by Larry Dodge
As National Field Representative for the Fully Informed Jury Association, I used to face the same or similar questions again and again about the legislation that various state FIJA organizations have proposed. In this paper I present answers that I have given to audiences of all kinds, including small groups, legislative committees, media audiences, and conventions. In Oklahoma this year, the proposed FIJA legislation is HB 1031, and these answers may thus be regarded as responses to questions which Oklahoma legislators may wish to ask about this bill.
Mine are not necessarily the best or the only answers to what I've come to call the "hard questions" about jury veto power and legislation FIJA proposes in order to inform jurors about that power, but it is hoped that they can at least inspire thought on the topic, and perhaps satisfy some of the curiosity about it. Optimally, certain kinds of knee-jerk negative reactions to the concept may be prevented by open-minded consideration of the responses I'm offering.
Most questions arise from a basic misunderstanding--that fully informing jurors will somehow give them new rights and powers. It will not, of course. But it's been so long since jurors were told the truth about their existing power and right to judge both law and fact, and to vote according to conscience, that the idea seems to evoke something akin to "fear of the unknown" in some people.
That is why I like to make it clear, early in any presentation, that FIJA legislation would simply restore the right of the defense team to inform the jurors about their power to judge the law, and to argue its merits. The doctrine of jury nullification and the right of a jury to bring in a general verdict have been the law of the land for centuries. To argue against fully informing jurors about their power is therefore to endorse a relatively new--and undeniably elitist--line of thinking: that justice is somehow better served if trial jurors are not merely kept ignorant, but are deliberately misinformed about their powers by the court!
Now, in no particular order, the "hard questions":
Won't jury judgment of law lead to anarchy?
Fully informed juries are actually an antidote to the kind of "anarchy" we're already experiencing as a result of enacting more laws than people can or will obey, especially laws prohibiting "victimless" or "political" crime (crimes against the government, not people). When the government makes victimless activities into crimes, the result is often an increase in crimes with victims, too. For example, making certain drugs illegal causes their price to rise, which in turn causes users to "push" drugs onto new customers and to engage in violent crime in order to obtain enough money to pay for an expensive habit.
This kind of "anarchy" shows up both as soaring crime rates and overcrowded prisons, but the usual response by lawmakers is to pass still tougher laws against victimless acts, which in turn causes still more anarchy.
That is why the "cure" is more likely to begin with juries than with legislatures. Juries are made up of ordinary people who are more likely to know a bad law (or a bad application of a good law) when they see it than the lawmakers. That's because they develop their opinions more from common sense and experience than from interest-group pressure.
Then, after a series of juries consistently refuses to convict people of breaking a certain law, the incentive is for lawmakers to change or erase it--lest they lose the next election. In other words, to the degree their verdicts reflect their sense of justice, juries supply lawmakers with non-political, real-world reaction to the laws they've passed.
Eventually, when the law books become cleansed of unpopular or confusing laws that juries won't use, the rate of compliance with the remaining laws will be high because they will enjoy public respect and understanding.
It has worked before. Jury nullification instructions were standard courtroom practice for the first decades of this country's history. The juries understood their rights and exercised them responsibly. As a result, laws were enacted, revised, repealed and enforced according to community standards and expectations, and were therefore generally respected. A law which caused anarchy, such as Prohibition, did not hold up for long as jury after jury refused to convict people under it.
Four states (Indiana, Oregon, Maryland, Georgia) have long had general provisions in their constitutions acknowledging that juries are judges of the law, and over twenty other states allude to that right in their sections on freedom of speech or libel. To my knowledge, no "anarchy" has resulted from these provisions, though it must be admitted that none of these states has any provision for telling trial jurors what's in their constitution.
Finally, and very importantly, whenever jurors end up apologizing to a defendant for convicting him or her of breaking a law they themselves don't agree with (which is quite regularly, nowadays), only to find out later that they had the power to vote according to conscience, but were not told about it (or worse yet, were instructed they could not resort to conscience), their own respect for the law and our justice system can only diminish.
In short, failure to inform juries of their rights has been breeding anarchy; fully informing them would help restore social order.
