Jury Nullification Why you should know what it is

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Is it true
or false that when you sit on a jury, you may vote on the verdict
according to your own conscience? "True," you say, but
then why do most judges tell you that you may consider "only
the facts" and that you are not to let your conscience, opinion
of the law, or the motives of the defendant affect your decision?

In a trial
by jury, the judge’s job is to referee the trial and provide neutral
legal advice to the jury, beginning with a full and truthful explanation
of a juror’s rights and responsibilities.

But judges
rarely "fully inform" jurors of their rights, especially
their power to judge the law itself and to vote on the verdict according
to conscience. Instead, they end up assisting the prosecution by
dismissing any prospective juror who will admit to knowing about
this right, starting with anyone who also admits having qualms with
any specific law.

In fact, if
you have doubts about the fairness of a law, you have the right
and obligation to find someone innocent even though they have actually
broken the law! John Adams, our second president, had this to say
about the juror: "It is not only his 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."

It was normal
procedure in the early days of our country to inform juries of their
right to judge the law and the defendant. And if the judge didn’t
tell them, the defense attorney very often would. The nation’s Founders
understood that trials by juries of ordinary citizens, fully informed
of their powers as jurors, would confine the government to its proper
role as the servant, not the master, of the people.

It was our
Constitution that gave us the foundation that enables us to remain
a democracy. The Constitution provides five separate tribunals with
veto power – representatives, senate, executive, judges and
jury. Before a law gains the power to punish that law must first
pass the test of each constitutionally guaranteed authority.

nullification of law," as it is sometimes called, is a traditional
American right defended by the Founding Fathers. Those patriots
intended that the jury serve as one of the tests a law must pass
through before it assumes enough popular authority to be enforced.
Our constitutional designers saw to it that each enactment of law
must pass the scrutiny of these tribunals before it gains the authority
to punish those who choose to violate any written law. Thomas Jefferson
said, "I consider trial by jury as the only anchor yet imagined
by man, by which a government can be held to the principles of its

Four decades
before Jefferson spoke these words, a jury had established freedom
of the press in the colonies by finding John Peter Zenger not guilty
of seditious libel. He had been arrested and charged for printing
critical – but true – news stories about the Governor
of New York Colony. "Truth is no defense," the court told
the jury! But the jury decided to reject bad law, and acquitted.

Why? Because
defense attorney Andrew Hamilton informed the jury of its rights:
he related the story of William Penn’s trial – of the courageous
London jury which refused to find him guilty of preaching Quaker
religious doctrine (at that time an illegal religion). His jurors
stood by their verdict even though held without food, water, or
toilet facilities for four days. The jurors were fined and imprisoned
for refusing to convict William Penn – until England’s highest
court acknowledged their right to reject both law and fact and to
find a verdict according to conscience. It was exercise of that
right in Penn’s trial which eventually led to recognition of free
speech, freedom of religion, and of peaceable assembly as individual

American colonial
juries regularly thwarted bad law sent over from mother England.
Britain then retaliated by restricting both trial by jury and other
rights which juries had won or protected. Result? The Declaration
of Independence and the American Revolution!

to forever protect all the individual rights they’d fought for from
future attacks by government, the Founders of these United States
in three places included trial by jury – meaning tough, fully
informed juries – in our Constitution and Bill of Rights.

"Bad law"
– special-interest legislation which tramples our rights –
is no longer sent here from Britain. But our own legislatures keep
us well supplied… That is why today, more than ever, we need juries
to protect us!

Even though
it was once the written law, would you vote to convict an escaped
slave from the south, return him to his "Master" and to
then be punished, maybe by inflicting torture and disfigurement
to that escaped slave? Your answer is hopefully "NO!"
But, at one time that was the law. How about burning a witch? Once
too that was the law, a bad law and one that should not to be acted
upon by our juries. If these laws were again passed today, how should
you vote if on that trial’s jury?

