Trial by Jury

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

In the above amendment the right to a speedy and public trial, being informed of the nature and cause of the accusation, able to confront the witnesses against him, to have the ability to obtain witnesses in his favor, and the assistance of counsel are all variations of the guarantee of due process. The most controversial historically is the right to confront witnesses against him. In many countries when a member of an organization is called before a criminal court, he has sufficient friends on the outside that any witnesses against him are subject to being murdered or having their families butchered. Thus, the question of whether or not the identity of witnesses must be made public is a question which varies to some degree with whether the criminal is a member of an organized body within society but hostile to the just enforcement of the law. This has resulted in the witness protection program in the US today.

The right to a trial by jury stands out as separate and distinct from the other articles of this amendment. The others are to varying degrees simply specific details of due process. Why is trial by jury included? What possible difference can the opinion of a jury make? If a man is guilty of breaking the law surely a Judge expert in the law must be the best authority to weigh the evidence and apply the law? This is so obvious that it follows that the Jury must have some authority to act independently of the Judge and the Law. This kind of conclusion is of that sort which mathematicians say should be intuitively obvious to the most casual observer. 1+1=2. The simple existence of the right to trial by Jury means that the Jury has the right to ignore the law and find a man innocent of the crime regardless of his guilt if the law appears unjust as applied or the mandatory sentence too severe. No other logical conclusion is possible. If the Jury could not act independently of the instructions of the Judge, there would be no need for a guarantee of trial by Jury.

Consider how important trial by Jury was considered by the authors of the Bill of Rights. It was such an important subject during the ratification of the Constitution that an entire Federalist Paper, number 83 was devoted to it. This is despite the fact that trial by jury was guaranteed in the Constitution itself before being guaranteed again in the Bill of Rights. The clause in the Constitution is under Article III, Section 2;

Compare that to the passage about trial by jury in the Bill of Rights.

These words are almost identical.

What could possibly have been so important about trial by jury that it was guaranteed once in the main body of the Constitution and then a second time in almost the same words in the Bill of Rights?

The answer is quite simple. Juries have the right to ignore the law. If a Jury feels that the law as applied in a given case is unjust, regardless of the legal guilt of the accused the Jury has the right, even the duty to refuse to convict. If a Jury feels that the law as applied in a given case requires too harsh a sentence for the crime involved, the Jury has a right, even a duty to fail to convict.

This sounds insane. Regular, common, ignorant, people off the streets have the right to ignore the law and make up their own minds. To certain kinds of people, people who respect authority and are afraid of the common people, this is inconceivable. On the other hand, to a logical mind, looking at the simple fact that trial by Jury was twice guaranteed by the framers of the Constitution, the only possible reason is that the Jury is tremendously powerful.

This role of the Jury goes back hundreds even thousands of years. It existed among Greeks, Romans, and the Germanic barbarians around the Roman empire in various forms. When the Puritans ruled England under Cromwell, death was the penalty for adultery. After the first couple of people were beheaded for adultery, no English Jury convicted anyone of adultery during the period of Cromwell’s rule.

This principle of the right of a Jury to judge not just the facts but the law was so well established in England that Hobbes the famous champion of authoritarian rule writing in England after the Revolution did not dare to challenge it. To quote from his book Leviathan,

Hobbes continues in the next paragraph,

It is not law but equity, justice, fairness which is most important in judging and interpreting the law. When the letter of the law results in injustice, then the law must be adjusted to produce justice. This has been discussed in some degree in the section on Due Process. A Jury acting in each individual case where a crime is being judged allows the people to supervise the application of laws to determine their equity or justice and to refuse to enforce laws which are inequitable or unjust on a case by case basis.

Hobbes in “Leviathan” states,

This places the famous legal principle that ‘ignorance of the law is no excuse’ into its proper historical context. Ignorance of knowledge of complex laws which no person could reasonably be expected to know is an absolute excuse. Failure to investigate the law is no excuse, as when preparing taxes one should know that there are laws one must investigate and obey. Ignorance of the principles of equity or Natural Law are no excuse. Juries should bear these principles in mind when judging cases. It is a simple either or proposition. If you are mentally competent enough to govern your affairs you are competent to be tried and judged. Ignorance of a law which you should have known, being mentally competent to know and understand such matters is no excuse. If you are so incompetent as not to be able to know and understand the law, then you should be permanently held under supervision and care as mentally ill or incompetent to govern yourself.

Not only is Trial by Jury a tremendous power of the Citizens, it is a school for Citizenship.