Couldn't a fully informed jury convict someone of a worse crime than the one charged?
No. Juries do not now have, nor would a FIJA bill grant them the power to escalate or invent charges against a defendant. Jury veto power may only be exerted in the direction of mercy, never of vengeance. If a fully informed jury tried to escalate charges, or convicted despite poor-quality evidence, the judge would have a responsibility to call a mistrial. And if that should not occur, the option of appeal would remain, with good grounds.
Yes, some "mistakes" might still be made, but there is no reason to expect more wrongful convictions just because juries are aware of their power. Generally, the more trust people are shown, the more responsibly they behave, so the usual outcome of trusting jurors with the truth should be an improvement in the delivery of justice by jury.
Nor can juries "make law" by which to convict a defendant. Lawmaking would remain the job of the legislature. Jurors may, however, reduce the charges against an accused person, so long as the lower charge is a less serious form of the same crime he/she was originally charged with. The list and definition of "lesser included offenses" contained in an original charge is ordinarily determined by the state's high court, and may be revealed to the jury by law or upon the motion of either the prosecutor or defense attorney.
Furthermore, the decisions of juries do not and would not establish legal precedent or case law for future trials. Because jury-room deliberations are not a matter of public record, and jurors do not have to explain how they reached their decision, verdicts have no direct effect upon the law itself. A series of acquittals under a certain law will tend to deliver a powerful message to lawmakers, however, encouraging them to revise or repeal laws that the people aren't using. So the jury has a major role in democratic process, but is not directly involved in lawmaking.
What if the jury is prejudiced in favor of the defendant, and lets him go even though he's clearly guilty?
This is the "corrupt jury" problem, and it has happened in the past and will happen periodically in the future with or without the jurors being informed of their right to judge the law.
What to do? First, improve the selection process. Jurors should be randomly selected from the population as a whole. If, instead, a jury is selected so that all its members are biased in favor of acquitting a guilty person, it is likely to do just that, no matter what it's told or not told.
Selection of a corrupt jury requires corruption on the part of both the prosecutor and judge: it means that neither of them took any steps to see that at least some of the jurors were not biased of prejudiced in favor of the defendant. When the prosecutor deliberately allows a pro-defense jury to be selected, it amounts to a betrayal of the public trust, but it can happen.
In any case, if the defendant is tried in front of a judge, prosecutor, defense attorney and jury, all of whom favor letting him go free regardless of the evidence, he will go free.
Even under these circumstances, if jurors were informed that each of them could vote according to his own conscience, no matter what the law says or how the other jurors vote, as proposed FIJA legislation provides, there would at least be a possibility that one or more jurors would not go along with the rest, thus hanging the jury with their "guilty" votes. Chances for justice might then improve, via another trial, perhaps a change of venue, or a different judge, and certainly another jury.
Do jurors have the right, or just the power, to judge the law?
They have both. They have the power, because in a jury system, no one can tell the jury what verdict it must reach, nor restrict what goes on in jury-room deliberations, nor punish jurors for the verdict they bring in, nor make them explain why they reached the verdict they reached. It is no accident that our nation's founders provided for appeals of guilty verdicts, but not of acquittals: they intended the jury to have the power to halt a prosecution.
They also have the right, because each juror is partially responsible for the verdict returned, thus for the fate of the accused individual--and for every responsibility there is an equal and corresponding right. In a trial, it is therefore the juror's right to consider everything necessary for him or her to determine a just verdict. That includes physical evidence, the defendant's motives, testimony, the law, circumstances--whatever, including the juror's own sense of right and wrong.
Additionally, because all rights, powers, and responsibilities of jurors derive from the defendant's right to a fair and impartial judgment by peers, any restrictions placed upon the options the jurors may exercise in performing their task as fully and fairly as possible violate not only their rights, but infringe upon the right of the defendant to a fair trial.
Finally, when one gets right down to it, there is precious little difference, except in academic legal discourse, between a right and a power. Although opponents of nullification attempt to make as much as possible of the alleged difference between the two terms, especially as a rationale for failing to fully inform the jury, most dictionaries recognize them as synonyms.
