laws the their electorate deem unjust and/or unpopular. Finally, the appellate process, while not allowed to overturn an acquittal, will remain in place to ensure individual rights are not trampled.
The most fundamental premises in a free society is that people are capable of governing themselves. It is elitist, at best, to suggest otherwise.
