What lawyers & judges
won't tell you about juries
By Sam Smith The fully informed jury movement has been in the news and the subject of badly misinformed journalism. The following article, which appeared in the Progressive Review in 1990, explains this important issue:
William Penn may have thought he had settled the matter. Arrested in 1670 for preaching Quakerism, Penn was brought to trial. Despite Penn's admitting the charge, four of the 12 jurors voted to acquit. The judge sent the four to jail "without meat, drink, fire and tobacco" for failing to find Penn guilty. On appeal, however, the jurors' action was upheld and the right of juries to judge both the law and the facts -- to nullify the law if it chose -- became part of British constitutional law.
It ultimately became part of American constitutional law as well, but you'd never know it listening to jury instructions today almost anywhere in the country. With only a few exceptions, juries are explicitly or implicitly told to worry only about the facts and let the judge decide the law. The right of jury nullification has become one of the legal system's best kept secrets.
Now a remarkable coalition has sprung up to challenge this secrecy as undemocratic, unconstitutional and dangerous. Though organized by libertarian activists, the Fully Informed Jury Amendment movement includes liberals and conservatives, Greens, drug decriminalization advocates, gun owner groups, peace activists, both sides of the abortion controversy, helmet and seatbelt activists, alternative medicine practitioners, taxpayer rights groups, environmentalists, criminal trial lawyers and law professors.
Organized by Larry Dodge and Don Doig, both of Helmville, Montana (population: 26; elevation 4300'), FIJA seeks to require that juries be informed of their nullification rights. Informed jury amendments have been filed as an initiative in seven states and legislation has been introduced in the Alaska state legislature.
Merely raising the issue of nullification can make prosecutors nervous, for it takes only one person aware of the right in order to hang a jury. In Washington, DC, where the concept was discussed in connection with the Marion Barry trial, a local television station reported that the US Attorney was worried that a jury might nullify the law in that case. The joke in DC was that Barry was campaigning, but only for one vote, that of a single juror. The specific charges against Barry revolved around his use of drugs and a growing number of people are coming to accept the argument that drug use or addiction should not be a criminal offense. Further many DC residents were concerned about the prosecution's heavy-handed pursuit of the mayor. Despite the refusal of courts to inform juries of their right to nullify, American juries have periodically exercised it anyway. In recent years, some peace protesters have been acquitted despite strong evidence that they violated the law. In the 19th century northern juries would refuse to convict under the fugitive slave laws. And in 1735 journalist Peter Zenger, accused of seditious libel, was acquitted by a jury that ignored the court's instructions on the law.
Those who have endorsed the right of a jury to judge both the law and the facts include Chief Justice John Jay, Samuel Chase, Dean Roscoe Pound, Learned Hand and Oliver Wendell Holmes. According to the Yale Law Journal in 1964, during the first third of the 19th century judges did inform juries of the right, forcing lawyers to argue "the law -- its interpretation and validity -- to the jury." By the latter part of the century, however, judges and state law were increasingly moving against nullification. In 1895 the US Supreme Court upheld the principle but ruled that juries were not to be informed of it by defense attorneys, nor were judges required to tell them about it. Stephen Barkan, writing in Social Problems (October 1983), noted that the attacks on nullification stemmed in part from juries acquitting strike organizers and other labor activists. And in 1892 the American Bar Review warned that jurors had "developed agrarian tendencies of an alarming character."
Today, the constitutions of only two states -- Maryland and Indiana -- clearly declare the nullification right, although two others -- Georgia and Oregon -- refer to it obliquely. The informed jury movement would like all states to require that judges instruct juries on their power to serve, in effect, as the final legislature of the land concerning the law in a particular case.
As the diverse nature of the movement suggests, many groups in this country feel the government has overstepped its power in some way and that there must be protection for the natural rights of American citizens. They are defending not only the right to protest or carry a gun or not wear seatbelts but challenging the right of the government to decide such matters without the mediating effect of a jury's judgement of fairness in a particular case.
