L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 138, September 10, 2001
The Binding Mock Trial
by Kevin J Tull
Special to TLE
I have formulated an idea that I believe would help prevent unjust laws from going into effect. If these procedures were applied to current cases they would improve our justice system by lessening the amount of cases that would come to trial and decreasing the number of people convicted under any current unjust laws. Although the ideas presented here are not new, I'm fairly sure I have never heard of the idea of using a mock trial to test laws. I am hoping I will receive input on this idea to enforce my arguments and help me to refine it into a working proposition.
All laws (Federal, State, County, and City, etc.) should be put to a jury test upon passage. This would help prevent unjust laws from being passed and applied to any citizen. This would be done by a mock trial, with real prosecuting and defense attorneys, a real judge and a real jury. The defendant would be a fake person, yet assumed guilty of all aspects of the written crime by the prosecutor, as a matter of course, the defendant would be assumed innocent of all aspects of the written crime by the judge, jury and defense attorney.
Some very important changes would be made from existing court practices. I stress again that I believe the best way to reform our judicial system would be to apply the following rules to all trials.
First, the judge would not interpret law for the jury; for example, the judge could not tell the jury what the law means. In fact, if the jury can not understand the law as written it would immediately become void and may be rewritten by the particular legislative body, if they so wish, and voted on again and passed, before it would then go through the mock trial phase. The jury may ask as many questions of the judge as they wish, but if there were not a unanimous agreement by the jury on the meaning of the law, then the law would be void. Also if the jury understands the law and determines the law to be unjust they may void the law, at that point.
Second the judge would not instruct, order, or otherwise influence the jury on whether to convict or acquit a defendant; for example, the judge could not tell the jury they must convict/acquit if they find that the defendant did/did not commit said crime. If the jury refuses to convict, even if they believe that the defendant has committed the crime with which he is charged, then the law will be void.
Third the judge can not suppress evidence or testimony; in fact only the jury itself can determine whether evidence or testimony is relevant to the case. The jury can make it's own determinations as to whether or not it wishes the prosecution or defense attorneys to continue to present evidence or testimony. The jury may discard or retain any evidence or testimony, according to it's own decisions of relevance to the case.
Fourth the judge can not pass sentence upon the defendant; this would be left solely to the discretion of the jury without input from the judge or prosecuting and defense attorneys, nor any other outside source.
Fifth all juries would consist of twelve citizens chosen completely at random from the local population. No person may be forced to serve on a jury for any reason. No person can be forced to be in a jury pool. Any person, at their own discretion, may choose to be removed from any jury pool or jury, for any reason, by a written and signed statement delivered to the court. All citizens must be allowed to be included in jury pools, except persons who fall into one or more of the following categories: below the age of eighteen, certified mentally incompetent, currently jailed, fugitive, anyone who has violated parole or probation, unable to speak and write English, any employee or employer of the court system regardless of job status and regardless of whether appointed into position or elected (For example no janitor or judge etc, who falls within the description of the preceding statement).
Next, in regard to the practice of "Voir Dire", it would be ended. A jury can not be randomly selected or impartial if the attorney's can pick and choose from the jury pool whom they wish to keep and discard from the jury. The judge would be required to inform the jury of these rights and obligations. The court would be required to provide this information in writing to the jury. If the jury found the defendant not guilty then the law would immediately become void and would have to be rewritten by the particular legislative body and voted on again and passed, before it could again go through the mock trial phase.
The arguments listed below may arise, and so I will answer these.
Because the jurors are not attorneys they may not understand the law and therefore they are not qualified to determine a just law, especially without the judge being able to tell them what the law means.
Because the law may be applied to people who are not attorneys the law must be simple enough for them to understand without legal council. No matter how just the law may be, if the people need it explained to them then they may also need legal council to inform them how to keep from violating it. Because not all people can afford legal advice some people may violate the law without that protection. Clearly that would make the law more likely to be applied to people of lesser monetary means. If this were the case the law would have to be considered unjust. To prevent an unjust law's passage, from the start jurors can not be informed as to the meaning of the law. They must understand it without any legal council.
Shouldn't the judge order the jurors to convict/acquit if the defendant is found to have violated/not violated the written law?
The defendant is being tried by a jury of his peers and not the judge. The judge would be determining the validity of the law if he ordered the jurors to convict/acquit based on whether the jurors believed the defendant did/did not commit the crime. The power to determine the validity of laws must be left to the juries alone. In order to keep proposed unjust laws from becoming law, the jurors must be able to try the law as well as the case.
Court cases would become long and drawn out if any evidence and testimony were allowed to be admitted. The jury won't have the legal knowledge to determine a piece of evidence or testimony's relevance to the case.
Court cases are already long and drawn out depending upon what is or is not allowed into evidence or as testimony at the judge's discretion. Also the judge, by usurping the power that should be in the jury's hands, may harm the prosecution's or defense's case by denying them the ability to present evidence or testimony that the attorneys believe may bolster their case. Any evidence or testimony that the jury needs special legal council to understand can be discarded or can be explained to the jury by the prosecution or defense attorney only at the jury's discretion. If a judge were allowed to explain a piece of evidence or testimony it would be violating his impartiality and potentially influencing the outcome of the case.
Why shouldn't the judge pass sentence upon the defendant if the jury has found the defendant guilty of the crime and the law valid?
Since only the jury can find the defendant guilty and the law valid, then only they can determine the severity of the crime. If the judge passes sentence then he has to interpret to what degree the jury feels the defendant violated the law as well as the jury's perception of the law itself. Because the judge is not allowed to interpret the case or the law he can not be allowed to interpret the proper sentence either.
If jury duty is not mandatory then how can there be enough jurors to fill juries?
In large cities filling juries wouldn't be a problem because jury pools would be large enough to fill juries and replace any jurors who decline to participate. Smaller towns may need to merge their jury pools with other local townships to have large enough jury pools to have randomly selected and impartial juries. Also with increased jury powers there may be more people who wish to serve on juries.
Doesn't the practice of the defense and prosecution attorneys picking the jurors they wish to keep ("Voir Dire") make the jury more fair and impartial?
The practice of "Voir Dire", a French term for jury stacking, is designed to remove impartiality among the jurors. The idea is that the defense and prosecuting attorneys are in competition to try to find the jurors who tend to be most biased in favor of either attorney's side of the case. This leads to jurors who are not impartial but more extreme in their views. No jury can be randomly selected and therefore fair and impartial when the practice of "Voir Dire" is allowed.
The judge has traditionally had greater powers over a case, why should this practice not continue?
Actually through most of American history the juries have had more power and the judges much less. Juries were informed of their right to try the facts of the case and the law. Judges did not order juries to convict or acquit based on their determination of the facts because judges knew that it was the juries right to try the law. Historically under the English Magna Carta juries had the power to judge the law, the case and determine the sentence (see Lysander Spooner's "Trial By Jury"). So judges and attorneys have usurped powers traditionally considered those of the jury (the people).
This basic system should be applied to all new laws, and applied to all current trials to prevent unjust laws from being applied and enforced and also to help nullify existing unjust laws. Today juries don't nullify laws simply because a judge will not inform juries of their right to try the law as well as the individual case. The jury trial is the last step in our system of checks and balances designed to protect individual rights, if we hinder it's powers then we allow unjust laws to take force.
In a country that prides itself on principles of freedom and the protection of individual rights we can no longer allow unjust laws to victimize our citizens because we have taken away the ability of jurors to prevent the crimes of our imperfect legislation.