"If a
juror accepts as the law that which the judge states then that juror
has accepted the exercise of absolute authority of a government
employee and has surrendered a power and right that once was the
citizen’s safeguard of liberty." (1788) (2 Elliots Debates,
94, Bancroft, History of the Constitution, 267)

Despite the
courts’ refusal to inform jurors of their historical veto power,
jury nullification in liquor law trials was a major contributing
factor in ending alcohol prohibition. (Today in Kentucky jurors
often refuse to convict under the marijuana prohibition laws.)

Fewer incidents
of jury veto actions occurred as time increased after the courts
began concealing jurors’ rights from American citizens and falsely
instructing them that they may consider only the facts as admitted
by the court. Researchers in 1966 found that jury nullification
occurred only 8.8 percent of the time between 1954 and 1958, and
suggested that "one reason why the jury exercises its very
real power [to nullify] so sparingly is because it is officially
told it has none." (California’s charge to the jury in criminal
cases is typical: "It becomes my duty as judge to instruct
you concerning the law applicable to this case, and it is your duty
as jurors to follow the law as I shall state it to you … You are
to be governed solely by the evidence introduced in this trial and
the law as stated to you by me.") Today no officer of the court
is allowed to tell the jury of their veto power.

To better explain
to prospective jurors their rights, an explanation that is not forthcoming
from our courts’ judges, an organization called the Fully Informed
Jury Association has been established. "FIJA"
is a national jury-education organization which both educates juries
and promotes laws to require that judges resume telling trial jurors
"the whole truth" about their rights, or at least to allow
lawyers to tell them. FIJA believes "liberty and justice for
all" won’t return to America until the citizens are again fully
informed of their power as jurors, and routinely put it to good

About 18 months
ago, armed with a number of pamphlets explaining the importance
to each of us in having the courts fully inform juries of their
rights, I stood in the Mendocino County Courthouse. I had been talking
about this issue, with courthouse visitors when I was "invited"
into Judge James Luther’s courtroom by two of his bailiffs. Judge
Luther, showed me how in general our courts have eroded. I was told
to stop talking to my fellow citizens about their constitutional
rights. Their right to understand a jury’s role in the court procedure.
I was told to stop or be arrested for jury tampering.

We can only
speculate on why there is a general distrust by judges. A distrust
of our citizen juries to decide on the fairness of laws that are
often enacted by self-serving legislators? Disrespect for the idea
of government "of, by, and for the people"? Unwillingness
to part with their power? Ignorance of all the rights and powers
that trial jurors necessarily acquire upon assuming the responsibility
of judging a case? Actual concern that trial jurors might "misuse"
their power if told about it? How can people get fair trials if
the jurors are told they can’t use their consciences?

If jurors were
supposed to judge "only the facts," their job could be
done by computer. It is precisely because people have feelings,
opinions, wisdom, experience, and conscience that we depend upon
jurors, not upon machines, to judge court cases.

Why is so little
known about what is now called "jury nullification"? In
the late 1800’s, a number of powerful special-interest groups (not
unlike many we have with us today) inspired a series of judicial
decisions which tried to limit jury rights. While no court has yet
dared to deny that juries can "nullify" or "veto"
a law, or can bring in a "general verdict," they have
held that jurors need not be told about these rights!

However, jury
veto power is still recognized. In 1972 the D.C. Circuit Court of
Appeals held that the trial jury has an "…unreviewable and
irreversible power…to acquit in disregard of the instruction on
the law given by the trial judge." The pages of history shine
upon instances of the jury’s exercise of its prerogative to disregard
instructions of the judge; for example, acquittals under the fugitive
slave law (473F 2dl 113)

Today thousands
of harmless citizens are in prison only because their trial juries
were not fully informed, and the U.S. now leads the world in percent
of population behind bars! More prisons are being built than ever
before for those whose "crime" affects no one but themselves.

We need to
be wary and/or critical of any proposals to "streamline"
the jury system, or to create jurisdictions or regulations which
"do not require" trial by jury (two of the means by which
your power as a juror is stolen!) We now hear about plans to allow
a court to find a person guilty of a crime with less then a 12–0

To find out
more about jury nullification and FIJA
call 800-TEL-JURY and record your name and address.

4, 2009

Copyright 1995
Mendocino College

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