For many liberals and progressives, who tend to be confident of the beneficent nature of government power, such a challenge may be a bit uncomfortable -- understandable in a case involving a peace protest, less appreciated if invoked by a member of the National Rifle Association. The libertarians argue that the two are of one cloth. As government intrusion in individual matters has increased, the libertarian view has gained influence, helping to tilt normal left-right divisions on their side. Libertarians, for example, have been key to the growing opposition to the barbaric Reagan-Bush war on drugs, providing some of the best analysis and advocacy available on the issue.
Libertarians are again in the lead on the nullification issue. Many progressives may be uneasy about the thought of a western jury nullifying a case involving a gun control or seatbelt law, but this unease reminds one of little discussed principles that were once considered central to being an American -- not the least of which was freedom from some government official telling you how to live your life. As the design of the modern centralized welfare state frays and becomes increasingly authoritarian, reacquaintance with some of our individualistic roots has much to recommend it.
It was nice to see the Washington Post finally giving some attention to jury nullification, even if after four months of research and interviews with more than 100 jurors, judges, defense lawyers and prosecutors, it still couldn't get the story right.
For example reporter Joan Biskupic stated, "Anyone accused of a crime in this country is entitled to a jury trial." The Constitution may say so but, in fact, this is simply not the case -- and becoming less so as politicians fiddle with legal definitions and sentencing standards in order specifically to reduce the number of persons entitled to a trial.
Biskupic also wrote: "The American custom is that jurors decide the facts of the case (whether the person did what he is accused of) and leave it to judges to interpret the law. There is no room, in other words, for jurors to say whether they think the law is a good one, though there have been a few celebrated exceptions -- notably the 18th-century acquittal of John Peter Zenger of seditious libel and the 19th-century acquittals for prosecution under the fugitive slave law."
This is a rewriting of history, one of the privileges of a reporter who works for a paper free to do so thanks to the rights of jurors upheld in the Zenger case. -- TPR 2/99
In fact, it is unlikely that a jury considering a gun control case would excuse the leader of an underground Nazi movement or a gang of bank robbers. It 1is far more likely that it would acquit the respectable rancher who simply believes that gun control represents further destruction of his paradigm of individual liberty. If so, what have we lost?
The history of jury nullification suggests there is little to fear. In those states where the concept is respected to some degree it has had minimal effect on the overall functioning of the law. Nullification has, on the other hand, played a little noted but significant role in the advance of religious and press freedom, the abolition of slavery and the building of a labor movement. Even in the face of hostility by contemporary courts, it has cropped up in political protest trials of the past few decades. And it might have surfaced more frequently absent that hostility. As one of the jurors said following the conviction of the Berrigan brothers in 1980:
We convicted them on three things, and we really didn't want to convict them on anything. But we had to, because of the way the judge said the only thing that you can use is what you get under the law... I would have loved to hold up a flag to show them we approved of what they were doing. It was very difficult for us to bring in that conviction.
The nullification principle involves the power to say no to the excesses of government, and thus serves as a final defense against tyranny. As Thomas Jefferson put it to Tom Paine in a 1789 letter, "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." To get in touch with the fully informed jury movement write: Fully Informed Jury Association, Box 59, Helmville MT 5984, 406-793-5550
"If a juror feels that the statute involved in any criminal offence is unfair, or that it infringes upon the defendant's natural god-given unalienable or constitutional rights, then it is his duty to affirm that the offending statute is really no law at all and that the violation of it is no crime at all, for no one is bound to obey an unjust law." -- Chief Justice Harlan F. Stone
"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 law." --Lysander Spooner, The Right of Juries
If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence. -- 4th Circuit Court of Appeals, US v Moylan, 1969
Every jury in the land is tampered with and falsely instructed by the judge when it is told that it must accept as the law that which has been given to them, or that they can decide only the facts of the case. -- Lord Denham, O'Connell v Rex (1884)
The jury has the power to bring in a verdict in the teeth of both the law and the facts. -- Justice Holmes, Homing v District of Columbia, 138 (1920)
When a jury acquits a defendant even though he or she clearly appears to be guilty, the acquittal conveys significant information about community attitudes and provides a guideline for future prosecutorial discretion...Because of the high acquittal rate in prohibition cases in the 1920s and early 1930s, prohibition laws could not be enforced. The repeal of these laws is traceable to the refusal of juries to convict those accused of alcohol traffic. -- Sheflin and Van Dyke, Law and Contemporary Problems, 43, No. 4, 1980
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 directions of the court.-- John Adams
Notes of a nullifier
Sam Smith, 1999 - The October issue was late because your editor was tied up in a six-hour voir dire for a double-robbery case. In the end, I maintained my perfect record of having never sat through a full trial. As a Coast Guard officer I was bounced from two courts martial, and I have been dismissed from three jury panels. In the one case in which I was seated, the first two witnesses -- both US Park Police officers -- identified the defense counsel as the defendant. The trial was over in 20 minutes.
