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.
In 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.