textfiles/law/fija02.txt

               IF YOU'RE CALLED FOR JURY DUTY...



     Show  up,  of course.  If this happens before  FIJA  becomes 
law, just remember that it is always your right to decide on  the 
justice  of any law you're being asked to apply to  the  accused.  
So if the judge insists that you must consent to follow and apply 
the law as he or she describes it, do not be intimidated: you may 
in fact safely follow your conscience.

     You can't be punished for voting your conscience, but may be 
harassed  (interrogated before or after serving, reprimanded,  or 
possibly  even  disempaneled  if  you urge  other  jurors  to  do 
likewise;  unbelievably,  it has happened).  But jurors  are  not 
bound  to  do anything against their wills, nor  bound  by  oaths 
given under duress, nor required to return a unanimous verdict.

     You shouldn't look at jury duty as an onerous task which  is 
to be avoided if possible.  For one thing, it's your chance to do 
some  real good for yourself and the community.  In  many  cases, 
this  may mean voting to convict someone whose behavior is  truly 
dangerous to life, liberty, and pursuit of happiness.

     In  other cases, it may mean acquitting someone because  the 
evidence to convict is not convincing, or because the law or  its 
application to the accused person appears wrong.  Defense of  the 
rights of the citizens of your community is the whole point of  a 
jury  system, and those include the rights of the accused and  of 
the jurors themselves.  Justice therefore demands that common law 
jurors  insist on their right to consider both the facts  of  the 
case and the merits of the law.     

     For these reasons, we urge you to regard jury service as  an 
opportunity, a right worth defending, or a personal duty, despite 
whatever obstacles may be thrown in your path.  Since most states 
select jurors from voter registration lists, consider the  chance 
to serve on a jury as another reason to register to vote!
 

            GUIDE TO THE LEGAL TRADITION: REFERENCES



Anonymous, "Note: The Changing Role of the Jury in the Nineteenth 
     Century", Yale Law Journal 74, No.1, 170-192 (Nov. 1964).
     Focuses on the erosion of jury veto power during this period.



Barkan,  Steven  E.  "Jury Nullification  in  Political  Trials",      
     Social Problems 31, No.1, 28-44 (Oct. 1983).    Also in Mike 
     Timko, Jury Nullification...  History of the impact of  jury 
     veto  power on important political conflicts, in  which  the 
     people  resisted  oppressive government policies   and  were      
     arrested,  only  to  be  freed  by  their  fellow  citizens.       
     Particular emphasis on the Vietnam war protest movement, and 
     denial of jury nullification as a means to suppress dissent.  



Gray  and Shiras (Justices), Dissent: Sparf and Hansen  v.  U.S., 
     156  U.S.51, October Term, 1894. These are the  opinions  of      
     the  two dissenting justices on the case  which  effectively 
     ended routine instruction of juries in their right to  judge 
     both law and fact.  The majority ruled that while jurors  do 
     have the power to nullify the law, judges need not tell them 
     about it. 



Green,   Thomas   Andrew,  Verdict   According   to   Conscience:  
     Perspectives  on  the  English Trial  Jury,  1200-1800;  The 
     University of Chicago Press, (1985).  History of the English 
     common law jury.



Hans  and  Vidmar, Judging the Jury, New York:  Plenum,  (1986).
     Discussion   of  empirical  evidence  that   jurors   behave      
     responsibly when given a nullification instruction.

    

Horowitz, Irwin A., "The Effect of Jury Nullification Instruction 
     on  Verdicts and Jury Functioning in Criminal  Trials",  Law      
     and Human Behavior, 9, No.1, 25-36 (1985).  Controlled study      
     of   the   effects  of  jury   nullification   instructions;      
     responsible behavior is seen to be the norm.     



Horowitz,  Irwin  A.,  "The  Impact  of  Judicial   Instructions, 
     Arguments, and Challenges on Jury Decision Making",  Law and      
     Human Behavior, 12, No.4, 439-453 (1988). See above.



Howe,  Mark DeWolfe, "Juries as Judges of Criminal Law",  Harvard 
     Law  Review  52,  582-616 (1939).  Good  discussion  of  the 
     history  of  state constitutional provisions for  jury  veto 
     power and attacks upon this power by the judiciary.



Jacobsohn,  Gary J., "The Right to Disagree: Judges, Juries,  and 
     the   Administration  of  Criminal  Justice  in   Maryland",      
     Washington University Law Quarterly, Vol.1976, 571-607.
     Discussion of current practice with regard to instruction on           
     nullification required by the Maryland constitution.




Lehman,  Godfrey D., The Ordeal of Edward Bushell,  Lexicon,  San 
     Francisco,  274pp  (1988).  Available from the  author,  333 
     Kearny  St.,  San  Francisco, CA  94108.  (Historical  novel      
     about the trial of William Penn and the imprisonment of  the      
     recalcitrant jurors. Absorbing story.)



Scheflin,  Alan W., "Jury Nullification:  The Right to  Say  No", 
     Southern   California   Law  Review  45,   168-226   (1972).  
     Excellent  general  legal history of the  doctrine  of  jury 
     nullification.



Scheflin, Alan and John Van Dyke, "Jury Nullification:   Contours 
     of a Controversy", Law and Contemporary Problems 43,  51-115 
     (1980).  The best, and most up-to-date general study of  the 
     legal  tradition of jury nullification, and the  attacks  on 
     this fundamental right of free citizens. 



Spooner, Lysander, An  Essay  on Trial by Jury,  224  pp  (1852); 
     available  as  part of Mike  Timko,  Jury  Nullification....       
     Lysander  Spooner was a Massachusetts lawyer whose  writings 
     are   classic  defenses of individual liberty.   This  book-     
     length  essay   on  the  common law  jury  is  a  passionate      
     defense  of  the  fully empowered jury as  a  final  barrier      
     against tyranny.



Timko,  Mike,  Jury Nullification, Volume 1,  Libertarian  Mutual 
     Press, Los Angeles (1987).  Contains reprints of the Spooner 
     and  Barkan articles, above, and Timko's own lead  piece  on 
     using  the initiative process to require by law that  juries 
     be given a nullification instruction. Order from Mike Timko,
     Box 25908, Los Angeles, CA 90025. Quantity prices available.