Juries Are Allowed To Judge The Law, Not Just The Facts

Another chapter from my book, 50 Things You’re Not Supposed to Know, published in 2003, by Disinfo.

For more on me, please check out The Memory Hole.

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GavelIn order to guard citizens against the whims of the King, the right to a trial by jury was established by the Magna Carta in 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 judgment of the law itself. 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 single-minded 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. Today, juries sometimes refuse to convict drug users (especially medical marijuana users), tax protesters, abortion protesters, gun owners, battered spouses, and people who commit “mercy killings.”

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 go according to their consciences.” The first edition of Noah Webster’s celebrated dictionary (1828) said 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 U.S. 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: “[T]hough 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 D.C. 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?

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 v. U.S., 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 (i.e., House or Senate).

Quite obviously, the justice system is terrified of this power, which is all the more reason for us to know about it.

Reference: Conrad, Clay S. Jury Nullification: The Evolution of a Doctrine. Carolina Academic Press, 1998. • Various literature from the Fully Informed Jury Association (www.fija.org), 1-800-TEL-JURY, P.O. Box 5570, Helena, MT 59604.

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Look for more 50 Things You’re Not Supposed to Know under the tag “50 Things” on disinfo.com.

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  • ebwolf

    Another gem from Russ Kick. Keep 'em coming!

  • Hadrian999

    I'm not sure If I an entirely comfortable with people to stupid to get out of jury duty evaluating the law

  • Hypnos!

    I used this little doosie the last time I was called for jury duty. The lawyer from the DAs office promptly thanked me for my time and excused me from the jury. Its sad that letting the court know you are aware of this right will not only piss off the judge, it will get you kicked off most juries.

  • Rick

    The best way to use this is to not share your knowledge and in fact get selected to a jury. Once you are in the jury room deliberating, you can use your awareness to render your vote. People are duped by judges and prosecutors into thinking that they can only decide on whatever 'facts' are presented in court (never the full story). Just because one man or woman wears a black robe and likes to be called 'Your Honor' means nothing. The ultimate power lies with those 12 individuals seated in the jury box.

  • http://www.ContraControl.com/ Zenc

    A few weeks ago, I wrote a short piece describing how to make use of Jury Nullification in case you are a defendant in a criminal proceeding. Keep in mind, I am not a lawyer.

    http://contracontrol.com/?p=181

    The fact that Juries have the power to nullify law, as well as judge facts, is the very reason that the right to a trial by a jury of one's peers is considered so important that it was enumerated in the Magna Carta and adopted into Common Law.

    As R. Kick mentions, over time Prosecuting Attys have chipped away at this right until it seems to resemble a mere shell of its former self. However, spreading the word among those who may be called to Jury Duty can revitalize the power of the Jury and help protect us all from oppressive governments and selective prosecution.

    It only takes 1 person to hang a jury and derail the government's attempt at oppression.

  • George

    As whistle blowers in this state will testify, selective prosecution is a stark reality. Spreading the word
    about the Power of the Jury is vital to stop the Government's retaliations.

  • Guest

    best way to avoid even seeing a court is to use magick. Buy the book of lies from disinfo buy it now actually send them extra money. The book saved and changed my life for the better.

  • vicwiz

    best way to avoid even seeing a court is to use magick. Buy the book of lies from disinfo buy it now actually send them extra money. The book saved and changed my life for the better.

  • Island-boy101

    Are you kidding me?!!?!??!?!?!?!?!?!?!?!?!?!?!?!!??!!? This is such a joke. Judges are not these oppressive, evil monsters that as you would say ‘nullifies’ juries!!!!!! Not everyone is endowed with the the legal knowledge or experience gained by judges and as the judge of a case it is their legal obligation to clarify anything the jury may not be aware. CLARIFY NOT NULLIFY!!!!!!CLARIFY NOT OPPRESS!!!!!!!!! and you say that oooooooooooh juries are the last line of defence against the authorities. YOU DOUCHE!!!!!! HAVE YOU HEARD OF THE SEPARATION OF POWERS!!!!!! if you don’t proves my point of people being unenlightened legally and if you do THEN THE ENTIRE REASON AS TO WHY IT IS THERE IS TO PREVENT ACCUMULATION OF POWER AMONGST POLITICIANS AND AS YOU WOULD SAY ‘AUTHORITIES’. MAYBE YOU SHOULD GET A 2-4 YEAR LAW DEGREE FIRST, THEN SPEND THE NEXT 15 YEARS OR SO MAKING A NAME FOR YOURSELF AS A LAWYER, BECOME A JUDGE AND TAKE A CASE WITH A JURY AND THEN. ONLY THEN WHEN YOU KNOW WHAT YOU’RE TALKING ABOUT WILL I CONSIDER LISTENING TO YOUR RUBBISH.

