The Ins and Outs of Jury Nullification

self relying on various ^ | July 2, 2004 | Jean F. Drew

[betty boop]

The above link is a great place to visit if you want to conduct further research on the history of the sovereign rights of jurors. Another great resource is www.fija.org -- a Libertarian organization devoted to publishing information about the historic rights and responsibilities of juries.

[betty boop]

Don't know if this is your cup of tea; but if it is, I'd be delighted to hear from you!

[betty boop]

FYI!

[betty boop]

The "above link" referred to above is:

http://www.isil.org/resources/lit/history-jury-null.html

The other is:

http://www.fija.org

[jammer]

Great article, but one quote seems incorrect to me--the statement that there are 5 Constitutional sources of veto power over unconstitutional laws. I believe the Constitution does not give that power to judges. That "power" wasn't established until later in Marbury v Madison (1803 IIRC).

[cryptical]

My sister, an Assistant County Attorney told me that a good way to not get on a jury is to ask the judge if you can do the nullification right away, or if you have to sit through the whole trial... :)

[Database]

I believe the Constitution does not give that power to judges. That "power" wasn't established until later in Marbury v Madison (1803 IIRC).

Interesting point. I think this power, while not explicitly stated in the Constitution, falls out of the function of the Court. If there is a conflict between the Constitution and a law under it, the duty of the Court is to resolve in favor of the Constitution. If this power is not inherent in the powers of the Court as defined in the Constitution, then one could only characterize the establishment of such a power by the Court itself as a usurpation.

[djf]

The history of Britain and America is full of references about this, from the trials of Penn to the trials under the fugitive slave acts.

Nullification served a dual purpose: First, as a remedy for unjust laws and overzealous prosecutors.

Secondly, the early legal minds of this country were disinclined to demand a juror return any verdict that the juror could not in good conscience support. The "Right of Conscience" is one of our forgotten rights. A definition would go something lik this:

"We would rather a man do wrong, believing what he had done was right, than do right, but feeling in his heart he had done wrong"

I am deeply concerned that there have been a number of jury verdicts overthrown lately.

[tpaine]

Thanks Betty. Good topic for an Independence Day weekend.

From the article:

"All branches of the federal government, and the states and the people, are assumed to have an interest in seeing constitutional provisions respected and carried out.
Further, all the parties to the Constitution were expected to have sufficient knowledge of our rule of law to ensure this result would be achieved.
And in the case of the federal [/state/local] government[s], it is reasonable to expect this, for all its officers have sworn oaths (or affirmations) to carry out this very principle – deference to our written constitution in all matters concerning the People."
[Bold [-] added]

In fact, I see a judges oath of office as a positive DUTY to inform an impartial jury as to the Constitutional facts of the issues at hand.

Instead, as the article notes, many State judges are instructed to inform juries that they can NOT question the 'law':

"In 1895, in United States v. Sparf, the court effectively found that, yes the juror had the sovereign right to exercise reason, judgment, and conscience with respect to both fact and law; but because he presumptively already knows he has this right from extra-legal sources, judges are not required to explain it to him. This seems to be the very reverse of the Miranda reasoning; oh, well…."

"…to this day, trial jurors retain the right to veto, or "nullify" bad laws, though they are rarely told this by the courts. Prosecutors and judges try to exclude people from serving on juries who admit knowing they can judge the law, or who have doubts about the justice of the law. This destroys the protections jurors were supposed to be able to invoke on behalf of fellow citizens against unjust prosecutions:
how can our right to a trial by an impartial jury be met if those with any qualms about the law are excluded from serving?"

How indeed can fed/state/local judges & officials, all sworn to support and defend our Constitution, rationalize excluding ALL the facts in the case at hand from a jury?

[Huck]

The Congress passed the Judiciary Act of 1789, which elaborated and specified the judicial powers:

http://usinfo.state.gov/usa/infousa/facts/democrac/8.htm

They actually did a bad job of putting the specific powers of the judiciary into the Constitution. But this act shows clearly that appellate review of questions of constitutionality was one such power, no?

