The Jury System Now Under Threat
Most people think that democracy is simply about electing a government for four or five years. But it is a great deal more. It is our guarantee of continuing freedom. Our democratic rights were hard fought for and our forefathers shed their blood for these ideals. And if we let politicians take these rights away from us - and that is exactly what many want to do - they are gone forever.
One thing we must never forget is that when politicians get voted into power they become an anathema to our democratic rights. This is because their aim then becomes one of perpetuating THEIR power and consequently diminishing OURS.
It is clear, therefore, that if we are to retain our democratic rights there must always be a positive and ongoing conflict between governors and governed. Government and its activities and the agencies of government must be forever under our relentless scrutiny. No government should be given an easy ride.
Among our democratic rights is automatic trial by jury. It is one of the cornerstones because it ensures that an alleged offender is judged by his fellow citizens or peers, not by some 'politically correct' politician or bureaucrat.
And the right to actually sit on a jury is really no less important than the right to trial by jury or of the right to vote. It is the ordinary citizen's one opportunity to cock a snook at and override the diktats of an oppressive law or judicial system.
If many politicians have their way cases will be judged not according to Rights and Wrongs but according to the 'political correctness' of the case. Judges and adjudicators will in effect become political commissars. This is precisely the same situation as existed in Communist Russia and Nazi Germany.
Many politicians now want the Jury System to be curtailed or even abolished altogether. They argue that it is wasteful and often incompatible with 'national security' or whatever.
But juries of one's peers are the final check on a government's power.
Jurors' rights are under attack in Britain and America on several fronts: In what jurors are allowed to judge, what they're allowed to hear, and how they're allowed to rule. And, as has already been noted, there is even political pressure to abolish juries altogether.
An Essay on the Trial by Jury, written in 1852 by Lysander Spooner, is an excellent treatise on the reason we have the jury system available as a right within the English justice system and an excellent starting point about what trial by jury really is.
Historically, under the Common Law (originating in the Holy Bible) juries have been bodies of conscience, confirming either the correctness or corruption of Man's laws. As Spooner noted "... it is in the administration of justice, or of law, that the freedom or subjection of a people is tested. If this administration be in Accordance with the arbitrary will of the legislator - that is, if his will, as it appears in his statutes, be the highest rule of decision known to judicial tribunals, the government is a despot, and the people are slaves. If, on the other band, the rule of decision be those principles of natural equity and justice, which constitute, or at least are embodied in, the general conscience of mankind, the people are free in just so far as that conscience is enlightened."
Today the mass of society appears incapable of judging right from wrong, or at least this is what opponents of jury powers will tell you because they have a vested interest in upholding the legislative elite. Spooner rightly stated that one motive for legitimate government was 'protection of the weak against the strong' and America's jury system used to provide this protection for the weak.
For more than six hundred years - that is, since Magna Carta, in 1215 - there has been no clearer principle of English or American constitutional law than that it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.
If that is not the right and duty of jurors then it is plain that, instead of juries being a barrier against the tyranny and oppression of government, they are really mere tools in its hands, for carrying out any injustice and oppression it may desire.
Any government that defines its own powers over the people is a despotic government. It has all the powers that it chooses to exercise. There is no other - or at least no more accurate - definition of a despotism than this.
On the other hand, when people define what are their own liberties they retain all the liberties they wish to enjoy. And this is freedom.
| The purpose of the jury system, as the U.S. Supreme Court has noted, is to prevent oppression by the government. To perform that role, jurors must act independently and conscientiously and they must be prepared to say 'no' if they believe that a conviction would be unjust. |
The jury was an essential safeguard of liberty long before the American
Revolution. British courts guaranteed the independence of criminal trial
juries in 1670, in a case concerning four jurors who had acquitted William
Penn for illegally preaching about his Quaker beliefs. Those jurors were
imprisoned for their 'not guilty' verdict because they had ignored the
trial judge's instructions to vote for Penn's conviction. An English appellate
court later released the jurors from prison, establishing the principle
that juries cannot be punished for bringing in the 'wrong' verdict. The
freedom of American jurors to vote according to consciences can be traced
back to that precedent.
Jurors in early America knew that if a law was unjust they could - and
should - refuse to enforce it. They could vote their consciences and, as
free citizens, they were expected to do so. Thomas Jefferson wrote: "I
consider trial by jury as the only anchor ever yet imagined by man by which
a government can be held to the principles of its constitution".
In 1895, the U.S. Supreme Court ruled that trial courts were not required
to inform jurors of their power to refuse to convict or to convict on lesser
charges if they believed a conviction on the facts proven at trial would
be unjust. American courts have mistakenly interpreted that ruling to be
a prohibition on informing jurors of their discretionary prerogative to
'check' unjust laws. The result has been that juries have been restrained
from exercising their right of veto.
Today, jurors sometimes leave courtrooms in tears after convicting people
they believed were morally (if not legally) innocent - or after witnessing
the harsh sentences handed down by judges at the sentencing phase of seemingly
minor cases. That is exactly the sort of travesty of justice that trial
by jury was intended to prevent. If the law was just and justly applied
then jurors would have no reason to regret their verdicts or the
sentences that are meted out later by judges.
Under rogue president George W. Bush, Americans are in the process of losing
many of their hard-fought-for freedoms because of nationalist politicians'
perceived need to Perpetuate the State instead of protecting the
Rights
of the Citizen. Before the Patriot Act, suspected criminals
had to be charged within 48 hours or be released. That was known as Habeas
Corpus. But today they may be held for up to seven days without charges
and detained indefinitely if they are considered (by the ruling
regime) to be a 'threat to national security'. And, under President Bush's
military tribunal order, any non-citizen is subject to indefinite
detention by the military.
Yet, even now, despite all the evidence to the contrary, many Americans
still obstinately believe that they live in 'the Land of the Free', in
the 'Land of Sweet Liberty'. Propagandist politicians have done their work
well; they have succeeded in convincing Americans that black is white and
that up is down..
If a lie is repeated often enough it will begin to
be perceived as truth and nowhere is this now so well illustrated as in
present-day America.
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