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[U]nder the character of jurors [the people] exercise in person the greatest proportion of the judiciary powers. -- Thomas Jefferson, Sixth Annual Message, December 2, 1806 |
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Fully Informed JuriesThe Founders realized that the temptations of power and corruption would eventually prove to be too much for any of the three branches of our government to resist, let alone check and balance the other branches. They knew that government "of, by and for the people" meant that the people would every so often have to roll up their sleeves and exert their authority, to act as the final check and balance on the whole system. Since law is the main tool by which a government exerts its control, trusting juries of ordinary citizens to veto the use of bad law was the logical choice. So they provided for trial by jury--once in the Constitution, and twice more in the Bill of Rights. In those days, it was part of the definition of the word "jury" that its members could judge the law as well as the evidence, and the judge would often remind them of this power. For example, if jurors found the law to be unjust or misapplied, or that the defendant's rights had been violated in bringing the him or her to trial, they would acquit for those reasons, despite good evidence. In addition to veto power, our common law legal traditions also provide that if a jury decides to acquit, its decision is final. A verdict of "not guilty" cannot be overturned, nor can the judge harass the jurors for voting for acquittal, or punish them for voting their consciences, even after making them swear to follow the law as given by the judge! And jurors may be asked, but cannot be obliged, to explain their verdicts. These principles were subject to contention for centuries in England and the British Empire as citizen jurors fought to assert their rights against the power interests of the crown. In 1670, William Penn was arrested in London for preaching a Quaker sermon, which broke a law establishing the Church of England as the only legal church. His jurors, led by Edward Bushell, refused to convict him, despite being held for days without food, water, tobacco or toilet facilities – and then fined. The most defiant four of them refused to pay the fine and were then put in prison for nine weeks. The highest court of England, upon releasing them, both acknowledged and established that trial jurors could not be punished for their verdicts. Recognition of our freedoms of religion, peaceable assembly and speech thus all trace to the exercise of jury power, wielded by a jury unintimidated by government judges. In colonial America, the sedition trial of John Peter Zenger established another landmark case. Zenger, a publisher, was arrested for printing news critical of the Royal Governor of New York Colony and his cronies, accusing them of corruption. His accusations were all true, but the judge informed his jury that under the law, "...truth is no defense". "Philadelphia lawyer" Andrew Hamilton then told the jurors the story of William Penn, and argued that as judges of the merits of the law, they should not in good conscience convict Zenger of violating such a bad law. The jurors agreed. Zenger was acquitted in about fifteen minutes, and his case spawned recognition of our right to a free press. Cases like these therefore were part of the political heritage of the Founders, which may explain why they so appreciated jury power. John Adams said it so well in 1771 that the Fully Informed Jury Association (FIJA) put his words on a coffee mug: "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." First U.S. Supreme Court Chief Justice John Jay, writing in Georgia v. Brailsford, 1794, concluded: "The jury has the right to judge both the law as well as the fact in controversy". President Thomas Jefferson in 1789 told Thomas Paine: "I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution." And Noah Webster, who wrote his original 1828 dictionary in order to preserve the integrity of the language of the Constitution, defined "petty jury" as "...consisting usually of twelve men [who]...attend courts to decide both the law and the fact in criminal prosecutions". A detailed historical analysis of jury veto power, also called jury nullification of law, appeared in the Yale Law Review in 1964. It held that "The right of the jury to decide questions of law was widely recognized in the colonies. In 1771, John Adams stated unequivocally that a juror should ignore a judge's instruction on the law if it violates fundamental principles: There is much evidence of the general acceptance of this principle in the period immediately after the Constitution was adopted." However, during the next century, judges began