[tpaine]

jammer wrote:
I believe the Constitution does not give that power to judges. That "power" wasn't established until later in Marbury v Madison (1803 IIRC).

______________________________________


Interesting point. I think this power, while not explicitly stated in the Constitution, falls out of the function of the Court.
If there is a conflict between the Constitution and a law under it, the duty of the Court is to resolve in favor of the Constitution.

If this power is not inherent in the powers of the Court as defined in the Constitution, then one could only characterize the establishment of such a power by the Court itself as a usurpation.
7 -Database-

______________________________________


In M v M, Marshall simply explains that there is no 'conflict'. - That laws, or judgments, repugnant to the principles of our constitution are null & void, and that it is the duty of ALL of us to ignore them.

Certainly, it is just common sense to find that the USSC is charged in Art. III, Sec. 2 with the judicial power to decide all cases "arising under this constitution".
But this power is not absolute, as it too is checked & balanced by Congress, the Executive, and ultimately by the people.

-- In fact, as the article also notes, the people exercised that power in the case of prohibition.. -- We ALL simply refused to obey a 'law' repugnant to our constitutional common sense.

[Maceman]

When I get called for jury duty, I always report for service and write the following on the questionnaire:

"I strongly believe in the doctrine of jury nullification, and look forward to educating my fellow jusrors about their duty to judge the law as well as the facts."

Amazing, but somehow, I never get selected to actually sit on the jury.

[KC_for_Freedom]

Amazing, but somehow, I never get selected to actually sit on the jury.

Without taking any ploy so obvious, you would likely not be put on a jury anyway. As an engineer with a security clearance, I was bumped from most juries. I was taken one time, and we were not given any onerous instructions from the judge. We just argued with one another until we reached an agreement. (We found him guilty, which he was.) Being a former teacher, I was able to persuade several others to my position, which was a majority position and we eventually overcame the holdouts.

I would have had no trouble nulifying the instructions of the judge if they did not make sense, but the case was not one where this was necessary. I would recommend you keep your position to yourself and go ahead and try to get on a jury. We can use more self thinkers.

[MamaTexan]

One of my favorite quotes-

Of the Simplicity of Criminal Laws in different Governments

In republican governments, men are all equal; equal they are also in despotic
governments: in the former, because they are everything; in the latter, because they are nothing.

THE SPIRIT OF LAWS Book VI By Charles de Secondat, Baron de Montesquieu

[PatrickHenry]

Thanks for the ping. Nicely written essay. I don't know much about this, so I'll refrain from offering any opinions.

[Xenalyte]

Phenomenal until the jarring "foundational" in the next-to-last paragraph.

The word you want is "fundamental."

[jammer]

Thank you. I assume you are referring specifically to 25. I had read that before, but not carefully enough. Question: why did it take until 1803 for the Court to assert that doctrine? Because no other case had come before it where it could be asserted?

I am glad to know that review was not "unilaterally" declared. Even so, I am going to have to read and digest that last sentence, also, for a while.

[Our man in washington]

"Members of the jury, I asked you to look beyond your prejudices and consider what this evil man did. Yes, we were all stunned that day when millions died due to the tragedy of nuclear weapons exploding in our cities. And while it was true that Muslims committed those acts, the mosque he burned down had no connection whatsoever other than providing a space to work out the details of the attack. This evil man deserves to go to prison for life to show that we Americans are above such vigilante acts of revenge!"

So if you're on that jury, what do you do?

[patriot_wes]

Thanks for the excellent post. Currently the court system has lost the idea that a judge is supposed to be a fair and neutral arbitor balancing the prosecution against the defense with impartiality.

However at this time we see judges and prosecutors more often colluding together to "get a conviction" and usurping the rights of the accused. This is exactly what jury nullification was designed to temper. Check this out.

http://www.post-gazette.com/win/bios.asp

Also let me know if you would like free brochures regarding Jury Nullification.

[Lancey Howard]

Bumped and bookmarked.
Good post.