IF YOU'RE CALLED FOR JURY DUTY... Show up, of course. If this happens before FIJA becomes law, just remember that it is always your right to decide on the justice of any law you're being asked to apply to the accused. So if the judge insists that you must consent to follow and apply the law as he or she describes it, do not be intimidated: you may in fact safely follow your conscience. You can't be punished for voting your conscience, but may be harassed (interrogated before or after serving, reprimanded, or possibly even disempaneled if you urge other jurors to do likewise; unbelievably, it has happened). But jurors are not bound to do anything against their wills, nor bound by oaths given under duress, nor required to return a unanimous verdict. You shouldn't look at jury duty as an onerous task which is to be avoided if possible. For one thing, it's your chance to do some real good for yourself and the community. In many cases, this may mean voting to convict someone whose behavior is truly dangerous to life, liberty, and pursuit of happiness. In other cases, it may mean acquitting someone because the evidence to convict is not convincing, or because the law or its application to the accused person appears wrong. Defense of the rights of the citizens of your community is the whole point of a jury system, and those include the rights of the accused and of the jurors themselves. Justice therefore demands that common law jurors insist on their right to consider both the facts of the case and the merits of the law. For these reasons, we urge you to regard jury service as an opportunity, a right worth defending, or a personal duty, despite whatever obstacles may be thrown in your path. Since most states select jurors from voter registration lists, consider the chance to serve on a jury as another reason to register to vote! GUIDE TO THE LEGAL TRADITION: REFERENCES Anonymous, "Note: The Changing Role of the Jury in the Nineteenth Century", Yale Law Journal 74, No.1, 170-192 (Nov. 1964). Focuses on the erosion of jury veto power during this period. Barkan, Steven E. "Jury Nullification in Political Trials", Social Problems 31, No.1, 28-44 (Oct. 1983). Also in Mike Timko, Jury Nullification... History of the impact of jury veto power on important political conflicts, in which the people resisted oppressive government policies and were arrested, only to be freed by their fellow citizens. Particular emphasis on the Vietnam war protest movement, and denial of jury nullification as a means to suppress dissent. Gray and Shiras (Justices), Dissent: Sparf and Hansen v. U.S., 156 U.S.51, October Term, 1894. These are the opinions of the two dissenting justices on the case which effectively ended routine instruction of juries in their right to judge both law and fact. The majority ruled that while jurors do have the power to nullify the law, judges need not tell them about it. Green, Thomas Andrew, Verdict According to Conscience: Perspectives on the English Trial Jury, 1200-1800; The University of Chicago Press, (1985). History of the English common law jury. Hans and Vidmar, Judging the Jury, New York: Plenum, (1986). Discussion of empirical evidence that jurors behave responsibly when given a nullification instruction. Horowitz, Irwin A., "The Effect of Jury Nullification Instruction on Verdicts and Jury Functioning in Criminal Trials", Law and Human Behavior, 9, No.1, 25-36 (1985). Controlled study of the effects of jury nullification instructions; responsible behavior is seen to be the norm. Horowitz, Irwin A., "The Impact of Judicial Instructions, Arguments, and Challenges on Jury Decision Making", Law and Human Behavior, 12, No.4, 439-453 (1988). See above. Howe, Mark DeWolfe, "Juries as Judges of Criminal Law", Harvard Law Review 52, 582-616 (1939). Good discussion of the history of state constitutional provisions for jury veto power and attacks upon this power by the judiciary. Jacobsohn, Gary J., "The Right to Disagree: Judges, Juries, and the Administration of Criminal Justice in Maryland", Washington University Law Quarterly, Vol.1976, 571-607. Discussion of current practice with regard to instruction on nullification required by the Maryland constitution. Lehman, Godfrey D., The Ordeal of Edward Bushell, Lexicon, San Francisco, 274pp (1988). Available from the author, 333 Kearny St., San Francisco, CA 94108. (Historical novel about the trial of William Penn and the imprisonment of the recalcitrant jurors. Absorbing story.) Scheflin, Alan W., "Jury Nullification: The Right to Say No", Southern California Law Review 45, 168-226 (1972). Excellent general legal history of the doctrine of jury nullification. Scheflin, Alan and John Van Dyke, "Jury Nullification: Contours of a Controversy", Law and Contemporary Problems 43, 51-115 (1980). The best, and most up-to-date general study of the legal tradition of jury nullification, and the attacks on this fundamental right of free citizens. Spooner, Lysander, An Essay on Trial by Jury, 224 pp (1852); available as part of Mike Timko, Jury Nullification.... Lysander Spooner was a Massachusetts lawyer whose writings are classic defenses of individual liberty. This book- length essay on the common law jury is a passionate defense of the fully empowered jury as a final barrier against tyranny. Timko, Mike, Jury Nullification, Volume 1, Libertarian Mutual Press, Los Angeles (1987). Contains reprints of the Spooner and Barkan articles, above, and Timko's own lead piece on using the initiative process to require by law that juries be given a nullification instruction. Order from Mike Timko, Box 25908, Los Angeles, CA 90025. Quantity prices available.