When the United States was founded, the jury system was made a part of its system of government. This was done for one main reason: because the Founders did not trust judges, prosecutors, investigators, and other officials to administer justice. The jury is the ultimate safeguard of our constitutional rights, and never before in our history have those rights been in greater danger.
There are two kinds of juries: trial and grand. In a jury trial, the jury is the real judge. The "judge" who presides over the trial is really the president of the court. His proper job is only to control procedure.
There are two kinds of trial: criminal and civil. In a civil trial, the jury decides based on a preponderance of evidence, and a unanimous vote is not required. In a criminal trial, the jury has the duty to acquit the accused unless the prosecution proves guilt beyond a reasonable doubt, and it takes the vote of all twelve jurors to convict. Once acquitted, the accused may not be retried for the same offense.
A grand jury does not decide guilt. It investigates the facts in a case and recommends a course of action. The most common issue put to a grand jury is to decide if there is sufficient evidence in a case to prosecute the accused. The finding that there is sufficient evidence is called an indictment, and there is a constitutional requirement that persons accused of serious crimes must be indicted by a grand jury before they may be prosecuted in a trial. This is to protect innocent persons from being prosecuted by corrupt, abusive, incompetent, or overzealous prosecutors. However, a grand jury can investigate any issue. They have the power to decide what issues to investigate, the power to subpoena witnesses to testify before them, and to make any finding or recommendation that they think their investigation merits. Such a finding and recommendation is called a presentment.
But most grand juries today don't do their duty the way the Founders intended they should. They too often serve as rubber stamps for prosecutors, who often joke that they can "indict a ham sandwich".
The constitutional duty of the grand jury is not just to decide on the cases brought to it by the prosecutors. It is also to investigate cases that the prosecutors don't want them to consider, cases of official and high-level corruption, abuse, incompetence, and misconduct.
In a typical criminal trial, the judge will demand that the trial jurors promise to "follow the instructions" he gives them, and he will tell them to consider "only the facts" in the case, and leave consideration of the "law" to him. The problem is, in our system of law, the "law" in a case is also a kind of fact. Judges don't make the law by their decisions. They only "find" what the law is, based on the intentions of the lawgivers. One of those laws, the Constitution for the United States, and, in a state trial, the constitution of the state, is the supreme law, which is superior to any statute or other official act that may conflict with it. Deciding whether a statute or other official act is consistent with either or both constitutions is not a question only for a judge to decide. It is also a question for anyone who is involved in the legal system, especially the jury. If the case against the accused is based on a statute or other official act that is not authorized by the applicable constitution, then it is unconstitutional, and the jury has the duty to acquit, no matter how heinous the offense or how evil the accused might be.
Judges and prosecutors are now engaged in the manipulation of juries in ways that are unconstitutional, and that threaten to allow them to boast that they can "convict a ham sandwich".
Follow the links shown below, and learn more about how the jury system is not functioning the way it is supposed to, and what can to done to being it back to the way the Founders intended.
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You are summoned for jury
duty — Message to be sent to everyone on both trial and grand jury
reform. U.S. Trial Jury Reform — Problems, resources,
and needed actions. U.S. Grand Jury Reform — Problems, resources,
and needed actions California Ballot Initiatives
— Includes initiative to make jury reforms by amendment of the California
Constitution. Serves as model for similar initiatives in other states.Here are a few documents that every prospective juror should read.
Jefferson: Federal Criminal Powers Limited Law and Anti-Law Federal Jurisdiction —
Brief by attorney Larry Becraft. A General Charge to All Grand Juries, and Other Juries, James Astry.
(1725) — Provides insight into the early role of juries. Address on Libels, Case of John Horne, John Horne Tooke. (1777) — Criticism of indictment by information, rather than by grand jury. May have contributed to requirement for grand juries in U.S. Bill of Rights. Criminal Libel and the Duty of Juries, Joseph
Towers (1764, 1784), Francis Maseres (1792) — Three essays on the right of
defendants, especially in criminal libel cases, to have the jury decide the law
as well as the fact issues. Considerations on the Respective Rights of Judge and Jury; Particularly upon Trials for Libel, John Bowles. (1791) — Leading exposition of the Mansfieldian movement to curtail the role of juries, which spread to the United States. Short Hints upon Levelling — A Charge to the Grand Jury of Middlesex, William Mainwaring. (1791) — Reveals Tory-Mansfieldian linking of jury rights to fears of property re-distribution. Observations on the Trial by Jury, Anonymous. (1803) — Advice to the Pennsylvania Legislature on the role of the jury. Observations on the Trial by Jury, Attributed to John Longley. (1815) — Commentary on the role of the jury in Britain, reflecting the gain of the Mansfieldian movement. An Essay on the Trial By Jury, Lysander
Spooner (1852) — Classic treatise on the jury.Also see The Sortition Option.
| Home » Jurisdiction & Due Process |
| Original URL: //constitution.org/jury/jury.htm
Maintained: Constitution Society Original date: 1995 December 12 — Updated: 2005 July 12 |
For additions and suggestions email juryreform@constitution.org