Wouldn't our courts be flooded with jury trials if FIJA were to become law?
It's probable that the number of jury trials involving some of the least popular and (therefore) most frequently broken laws would increase--until frustrated and politically sensitive prosecutors began choosing not to attempt convictions under them any more, police began letting up on enforcement, and the legislators began reading the writing on the jury-room walls.
But the peak should soon pass, and with it, the "bad" laws responsible for it. Without cases involving or resulting from victimless/political crime laws, the courts would be very quiet and uncrowded places--with ample time and resources to devote to serious matters, like jury trials for people accused of crimes against people and property.
Additional time and cost would be saved by the reduced incidence of appeals by those who felt they did not get a fair trial the first time through: more people would feel they had received justice at their original trials, and it would take a very good argument to convince an appeals court to overturn a fully informed jury's verdict of "guilty".
Ultimately, though, one must ask whether justice for accused individuals, citizen-jury feedback to lawmakers, and increased respect for the laws of the land aren't well worth a short-lived surge in demand for jury trials.
Wouldn't there be a lot of variation from place to place in jury verdicts, according to local community standards?
Perhaps, though it could hardly compete with the variations in verdicts already being handed down by different judges in bench trials and in the sentences they give, even in jury trials. Nor could the variations in thinking between this or that group of twelve citizens ever compete with variations in the quality of the prosecution or defense efforts, which can range all the way from slipshod to spectacular.
What little research there is on this issue shows that there is indeed high consistency between jury verdicts in similar cases around the nation. For that reason, I think it's poor guesswork to expect that if all trial juries were from now on given additional, standardized information concerning their power to nullify, they would suddenly begin delivering wildly inconsistent verdicts, especially on crimes with victims, where there is little difference in
sentiment no matter where one goes.
But the broader question at issue here is whether geographic and/or temporal variation in jury verdicts, to the extent that FIJA legislation might inspire them, is necessarily an evil to be avoided. They might be better regarded as a source of social and political progress.
Exploring that possibility, a good guess would be that variations in conviction rates would, "after FIJA", continue to be greatest in cases involving controversial laws and victimless crimes. One might also expect that areas where jury tolerance of a particular type of behavior was greatest would probably attract people prone to that kind of behavior, and that the laws in those areas would eventually come to reflect the attitudes of the local community.
In other words, fully informed juries might countervail against the forces of "cultural homogenization" that have been at work for so long in America, and strike a blow for local variation, decentralization, local autonomy. If so, then FIJA is in spiritual harmony with other trends and forces moving in that direction, including everything from the resurrection of interest in the 10th Amendment to the re-emergence of local beers, "micro-brewed" with distinct character and flavor, and thriving at the expense of monotonous, mass-produced beverages.
Local character is increasingly important in a land where federal control and rule by national majorities, marketed as democratic process, has long since replaced the original plan for a constitutional republic. Federal intervention into individual and state affairs has produced enforced conformity to the will of national majorities, leaving cultural minorities no place to go to escape harassment, to "live and let live". Fully informed jury legislation might help, and relieve society of the strains and pressures that social/political standardization has wrought.
Variation in verdicts can also illuminate broad new trends and developments in our moral philosophy, and lead society from various dark corners into enlightenment. Let us not forget that slavery was dying at the hands of jurors, one community and state at a time, well before any laws were changed or the Civil War was fought. Let us also remember that our freedoms of speech, press, and peaceable assembly all trace to refusal of juries to apply laws against these behaviors, and that juries brought America back to her senses on the issue of Prohibition.
Would FIJA give interest groups and other minorities another arena in which to fight?
Most people, I hypothesize, would rather guarantee and enjoy their own liberty than damage someone else's. But as long as most laws are passed to please or appease special-interest groups, on a winner-takes-all basis, the name of the game will be rancor, and the long-term result will be mutual coercion.
The overall thrust and effect of fully informed jury legislation should be to counteract this negative-sum game, by promoting self-interested tolerance. Fully Informed Jury Association members include people of many different types. They are willing to join together in unusual coalitions to re-empower our nation's juries.