chipping away at this vital and fundamental right of free citizens, thereby transferring citizen power to themselves. The worst usurpation took place in 1895, when in Sparf and Hansen v. U.S., a bitterly split decision by our Supreme Court held that failure of the judge to remind the jurors of their powers was not a basis for mistrial or appeal. That was the green light for trial judges to go mum on the topic, and they did. That is why very few lawyers or law professors, only some judges, and practically no school teachers know about jury veto power: it's "not part of the curriculum". Few history books give juries the credit they're due--for stopping the Salem witch trials, for overturning slavery in state after state before the Civil War, and for ending Prohibition--all by refusing to convict because they thought the law itself was wrong. These days, trial by jury often doesn't accomplish all that it should. And the usurpation continues: trial judges now falsely tell jurors that their only job is to decide if the "facts" are sufficient to convict, and that if so, they "should" or "must" convict. Defense attorneys can face contempt of court charges if they urge jurors to acquit if they think the law is unconstitutional or unjust. And self-defenders are usually stopped and rebuked if they even mention their motives, or why they disagree with the law, to the jury. Yet to this day, trial jurors retain the right to veto, or "nullify" bad laws, though they are rarely told this by the courts. Prosecutors and judges try to exclude people from serving on juries who admit knowing they can judge the law, or who have doubts about the justice of the law. This destroys the protections jurors were supposed to be able to invoke on behalf of fellow citizens against unjust prosecutions: how can our right to a trial by an impartial jury be met if those with any qualms about the law are excluded from serving? from: http://nowscape.com/fija/_abhope.htm The power of a jury to nullify a verdict in a criminal prosecution has been well established for centuries. Three states, Georgia, Maryland and Indiana, specifically mention that the jury has the power to decide the law as well as the facts of a case in their state constitutions. The source of this power is derived by legal tradition and by constitutional mandates of trial by jury, by constitutional prohibitions against directed verdicts of guilt in criminal cases, prohibitions against punishing juries for turning in inconsistent verdicts or verdicts unsupported by the law or facts of the case, and from prohibitions against requiring the jury to justify its acquittal. The power of nullification has been uniformly recognized by courts. See United States v. Boardman, 419 F.2d 110 (1st Cir., 1969); Washington v. Watkins, 655 F.2d 1346 (5th Cir. 1981); United States v. Kzyske, 836 F.2d 1013 (6th Cir. 1988); United States v. Dougherty, infra; United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972); United States v. Wiley, 503 F.2d 106 (8th Cir. 1974); United States v. Trujillo, 714 F.2d 102 (11th Cir. 1983); State v. Butler, 153 S.E.2d 70 (N.C. 1967). The right to nullify a verdict is occasionally questioned, the argument made that the jury has a duty to follow the law as instructed by the judge (and convict if it finds the defendant guilty beyond a reasonable doubt). However, the fact remains that there is no means to compel a juror to convict a defendant, and no way to punish a juror for refusing to convict. As a result, the duty to apply the law as instructed by the judge is not a legal duty; it is a moral duty. Most jurisdictions do not permit specific jury instructions regarding the jury's right of nullification or of its power to decide the applicable law. The general trend has been to inform the jurors that they have a duty to follow the court's instructions, and leave information regarding the right to jury nullification to informal or unofficial sources. The court in U.S. v. Dougherty, 473 F.2d 1113, 1135 (D.C. Cir.,1972), in considering whether to instruct on the right of jury nullification observed, reasoned that:
