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http://www.fff.org/freedom/fd0501a.asp
The Bill of Rights: Trial by Jury
by Jacob G. Hornberger, Posted May 16, 2005
The Sixth Amendment to the U.S. Constitution reads in part as follows:
  In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed....
Trial by jury is one of the essential prerequisites of a free society. As
our American ancestors understood so well, it is one of the ultimate
safeguards against tyranny and oppression. The famous English legal
commentator William Blackstone described trial by jury as the "palladium of
our civil rights."
Why were our ancestors so insistent on enumerating trial by jury among the
constitutional guarantees in the federal criminal-justice process? Why weren
't they satisfied with judges' deciding the guilt or innocence of an
accused, as is done in most other countries? Why did they want ordinary
citizens to make this determination rather than experienced judges?
There is, of course, the issue of judicial corruption. Lawyers don't like to
admit it but oftentimes judges are corrupt, not only in the sense that they'
re formally on the take but simply in their biases toward prosecutors. This
is especially true with respect to judges who have assumed the bench after
long careers as prosecutors; such judges often partner themselves with the
prosecution, either implicitly or explicitly, and issue whatever rulings
they can to ensure a conviction.
Jury tampering to secure a particular result is much more difficult to
accomplish, especially since the composition of the jury is unknown until
the time of trial. The short-term nature of jury service obviously makes it
much more difficult for one side or the other to establish a corrupt
relationship with one of the jurors.
Another problem with judges is that over time they become like other
government bureaucrats - so encrusted with a mindset of laws, rules, and
regulations that they are unable to distinguish law from justice. Steeping
themselves every day in the law books, regulatory manuals, briefs,
memoranda, oral arguments, and court opinions, what becomes foremost in the
mind of most judges is simply, Did the accused break the law?
Jury nullification
On the other hand, a jury composed of ordinary people from all walks of life
is more likely to ask a deeper and much more profound question when faced
with whether to permit the government to punish a defendant: Is the crime
which he is accused of committing just, and, if not, should the jury acquit
him even though it is clear he committed the crime?
There is one important aspect to remember in all this: In every criminal
trial, the verdict of the jury is final. That is, no matter how the jury
rules, there is nothing either the judge or the prosecutor can do to change
or modify the verdict. If the verdict is "not guilty," the accused walks out
of the courtroom at that moment as a free man. Under the prohibition against
double jeopardy, the government is precluded from bringing the same charges
against him.
A good example of this phenomenon, which has come to be known by the term
"jury nullification," once occurred during the 1960s in my hometown of
Laredo, Texas. The feds were prosecuting a man for possession of marijuana
with intent to distribute. The man took the witness stand and confessed to
the crime, explaining tearfully that he had needed the money because of
financial difficulties suffered by his family.
The presiding judge had a reputation for doling out maximum sentences for
drug offenses.
The jury, feeling sorry for the man, voted to acquit him. When the jurors
returned to the courtroom and announced their verdict, everyone, including
the defendant, his attorney, the prosecutor, and the federal judge, was
shocked at hearing the words "Not guilty."
The judge screamed at the jurors, telling them that they were the dumbest
people who had ever served on a jury in his courtroom and advised them that
their names would be permanently stricken from the federal jury rolls in
Laredo.
Nevertheless, the federal judge told the defendant that he was discharged
from custody. He walked out of the courtroom as a free man. That is what is
meant by the jury's verdict being final.
Why would our ancestors consider the jury to be one of the last bastions
against tyranny and oppression? Because jurors might well decide not to
convict their fellow citizens of unjust crimes, while prosecutors and judges
would be fixated simply on enforcing and interpreting the laws that Congress
enacts.
Blind support of laws
Let's assume, for example, that Congress enacts a law that states, "Any
American of Muslim descent who is caught in possession of a gun shall be
guilty of a felony, punishable by a term of 20 years in the penitentiary."
Would federal law-enforcement officers enforce such a law? Would U.S.
attorneys prosecute violators? Would federal judges impose punishments on
people convicted of such laws? Might the Supreme Court uphold the
constitutionality of such laws under the president's "wartime" powers as
part of the "war on terrorism"?
The answer is "Yes" to all those questions. After all, consider the members
of Congress, the FBI, and the U.S. armed forces. How many of them have
publicly questioned the Pentagon's incarceration of American citizens who
are labeled "terrorists" or "unlawful combatants" in the "war on terrorism"
or the Pentagon's denial of habeas corpus, right to counsel, and due process
to such detainees?
