Law Must be Argued Before Jury
by Jon Roland, Constitution Society

The judicial system unjustly convicts innocent people of crimes. Judges, prosecutors, and government witnesses cannot be trusted to be honest or competent. Indigent defendants are being represented by public defenders who are inadequate, and who sometimes betray their clients. Evidence of innocence is being withheld from juries. Juries are being stacked to favor the prosecution. Most meritorious appeals are rejected. Our prisons are being filled with nonviolent offenders while rapists and child molesters are being paroled.

Among the many demands for legal reform have been those for informing jurors of their right and duty to decide the law as well as the facts in criminal cases. It is well-established that they have such a right and duty, since a verdict of "guilty" or "not guilty" is a general verdict requiring decision of both the issues of law and the issues of fact. The problem has been the judicial practice of not allowing defense attorneys to inform them of that right and duty, or to include it in jury instructions. This judicial practice is based on the U.S. Supreme Court decision in Sparf & Hansen v. United States, 156 U.S. 51, 64 (1895), which held that it is not a reversible error to fail to so inform them, and which has been taken by courts as a license to prevent anyone from informing them, or even to exclude jurors from serving on a jury who have been so informed.

However, it is time to emphasize that it is not enough to inform jurors of their rights and duties. There is a larger problem: the judicial practice of preventing legal argument from being made in the presence of the jury. The jury cannot decide the issues of law if they are not allowed to hear the arguments on them, not only the arguments of the parties and their attorneys, but the arguments of interpleaders and filers of amicus curiae briefs. If the law were argued in the presence of the jury, then such argument would cover the rights and powers of jurors, and they would be informed. If it is not, then they cannot be expected to make a competent decision, and they cannot justly be criticized for failing to do so.

It is important to know that the modern practice of preventing legal argument from being made in the presence of the jury is not the practice that prevailed during the early years of the United States. When the Founders used the term "due process" and "jury", as they did in the Bill of Rights, they meant all of the elements that were practice at the time to protect the rights of defendants, and that includes argument on the issues of law in the presence of the jury. If one reads trial transcripts from that era, such as the Trial of Aaron Burr, one finds that legal argument in the presence of the jury was taken for granted. We may safely conclude from that that the Founders would consider the practice of preventing juries from hearing the argument on legal issues to be a violation of the constitutional due process rights of defendants.

It is time to return to the standards of the Constitution, and require that in criminal cases, that is, in any case in which there is a petition from a government agent to disable the rights of life, liberty, or property of any person, that such defendant have the full protections of a jury trial, including the right to have all issues of law argued in the presence of the jury. To do that, the following things must be done:

1. The defense must raise formal objection to the issues of law not being argued in the presence of the jury.

1.1. If the defense loses, it should appeal on the basis of that objection.

2. If a person becomes a juror, he or she should introduce the other jurors to the above principles.

2.1. He or she should argue that the defendant must be acquitted on the grounds that his due process rights have been violated.

2.2. If the other jurors balk at that, ask them to agree to submit to the court, as the jury, the following questions:

2.2.1. Is it not true that when this country was founded, argument on the issues of law was made in the presence of the jury in criminal cases, and this was understood as due process?

2.2.2. What amendment to the Constitution changed this standard of due process?

2.2.3. How can we be expected to decide guilt if we are not allowed to hear the legal issues argued?

2.2.4. May we now hear the legal issues argued before we proceed with our deliberations, and receive copies of all legal pleadings in this case?

2.3. If the other jurors go along with your argument, then acquit the defendant, and after the trial, hold a press conference and announce that the jury acquitted because the issues of law were not argued in their presence.

3. Organize local citizen reform groups to promote this cause, or get existing groups to adopt it.

3.1. Publish materials and distribute them to prospective jurors.

3.2. Conduct street demonstrations in front of court houses with signs that say such things as "Law Must be Argued Before Jury!"

3.3. Call in to talk radio programs, or get on as a guest, and promote the cause of legal argument before juries.

3.4. Send copies of this message to everyone on the Internet.

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