156 lines
6.5 KiB
Plaintext
156 lines
6.5 KiB
Plaintext
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IF YOU'RE CALLED FOR JURY DUTY...
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Show up, of course. If this happens before FIJA becomes
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law, just remember that it is always your right to decide on the
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justice of any law you're being asked to apply to the accused.
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So if the judge insists that you must consent to follow and apply
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the law as he or she describes it, do not be intimidated: you may
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in fact safely follow your conscience.
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You can't be punished for voting your conscience, but may be
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harassed (interrogated before or after serving, reprimanded, or
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possibly even disempaneled if you urge other jurors to do
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likewise; unbelievably, it has happened). But jurors are not
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bound to do anything against their wills, nor bound by oaths
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given under duress, nor required to return a unanimous verdict.
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You shouldn't look at jury duty as an onerous task which is
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to be avoided if possible. For one thing, it's your chance to do
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some real good for yourself and the community. In many cases,
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this may mean voting to convict someone whose behavior is truly
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dangerous to life, liberty, and pursuit of happiness.
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In other cases, it may mean acquitting someone because the
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evidence to convict is not convincing, or because the law or its
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application to the accused person appears wrong. Defense of the
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rights of the citizens of your community is the whole point of a
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jury system, and those include the rights of the accused and of
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the jurors themselves. Justice therefore demands that common law
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jurors insist on their right to consider both the facts of the
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case and the merits of the law.
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For these reasons, we urge you to regard jury service as an
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opportunity, a right worth defending, or a personal duty, despite
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whatever obstacles may be thrown in your path. Since most states
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select jurors from voter registration lists, consider the chance
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to serve on a jury as another reason to register to vote!
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GUIDE TO THE LEGAL TRADITION: REFERENCES
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Anonymous, "Note: The Changing Role of the Jury in the Nineteenth
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Century", Yale Law Journal 74, No.1, 170-192 (Nov. 1964).
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Focuses on the erosion of jury veto power during this period.
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Barkan, Steven E. "Jury Nullification in Political Trials",
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Social Problems 31, No.1, 28-44 (Oct. 1983). Also in Mike
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Timko, Jury Nullification... History of the impact of jury
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veto power on important political conflicts, in which the
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people resisted oppressive government policies and were
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arrested, only to be freed by their fellow citizens.
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Particular emphasis on the Vietnam war protest movement, and
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denial of jury nullification as a means to suppress dissent.
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Gray and Shiras (Justices), Dissent: Sparf and Hansen v. U.S.,
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156 U.S.51, October Term, 1894. These are the opinions of
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the two dissenting justices on the case which effectively
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ended routine instruction of juries in their right to judge
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both law and fact. The majority ruled that while jurors do
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have the power to nullify the law, judges need not tell them
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about it.
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Green, Thomas Andrew, Verdict According to Conscience:
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Perspectives on the English Trial Jury, 1200-1800; The
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University of Chicago Press, (1985). History of the English
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common law jury.
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Hans and Vidmar, Judging the Jury, New York: Plenum, (1986).
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Discussion of empirical evidence that jurors behave
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responsibly when given a nullification instruction.
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Horowitz, Irwin A., "The Effect of Jury Nullification Instruction
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on Verdicts and Jury Functioning in Criminal Trials", Law
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and Human Behavior, 9, No.1, 25-36 (1985). Controlled study
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of the effects of jury nullification instructions;
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responsible behavior is seen to be the norm.
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Horowitz, Irwin A., "The Impact of Judicial Instructions,
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Arguments, and Challenges on Jury Decision Making", Law and
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Human Behavior, 12, No.4, 439-453 (1988). See above.
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Howe, Mark DeWolfe, "Juries as Judges of Criminal Law", Harvard
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Law Review 52, 582-616 (1939). Good discussion of the
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history of state constitutional provisions for jury veto
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power and attacks upon this power by the judiciary.
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Jacobsohn, Gary J., "The Right to Disagree: Judges, Juries, and
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the Administration of Criminal Justice in Maryland",
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Washington University Law Quarterly, Vol.1976, 571-607.
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Discussion of current practice with regard to instruction on
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nullification required by the Maryland constitution.
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Lehman, Godfrey D., The Ordeal of Edward Bushell, Lexicon, San
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Francisco, 274pp (1988). Available from the author, 333
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Kearny St., San Francisco, CA 94108. (Historical novel
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about the trial of William Penn and the imprisonment of the
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recalcitrant jurors. Absorbing story.)
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Scheflin, Alan W., "Jury Nullification: The Right to Say No",
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Southern California Law Review 45, 168-226 (1972).
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Excellent general legal history of the doctrine of jury
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nullification.
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Scheflin, Alan and John Van Dyke, "Jury Nullification: Contours
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of a Controversy", Law and Contemporary Problems 43, 51-115
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(1980). The best, and most up-to-date general study of the
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legal tradition of jury nullification, and the attacks on
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this fundamental right of free citizens.
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Spooner, Lysander, An Essay on Trial by Jury, 224 pp (1852);
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available as part of Mike Timko, Jury Nullification....
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Lysander Spooner was a Massachusetts lawyer whose writings
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are classic defenses of individual liberty. This book-
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length essay on the common law jury is a passionate
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defense of the fully empowered jury as a final barrier
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against tyranny.
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Timko, Mike, Jury Nullification, Volume 1, Libertarian Mutual
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Press, Los Angeles (1987). Contains reprints of the Spooner
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and Barkan articles, above, and Timko's own lead piece on
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using the initiative process to require by law that juries
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be given a nullification instruction. Order from Mike Timko,
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Box 25908, Los Angeles, CA 90025. Quantity prices available.
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