--a draft wish list, "within the realm of the possible"--

[1] Jurors should always be able to take notes, use tape recorders, have access to exhibits during deliberations, even ask questions of witnesses during the trial, through "their attorney", the judge. It is absurd to give a jury the responsibility for determining guilt, innocence, liability, sentence, or anything else without adequate information. After all, it's the jury which will end up taking credit or blame for its verdict, not those who seek to limit what they see and hear.

[2] Juries need to be more randomly selected than they currently are. This could mean

[a] drawing venire panels from a larger base than lists of registered voters;

[b] encouraging people to serve on juries, perhaps by having "jury service volunteer" application cards available at all government offices, by raising the amount of compensation paid to jurors, or teaching about jury duty in the schools;

[c] limiting the voir dire--perhaps down to a few questions asked by the presiding judge to determine if the juror has a vested interest in the outcome of the trial, or is connected with the defense or prosecution is some way which could compromise his/her neutrality;

[d] eliminating the peremptory strike, and narrowly defining the kinds of reasons for which a motion to strike a juror for cause may be granted.

[3] Our constitutional guarantees of trial by jury in all criminal cases, and in all civil cases where $20 or more is at stake, need reinforcement before they're entirely eroded. The practice of denying those accused of crimes where the punishment does not exceed 6 months has only led state and federal governments to develop interrelated subsets of charges which can entail a maximum of 5 months and 29 days each. Then, at a trial without a jury, the prosecution asks that these terms be served consecutively--all this to thwart the 6th Amendment! And now, in federal civil cases, the judge is empowered to decide whether a given suit "warrants" a jury trial at all (so much for the 7th Amendment!)

[4] Trial by jury also needs to be guaranteed in administrative law, tax, and family court cases, among other jurisdictions where it has been dispensed with--again, in violation of the 6th and 7th Amendments.

[5] Motions in limine, which were designed to prevent the jury from hearing inflammatory testimony, are now abused to the point that the jury can't even get full access to the facts of the case. It is utter condescension to decide that jurors "can't handle" words that the lawyers and judge and gallery and reporters apparently can. The court should, at the very least, ask the jurors if any of them would be too upset to decide the case impartially by hearing any of the following words, then give them a list. Those who said yes, this or that word or phrase would have a bad emotional impact upon them could then be excused by the judge, and replaced by people with slightly thicker skins. But it would probably be a rare event.

Motions in limine are used to prohibit defendants from using words relevant to a defense involving any discussion of motives, moral beliefs, justification, or constitutionality of the statute involved. This practice should be ended.

[6] Jurors should be made aware of any and all lesser included charges under the original charge made by the prosecution, and the maximum and minimum punishments which accompany each, so that they can decide not only what happened (and, with FIJA, whether it matters), but how much the defendant will and should pay in the way of penalties, should the jury convict. Matching the punishment to the crime is part of the traditional role of the jury, and stems directly from the jury's responsibility to represent the community.

[7] Relatedly, sentencing juries (as in Texas and 7 other states) [a] should be given access to the convict's past record during the sentencing phase of the trial; and [b] should be told the truth about the sentences they prescribe: How much time will really be served? When will the convict be eligible for parole? What rules of "good time" will apply? If released on parole, how long will it last and what expectations apply to the parolee and parole officer?

[8] One possible way to handle parole would be to convene a "parole jury" from the community in which the crime was committed, and let the applicant for parole present his/her case to it. This would depoliticize the parole system, and make the community, not the government, responsible for the risk of readmitting a person to society, and for deciding how much supervision he/she should have;

[9] Plea bargaining should be abolished entirely. A defendant seeking reduction in criminal charges should present his arguments to a "fully informed" trial jury, not to a prosecutor. If seeking leniency in sentencing, the defendant should argue his case to a "fully informed" sentencing jury. Likewise in all civil cases, a defendant should be able to argue for reduction in liability to a jury, although he or she would also be welcome to settle with the plaintiff out of court.

