Constitution and gavel

Trial Jury Reform

The jury system was made part of our Constitution because the Founders did not trust judges, but ever since the Constitution was adopted, there has been a struggle between judges and juries, with judges trying to confine juries to deciding the "facts" in a case, leaving the judges to decide the "law". In most criminal cases today, the constitutional and legal issues are not argued in the presence of the jury, and the jury does not get to read the legal briefs filed in the case. Judges try to intimidate juries into following their instructions, which are only advisory, and prosecute attorneys for contempt if they try to inform jurors of their right and power to decide the law as well as the "facts" in the case. In response, reformers are working to make sure jurors know their duty.

It is important to keep in mind that many cases involve legal issues that neither the judge nor any of the lawyers have encountered previously. The trial is then a learning experience for all involved, including the jury. If the judge needs to hear the legal arguments to learn enough to decide motions, then the jury needs to hear those same arguments to decide the verdict.

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  • HTML Version or Menu Text Version Principles of Jury Reform, by Jon Roland — Measures needed to return trial jury procedure to compliance with the Constitution.
  • HTML Version or Menu Text Version You are summoned for jury duty — Brief guide for prospective jurors.
  • HTML Version or Menu Text Version  If you are called for jury duty in a criminal trial ...
  • HTML Version or Menu Adobe PDF Remote Link - PDF Mansfieldism Reconsidered, by Jon Roland —; Review of evidence for arguing law in the presence of the jury.
  • HTML Version or Menu Original Intent, a speech on the floor of the House of Representatives, by Rep Ron Paul (R-TX), August 1, 1997. Discusses the original intent of the Framers concerning juries.
  • HTML Version or Menu Text Version The Jury and Consensus Government in Mid-Eighteenth-Century America, William E. Nelson — What the Founders understood the role of the jury to be.
  • HTML Version or Menu  An Introduction to Trial by Jury — Project of the Constitutional Rights Foundation Chicago.
  • Blogger post  Jury Size Matters — Why and how it makes a difference.
  • HTML Version or Menu Text Version The Power of Juries: Jury Rights Day — Editorial in Orange County Register, September 8, 1997.
  • HTML Version or Menu Text Version History of Jury Nullification — Quotes from various sources.
  • HTML Version or Menu Text Version Law Must be Argued Before Jury — Column: Aug. 14, 2000
  • HTML Version or Menu The Laura Kriho Case — Juror prosecuted for doing her duty.
  • Remote Link - HTML Jury Power — More material on jury rights and powers.
  • Remote Link - HTML Juror's Handbook — Useful reference.
  • Remote Link - HTML — Site developed by Alexander Navarro.
  • V Remote Link - YouTube Remote Link - Google Video Law Must be Argued before Jury. Video. 25MB MPEG, running time 2.5 minutes. Need a video utility like Quicktime Player, RealPlayer or Adobe Premiere.
  • Remote Link - HTML Sanhedrin — Ancient Jewish antecedent of Anglo-Saxon juries.

Leading Court Cases

  • HTML Version or Menu Trials of Liberty — Collection of leading historical trials that define the jury system.
  • HTML Version or Menu United States v. Fenwick, 25 F. Cas. 1062 (1836); 4 Cranch C.C. 675 — Defense in criminal trial has right to argue law before jury until bench rules on motion.
  • HTML Version or Menu Stettinius v. United States, 22 F. Cas. 1322 (1839); 5 Cranch C.C. 573 — Parties in cases of mixed law and fact, including criminal cases, have right to argue law before jury until bench rules on motion, and to have such rulings delayed until arguments can be made to the jury, which must hear legal arguments to perform their duty. Both judge and jury may judge the law in favor of the defendant. Jurors are expected to be able to determine whether the complaint is authorized by the Constitution.
  • Correct decision Games v. Stiles ex dem Dunn, 39 U.S. 322 (1840) — If the bench and jury disagree on a point of law, the opinion of the bench prevails.
    •   Opinion — Bad opinion John M'Lean
    •   Commentary — Jon Roland
  • Mixed decision Sparf & Hansen v. United States, 156 U.S. 51, 64 (1895) — Jurors do not need to be informed of their power to judge the law in bringing a general verdict.
    •   Syllabus
    •   Opinion — Bad opinion John M. Harlan, Jackson
    •   Dissenting — Mixed opinion David J. Brewer, Brown
    •   Dissenting — Good opinion Horace Gray, Shiras
    •   Commentary — Jon Roland
  • Correct decision Coffin v. U.S., 156 U.S. 432 (1895) — Court must instruct jury in criminal case that accused is presumed innocent.
    •   Opinion — Mixed opinion White
    •   Commentary — Jon Roland
  • HTML Version or Menu United States v. Dougherty, 473 F.2d 1113 (1972) — Dissent by Bazelon on informing juries of their power to judge the law.
  • PDF Version United States v. Julian Heicklen, 10 CR 1154 (KMW) (April 19, 2012) — Order by Judge Kimba Wood dismissing indictment of defendant for distributing fully informed jury literature outside a federal courthouse.

