The "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 to determine.
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 government":
"The 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 beneficial conditions.
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?
June 1, 2000
Wendy McElroy is author of The Reasonable Woman.