There are numerous websites about the right to Trial by Jury. Normally designated FIJA or Fully Informed Jury Association websites, they are dedicated to reforming the Jury system in the US to make it more what it was intended to be by the Framers of the Constitution and the Bill of Rights.

Why is a Jury trial so important? Why is the judgment of a Jury considered superior to that of a Judge in matters of Justice? The classic case in English Law advancing this point may help to illustrate why.

William Penn the founder of Pennsylvania was on trial in England for preaching the Quaker religion. In point of fact there was no doubt of his guilt. In point of legal fact it was against the law. Preaching any religion but the state sanctioned Anglican Church was illegal. The Jury simply refused to convict him. They felt the law and especially the penalty required by law was too harsh for the offense. They judged Mr. Penn to be a good and decent man and absolutely and resolutely refused to convict.

The Judge was outraged and condemned the entire Jury to prison. They appealed and their right to ignore the law was upheld by a higher court. Any modern person hearing of this trial can understand and fully support those Jurors when they took a stand on their conscience and ignored the law. Trial by jury means that ordinary citizens can judge the law and if they find it unjust take a stand on their conscience in legal civil disobedience to an unjust law.

It is a tremendous power vested in the Citizens of the United States. You should feel your chest swell with pride when you realize just how powerful you really are. Why should you have such power? To make it reasonable consider that the laws of the US are made by your representatives with your consent. The Legislative branch, the Congress of the United States, your elected representatives have the power to make law. The Judicial branch is not invested with that power.

Formally a Jury may be considered as a temporary Legislative assembly gathered from the local citizens exercising oversight in detail, case by case, on the administration of the Law by the Judicial Branch and judging in detail if the law is just in each case. If the People find that the Legislative branch has created a law which is unjust in application, it can by the fundamental right of the People to make their own laws, Judge the Law and find it in error.

There is a confusion in Political Philosophy between reality and theory. Various institutions of government serve various purposes. Frequently they are designed to serve one purpose, and in fact turn out to be functionless, as in the Electoral College, or to in practice serve another purpose entirely. Many Political Philosophers are fascinated with their own brilliance or the brilliance of their predecessors and analyze political institutions dogmatically. Others look at the institutions and ask, what purpose does this institution actually serve? The English Constitution was not designed it evolved. Montesquieu living under the absolute Monarchy of France analyzed it, described its fundamental components and how they operated to produce liberty for the English people. His comments, his division of the Government into Legislative, Executive, and Judicial branches were fundamental to the design of the Constitution. The Constitution did not evolve, it was designed by political theorists, but their theory was based on a body of empirical analysis and description of how governments in history had worked not on theory about how they should work.

The Jury was not formally defined as a third branch of the Federal Legislature by the Founding Fathers, or at least not to my knowledge. Describing it as such is factually accurate as that is how it functions. The Federal and State governments possess law making power delegated to them by the people. The People retain the right through the institution of the Jury to judge whether or not that delegated power was used appropriately or inappropriately.

It is useful in this sense to discuss the intended roles of the Senate, the House and the Jury in terms of the expertise and authority of their members. The Senate is closely tied to the President and to issues of Federal importance and foreign policy. The House directly represents the people. The Jury directly represents the people on a daily intimate basis. The Senate was intended to be selected by the State Legislatures to provide a college of elder statesmen recognized by the most able men of the various States to be qualified to make informed judgment of issues of foreign and national policy. Areas of expertise outside the experience of the common man. The House was to be reelected every two years to ensure that it was directly answerable to the common man and highly attentive to the desires of the people.

The Jury represents the people in judging how the law is applied to their personal affairs and lives. The Jury selected from the commons knowing the daily lives of the commons, and expert in normal behaviors and attitudes has an expertise in what is or is not abusive to them as individuals. This is an expertise which legal professionals like Judges, or professional politicians do not possess. Such persons live lives somewhat different from those of the commons. As such the voice of the commons checking the daily personal application of the law is important to the operation of the system. As normal regular people they possess a qualification to evaluate the law and whether or not its application is abusive to normal regular people that Judges and Legislators do not possess.

Nothing else ties the power of the People to govern themselves on a daily basis so closely to the exercise of Law as the right to Trial by Jury. Generally the People judging on the basis of equity are guided by the principle of reciprocity which is the fundamental principle which distinguishes Justice from other forms of moral action.