In the most recent case, the judge's impressive if tedious effort to obtain a fair jury resulted in a long series of bench conferences as citizens told of their connections to crime and law enforcement. For my part I mentioned my USCG background, three house burglaries, one office break-in, one stolen car, being detained at Washington National Airport as a suspected terrorist due to a defective computer-screening machine, and the fact that one of my brothers in-law had been killed in a drug store robbery.
Then I explained to Judge Michael Rankin that, while I doubted it was relevant in this case, I had been advised that I should reveal my long public advocacy of the right of juries to judge both the law and the facts. I noted that this view had upset some judges. Judge Rankin said it didn't bother him although he didn't mind debating the issue and had done so with Paul Butler, the black lawyer-scholar who has promoted nullification as a form of protest.
I told the judge that I didn't think Butler's arguments were effective because they were based on ethnicity rather than history, which offered a much stronger case. I then began a brief spiel the subject citing Learned Hand, Oliver Wendell Holmes and Thomas Jefferson. While previous US Attorneys had expressed hostility towards my views, this one merely asked whether there were any legal principles that I would uphold. I asked for an example and Judge Rankin said, well, you would support the presumption of innocence wouldn't you? I said, of course, and then -- brazenly rapping my hand on the judge's bench to punctuate the point -- said my concern was that the jury remain our last defense against tyranny, the final legislature deciding the law as it pertained to the case under consideration. To my amazement, Judge Rankin said, well, you'll get no argument from me. The judge and both attorneys agreed that the case under consideration did not raise such issues and that was the end of the matter. I was later dismissed on a peremptory challenge.
The incident reminded me of another pleasant surprise I recently stumbled upon in a DC courthouse. Twenty citizens, including myself, are suing the President, Senate, House, and federal control board for the lack of DC self-government. The day before our hearing before a special three-judge panel in US District Court (in the very courtroom of Watergate, Iran-Contra, and Monica Lewinsky fame) someone called the US Marshals and warned that our group might be planning some disruption. Sure enough, when I entered the courthouse with co-plaintiff and black minister Graylan Hagler, there seemed an excess number of surly cops standing in a line outside. Then a US Marshal approached and asked if he could help us. Rev. Hagler asked for directions to the cafeteria which the Marshal gave and then he looked at Hagler, and said, "I've been to your church, Reverend. In fact, one of my men is on your board of trustees. Let's go and bless him." So the Marshal and the reverend left me to find the cafeteria by myself and to recall again something that is easy for activists to forget: not all your friends are out of power.
More nullification history
Scott Horton, Harpers - America's Founding Fathers made their case to juries arguing for nullification. John Adams, when defending John Hancock in 1771, insisted that the juror has not merely the "right" but actually the "duty to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court" and its understanding of the law. Conscience should serve as a safety valve, he argued, against unjust laws, or against just laws, unjustly applied.
