After five years, you'd think we'd have settled by now on the "optimal" language for FIJA legislation. Frankly, we thought we had it down pretty pat, but then we read an academic article about our own efforts---constructive criticism--and put our thinking caps back on.
The article is by M. Kristine Creagan, and is titled "Jury Nullification: Recent Legislative Developments". It appeared in last winter's Case Western Reserve University Law Review. From it we excerpted and printed the conclusion, which consisted of new suggested wording, and printed that wording in the previous (the Spring, 1994) FIJActivist.
It contains several ideas which got our attention, some of which we accepted and built into the new bill language presented below, which we just recently sent, with accompanying commentary explaining why we changed the proposal as we did, to 60 state coordinators and other activists around the country. Have a look:
PROPOSED 1994-1995 FULLY INFORMED JURY BILL LANGUAGE
"An accused or aggrieved party's right to trial by jury, in all instances where the government or any of its agencies is an opposing party, includes the right to inform the jurors of their power to judge the law as well as the evidence, and to vote on the verdict according to conscience.
"This right shall not be infringed by any statute, juror oath, court order, or procedure or practice of the court, including the use of any method of jury selection which could preclude or limit the empanelment of jurors willing to exercise this power.
"Nor shall this right be infringed by preventing any party to the trial, once the jurors have been informed of their powers, from presenting arguments to the jury which may pertain to issues of law and conscience, including (1) the merit, intent, constitutionality or applicability of the law in the instant case; (2) the motives, moral perspective, or circumstances of the accused or aggrieved party; (3) the degree and direction of guilt or actual harm done; or (4) the sanctions which may be applied to the losing party.
"Failure to allow the accused or aggrieved party or counsel for that party to so inform the jury shall be grounds for mistrial and another trial by jury."
By couching its provisions in terms of the rights of the accused or aggrieved person, instead of the jury, this language avoids several problems inherent in earlier versions:
It makes presentation of the power of nullification an option of the accused or aggrieved person, not a mandate for the judge. This should assuage some of the opposition judges have voiced, to the effect that they would have to give nullification instructions whether or not desired by the defendant, whether or not relevant to the case at hand, and whether or not in the interest of justice, as they see it. In an era of mandatory sentencing guidelines and "three strikes you're out", judges have expectably come to resent loss of control and discretion in their courtrooms. To add one more thing they would "have to do", whether or not it makes sense, can only increase that resentment.
Additionally, as an option of the accused or aggrieved person, the "risk" of reminding the jury of its power is properly borne by the opponent of the government, but is no more forced upon him or her than upon the trial judge.
It avoids the issue of "right" versus "power": the accused or aggrieved person clearly has "rights", and the jury's prerogative to judge both law and fact in deciding a verdict can therefore be called a "power" without ruffling the sensitivities of those who insist that it is not a right, and that there is some kind of difference between a right and a power.
It deals with the issue of juror disqualification in terms that make good sense--by basing it on the defendant's right to a fair and impartial hearing, rather than insisting upon a juror's "right to be seated despite his views", an assertion which is harder to establish and defend, and which in practice might actually work against the accused or aggrieved person in some instances, to the dismay of his or her attorney.