Chapter 11 Jury Nullification

Jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its
belief that
the defendant is guilty of the violation charged. The jury in effect nullifies a
law that it
believes is either immoral or wrongly applied to the defendant whose fate that it
is charged with
deciding.

When has jury nullification been practiced? The most famous nullification case is
the 1735 trial
of John Peter Zenger, charged with printing seditious libels of the Governor of the
Colony of New
York, William Cosby. Despite the fact that Zenger clearly printed the alleged
libels, the only
issue the court said the jury was open to decide as the truth or falsity of the
statements was
ruled to be irrelevant, the jury returned with a verdict of "Not Guilty."

Jury nullification appeared at other times in our history when the government has
tried to
enforce morally repugnant or unpopular laws. In the early 1800s, nullification was
practiced in
cases brought under the Alien and Sedition Act. In the mid 1800s, northern juries
practiced
nullification in prosecutions brought against individuals accused of harboring
slaves in
violation of the Fugitive Slave Laws. And in the Prohibition Era of the 1930s,
many juries
practiced nullification in prosecutions brought against individuals accused of
violating alcohol
control laws.

More recent examples of nullification might include acquittals of "mercy killers,"

including Dr.
Jack Kevorkian, and minor drug offenders.

Do juries have the right to nullify? Juries clearly have the power to nullify;
whether they also
have the right to nullify is another question. Once a jury returns a verdict of
"Not Guilty,"
that verdict cannot be questioned by any court and the "double jeopardy" clause of
the
Constitution prohibits a retrial on the same charge.

Early in our history, judges often informed jurors of their nullification right.
For example,
our first Chief Justice, John Jay, told jurors: "You have a right to take upon
yourselves to
judge [both the facts and law]." In 1805, one of the charges against Justice
Samuel Chase in
his impeachment trial was that he wrongly prevented an attorney from arguing to a
jury that the
law should not be followed.

Judicial acceptance of nullification began to wane, however, in the late 1800s. In

1895, in
United States v Sparf, the U. S. Supreme Court voted 7 to 2 to uphold the
conviction in a case in
which the trial judge refused the defense attorney's request to let the jury know
of their
nullification power.

Courts recently have been reluctant to encourage jury nullification, and in fact
have taken
several steps to prevent it. In most jurisdictions, judges instruct jurors that it
is their
duty to apply the law as it is given to them, whether they agree with the law or
not. Only in a
handful of states are jurors told that they have the power to judge both the facts
and the law of
the case. Most judges also will prohibit attorneys from using their closing
arguments to
directly appeal to jurors to nullify the law.

Recently, several courts have indicated that judges also have the right, when it is
brought to
their attention by other jurors, to remove (prior to a verdict, of course) from
juries any juror
who makes clear his or her intention to vote to nullify the law.

If jurors have the power to nullify, shouldn't they be told so? That�s a good
question. As it
stands now, jurors must learn of their power to nullify from extra-legal sources
such as
televised legal dramas, novels, or articles about juries that they might have come
across. Some
juries will understand that they do have the power to nullify, while other juries
may be misled
by judges into thinking that they must apply the law exactly as it is given. Many
commentators
have suggested that it is unfair to have a defendant's fate depend upon whether he
is lucky
enough to have an educated jury that knows it has the power to nullify.

Judges have worried that informing jurors of their power to nullify will lead to
jury anarchy,
with jurors following their own sympathies. They suggest that informing of the
power to nullify
will increase the number of hung juries. Some judges also have pointed out that
jury
nullification has had both positive and negative applications--the negative
applications
including some notorious cases in which all-white southern juries in the 1950s and
1960s refused
to convict white supremacists for killing blacks or civil rights workers despite
overwhelming
evidence of their guilt. Finally, some judges have argued that informing jurors of
their power
to nullify places too much weight on their shoulders--that is easier on jurors to
simply decide
facts, not the complex issues that may be presented in decisions about the morality
or
appropriateness of laws.

On the other hand, jury nullification provides an important mechanism for feedback.
Jurors
sometimes use nullification to send messages to prosecutors about misplaced
enforcement
priorities or what they see as harassing or abusive prosecutions. Jury
nullification prevents
our criminal justice system from becoming too rigid--it provides some play in the
joints for
justice, if jurors use their power wisely.

Jury Nullification
Why you should know what it is
By Russ Emal (with a little assistance from the Internet)
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
Republic. 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.

"Jury 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 constitution."

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
rights.

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!

Afterwards, 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 inflecting
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 "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 his or her 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 use.

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; specifically 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", computers could do their job. 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 vote.

To find out more about jury nullification and FIJA call 800-TEL-JURY and record
your name and
address. Or call FIJA National at (406) 793-5550.