[10] There should be no "juror's oath" to follow the law as given by the court. First, the oath is meaningless, since it can never be enforced. Second, the law belongs to the people, not the government, and it is always theirs to apply or not apply as they see fit. Third, oaths do not prevent liars from being empaneled, they only limit conscientious people from thinking beyond the narrow confines "allowed" by the court.

[11] Likewise, there should be strict limits on "instructions" given to jurors. There is no constitutional basis for any kind of instruction to be given the jury by the bench, but it has become typical practice for the judge to spend hours lecturing the jury on what it may or may not do, to the point that many juries simply rubber stamp what the bench appears to want. That is tantamount to "trial by government", and totally undermines the concept of being judged by one's peers, in order to prevent government tyranny from displacing true justice. Consider that the jury in the trial of Rodney King's assailants was given 76 pages of instruction; the jury in the Branch Daviidians' trial was given 68 pages, etc. Ideally, the judge should summarize the law, give a few examples of how it's been used, and tell the jury "Let this guide you in your pursuit of justice"--then answer questions about the law and its application if and when asked.

[12] Trial jurors have a right to privacy, just like all other citizens, and it must be respected. By limiting the voir dire, as advocated in 2[c], above, most of the problems involving invasion of juror privacy would be solved. These problems include access to personal information about jurors by defendants or their family or associates, not to mention the media, which can result in juror intimidation as well as violation of the defendant's right to a fair and impartial hearing. Beyond satisfying the defense and the prosecution that the juror does not have an interest in the case, and satisfying the community that the jurors have indeed been selected from among them, the criminal justice system has no compelling reason to expose jurors to public scrutiny. Nor should prosecutors have access to personal files on each juror which are not already part of the public record.

[13] Steps need to be taken to ensure that juries, by definition, contain twelve persons, and that they must reach a unanimous decision either to acquit or convict a defendant. In at least two states already, super majorities are allowed to decide verdicts in criminal cases, thus scuttling the only institution of government which requires consensus in its operations--and with it, minority viewpoints in the decision-making process. "Affirmative action" to require that all races, colors, creeds, religions, sexual preferences, political viewpoints, etc. can never take the place of keeping the number of jurors at twelve, and requiring consensus.

[14] Relatedly, jurors should receive information from the court which explains that they are not required to bring in a verdict. If they simply cannot agree, there is no way they can be forced to produce a verdict anyway. They should merely have to report that they are hung, with so many favoring conviction, and so many favoring acquittal, and not be subject to any chastisement for reaching an agreement to disagree. Hung juries are often indicative of disagreement about the law itself, and can therefore serve as useful information for legislators wishing to clarify the law, so that it's both easier to obey and to apply.

[15] Sentencing juries must be exempted from ever having to follow mandatory minimums, "three strikes" criteria, or other "guidelines" in matching punishment to crime. The whole point of judgment and sentencing by jury is to involve the conscience of the community, not the politics of the legislature, in deciding what to do with errant fellow citizens. Just as juries have the right to bring in a general verdict, they have a right to adjust sentencing to the level they determine is appropriate.

[16] Appeals should be heard by juries, not by panels of judges, and end when two of three verdicts agree. This is not a new idea: it was practiced in several of the colonies, and was advocated by Alexander Hamilton in the Federalist Papers. And it is consistent with the intent of the 7th Amendment, whereas the current practice of moving away from trial by jury on appeal, and into consideration only of any "technical errors" or "constitutional questions" by a panel of government jurists, is not.

[17] Juries should be apprised of the true expense to taxpayers that will ensue if they find a defendant guilty. These costs should be computed by the government in a verifiable way, and include everything from cell space to parole supervision to interest on prison construction bonds to probable expenditures if appeals are made, and expenses of supporting a family which cannot support itself if the breadwinner is incarcerated. Alternatives, and their respective costs, should also be presented to the jury. This information should be presented to both judge and jury by a clerk of the court, prior to jury deliberations.