"fully informed jury" strategy attempts to wedge the jury
process as an obstacle between oppressive law and individual freedom.
The strategy is based on the doctrine of jury nullification by which
a juror can reject the law. That is, a juror can refuse to convict
a defendant despite instructions from a judge if he believes either
that the law is unjust or that its application is unjust. In essence,
the jury renders a verdict on the law itself and not merely on the
facts of a case.
Efforts to ensure fully informed juries are underway in various
states. For example, in New Hampshire, a bill – HB 1236 – was passed
by the House on March 29th but deemed "inexpedient
to legislate" by the Senate on May 11th. The bill
would have allowed "a criminal defendant" to demand that
"the court instruct the jury of its inherent right to judge
the law and the facts in controversy and to nullify."
Jury nullification has been established in common law since 1670
when an English jury refused to convict William Penn for the crime
of preaching Quakerism. They were imprisoned for doing so. In a
legal precedent, the English high court ruled that juries must be
free to reach their own decisions without fear of punishment by
the court. In 1735, jury nullification was affirmed in America when
publisher John Peter Zenger was tried for printing "seditious
libel" without first receiving the government's approval. The
judge instructed the jury that no facts were in question since Zenger
admitted the sedition. All that remained was the legality of his
act and such "issues of law" were matters for the court
to determine. The jurors were instructed to find Zenger guilty.
Within ten minutes, they declared him not guilty.
Since then, the right and power of a jury to de facto overturn a
law has been the subject of debate and inconsistent application.
Advocates of individual rights tend to embrace jury nullification
as a key aspect of trial by jury. 19th century individualists
shared this tendency, with Lysander Spooner's treatise Trial
by Jury often considered to be the definitive word. The
first chapter of this work is entitled "The Right of Juries
to Judge the Justice of Laws."
Nevertheless, an interesting debate on trial by jury erupted in
the pages of a key 19th century individualist periodical,
Liberty (1881-1908). The debate did not revolve around the
usual controversies, such as the propriety of subpoena – the
so-called "right" of the state to coerce testimony. Instead,
it addressed the propriety of trial by jury itself and, thus, by
necessary implication, of jury nullification. The debate raised
important questions that should be considered before accepting the
strategy of fully informed juries.
Perhaps the first question is how a group of twelve people can claim
any right unless an individual has assigned it to them. Can a "collective"
right supercede individual ones? After all, it cannot be said that
the defendant has relinquished his rights due to committing an aggressive
act as this is the very finding that the jury has been convened
The 16th century classical liberal John Locke believed
that the need to protect "life, liberty, and estate" in
society led men to form government. In exchange for protection,
men willingly relinquished the right to adjudicate their own disputes – that
is, the right to try their own cases in court. Locke also posited
a form of tacit consent by which those who had not explicitly agreed
were still bound to trial by jury. As long as a man remained in
society, he consented to its jurisdiction, including its right to
adjudicate disputes. Radical individualists in 19th century
America generally demanded a more explicit transfer of authority
from the individual to any collective entity. For them, how a jury
had the right to sit in judgment on someone who objected to the
process was a quandary.
In 1889, Liberty ran a series of articles by Victor Yarros
collectively entitled "Free Political Institutions: Their Nature,
Essence, and Maintenance." The series was advertised as "an
abridgement and rearrangement" of Trial by Jury. Spooner's
work had not addressed how juries acquired the right to try a case
in any detail. But Yarros considered this issue to be so important
that he repositioned text from Spooner's concluding chapter.
Yarros' version began with a statement of what Spooner called "free
theory of government is that it is formed by the voluntary contract
of the people individually with each other." From here, Spooner
had contended that certain laws or conditions were so obviously
beneficial that all members of society would explicitly agree to
them. Spooner considered trial by jury to be one of these overwhelmingly
The debate in Liberty refuted Spooner's assumption. At least
some people would not consent to trial by jury. Adolph Herben declared
that he preferred trial by experts rather than by laymen who would
be ignorant of technical matters that might be crucial to his case.
He deemed it absurd to hang a person on the "mere opinion of
twelve ordinary men." Spooner had anticipated the objection
from "ignorance." He argued that juries should not be
granted power on the basis of their wisdom, but because they were
not as vulnerable to corruption as judge and other officials.
In another Liberty article, however, Steven T. Byington argued
that juries would be corrupt, at least, in the form of being biased.
He quoted from an editorial run by the Times of Natal –
a newspaper from an English speaking country in which racism made
"trial by jury" for black defendants a mockery. Judgments
simply could not be obtained against whites who committed crimes
against blacks. Byington claimed that in the presence of such prejudices,
"trial by jury" became an instrument of injustice. The
prejudice did not even need to be widespread to have a disastrous
impact on the integrity of the jury system. "If only ten per
cent of the people were of this sort, more than sixty-four per cent
of the juries would include one or more of these men to prevent
a conviction. In order that there should be an even chance of twelve
men taken at random being unanimously willing to judge according
to certain principles, it is necessary that there be not so many
as six per cent of the population who reject those principles."
Byington further objected to jury nullification due to "the
need for certainty." He referred to laws "where it has
been reasonably said that certainty is sometimes more important
than justice." For example, publishers might well prefer a
clear and consistently enforced standard of obscenity by which they
could predict the legality of an article rather than rely upon the
unpredictable decision of twelve men.
Perhaps the most interesting of Byington's objections was a practical
one. He maintained that courts in a free society would arise in
a free society would be unlikely to adopt the jury system because
it was clumsy and expensive. Any free market court system that used
juries might well operate at a distinct disadvantage by having to
charge considerably more than its competitors. Thus, the modern
form of a voluntary court – arbitration – does not include
a jury. Byington speculated on how justice would be provided in
a "society where things are done on a business basis."
He wrote, "[D]efensive associations will have their judges,
and their treaties as to the method of arbitration when two associations
are on opposite sides of a case, and these tribunals of one or three
professional judges will settle all cases where some one does not
distinctly demand a jury. I suppose a case will almost never come
before a jury except on appeal…"
Byington contended that trial by jury was a response to government
and not a free market phenomenon. A court system that evolved within
a "society where things are done on a business basis"
would be arranged differently. In a free market evolution, the disadvantages
of trial by jury would loom large: its expense, the unpredictability
of its verdicts, the problem of dissenting defendants, the widespread
tendency toward prejudice… For Byington, trial jury was not a
"right" but a "wrong."
Trial by jury presents interesting problems for those who champion
individual rights. In one particular instance, a jury may be an
effective weapon against oppressive government. In another, it may
be a vehicle for unjust prejudices. In both cases, it is necessary
to explain how juries derive the right to judge those who object
to the process. How does a collective entity rightfully acquire
such power over a dissenting individual?
McElroy is author of The