Since then, jury nullification has been used to block the prosecution of those who helped slaves flee captivity or who simply offered them education; to free those who faced prosecution for resisting military service in unpopular wars or whose conscience forbade them to bear arms; and to end the prosecution of women who sought abortions and the doctors who served them. In the December 1926 issue of Harper's Magazine, Walter Lippmann made the case for the use of jury nullification to address some of the extreme prosecutions resulting from the Volstead Act. In the December 1995 issue, Paul Butler argued that minorities should use jury nullification to press social issues. . .
Shortly before his death, Thomas Jefferson noted with disdain that judges were working hard to bury jury nullification. It reflected a pernicious "slide into toryism," he remarked in a letter to James Madison in 1826. In Jefferson's view, judges and prosecutors who rejected the jury's right of nullification were betraying the values of the Constitution and instead embracing those of the British Crown.
A Citizens Guide to Jury Duty
Fully Informed Jury Assocation
Did you know that you qualify for another, much more powerful vote than the one which you cast on election day? This opportunity comes when you are selected for jury duty, a position of honor for over 700 years.
The principle of a Common Law Jury or Trial by the Country was first established on June 15, 1215 at Runnymede, England when King John signed the Magna Carta, or Great Charter of our Liberties. It created the basis for our Constitutional, system of Justice.
JURY POWER in the system of checks and balances:
In a Constitutional system of justice, such as ours, there is a judicial body with more power than Congress, the President, or even the Supreme Court. Yes, the trial jury protected under our Constitution has more power than all these government officials. This is because it has the final veto power over all "acts of the legislature" that may come to be called "laws".
In fact, the power of jury nullification predates our Constitution. In November of 1734, a printer named John Peter Zenger was arrested for seditious libel against his Majesty's government. At that time, a law of the Colony of New York forbid any publication without prior government approval. Freedom of the press was not enjoyed by the early colonialists! Zenger, however, defied this censorship and published articles strongly critical of New York colonial rule.
When brought to trial in August of 1735, Zenger admitted publishing the offending articles, but argued that the truth of the facts stated justified their publication. The judge instructed the jury that truth is not justification for libel. Rather, truth makes the libel more vicious, for public unrest is more likely to follow true, rather than false claims of bad governance. And since the defendant had admitted to the "fact" of publication, only a question of "law" remained.
Then, as now, the judge said the "issue of law" was for the court to determine, and he instructed the jury to find the defendant guilty. It took only ten minutes for the jury to disregard the judge's instructions on the law and find Zenger NOT GUILTY.
That is the power of the jury at work; the power to decide the issues of law under which the defendant is charged, as well as the facts. In our system of checks and balances, the jury is our final check, the people's last safegard against unjust law and tyranny.
A Jury's Rights, Powers, and Duties:
But does the jury's power to veto bad laws exist under our Constitution?
It certainly does! At the time the Constitution was written, the definition of the term "jury" referred to a group of citizens empowered to judge both the law and the evidence in the case before it. Then, in the February term of 1794, the Supreme Court conducted a jury trial in the case of the State of Georgia vs. Brailsford (3 Dall 1). The instructions to the jury in the first jury trial before the Supreme Court of the United States illustrate the true power of the jury. Chief Justice John Jay said: "It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision." (emphasis added) "...you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy".
So you see, in an American courtroom there are in a sense twelve judges in attendance, not just one. And they are there with the power to review the "law" as well as the "facts"! Actually, the "judge" is there to conduct the proceedings in an orderly fashion and maintain the safety of all parties involved.
As recently as 1972, the U.S. Court of Appeals for the District of Columbia said that the jury has an " unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge.... (US vs Dougherty, 473 F 2d 1113, 1139 (1972))
Or as this same truth was stated in a earlier decision by the United States Court of Appeals for the District of Maryland: "We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. 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 of passion, the jury has the power to acquit, and the courts must abide by that decision." (US vs Moylan, 417 F 2d 1002, 1006 (1969)).
