In order to protect
citizens against the whims of the King, the right to a trial by jury was
established by the Magna Carta as
early as 1215, and it has become one of the most sacrosanct legal aspects of
British- and American societies. We tend to believe that the duty of a jury is solely to determine
whether someone broke the law. In fact, it's not unusual for judges
to instruct juries that they are to judge only the
facts in a case,
while the judge will sit in judgement of the law itself.
This is plain and
straight bull-crap nonsense.
Juries are the last line of defense against the power abuses of the authorities. They have the right to judge the law. Even if a defendant committed a crime, a jury can refuse to render a guilty verdict. Among the main reasons why this might happen, according to attorney Clay S. Conrad:
When the defendant has
already suffered enough, when it would be unfair or against the public interest
for the defendant to be convicted, when the jury disagrees with the law itself,
when the prosecution or the arresting authorities have gone "too far"
in the singleminded quest to arrest and convict a particular defendant, when
the punishments to be imposed are excessive or when the jury suspects that the
charges have been brought for political reasons or to make an unfair example of
the hapless defendant...
Some of the earliest
examples of jury nullification from Britain and the American Colonies were refusals
to convict people who had spoken ill of the government (they were prosecuted
under "seditious
libel" laws) or who were practicing forbidden religions, such as Quakerism. Up to the time of the Civil
War, American juries often refused to convict the brave souls who helped runaway
slaves. In the 1800s, jury nullifications saved the hides of union organizers
who were being prosecuted with conspiracy to restrain trade. Juries used their
power to free people charged under the anti-alcohol
laws of Prohibition, as well as antiwar protesters during the Vietnam era.
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| Jury in court; Juries are allowed to judge the law; World's biggest secrets blog |
Judges and
prosecutors will often outright lie about the existence of this power, but
centuries of court decisions and other evidence prove that jurors can vote
their consciences.
When the US Constitution was created, with its Sixth Amendment guarantee of a jury trial, the most popular law dictionary of the time said that juries "may not only find things of their own knowledge, but they decide according to their consciences." The first edition of Noah Webster's celebrated dictionary (1828) stated that juries "decide both the law and the fact in criminal prosecutions."
Jury nullification is specifically enshrined in the constitutions of Pennsylvania, Indiana, and Maryland. The state codes of Connecticut and Illinois contain similar provisions. The second US President, John Adams, wrote: "It is not only the juror's right, but his duty...to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court." Similarly, Founding Father Alexander Hamilton declared: "It is essential to the security of personal rights and public liberty, that the jury should have and exercise the power to judge both of the law and of the criminal intent."
Legendary Supreme Court Chief Justice John Jay once instructed a jury:
It may not be amiss,
here, Gentlemen, to remind you of the good old rule, that on questions of fact,
it is the providence of the jury, on questions of law, it is the providence of
the court
to decide. But it must
be observed that by the same law, which recognizes this reasonable
distribution of
jurisdiction, you have nevertheless the right to take upon yourselves to
judge of both, and to
determine the law as well as the fact in controversy.
The following year,
1795, Justice James Irdell declared: "Though the jury will generally respect
the sentiment of the court on points of law, they are not bound to deliver a
verdict conformably to them." In 1817, Chief Justice John Marshall said
that "the jury in a capital case were judges, as well
of the law as the fact, and were bound to acquit where either was
doubtful."
In more recent times, the Fourth Circuit Court of Appeals unanimously held in 1969:
If the jury feels that
the law under which the defendant is accused is unjust, or that exigent circumstances
justified the actions of the accused, or for any reason which appeals to their
logic and passion, the
jury has the power to acquit, and the courts must abide that decision.
Three years later,
the DC Circuit Court of Appeals noted: "The pages of history shine on instances
of the jury's exercise of its prerogative to disregard uncontradicted evidence
and instructions of the judge."
In a 1993 law
journal article, federal Judge Jack B. Weinstein wrote: "When juries
refuse to convict on the basis of what they think are unjust laws, they are performing
their duties as
jurors."
Those who try to wish away the power of jury nullification often point to cases in which racist juries have refused to convict white people charged with racial violence. As attorney Conrad shows in his book, Jury Nullification: The Evolution of a Doctrine, this has occurred only in very rare instances. Besides, it's ridiculous to try to stamp out or deny a certain power just because it can be used for bad ends as well as good. What form of power hasn't been misused at least once
in a while?
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| FIJA Fully Informed Jury Association logo |
The Fully Informed Jury Association
(FIJA) is the best-known organization seeking to tell all citizens about their
powers as jurors. People have been arrested for simply handing out FIJA literature in front
of courthouses. During jury selections, FIJA members have been excluded solely
on the grounds that they belong to the group. FIJA also seeks laws that would
require judges to tell jurors that they can and should judge the law, but this
has been an uphill battle, to say the least. In a still-standing decision (Sparf
and
Hansen
vs US, 1895), the Supreme Court ruled that judges don't have to let
jurors know their full powers. In cases where the defense has brought up jury
nullification during the proceedings,judges have sometimes held the defense
attorney in contempt. Still, 21 state legislatures have introduced
informed-jury legislation, with three of them passing it through one chamber
(ie, House or Senate).
Quite obviously, the justice system is terrified of this power, which is all the more reason for us to mow about it.
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