My observation is that this is not so much because they've come to appreciate each other's culture, race, point of view, or activities (though we see evidence of this, too), but because they're willing to let the other guy "do his thing", as long as they may also do theirs, unharassed--a "win-win" game, then.
FIJA legislation should also make it more difficult for majorities to deny the rights of minorities even if they never choose to tolerate each other, because any minority (and we're all minorities by one or more criteria) will be able to defend itself better when jury veto power is "taught in court".
The real payoff is that government, which tends to grow in power and intrusiveness with every escalation of distrust and intolerance between warring factions of citizens, may become less essential to the maintenance of social order as trial juries resume their check-and-balance function, and "live and let live" re-emerges as the American ethos.
What if the jury nullifies a good law?
This is not generally a problem. We have centuries of experience with jury veto power, and generally laws that protect people against invasions of their property or threats to their safety are supported by the community as a whole, and are thus dependably enforced by jurors. Maryland and Indiana report good success with nullification instructions, allowed under their constitutions since the nineteenth century.
Can we trust jurors to make intelligent decisions about the law, especially when the lawyers so often seem to dismiss anyone who seems well educated or intelligent?
Neither intelligence nor education is a prerequisite to understanding right and wrong, and many an excellent verdict has resulted from the observations or opinions offered by persons of modest mental capacity and/or minimal academic achievement. E.g., a jury of twelve illiterate Englishmen decided William Penn had done no wrong by preaching a Quaker sermon, though doing so was illegal in 1670.
In short, if a jury can understand the law, it can certainly judge the merit of applying it. If a jury cannot understand the law, then no one should be expected to obey it. Instead, the legislature should make it understandable.
If a defendant worries that a jury will not be able to understand the law he's accused of violating, he can opt for trial by a trained legal professional--the judge. But a better bet may be to argue to a fully informed jury that the law is confusing, which would be much easier if FIJA legislation were enacted.
Besides, knowledge that the jurors are going to be informed of their right to judge the law and to consider the justice of applying it would give an incentive to attorneys on both sides of a case to select at least a few jurors who appear able and willing to apply moral/philosophical reasoning--and perhaps to show some leadership--during jury deliberations. In short, FIJA should have a positive impact on the quality of juries and their verdicts.
Finally, it is both elitist and erroneous to accuse the ordinary citizens of this country of not being able to govern themselves when the opportunity or need arises. Political science research has several times shown that people become extremely conscientious, cautious and responsible when they sit on a jury--more so than at any other time in their lives.
What would become of the practice of basing verdicts upon legal precedents?
Case law, or precedent, would remain useful as advice and information open for consideration by all parties to a trial, but its use as a basis for verdicts in current jury trials would end. One major objective in fully informing juries of their rights and powers is to provide ever-evolving jury feedback to legislators, so that regular adjustments can be made in the rules that we live by, instead of relying on historical precedent in the courts.
A match between the law and community standards cannot be had when "precedent requires" that the same verdict be found for an instant case as was found in similar cases in the past. When gaps between what's moral and what's legal become too large, we invite anarchy, which in turn invites totalitarianism.
Wouldn't FIJA violate our Fourteenth Amendment right to equal protection under the law?
"Equal protection" is already tough to guarantee, given the differences in quality between judges, prosecutors and defense attorneys who may become involved in any given case. Add to them our media-assisted fads and fashions in law enforcement, and the very unequal kinds of "deals" which are so regularly pushed upon defendants by the prosecutor and/or the judge outside of the courtroom (too often based upon the accused person's appearance, background, and ability to pay), and "equal protection" takes on the appearance of an ideal which draws a lot more lip service than real concern.
Juries generally become part of this problem only to the extent that both the prosecution and the defense have done everything in their power to select the least knowledgeable and most manipulable jurors available. If those trying to make an "equal protection" argument against FIJA really cared, they'd ask for laws ensuring random selection of jurors from as broad a base as possible.