Even if a criminal defendant is found to have no right to have a judge instruct the jurors in their right of jury nullification, it does not follow that the government has a right to suppress all information regarding jury nullification. It is one thing to disallow a jury instruction at trial. Judicial instructions are taken very seriously by jurors. The courtroom is a controlled setting where a trial judge is given a great deal of deference and respect and there is a possibility that nullification instructions could be misconstrued to mean that a jury should nullify, (rather than it may nullify). There is the further possibility that other judicial instructions would become diluted or confused. However, it is quite another thing to say that just because a defendant is not entitled to get a jury nullification instruction at trial, the government may criminally prosecute individuals for issuing pamphlets on jury nullification outside the courtroom in a public parking lot. The power and right of jury nullification in this country exists. It is a truthful proposition to say that it does. It has been discussed in American courts, in law review articles, and in books. To allow the government to punish individuals for publicly discussing laws (outside the courtroom) favorable to persons accused of crimes is to make a mockery of the civil liberties and the system of controls against overreaching governmental conduct guaranteed to us by the Constitution. from: http://www.fija.org/other_cases.htm The point of the leafleting has been to advise jurors that they have the power to judge the law itself, and not just "the facts," as most modern jury instructions insist. Known in the legal community as the doctrine of "jury nullification of law" or simply "jury veto power," it means that "the governed" --- if they only know about their power as jurors --- can "just say no" to bad law, and thereby check and balance the government. FIJA activists are thus betting that ordinary Americans, armed with this knowledge, will begin refusing to apply many of this country's most oppressive laws. It was rejection of bad laws by juries which made us free in the first place, FIJA activists can document, and it may be the only way out from under an increasingly tyrannical government again today: a series of jury rejections of a given law has in the past led the government to change or abolish that law, as happened to fugitive slave acts, Prohibition, and anti-strike laws. The Regas case may indeed be the result of successes that FIJA activists have had in educating jurors at a number of recent federal cases, including the Branch Davidians' trial on gun and conspiracy charges in San Antonio, the trial of vitamin salesman Roger Sless for selling "unapproved nutritional supplements" in Albuquerque, some drug trials and — perhaps most importantly — several unsuccessful prosecutions of tax resisters. from: http://www.boogieonline.com/revolution/legal/jury/regas.html Juries and Sentences The latest victory for jury nullification came in September 1993 when the U.S. Sixth District Court upheld a defendant's right to tell the jury what his sentence would be if convicted. As reported in the November 8, 1993 issue of Lawyers Weekly USA, the court traced the history of jury nullification from seventeenth-century England to the present-day United States, saying the "Supreme Court has consistently endorsed the traditional power of the jury to nullify a law or a specific conviction." The defendant in this particular case hoped that the jury would refuse to convict him on drug charges if they knew he "faced a minimum mandatory sentence of 15 years, even though the amount of cocaine involved added up to about three sugar packets' worth," said the defense lawyer, Jude Lenahan of Nashville, Tennessee. The judge held that "the essential purpose of the jury trial ... is to prevent oppression by the government ... a defendant's right to inform the jury of that information essential to prevent oppression by the government is clearly of constitutional magnitude. ... if community oversight of a criminal prosecution is the primary purpose of a jury trial, then to deny a jury information necessary to such oversight is to deny a defendant of the full protection to be afforded by a jury trial, Indeed, to deny a defendant the possibility of jury nullification would be to defeat the central purpose of the jury system." The Eighth, Tenth and Eleventh Circuits have held the opposite of this conclusion, and even the Sixth Circuit may not uphold the decision in future cases. Lawyers Weekly provided background for those interested: "The circuit rulings that have rejected the holding in this case are U.S. v. Goodface, 835 F.2d 1233 (8th Cir. 1987); U.S. v. McDonald, 933 F.2d 1519 (10th Cir. 1991); and U.S. v. Cox, 696 F.2d 1294 (11th Cir. 1983). "How To order a copy of this Tennessee Case: "U.S. District Court for the Middle District of Tennessee. U.S. v. Datcher, No. 3:92-00054. September 8, 1993. Lawyers Weekly USA No. 9901621 (10 pages). To orders a copy of the opinion, call 800-933-5594." from: http://www.boogieonline.com/revolution/legal/jury/sentence.html Article 23 of Maryland’s Constitution states:
Art. I, Sec. 19, of Indiana’s Constitution says:
Art.I, Sec. 16 of Oregon’s Constitution says:
Art. I, Sec. 1 of Georgia’s Constitution says:
I want to, or am going to serve on a jury Jacob Hornberger on Trial by Jury Stopping Tyranny in its Tracks
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