Principles of Jury Reform

by Jon Roland

The jury system was established for one reason: because judges cannot be trusted. It is not just a way to involve citizens in the process of justice, for their enlightenment. If it were merely a matter of legal competence, then judges would be better qualified to decide the "facts" as well as the "law" in a case. But our forefathers recognized in requiring that verdicts be rendered by juries that legal competence is not as important as having the decisions made by persons who, being selected at random from among the community, are less susceptible to undue influence, and because if the law and the facts in a case cannot be decided by ordinary people, then ordinary people can hardly be expected to obey the laws, the violation of which they may be accused.

But judicial practice has come a long way since the Constitution was adopted, incorporating the standards of the common law in place at that time and freezing it at that point. The result is that there are a number of principles that need to be re-established, to return us to the kind of jury system our forefathers had in mind. The following are some of the most important of those principles, the violation of which must become reversible errors:

  1. The jury must be informed of their right and power to judge the law in a case.
  2. The judge may not forbid the defense to inform juries of their right and power to judge the law, or to penalize them for doing so.
  3. The defense may be ruled incompetent if it does not inform the jury of its right and power to judge the law, or to raise the issue of jurisdiction of the court in the case.
  4. Neither the judge or either side of a case has the right to exclude a juror during voir dire who is aware of his right and power to judge the law, who is a member of an informed-jury advocacy organization, or who has read informed-jury literature.
  5. A juror may not be excluded on the basis of his superior knowledge of the law.
  6. The judge may not hold a juror in contempt of court for failing to disclose his or her awareness of a juror's right and power to judge the law.
  7. Persons who try to inform jurors of their right and power to judge the law may not be charged with such offenses as jury-tampering or obstruction of justice.
  8. Jurors may not be prevented from obtaining copies of the relevant constitutions, statutes, and case law in a case, or doing research in a law library.
  9. The jury must be provided any legal documentation they request or need.
  10. The jury may not be excluded from being present during arguments over the law in the case.
  11. The jury must be provided all legal pleadings in the case, including amicus curiae briefs.
  12. The prosecution must prove, in the presence of the jury, that the court has jurisdiction in the case, before the main trial begins.
  13. The judge may not charge a juror for violating his instructions, as though they were orders.
  14. The judge may not allow only one set of instructions to be given to the jury, and not to allow each side to submit its own.
  15. The jury must be allowed to ask questions of the judge or any party, including amicus filers, on any pertinent matter, and get answers to those questions.

These principles represent the state of due process at the time the Constitution was adopted, and must be re-asserted if compliance with the Constitution is to be achieved. Demand for such compliance must be made, relentlessly, at every opportunity, until the pressure to comply becomes overwhelming.

Text version | Home | Constitution Society