FIJA may provide partial remedy, because the chances of equal treatment of defendants would appear to increase if the jury were to receive complete and accurate instruction in its veto powers-- not just because information makes fairness more possible, but for at least two other reasons:
(1) if jurors are lied to about their rights and powers, a certain percentage of them can be expected to see through the falsehood, then to rationalize reciprocating that dishonesty by lying to one or both of the attorneys and the judge during the selection process. Exactly what they may be covering up or misrepresenting, and why, will certainly vary from jury to jury, and that is exactly what the doctrine of equal protection rails against;
(2) When both the prosecution and defense attorneys know in advance that the jurors will be fully informed of their power to judge both law and fact, their jury selection criteria can be expected to change accordingly. Both sides would face an incentive to find jurors able and willing to consider not only factual but also moral-philosophical questions in search of justice, especially in those cases where the merits or the applicability of the law may be at issue. The result should be both better-quality juries and more equal treatment of defendants under the laws that those juries work with.
Could FIJA cause a big increase in the number of hung juries?
In the short run, perhaps, as laws which are hard for people to understand, identify with, or apply are evaluated by juries. As "mercy buffers" between the power of the state and the accused individual, and between majorities and minorities, a certain frequency of inability to reach a consensus is to be expected.
But that's the point: it's important that there remain at least one strong institution of government which must achieve unanimity in order to make a decision, since most series of usurpations of rights in general begin with majority attacks on the rights of unpopular minorities or individuals. In other words, hung juries can be extremely valuable in preventing might from making right.
On the other hand, when the trial is over, other members of the community often want to know how and why the verdict was reached, or the punishment or award agreed upon. This can provide a strong incentive for the jurors to make a serious attempt at unanimity.
When that incentive isn't strong enough, and a long series of hung juries on cases involving a particular law occurs, it sends a powerful message to lawmakers that reform is necessary. Such a series may reflect public demand for more simplicity, clarity, precision, fairness, latitude, relevance or other important attributes of that law. A beauty of feedback from juries is that it is rarely a statement of special interest: hardly ever do all twelve (or even all six) people on a jury share a single political goal or viewpoint, and the chances that all the people sitting on a series of juries will do so are utterly remote.
The relative frequency of hung juries can therefore be read as a measurement of true public sentiment about the law. The more responsive our lawmakers become to those sentiments, the stronger the association between community moral standards and the law will become, and the fewer hung juries there will be.
Some versions of "FIJA" specify that a potential juror may not be challenged for expressing a willingness to judge both law and fact. Wouldn't this make it hard for prosecutors to eliminate jurors they determine to be "soft" on a given law, or opposed to the punishment which may apply if the defendant is convicted?
First, this objection begs the question of whether jurors should ever be screened for service on the basis of how they feel about certain laws and/or punishments. In some nations with a tradition of trial by jury, the first twelve people selected by lot or other random method serve as a jury--no voir dire process, no dismissals for cause (other than evidence that the person selected has a direct interest in the outcome of the case), no peremptory challenges, nothing. Some argue that this is the best way to approximate the "jury of one's peers" supposedly guaranteed by our Constitution.
So, in answering this, I always make it clear that I do so "only for sake of argument", because I believe that once we begin to set "criteria" for eliminating potential trial jurors, beyond disqualifying those who have a "direct interest", there is no logical way or place to stop, or to keep the selection process from turning into jury-stacking contest between the prosecution and defense.
The idea behind including this provision in FIJA legislation is to eliminate one major impediment to honoring the defendant's right to trial by a fair and impartial jury of peers. When we allow the prosecution to weed out people who might have qualms about the law in question, or about the punishment which the state says should accrue to those convicted of breaking it, we indirectly endorse trial by government, not by jury: only those who agree with the government are allowed to serve.
But the voir dire process is not going to go away because of FIJA, nor will the skill, effort and money which currently go into building "favorable juries" by both sides, because our adversarial system of justice demands it.
Therefore, one good answer to those who attack FIJA because "you might not be able to get the death penalty", or "some nut on the jury might hold out for acquittal just because he doesn't think drugs should be illegal", is to remind them that peremptory challenges would still be allowed, even if all the "objectionable" potential jurors could not be dismissed for "cause".