YOU, as a juror armed with the knowledge of the purpose of a jury trial, and the knowledge of what your Rights, powers, and duties really are, can with your single vote of not guilty nullify or invalidate any law involved in that case. Because a jury's guilty decision must be unanimous, it takes only one vote to effectively nullify a bad "act of the legislature". Your one vote can "hang" a jury; and although it won't be an acquittal, at least the defendant will not be convicted of violating an unjust or unconstitutional law.
The government cannot deprive anyone of "Liberty", without your consent!
If you feel the statute involved in any criminal case being tried before you is unfair, or that it infringes upon the defendant's God-given inalienable or Constitutional rights, you can affirm that the offending statute is really no law at all and that the violation of it is no crime; for no man is bound to obey an unjust command. In other words, if the defendant has disobeyed some man-made criminal statute, and the statute is unjust, the defendant has in substance, committed no crime. Jurors, having ruled then on the justice of the law involved and finding it opposed in whole or in part to their own natural concept of what is basically right, are bound to hold for the acquittal of said defendant.
It is your responsibility to insist that your vote of not guilty be respected by all other members of the jury. For you are not there as a fool, merely to agree with the majority, but as a qualified judge in your right to see that justice is done. Regardless of the pressures or abuse that may be applied to you by any or all members of the jury with whom you may in good conscience disagree, you can await the reading of the verdict secure in the knowledge you have voted your conscience and convictions, not those of someone else.
So you see, as a juror, you are one of a panel of twelve judges with the responsibility of protecting all innocent Americans from unjust laws.
Jurors Must Know Their Rights:
You must know your rights! Because, once selected for jury duty, nobody will inform you of your power to judge both law and fact. In fact, the judge's instructions to the jury may be to the contrary. Another quote from US vs Dougherty (cited earlier): "The fact that there is widespread existence of the jury's prerogative, and approval of its existence as a necessary counter to case-hardened judges and arbitrary prosecutors, does not establish as an imperative that the jury must be informed by the judge of that power".
Look at that quote again. the court ruled jurors have the right to decide the law, but they don't have to be told about it. It may sound hypocritical, but the Dougherty decision conforms to an 1895 Supreme Court decision that held the same thing. In Sparf vs US (156 US 51), the court ruled that although juries have the right to ignore a judge's instructions on the law, they don't have to be made aware of the right to do so.
Is this Supreme Court ruling as unfair as it appears on the surface? It may be, but the logic behind such a decision is plain enough.
In our Constitutional Republic (note I didn't say democracy) the people have granted certain limited powers to government, preserving and retaining their God-given inalienable rights. So, if it is indeed the juror's right to decide the law, then the citizens should know what their rights are. They need not be told by the courts. After all, the Constitution makes us the masters of the public servants. Should a servant have to tell a master what his rights are? Of course not, it's our responsibility to know what our rights are!
The idea that juries are to judge only the "facts" is absurd and contrary to historical fact and law. Are juries present only as mere pawns to rubber stamp tyrannical acts of the government? We The People wrote the supreme law of the land, the Constitution, to "secure the blessings of liberty to ourselves and our posterity." Who better to decide the fairness of the laws, or whether the laws conform to the Constitution?
Our Defense - Jury Power:
Sometime in the future, you may be called upon to sit in judgment of a sincere individual being prosecuted (persecuted?) for trying to exercise his or her Rights, or trying to defend the Constitution. If so, remember that in 1804, Samuel Chase, Supreme Court Justice and signer of the Declaration of Independence said: "The jury has the Right to judge both the law and the facts". And also keep in mind that "either we all hang together, or we most assuredly will all hang separately".
You now understand how the average citizen can help keep in check the power of government and bring to a halt the enforcement of tyrannical laws. Unfortunately, very few people know or understand this power which they as Americans possess to nullify oppressive acts of the legislature.
America, the Constitution and your individual rights are under attack! Will you defend them? READ THE CONSTITUTION, KNOW YOUR RIGHTS! Remember, if you don't know what your Rights are, you haven't got any!
Guide to jury nullification
Federal judge dismisses case against jury rights advocate
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