How many of them have questioned the legality of invading and waging a war
of aggression against Iraq, a sovereign and independent country that had not
attacked the United States?
How many of them have condemned the Pentagon's continual whitewash and
cover-up of the torture, rape, sex abuse, and murder scandal at Abu Ghraib
prison?
How many have questioned the Pentagon's indefinite detention of Iraqis, the
unreasonable searches of their homes and businesses and seizures of their
property, gun-control measures, curfews, and censorship under the U.S.
occupation of Iraq?
Answer: Not very many.
Indeed, how many have publicly opposed the sham, kangaroo proceedings that
the Pentagon has instituted for the Guantanamo detainees who have been
accused of terrorism?
How many have opposed the fact that the judges in those proceedings are also
the "jury," that the main judge is a military officer with close ties to the
Pentagon, that other judges on the panel have had virtually no legal
experience, and that the government will be permitted to rely on hearsay
evidence to secure a conviction?
Answer: Not very many.
The fact is that most U.S. soldiers and, for that matter, most U.S.
law-enforcement personnel follow orders dutifully and do not question them.
There is little doubt, especially if there were another terrorist attack on
American soil, given the fear it would generate, that U.S. officials would
enforce our hypothetical gun-control law against Muslims.
The final arbiter of justice
What would happen, however, if a person were brought to trial for committing
such an offense? The jury, being the final determiner of the guilt or
innocence of the accused, might well conclude that the law is so manifestly
unjust that it decided to acquit the accused. If they did that, that person
would walk out of the courtroom a free man even if the evidence established
his guilt beyond a reasonable doubt.
One of the big problems in the modern-day federal criminal-justice system is
that, unlike 19th-century judges, modern federal judges do not inform the
jury of their actual power. Instead, they attempt to convert jurors into
potential instruments of tyranny by telling them that they have the power to
judge only the facts of a case but not the law under which a person is being
tried.
So in our gun-control hypothetical, the judge would tell the jury that its
only job is to determine whether or not the accused committed the offense.
He would also carefully explain to the jury that whether the law is just or
not is no concern of theirs.
An educated and informed jury can reject what the judge tells it because,
again, the jury's verdict is final and there is nothing the judge can do
about it. In our hypothetical, if the jurors returned with a verdict of "not
guilty" because they believed that a gun-control law against Muslim
Americans was unjust, the judge would be powerless to do anything about it.
He would have to release both the defendant and the jury.
Some might argue, "But such a power would lead to anarchy!" On the contrary,
the power has always existed under American jurisprudence and yet there has
never been anarchy in the United States. Moreover, unlike a legal opinion
issued by an appellate court, a jury verdict in a particular case provides
no precedent whatsoever for other prosecutions brought under that law.
Instead, it simply serves as a message to the government from the citizens
in that particular case that they believe that the law is unjust.
The great 19th-century lawyer Lysander Spooner provided one of the best
summaries ever of the role of the jury in his masterful work "An Essay on
the Trial by Jury":
  For more than six hundred years - that is, since Magna Carta, in 1215 -
there has been no clearer principle of English or American constitutional
law, than that, in criminal cases, it is not only the right and duty of
juries to judge what are the facts, what is the law, and what was the moral
intent of the accused; but that it is also their right, and their primary
and paramount duty, to judge the justice of the law, and to hold all laws
invalid, that are, in their opinion, unjust or oppressive, and all persons
guiltless in violating, or resisting the execution of, such laws.
Unless such be the right and duty of jurors, it is plain that, instead of
juries being a "palladium of liberty" - a barrier against the tyranny and
oppression of the government - they are really mere tools in its hands, for
carrying into execution any injustice and oppression it may desire to have
executed.

 The Bill of Rights: Trial by Jury
Molto, molto interessante. Siaq rispetto al problema specifico, sia in
generale.
Mi chiedo cosa scriverebbe l'autore della prassi e della teoria del nostro
sistema.
Palmiro Pangloss
-- 
"But, Michael, if you ever show up at my front door with a camera I'll
kill you."
Clint Eastwood to Michael Moore
National Board of Review awards dinner at the Tavern on the Green, New
York, NY
11.01.05
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 sistema.
Che fa schifo?
Sia in teoria che in pratica?
I processi con giuria popolare sono una delle più grandi invenzioni 
della storia della giustizia.
-- 
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