State Constitutional Reform

  • HTML Version or Menu Proposed California Constitutional Initiative Amendments — Civil Rights Amendments
  • HTML Version or Menu Proposed Revised Texas Constitution (Sections on juries and due process)

Trial Jury Reform Groups

  • Remote Link - HTML Fully Informed Jury Association (FIJA)
    • Remote Link - HTML Fully Informed Jury Association (FIJA) — Alternate site.
    • Remote Link - HTML Lone Star FIJA — Texas branch.
    • Remote Link - HTML Texas Fully Informed Jury Amendment Association (FIJA) with an explanation and a history . Advocate jury nullification of unconstitutional statutes and law enforcement practices.
    • Remote Link - HTML Jury Power — Another site for the Fully Informed Jury Association. Archive of materials on jury nullification.
    • Remote Link - HTML Explanation of the FIJA movement.
    • Remote Link - HTML History of the FIJA movement.
    • Remote Link - HTML Indiana Fully Informed Jury Association — Indiana chapter. Has some important documents.
  • Remote Link - HTML Common Sense Justice for South Dakotans — Got an amendment to the North Dakota Constitution on the November, 2002 ballot.
  • Remote Link - HTML Jury Power — Working for jury reform at the state level.
  • Remote Link - HTML Jury Rights Project

Trial Jury Discussion Forums

  1. FIJA. To [un]subscribe, send message to — Discussion of fully informed jury issues.

Jury Instruction Reform — California

The California Judicial Council Task Force on Jury Instructions has been charged by Chief Justice Ronald George with writing "jury instructions that both accurately state the law and are more easily understandable to jurors." Here are their draft proposals and our comments:

  • *Remote Link - HTML CJCTF Site, with their proposed jury instructions for comment by August 1, 2000, both criminal and civil, in PDF.
  • HTML Version or Menu Text Version CJCTF proposed criminal jury instructions, local copies, converted into HTML and text. (Removed temporarily at the request of Melissa Johnson of the California Judicial Council, who asserted their claim of copyright, which is disputed. See comment in Draft Comment #01 below.)
  • HTML Version or Menu Text Version Draft Comment #01 on the Proposed Criminal Jury Instructions.
  • HTML Version or Menu Text Version Draft Comment #02 on the Proposed Criminal Jury Instructions.
  • HTML Version or Menu Text Version Draft Comment #03 on the Proposed Criminal Jury Instructions.
  • Remote Link - PDF Civil Jury Instructions (July 2003, PDF, 4,176 KB) The Judicial Council officially adopted these new civil jury instructions at its July 16, 2003 meeting.

Recommended Reading

  • HTML Version or Menu 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.
  • HTML Version or Menu The Elements of the Art of Packing, As Applied to Special Juries, Particularly in Cases of Libel Law, Jeremy Bentham (written 1809, published 1821) — Critical treatise on abuses of the English jury system and ways to reform it, which provides a historical background to practices that continue to this day. The first publisher in 1817 of excerpts from this work was prosecuted twice for doing so, and the second three times, but in each attempt, juries acquitted them.
  • HTML Version or Menu History of Trial by Jury, William Forsyth. (1875) — Tells story of how it evolved, as seen by a legal scholar who missed the point that juries were established because judges and prosecutors cannot be trusted.
  • HTML Version or Menu Trials of Liberty — Some of the best expositions of law and constitutional principles are made during trials.
  • HTML Version or Menu Landmark Court Decisions — Includes commentaries on the rulings and the opinions.
  • HTML Version or Menu Text Version Sortition for Judges, by Jon Roland.
  • Remote Link - HTML An Essay on the Trial by Jury, Lysander Spooner (1852). Criticism of jury practice as of the time written. However, Spooner gets some of the history wrong. Random selection of jurors does not go all the way back to Magna Carta, but came later.
  • A Lehman, Godfrey D., We the Jury : The Impact of Jurors on Our Basic Freedoms : Great Jury Trials of History, 1997, Prometheus. Landmark cases in which the jury played the starring role.
  • A Lehman, Godfrey D., The Ordeal of Edward Bushell, 1988, Lexicon. A fictionalized rendition of Bushell's Case, in which Edward Bushell, by holding out against intense pressure to convict William Penn on a charge of preaching in a way not authorized by the Church of England, established both the power and role of the jury and the right of free exercise of religion. Available from America's Legal Bookstore, 725 J St, Sacramento, CA 95814, 916/441-0410.

Media coverage

  • Remote Link - HTML The Jury. Discussion forum on Fox TV program

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Jon Roland of the Constitution Society
Original date: 1996/04/20 — 

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