© 1996 Karen Selick
 Fully Informed Juries: A Check on State Power
An edited version of this article first appeared in the February, 1996 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


 Fully Informed Juries: A Check on State Power

What do the trials of Robert Latimer and Paul Bernardo have in common?  Obviously, both resulted in murder convictions.  But there is also a more subtle similarity: in both cases, it appears that the jury may have bent the law just a little, allowing themselves to arrive at a more palatable verdict than a strict application of the judge's directions would have permitted.

Latimer was convicted of second degree murder in the death of his disabled 12-year-old daughter, even though there was ample evidence to support a verdict of first degree, and even though the prosecution may have tried to screen out jurors who would be sympathetic to the idea of mercy killing.

Bernardo, on the other hand, was convicted of first-degree murder, even though there was plenty of evidence raising a reasonable doubt that the murders might actually have been committed by Karla Homolka.  

We will probably never know what actually went on in those jury rooms;  it's an offence for jurors to reveal their proceedings.  Maybe they genuinely believed that Latimer didn't plan Tracy's death in advance, and that Bernardo really was the one who killed Leslie Mahaffy and Kristen French.  But it's also possible that they were so sympathetic to Latimer's predicament and so revolted by Bernardo's other videotaped crimes that they simply decided, individually and collectively, to ignore what the judge had told them about the law and to act in accordance with their own perceptions of right and wrong.  

If so, then they must have figured out for themselves that they had this power.  The Supreme Court of Canada (SCC) made it clear in its 1988 Morgentaler decision that counsel must not invite a jury to disregard the law.  While acknowledging that juries have the power to ignore what they consider bad law, the court insisted that there is no right to do so; therefore, the court concluded, they cannot even be told about their power.

The SCC cited both English and U.S. cases in support of its position.  However, since 1989, a non-profit educational organization in the U.S. has been challenging this interpretation of the law.  The Fully Informed Jury Association (FIJA) maintains that traditionally at common law juries had an absolute and well recognized right to judge not only the facts of a case but also the morality of the law.  FIJA's goal is to ensure that jurors are made aware of this right in every trial where the government is a party.

FIJA has collected a wealth of legal and historical material to support its view of jury rights.  They point to the case of William Penn, the founder of Pennsylvania, who in 1670 was tried in England for preaching the outlawed Quaker religion.  Although he was clearly guilty, four jurors refused to convict, expressing their disapproval of an unjust law.  The jurors themselves were fined and imprisoned without food or water for days.  The decision to release them (Bushell's Case) established the principle that jurors could not be punished for bringing in an "incorrect" verdict.

By the time of the American Revolution, it was clear that jurors had not only the power but the right to nullify what they felt was bad law by refusing to convict.  John Jay, the first Chief Justice of the U.S. Supreme Court, personally instructed jurors of this right.  Other commentators of the time extolled  this function of the jury as an important check on the power of other branches of government.  Four states even wrote it into their constitutions.

FIJA claims that jury nullification has helped reform many bad laws.  When juries repeatedly refused to convict people for being witches, for failing to return runaway slaves to their owners, and for selling alcoholic beverages, they sent a message to legislatures that it was time to end the official witch hunts, the Fugitive Slave Law and Prohibition. 

The SCC said it would be irresponsible to let a jury, in the words of one American court, "carve out its own rules of law."  Considering the inordinate power which Canada's Charter of Rights has handed to judges to override both legislatures and the Charter itself, and the easy manner in which judges have assumed the role of law-makers--reading "missing" words into statutes and pronouncing on matters not directly in issue--this strikes me as elitist hypocrisy.  Personally, I would sooner entrust my fate to the consciences of 12 ordinary citizens, randomly selected for a one-time-only event, than to nine Supreme Court justices, permanently ensconced in their positions by political fiat.  

Fully informed juries will not necessarily lead to increased leniency for criminals, as FIJA's critics sometimes charge.  In cases like that of Paul Bernardo, jurors might well decide to be more severe.  The U.S. states whose constitutions guarantee the right of juries to judge the law have not experienced a problem.

FIJA would prefer that judges be required to inform jurors of their rights at each trial, but for practical purposes, this is not strictly necessary.   For FIJA to succeed, it is sufficient if even one member of each jury has read its literature, or an article like this one, and can inform the other jurors of their rights.

To contact FIJA, write P.O. Box 59, Helmville, MT 59843, phone 1-800-TEL-JURY or visit the website: www.fija.org.


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June 11, 2000