Posted on 03/17/2012 7:49:03 AM PDT by Chuckmorse
About a year ago, I was called upon by the county of Norfolk in Massachusetts to serve on a jury. I reported for jury duty at the District Court in Quincy, Mass. Before the selection process, in which I was not picked, I, along with my fellow potential jurists, was shown a film that was supposed to inform me of my responsibilities as a jurist. This film was misleading to say the least.
Through vagaries and sophistic sleight of hand, the film, which involved instructions from a local judge, prosecutor, and lawyer, left the impression, without a direct statement, that the juror was subordinate to the judge. This impression is false and a misrepresentation of the meaning and purpose of our jury system. The juror, in a criminal case, is sworn to render a verdict of guilty or not guilty and no judge or lawyer has a right to interfere in any way. It is also a little known fact that the juror is empowered to judge the legality and constitutionality of the law upon which the case is based.
The responsibility of a juror can best be summed up in a statement by John Jay, the first Chief Justice of the U.S. Supreme Court. He stated, in 1789, that "The jury has a right to judge both the law as well as the fact in controversy." This means that a juror judges both the merits of the case and the law upon which the case is based. A juror, by voting not guilty, can literally void a law. The misconception is that any law passed by a legislature constitutes the law of the land. Theoretically, a single juror can nullify a law concerning gun control, drug regulation, hate speech, or other legislation.
The sitting juror, in judging a controversy, is also empanelled to examine the law upon which the controversy is based. In this regard, he holds the power to undo a law enacted by Congress, the President, or the Judiciary. Harlan Stone, 12th Chief Justice of the Supreme Court, in 1941 stated "The law itself is on trial quite as much as the cause which is to be decided." In addition, Oliver Wendell Holmes, U.S.Supreme Court Justice, in 1902 stated "The jury has the power to bring a verdict in the teeth of both law and fact."
The Minneapolis Star and Tribune, in an article published Nov. 30, 1984, discusses the history of the jury system. The article says "At the time of the adoption of the Constitution, the jury's role as defense against political oppression was unquestioned in American jurisprudence." In the early years, American citizens understood that in the course of enforcing a law, the government would have to get permission from a panel of common citizens, who, when empanelled as a jury, make up a sort of peoples Congress. This was seen as an essential part of the system of checks and balances. The government was "checked" by the jury from enacting oppressive laws. This continued until the Fugitive Slave Act of 1850 which required juries in free states to render judgments that would result in escaped slaves being forcibly returned to slave owners. Juries in the North were beginning to refuse to convict in these cases on the grounds that this law was an interference by the Federal Government in states rights and that it was unconstitutional. Judges responded with a process of eroding the institution of the free jury over time.
Today, according to the Minneapolis Star article, juries are not informed of their right to return a not guilty verdict regardless of the facts. The article goes on to state that "As originally conceived, juries were to be a kind of safety valve, a way to soften the bureaucratic rigidity of the judicial system by introducing the common sense of the community. If they are to function effectively as the 'conscience of the community' jurors must be told that they have the power and the right to say no to a prosecution in order to achieve a greater good."
Citizens called to jury duty should understand the sacred trust placed in them. They should be made aware of the nature of their office and they should exercise that responsibility as it was meant to be exercised which was in the service of freedom. They should be apprised of the full extent of their responsibility to do justice not only in the specific case at hand, but for the community, and the nation as a whole.
That's true and is the reason it is not done.
My point is an informed jury is an oxymoron. -Tom
Not correct. The OJ jury didn't rule that the State's law against murder was wrong. They decided for (insert motive here) they just didn't want to find him guilty.
The cases cited in the article above concerning the Fugitive Slave Act are a far better comparison. It was an unjust law that was without Constitutional basis.
The chances of any of us ever being empaneled on a trial where we disagree with the law to such an extent that Nullification is proper, are and I hope always will be very rare.
That said, I think it proper for jurors to understand their rights, and also know that they are not actors For the State, but are instead Watchdogs of the State. If the State goes too far with their laws, is is not only the juror's right, but also his responsibility to 'nullify' that law by finding the accused innocent.
In the end, the old "I was just following orders" excuse never works.
They ruled an obviously guilty person not guilty because of their own beliefs, which they put above the law. That is jury nullification to me. -Tom
The most that one individual can do is cause a mistrial. Then it will be up to the court to decide if the case is strong enough for a retrial with a different jury.
Nullification only comes into its own with a unanimous jury acquittal verdict despite the law and the evidence. During prohibition, many juries would just not convict, so the courts innovated the use of the “injunction” in so many ways that a rum runner could not avoid violating it. But if they did, they would go before *just* a judge, no jury, to face a charge of “contempt”, for which they could get a year less a day.
But the rules of jury trials are bizarre, to say the least.
For example, jurors may not consult the Bible in their deliberations, but they may flip a coin to decide guilt or innocence.
I was utterly horrified by a trial of a child murderer in California. The evidence was damning, and the defendant made it a point to “flip off” the jury. After the guilty verdict, one of the jurors remarked, “I was willing to give him the benefit of the doubt until he flipped us off. Then I *knew* he was guilty!”
This was inadequate to overturn the verdict on appeal.
The fear of the abuse of nullification became pronounced when in many cities, black jurors refused to convict a black person for anything, using the excuse that too many black people had already been imprisoned, and that the system was inherently unfair.
Oddly enough, at least to some extent they had a point, in so far as the original intent of the idea of nullification. In pre-revolutionary Britain, there were cases where juries would acquit, but the judge would reverse their decision and direct them to convict. This was seen as an intolerable affront to the jury system.
Likewise, double jeopardy was seen as a way to prevent the crown from repeatedly trying someone until convicted. (It is noteworthy that double jeopardy has been repealed in Britain, after 200 years or more.)
Thus, jury nullification is one of the few special powers outside of the Bill of Rights, for ordinary citizens.
Well that is your belief Tom, but that is not what Jury Nullification is.
Maybe they expected, “I FEEL that sometimes it’s just what you want to do, and then it’s ok”?? That DA had been asking potential jurors, ‘How do you FEEL?” about all sorts of legal things. They were all falling into the feelings trap. I kept thinking, “Law isn’t about feelings; it’s just right and wrong.”
This is excellent. Nicely done.
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