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:
The jury must be informed of their right and power to judge the law
in a case.
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.
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.
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.
A juror may not be excluded on the basis of his superior knowledge of
the law.
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.
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.
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.
The jury must be provided any legal documentation they request or
need.
The jury may not be excluded from being present during arguments over
the law in the case.
The jury must be provided all legal pleadings in the case, including
amicus curiae briefs.
The prosecution must prove, in the presence of the jury, that the
court has jurisdiction in the case, before the main trial begins.
The judge may not charge a juror for violating his instructions, as
though they were orders.
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.
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.