And should the prosecution use up all of its peremptory challenges, and still be unable to purge a given jury of all those who might possibly have objections to a particular law or punishment, it may be time for the state to recognize that such extensive reluctance to use a certain law, or apply certain sanctions, may be a reflection of changes in community standards-- changes to which prosecutors, as public servants, should be more responsive than antagonistic.
Finally, if some kind of compromise on the "death penalty issue" must be made in order for FIJA legislation to be enacted, all that is required is for a section to be added to (or left unchanged in) the state codes which says that the state may challenge jurors for cause if they express categorical, moral opposition to the death penalty.
"Informing jurors of their power might be fine in criminal cases, but civil trials might turn into popularity contests."
The power of juries to nullify is a fact of our legal system, and nothing short of abolishing trial by jury can change that. And it is true that juries have been known to decide cases, both civil and criminal, on the basis of factors other than culpability. In criminal cases, there are more safeguards against injustice, so this argument is a point well taken.
That is why all current editions of FIJA bill language would enable the defense team to argue issues of law and conscience to the jury only in cases where the government is a party. The idea is to restrict the presentation to cases where the government has squared off against the individual, so that the intent of the doctrine of jury nullification can be served, if and as necessary: protection of the individual's rights.
We can only assume that without presentation of nullification information, the conduct of civil cases between private parties would be unchanged from what it currently is.
"We are a nation of laws, not men."
Some who oppose FIJA utter this one-line cliche as though it should stop us in our tracks, once we fully appreciate its profundity.
I like to point out that Nazi Germany was a "nation of laws", too, and that when its war criminals were brought to trial in Nuremburg, they tried to hide behind those laws--only to find that the rest of the world insisted that they be judged according to conscience!
The point is, until the Great Spirit or Creator or Lord of Lords comes down and sets us all straight, it is we ourselves who will not only have to make the laws we live by, but take personal responsibility for them. So far, the best institution ever devised for so doing is the common-law trial jury. FIJA's main point is to ensure that those participating in this institution appreciate the extent of their power and responsibility before sitting in judgment of a fellow human being.
* * *
From 1989 until he stepped down for health reasons in 1994, Larry Dodge served as National Field Representative for the Fully Informed Jury Association, P.O. Box 59, Helmville, MT 59843; phone (406) 793-5550, or 3988 Goodfellow Drive, Dallas, TX 75229; phone 214-357-0902.
By_______________________ ___B. No. ______
A BILL TO BE ENTITLED
AN ACT
relating to a jury's right to determine the law in criminal and certain civil cases.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 36.13, Code of Criminal Procedure, is amended to read as follows:
Art. 36.13. JURY IS JUDGE OF FACTS AND LAW. (a) Unless otherwise provided in this Code, the jury is the exclusive judge of the facts. The jury[, but it] is bound to receive the law from the court and be governed thereby, except if a jury determines that a defendant is guilty according to the law and that the law is unjust or unjustly applied to the defendant, the jury may determine not to apply the law to the defendant and find the defendant not guilty or guilty of a lesser included offense.
(b) A defendant has the right to inform the jury of the jury's power to judge the law and to vote on the verdict according to conscience. The court or the state may not infringe on this right. Failure to allow the defendant to inform the jury of the jury's power is grounds for a mistrial.
(c) Notwithstanding any other law, the court shall allow any party to the trial to present to the jury, for its consideration, evidence and testimony relevant to the jury's power under this article, including evidence and testimony relating to:
(1) the merit, intent, constitutionality, or
applicability of the law in the case;
(2) the motives, moral perspective, or circumstances of the defendant;
(3) the degree of guilt of the defendant or harm caused by the defendant; or
(4) the punishment that may be imposed on the defendant.
(d) A potential juror may not be excused or disqualified from serving on a jury because the juror expresses a willingness to exercise a power granted to the jury under this article.
SECTION 2. Subtitle B, Title 2, Civil Practice and Remedies Code, is amended by adding Chapter 24 to read as follows:
CHAPTER 24. JURY POWERS IN CERTAIN GOVERNMENTAL PROCEEDINGS
Sec. 24.001. DEFINITION. In this chapter, "governmental agency" means:
(1) this state and any institution, agency, or component of government established by the constitution or laws of this state, including any department, bureau, board, commission, office, or council; and
(2) a political subdivision of this state, including any county, municipality, district, or authority, and any agency of a political subdivision.
