TOWARD A BILL OF JURY RIGHTS The original idea for a Bill of Jury Rights came from our ever-escalating appreciation for the role the common law jury plays in defending liberty and resisting government oppression-- combined with apprehension that its powers are being destroyed. As we studied jury power, campaigned for the Fully Informed Jury Amendment, and talked with more and more knowledgeable individuals, it became alarmingly clear that our entire jury system is under continuous and concerted attack on a number of fronts. Assaults on the jury system have become sophisticated and strategic, especially during this century, and mostly during the past twenty years. Our goals thus broadened to include more than just requiring that trial judges inform juries of their right to judge both law and fact. We began to consider how to repair related damages to the jury system, such as the fact that nowadays, our government can and often does 1) restrict the evidence which jurors will be allowed to examine; 2) reduce the size of juries; and 3) ignore the requirement that a guilty verdict be unanimous; 4) abuse the civil law and undermine the authority of civil trial juries for purposes of persecution; and 5) deny a defendant's right to a jury trial altogether. These problems, among others, prompted a group of former judges, practicing attorneys, and political activists to gather at a FIJA-sponsored conference in St. Louis, Missouri over Veterans' Day weekend, 1990, to compose and sign a "Bill of Jury Rights", and to develop a strategy for implementing it. (See following article for results.) A closer look at the problems addressed by the "BJR": 1) Evidence manipulation: many participants in the court process lament that even though the jury has the clear job of examining the evidence, or the "facts", in practice vital information is routinely withheld from them. The lawyers on both sides and the judge filter so much of the available evidence, withholding vital information from the jury, that the jury is forced to decide cases based on partial information which may be insufficient to produce a just verdict. Given that so much is at stake, many observers are convinced that the jurors ought to have access to the whole story if they are going to pronounce judgment on a person, and perhaps determine the future course of his or her life. 2) The need for twelve: Incredibly, by virtue of a Supreme Court decision in 1970 [Williams v. Florida 399 U.S.78 (1970)] state courts are now allowed to use juries of less than twelve in criminal cases! And some twenty-five states have done just that (at least twenty use six-person juries in felony cases), and most federal criminal trials are now held with six jurors. For centuries, the jury has consisted of twelve (or more) "peers" of the defendant, for good reason: Juries which are smaller than twelve are unlikely to represent a true cross- section of the population of the community as a whole, especially people representing minority groups or viewpoints. Studies of "mock trials" show that minorities of one on the jury are more likely to cave in to pressure to conform to majority opinion than minorities of two or more. Therefore, the smaller the jury, the more likely is the minority to consist of one person, and majority pressure to result in an apparently "unanimous" verdict. Given that attacks on the fundamental rights and liberties of the population as a whole generally start with attacks by political authorities on unpopular minorities, it becomes in everyone's best interest to preserve the full-sized jury. We are all less vulnerable to tyranny to the exact degree that minority members of the community can protect each other from majority prejudice, avarice or hysteria, simply by arguing, while on the jury, for toleration and understanding--or, if that doesn't work, by using their vote to "hang the jury." 3) Unanimous verdicts: similarly, once we allow people to be found guilty by a jury vote that is anything less than unanimous, we open the door to losing the right of trial by jury altogether. As when juries of less than twelve persons are allowed, chances that a minority-group member will get a fair trial are reduced if minorities on the jury can be outvoted. And we all belong to minorities of one sort or another. The danger notwithstanding, the U.S. Supreme Court has opened that very door [Johnson v. Louisiana 406 U.S. 356 (1972) and Apodaca v. Oregon (1972)]. Hence, at least two states, Louisiana and Oregon, now allow non-unanimous guilty verdicts. It is time for the people of this nation, who have more power ultimately than even the Supreme Court, to insist that our jury system remains the one institution which is immune to "tyranny of the majority." 4) Abuse of civil procedure: The government now regularly uses litigation as a means of persecuting politically vulnerable defendants, often in addition to seeking their conviction on criminal charges. In such cases, the value of a jury trial is badly diminished, and skewed in the direction of finding the defendant liable, by the fact that judges are allowed to overturn civil-trial jury verdicts. It's called "directing a verdict", but it can and often does make a mockery of the jury's decision. 5) Access to juries: it is becoming harder to get a jury trial for many offenses, as rules of court procedure and other kinds of laws keep elevating the level of offense "below which a jury trial isn't appropriate, and just wastes taxpayers' money". In addition, the federal government has created numerous administrative bureaucracies which not only develop rules and penalties without benefit of public control, but come complete with their own administrative court systems which do not seat juries. Reform in this area is clearly a worthwhile goal, but it will probably have to wait until the problem is more widespread and well known. All of the reforms noted above need to be made in the federal court system, as well, but for the present it appears more practical to change state-level court practice first, and build a constituency for federal change while at it. The Fully Informed Jury Association hereby presents the American people and their political representatives with its handiwork to date: The Bill of Jury Rights. Let us hope the reforms it lists can play a part in rescuing those rights of jurors that necessarily accompany their responsibility to decide the fate of another human being.