    • Tom_Bombadil

      The jury is the last check in
      the legislative and judicial process and should reflect the Will of the
      People and the Spirit of the Law. A jury is able, through
      nullification, to counter the effects of a corrupt legislature and
      judicial system by refusing to enforce the letter of the law or refusing
      to convict based on conscience. The government (at least in the United
      States until it started changing again for the worse 30+ years ago) is
      “Of the People, By the People and For the People” as Abraham Lincoln put
      it. It is not “Of the Prosecutor, By the Prosecutor, and For the
      Prosecutor” nor is it “Of the Judge, By the Judge, and For the Judge.”
      Too often a jury is viewed as, and used as, a rubber stamp by a biased
      judicial system and particularly by over-zealous, win-at-any-price,
      prosecutors.

      Most salient to this discussion is an essay by, mirable dictu, Justice William Goodloe:Empowering the Jury as the Fourth Branch of Government, Justice William Goodloe
      http://fija.org/download/ES_Goodloe_jury_nullification.doc

      When you are sitting in prison doing 20+ years for a crime you did not commit, even with your law degree, you’ll pray (just as the over 200+ freed by the Innocence Projects have done) for someone who believes in true justice.  Scream all you want at me, but you will not change my belief in a government as envisioned by the writers of the Constitution of the United States of America — a Constitution which is being dismantled even as I type this…

  • Island-boy101

    Are you kidding me?!!?!??!?!?!?!?!?!?!?!?!?!?!?!!??!!? This is such a joke. Judges are not these oppressive, evil monsters that as you would say ‘nullifies’ juries!!!!!! Not everyone is endowed with the the legal knowledge or experience gained by judges and as the judge of a case it is their legal obligation to clarify anything the jury may not be aware. CLARIFY NOT NULLIFY!!!!!!CLARIFY NOT OPPRESS!!!!!!!!! and you say that oooooooooooh juries are the last line of defence against the authorities. YOU DOUCHE!!!!!! HAVE YOU HEARD OF THE SEPARATION OF POWERS!!!!!! if you don’t proves my point of people being unenlightened legally and if you do THEN THE ENTIRE REASON AS TO WHY IT IS THERE IS TO PREVENT ACCUMULATION OF POWER AMONGST POLITICIANS AND AS YOU WOULD SAY ‘AUTHORITIES’. MAYBE YOU SHOULD GET A 2-4 YEAR LAW DEGREE FIRST, THEN SPEND THE NEXT 15 YEARS OR SO MAKING A NAME FOR YOURSELF AS A LAWYER, BECOME A JUDGE AND TAKE A CASE WITH A JURY AND THEN. ONLY THEN WHEN YOU KNOW WJHAT YOU’RE TALKING ABOUT WILL I CONSIDER LISTENING TO YOUR RUBBISH.

  • Island-boy101

    Are you kidding me?!!?!??!?!?!?!?!?!?!?!?!?!?!?!!??!!? This is such a joke. Judges are not these oppressive, evil monsters that as you would say ‘nullifies’ juries!!!!!! Not everyone is endowed with the the legal knowledge or experience gained by judges and as the judge of a case it is their legal obligation to clarify anything the jury may not be aware. CLARIFY NOT NULLIFY!!!!!!CLARIFY NOT OPPRESS!!!!!!!!! and you say that oooooooooooh juries are the last line of defence against the authorities. YOU DOUCHE!!!!!! HAVE YOU HEARD OF THE SEPARATION OF POWERS!!!!!! if you don’t proves my point of people being unenlightened legally and if you do THEN THE ENTIRE REASON AS TO WHY IT IS THERE IS TO PREVENT ACCUMULATION OF POWER AMONGST POLITICIANS AND AS YOU WOULD SAY ‘AUTHORITIES’. MAYBE YOU SHOULD GET A 2-4 YEAR LAW DEGREE FIRST, THEN SPEND THE NEXT 15 YEARS OR SO MAKING A NAME FOR YOURSELF AS A LAWYER, BECOME A JUDGE AND TAKE A CASE WITH A JURY AND THEN. ONLY THEN WHEN YOU KNOW WHAT YOU’RE TALKING ABOUT WILL I CONSIDER LISTENING TO YOUR RUBBISH.

