Fully Informed Juries Jury Nullification

On Sept. 5, people all across America will be celebrating Jury Rights Day. This day is to commemorate the protection the jury provides us from oppressive government.

In 1670, William Penn, an active Quaker, was arrested for preaching his outlawed religion to his London congregation (who were gathering in the street because the police had locked them out of their church). It was on this day 321 years ago that, despite clear evidence that he was guilty, a jury of his peers refused to convict them because they believed that he had the right to worship as he pleased. This case contributed to the common law recognition of freedom of religion, freedom of assembly and ultimately, to the United States’ First Amendment protections of such freedoms.

In 1735 John Peter Zenger was arrested for seditious libel. He had written harsh criticisms of the governor of New York, then, of course, a British colony. Although his writings were clearly illegal under then current British law he was not convicted. The jury, empowered to determine quilt or innocence, felt that justice would not be served by finding him guilty under that law, that he had the right to say whatever he wished without fear of government interference.

In the 1850s juries refused to convict people for harboring runaway slaves. These people, in clear violation of the fugitive slave laws, were willing to give up their lives, if necessary, to protect the freedom of others. In the 1920’s thousands of people were being tried for owning and consuming liquids that others thought were harmful. Many of these trials ended in acquittals because juries felt that such issues were not the governments business.

All of these actions were due to a principle that has largely been lost to today’s judicial system. That is the right of juries to make decisions on the validity of the law rather than just the facts in the case.

Ever since the Magna Carta, juries have been the final legal protection from bad laws. Jury nullification, the power of the jury to judge the law and its application, in addition to the facts of the case, was recognized by our nation’s founders as critical to the maintenance of freedom.

Thomas Jefferson wrote, “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 constitution.”

John Adams advised a jury that “It is not only the juror’s right, but his duty, in that case, to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court.”

Alexander Hamilton advised jurors to acquit against the judge’s instructions” . . . if exercising their judgment with discretion and honesty they have a clear conviction that the charge of the court is wrong.”

Samuel Chase, signer of the Declaration of Independence and Supreme Court Justice, said simply “The jury has the right to determine both the law and the facts.”

But today little is heard of this right, the right of juries to protect the citizens from misuse of government power. As with many protections envisioned by our nation’s founders, the power of jury nullification has been eroded over the last 200 years. Indiana and Maryland protect jury nullification in their state constitutions, but in most states judges attempt to prevent juries from exercising their power.

In the late 1800s a number of special interest groups pressured for a series of rulings limiting the powers of juries. These interest groups usually consisted of powerful business interests opposed to the actions of organized labor groups and other groups that had used their powers to lobby for laws that gave them an advantage over those in their communities that were less powerful than themselves. They often found that they could not retain this power when enforcement ultimately depended on the decision of jury of the peers of those opposed to that power.

Following these decisions, judges stopped informing jurors of their right to judge both the law and the facts in a case. Although, after a century of such positions in the courtroom, no court has dared deny such rights to juries, judges have effectively denied the use of this power in the courtroom.

They do this by refusing to inform the jury of their power of nullification, by explicitly instructing them that they may only consider the law as explained by the judge, and by refusing to allow defense counsel to mention the power of nullification on pain of a contempt of court citation. This has led to judges having near complete control over the decisions that are returned. They can do this by such actions as only telling juries of the parts of the laws they feel will lead to the verdict they feel is appropriate. And no one can challenge these instructions in the courtroom without fear of a contempt citation. A national movement, the Fully Informed Jury Association, seeks to return the intended powers of the jury to the people by returning jury nullification to its rightful position as a check on the abuses of government.

Many states have considered a simple amendment to their state constitutions: “Whenever government is a party in a trial by jury, the jurors must be informed that in addition to their responsibility to judge the facts of the case, they have an inherent right to judge the law and its application in the case before them.”

With this simple amendment we can begin to address the fears of one debater of ratification of the U.S. Constitution: “For the saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time.”