Thursday, October 06, 2005

On The Right to Trial by Jury

One of the founding principals of the governments of the English Speaking People is the right to Trial by Jury.

First mentioned in Magna Charta article 38 “No freeman shall be seized, or imprisoned, or dispossessed, or outlawed, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgement of his peers, or by the laws of the land.”

The right to be tried by a jury of ones peers, is one of the most precious liberties of our people because it protects in three ways from the abuse of government power.

First the jury as the sole judge of the facts prevents the state from bringing groundless cases before judges it itself pays, who might be tempted to see the facts as his pay master likes.

Second the jury as co judge of the law is able to prevent the misapplication of law in specific cases. For example, it is usually considered unlawful to shoot a person who is fleeing from the commission of a crime in the back, this is because the necessity of such action is questionable and in the absence of necessity, self defense could be claimed by murders. A jury is able to prevent a miscarage of justice by tailoring the law to the facts of a particular case and unlike judges, they do not have to worry about setting a precident.

Thirdly the jury as co judge of the law is able to block the enforcement of unconstitutional or unjust laws. By refusing to convict persons of “crimes” that are either unconstitutional or contrary to natural justice.

Lest anyone doubt the right of the jury to judge that law as well as fact, John Jay the First Chief Justice of the United States instructed the jury in State of Georgia v. Brailsford, one of the few jury trials held before that court, “ is presumed, that the juries are the best judges of facts; it is, on the other hand, presumed that the courts are the best judges of law. But still, both objects are within your power of decision. You have a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.”

In England the same position was established even earlier, in 1665 Lord Chief Justice Mathew Hale wrote “ is the conscience of the jury that must pronounce the prisoner guilty or not guilty.” In 1670 Lord Chief Justice Sir John Vaughan wrote, “...without a fact agreed, it is impossible for a judge or any other to know the law relating to the fact nor to direct [a verdict] concerning it. Hence it follows that the judge can never direct what the law is in any matter controverted.”

Sadly over time Trial by Jury, a pillar of the freedom of the English speaking people, has been eroded by the precedents of judges and the enactments of some legislatures.

In most of the Anglosphere the doctrine of Lord Justice Mansfield that juries are judges of fact only has been widely accepted by judges even if it has not been written into the statute book.
In the United States while it is impossible for a judge to direct a verdict in a criminal case and a verdict of not guilty can not be set aside, judges routinely lie to jurors and tell them that they must follow the judges instructions as to the law, judging only the facts. Worse jurors who know their rights are routinely excluded from juries if the judge finds out. Citizens of my acquaintance have had to lie during voir dire so as not to be struck from the jury.

I am informed by people in Great Britain, that the right to trial by jury has been seriously eroded there by pretended acts of Parliament. Though I also understand voir dire questioning is not allowed in Great Britain.

However this slow erosion of the right to trial by jury does not have to be the last word on the subject. The English Speaking People have it with in their power to reverse this tragic trend.
We can and should organize to protect this precious liberty of our people from the highhanded pronouncements of judges and the irresponsible acts of legislatures that don’t understand the limits of their own authority.

In the United States, where many state judges are elected the issue of jury nullification should be raised in elections. Judges and Legislators should be asked for their promises to uphold the system of trial by jury in its full form including the right of the jury to decide both law and fact. A pan Anglosphere organization should be set up to help protect our right of trial by jury.

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