Sec. 24.002. SCOPE OF CHAPTER. (a) This chapter applies only to an action in which a governmental agency, as party to a civil action, seeks to collect a civil or administrative penalty.
(b) This chapter applies only to an action tried to a jury under applicable law. This chapter does not create a right to a jury.
Sec. 24.003. POWER TO NOT APPLY LAW. If a jury determines that a party is liable according to the law and the law is unjust or unjustly applied to the party, the jury may determine not to apply the law to the party and find the party not liable.
Sec. 24.004 RIGHT TO INFORM JURY. A party has the right to inform the jury of the jury's power to judge the law and to vote on the verdict according to conscience. The court or the opposing party may not infringe on this right. Failure to allow a party to inform the jury of the jury's power is grounds for a mistrial.
Sec. 24.005 EVIDENCE. Notwithstanding any other law, the court shall allow any party to the trial to present to the jury, for its consideration, evidence and testimony relevant to the exercise of the jury's power under this chapter, including evidence and testimony relating to:
(1) the merit, intent, constitutionality, or applicability of the law in the case;
(2) the motives, moral perspective, or circumstances of a party;
(3) the degree of liability of a party or harm caused by the party; or
(4) the sanctions that may be imposed on a party.
Sec. 24.006. DISQUALIFICATION OF JUROR PROHIBITED. A potential juror may not be excused or disqualified from serving on a jury because the juror expresses a willingness to exercise a power granted to the jury under this chapter.
Sec. 24.007. CONFLICT WITH TEXAS RULES OF CIVIL PROCEDURE.
Notwithstanding Section 22.004, Government Code, this chapter may not be modified or repealed by a rule adopted by the supreme court.
SECTION 3. Article 35.16(b), code of Criminal Procedure, is amended to read as follows:
(b) A challenge for cause may be made by the State for any of the following reasons:
1. That the juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case, where the State is seeking the death penalty; or
2. That he is related within the third degree of consanguinity or affinity, as determined under Article 5996h, Revised Statutes, to the defendant[,and
[3. That he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment].
SECTION 4. The change in law made by this Act applies only to a jury empaneled on or after the effective date of this Act.
SECTION 5. This Act takes effect September 1, 1995.
SECTION 6. The importance of this legislation and the crowded condition of the calendars in both houses create an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days in each house be suspended, and this rule is hereby suspended.
ANSWERING THE HARD QUESTIONS ABOUT FIJA LEGISLATION
by Larry Dodge
~TABLE OF CONTENTS~
Introduction.....................................................1
Won't jury judgment of law lead to anarchy?......................2
Could a fully informed jury convict someone of a worse crime
than the one charged?............................................2
What if the jury is prejudiced in favor of the defendant, and
lets him go even though he's clearly guilty?.....................3
Do jurors have the right, or just the power to judge the law?....4
Wouldn't our courts be flooded with jury trials if FIJA were
to become law?...................................................4
Wouldn't there be lots of variation from place to place in
jury verdicts, according to local community standards?...........5
Would FIJA give minorities and other interest groups another
arena in which to fight?.........................................6
What if the jury nullifies a good law?...........................6
Can we trust jurors to make intelligent decisions about the
law, especially when the lawyers so often seem to dismiss
anyone who seems well educated or intelligent?...................6
What would become of the practice of basing verdicts upon
legal precedents?...............................................7
Wouldn't FIJA violate our Fourteenth Amendment right to equal
protection under the law?........................................7
Could FIJA cause a big increase in the number of hung juries?....8
Some versions of FIJA specify that a potential juror may not
be challenged for cause for expressing a willingness to judge
both law and fact. Wouldn't this make it hard for prosecutors
to eliminate jurors they determine to be "soft" on a given law,
or opposed to the punishment which may apply if the defendant
is convicted?...................................................9
"Informing jurors of their power might be fine in criminal
cases, but civil trials might turn into popularity contests"....10
"We are a nation of laws, not men!".............................10