In both instances where the Trial by Jury was guaranteed in the Constitution and Bill of Rights it specified not just Trial by Jury but where the Jury was to be drawn from. Both clauses specify that the trial shall occur in and/or the Jury be drawn from the specific State or District in which the offense occurred. This places the judgment of the Law in the hands of the people where the law is in effect and according to the community standards of that place.

Common Law was tremendously important in the early days of the United States. Common Law is the law of the Commons of the Community. It is reflective of the mores and values of the regular citizens. Georgia at the time of the Constitutional Convention had none but Common Law courts. The Trial by Jury guarantees a Trial by a Jury selected from the community in which the offense occurred. This means that the law will be judged by members of the community in which it is being applied according to the beliefs and values accepted by that community.

This is a tremendous check on the power of the Federal Government to impose foreign values on the States and even on various communities within the States. Like all rights and powers it can be abused as well as used rightly. The refusal of a Jury to convict because a given crime is not considered criminal within a given community can come in conflict with the sentiments of the Nation as a whole.

This occurred during the Civil Rights movement. The refusal of Southern Juries to convict for crimes against Blacks is famous. Few realize that such refusal was completely legal and Constitutional. This incident has probably contributed to the erosion of the power of the Jury in the United States today.

There is a long history of power struggle between the Judiciary and the Jury. Sometimes as in the case of William Penn, the Jury stands out as the brave champions of human rights against the law. In other issues, the Jury has been the recalcitrant conservative defending their personal privilege. This balance of power, this legal right to challenge the law, allows for a peaceful airing of different values and points of view in society. Citizens can act on their conscience in the Jury with absolute legal impunity.

The power of the Jury can be frightening to those who remember that like all powers it can sometimes be abused. The problem is that throwing away traditional rights because occasionally they are abused is a good way to ensure that soon Citizens will have no rights at all. Today the power of Juries is being called upon to prevent the enforcement of unpopular laws in various states. Medical Marijuana use is legal in many States despite Federal Laws opposing it. Trial by Jury gives local citizens to power to enforce their will against Federal abuse.

Mandatory sentences have tied the hands of Judges and produced criticism even by the Justices of the Supreme Court. Juries can refuse to convict in cases where sentences are too harsh. As a general rule, the Jury should and has traditionally acted in a merciful role, refusing to convict or insisting on a lesser charge. If the culprit does not deserve mercy, this may seem wrong, but it is better to err on the side of mercy than on the side of harshness. The Jury members should remember that while on the Jury he is a representative of the People, as much an officer of the Government as any Senator or Representative with a similar authority. His power in the individual case is actually greater though it is limited to that individual case and does not include making laws in general.

The power of a Jury to Judge the Law is dangerous. All power is dangerous. What was abused in the past may today be the best safeguard against the abuse of another power. The power of the Federal Government may be just as abusive. Powers balanced against each other are the best guarantee of freedom. Hobbes in “Leviathan” provides guidance on how men should judge,

This applies to partiality on the basis of race, religion, or politics or personal gain. Partiality of this sort erodes the trust of the Citizens in the system and leads to Revolution.

To quote Aristotle in his Ethics, possibly his most famous general principal, “Virtue, then, is a state of character concerned with choice, lying in a mean, i.e. the mean relative to us, this being determined by a rational principle, and by that principle by which the man of practical wisdom would determine it. Now it is a mean between two vices, that which depends on excess and that which depends on defect; and again it is a mean because the vices respectively fall short of or exceed what is right in both passions and actions, while virtue both finds and chooses that which is intermediate. Hence in respect of its substance and the definition which states its essence virtue is a mean, with regard to what is best and right an extreme.”

The rational principle here is to provide a means of testing the application of the law in every case which prevents major injustice. The extremes are when the Jury acts without regard to justice to favor one party or another as occurred in the South during the Civil Rights movement and which many believe occurred in the O.J. Simpson trial. The other extreme is when the Jury is prevented from exercising its power by Federal Authorities so that unjust verdicts are required from the Jury to enforce an unwanted law. Juries are required to swear an oath to uphold the law when they make their decisions. In England where there is no written Constitution, this means that the latest law, or the latest way the Judges choose the interpret the law is the law. In the US where there is a written Constitution which enshrines the authority of the Jury to judge the Law, the highest Law of the Land is that the Jury judge the Law according to their Conscience. The oath then requires them not to obey the lesser law, but the higher law, the Constitution.

The power of the Jury is the power of the regular everyday people to defy the edicts of the Federal Government when that Government ceases to respond to their feelings expressed in other ways. It is not a power the people can afford to relinquish either through ignorance or because it has occasionally been abused in the past.