  • LawStudent

    It is not the place of a jury to judge the law.  It is the place of the voters that chose the idiots that made the laws to vote them out and have the laws re-written.  It does not  matter if a person is on trial for what one assumes is a stupid law in the first place the matter is that no matter how stupid the law was the person broke it.  Usually in a criminal case the jury is judging a a felony, so simply because people think this particular felony is a stupid law they should acquit the individual that broke the law.  GET REAL if they committed one felony and got caught how many more have or will they commit?

    If you want to change the laws, get off your butt, vote for people that will or start signature drives to change then.  Don’t let a criminal go free because you choose to be inactive in the making of the laws.

  • LawStudent

    It is not the place of a jury to judge the law.  It is the place of the voters that chose the idiots that made the laws to vote them out and have the laws re-written.  It does not  matter if a person is on trial for what one assumes is a stupid law in the first place the matter is that no matter how stupid the law was the person broke it.  Usually in a criminal case the jury is judging a a felony, so simply because people think this particular felony is a stupid law they should acquit the individual that broke the law.  GET REAL if they committed one felony and got caught how many more have or will they commit?

    If you want to change the laws, get off your butt, vote for people that will or start signature drives to change then.  Don’t let a criminal go free because you choose to be inactive in the making of the laws.

    • justaguy

      “GET REAL if they committed one felony and got caught how many more have or will they commit?”

      So are you implying the defendant should be punished for the crimes they might commit or might have committed? That’s ridiculous. It’s immoral and bizzare to punish someone for the crimes they commit - as far as you know -nowhere outside of your own imagination.

      Nevermind the fact that the felony in question is completely divorced of any detail what so ever, and the same goes for this hapless theoretical defendant. It’s just some anonomyous felony/person blob representing seemingly any felony defendant, who, having been charged with a felony, any felony, is now unarguably some kind of hopeless career criminal. The scenario is hoplessly vauge and presumptious. Not the kind of template I’d be comfortable using to determine the destiny of another human being in any capacity.

      “It does not  matter if a person is on trial for what one assumes is a stupid law in the first place the matter is that no matter how stupid the law was the person broke it.”

      Really? “No matter how stupid”? I wasn’t aware of that. Even if a person was on trial for, say… helping a slave to freedom, and the punishment for this crime was the electric chair? No, I guess not. Like you said “no matter” how stupid. Thanks for clearing that up so definitively.

  • justaguy

    “GET REAL if they committed one felony and got caught how many more have or will they commit?”

    So are you implying the defendant should be punished for the crimes they might commit or might have committed? That’s ridiculous. It’s immoral and bizzare to punish someone for the crimes they commit - as far as you know -nowhere outside of your own imagination.

    Nevermind the fact that the felony in question is completely divorced of any detail what so ever, and the same goes for this hapless theoretical defendant. It’s just some anonomyous felony/person blob representing seemingly any felony defendant, who, having been charged with a felony, any felony, is now unarguably some kind of hopeless career criminal. The scenario is hoplessly vauge and presumptious. Not the kind of template I’d be comfortable using to determine the destiny of another human being in any capacity.

    “It does not  matter if a person is on trial for what one assumes is a stupid law in the first place the matter is that no matter how stupid the law was the person broke it.”

    Really? “No matter how stupid”? I wasn’t aware of that. Even if a person was on trial for, say… helping a slave to freedom, and the punishment for this crime was the electric chair? No, I guess not. Like you said “no matter” how stupid. Thanks for clearing that up so definitively.

  • John Adams

    The jury is the last check in
    the legislative and judicial process and should reflect the Will of the
    People and the Spirit of the Law. A jury is able, through
    nullification, to counter the effects of a corrupt legislature and
    judicial system by refusing to enforce the letter of the law or refusing
    to convict based on conscience. The government (at least in the United
    States until it started changing again for the worse 30+ years ago) is
    “Of the People, By the People and For the People” as Abraham Lincoln put
    it. It is not “Of the Prosecutor, By the Prosecutor, and For the
    Prosecutor” nor is it “Of the Judge, By the Judge, and For the Judge.”
    Too often a jury is viewed as, and used as, a rubber stamp by a biased
    judicial system and particularly by over-zealous, win-at-any-price,
    prosecutors.

    Most salient to this discussion is an essay by, mirable dictu, Justice William Goodloe:Empowering the Jury as the Fourth Branch of Government, Justice William Goodloe
    http://fija.org/download/ES_Goodloe_jury_nullification.doc

    When you are sitting in prison doing 20+ years for a crime you did not commit, even with your law degree, you’ll pray (just as the over 200+ freed by the Innocence Projects have done) for someone who believes in true justice.  Scream all you want at me, but you will not change my belief in a government as envisioned by the writers of the Constitution of the United States of America — a Constitution which is being dismantled even as I type this…