The Ins and Outs of Jury Nullification

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, -- for the saddest epitaph which can be carved in the 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.
-- Thomas Jefferson

The Framers of the Constitution of the United States were united in believing that individual liberty could only be defended if government were small, constrained in its functions, and accountable to the people – the sovereign source of its powers. They recognized that Leviathan ever seeks to expand and consolidate its power, regardless of its particular political form (e.g., monarchy, oligarchy, democracy, etc.). They understood that this inherent tendency of government inevitably works against individual liberty and thus promotes tyranny.

Therefore, the Framers took particular pains to constrain the federal government from increasing and consolidating its powers. Following Montesquieu’s advice, they divided the powers of government among the legislative, executive, and judicial branches, each with its own particular constitutional functions which are the exclusive privilege of the branch in which they inhere.

Further, the Constitution specifies the proper relations of the federal government with respect to the states and the people. The Bill of Rights provided “further declaratory and restrictive clauses” designed to prevent the federal government from abusing its powers, and to “extend the ground of public confidence in the Government.” Our constitution designates a very few enumerated, well-defined powers, generally of national scope, as the legitimate sphere of activity for the federal government. Under the principle of subsidiarity – which calls for the least or lowest unit of social power with the competence to carry out a particular function to have the responsibility for that function’s discharge -- all other powers were reserved to the several states or the people themselves. The federal government was expected to adhere to the constitutional bargain that the people made with it; that is, to stick with the plain language, meaning, and intent of the Framers themselves – which is what the founding generation ratified.

To ensure this outcome, the Constitution therefore provides for five veto powers:

The legislative;
The senatorial (prior to the Seventeenth Amendment, this veto power resided in a majority of the legislatures of the several states);
The executive;
The judicial;
The individual (in his sovereign authority as juror).

Probably most readers are already familiar with the first four of these constitutional veto powers. We know, for instance, that the president may veto acts of Congress. We also know that Congress may veto the president’s decision by means of override. We know that the Supreme Court may overturn legislation that it finds unconstitutional; and also that Congress, if it feels the courts have overstepped their legitimate bounds, may issue corrective legislation.

Ultimately, the separation and balance of powers that the Framers envisioned is a specification for ongoing, dynamic political conflict and compromise, with the Constitution as the ultimate mediator of what is permissible to the respective parties. 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 government, 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.

As noted, the Constitution defines the relations of the federal government with the several states and with the people. The Constitution recognizes that both have veto powers with respect to the actions of the federal government. For the senatorial veto formerly represented the interests of the states (the status quo prior to the Seventeenth Amendment; its ratification in 1913 effectively disenfranchised state legislatures as legitimate parties to the Constitution). The constitutional role of the juror acknowledges and recognizes the power of the individual citizen to test federal law and, if conscience finds it wanting – either in the particular case at law or in general -- to nullify it.

“Jury nullification of law,” as it is sometimes called, is a traditional right that was rigorously defended by America’s Founding Fathers. Those great men, Patriots all, intended the jury to serve as a final safeguard – a test that laws must pass before gaining sufficient popular authority for enforcement. Thus the Constitution provides five separate tribunals with veto power – representatives, senate, executive, judges – and finally juries. Each enactment of law must pass all these hurdles before it gains the authority to punish those who may choose to violate it. – unsigned article at http//:www.isil.org/resources/lit/history-jury-null.html

Unfortunately, many people today believe that their sole input into “the political system” is their exercise of the franchise (voting), paying taxes, and/or writing/calling their elected representatives to harangue and/or plead. And yet the Bill of Rights guarantees so many different exercises of individual (and group) power that I do not in the least believe that the Framers intended such a passive role for the people, whose natural liberties the BoR so strongly and indisputably guarantees. Indeed, any such expectation would be absurd, given the power that the Framers’ system endues in the individual juror.

A really interesting “balance-of-power” issue here is that the original “senatorial veto” required a majority of assent from the several states in order to be effective. Then, the “senatorial veto” might be vetoed in turn by other legitimate constitutional powers-that-be: Perhaps it would be sustained, perhaps overcome.

But under our constitutional design, the exercise of conscience by a juror needs only one person to be completely effective. And no court in the land, no legislature, no executive, no state may question it, let alone set it aside.

It’s called “jury nullification.” And it almost goes without saying how very much the legal establishment detests it. They recognize it for what it is: a challenge to their authority, power, and prestige.

Even quite conscientious members of the legal community may deplore jury nullification as an impediment, both to the administration of “equal justice” under a “rule of law”; and also as a threat to the integrity of the main theories of legal reasoning that are most current at the time.

Which today is to say those systems of legal theorizing which specialize in abstract principles that are fundamentally divorced from common human experience and common human culture and tradition –especially American historical experience, culture, and tradition – are attempting to take the political high ground, from which to prosecute the fight against all the rest of us. With many elite jurisprudential theorists, the abstract is ever infinitely preferable to the concrete, daily experience of mere mortals trying to live their lives in the ways that seem most reasonable and beneficial to them. Often enough these days, such “abstract thinkers” have a nasty penchant for calling such “mere mortals” undereducated, incompetent, ignorant, uncultured – or just plain stupid.

Such an attitude reveals the mind of a government that does not trust its own people. The inevitable corollary is: The power of the people must be limited in the interest of the greater good of society.

The American model is rooted in British common law, while European jurisprudence has its roots in Roman law. French law, by way of the Code Napoleon inspired by the ancient Roman Imperium, is “highly written, systematic, sweeping, learned, … and codified,” writes Dan Gifford in “The Conceptual Foundations of Anglo-American Jurisprudence in Religion and Reason.” Such a system of law is whatever the emperor says it is: It a rule of men, by men, not of law under God. Gifford quotes the amusing remark of Newton N. Minow, former chairman of the FCC:

In Germany, under the law everything is prohibited except that which is permitted. In France, under the law everything is permitted except that which is prohibited. In the Soviet Union, everything is prohibited including that which is permitted. And in Italy, under the law everything is permitted, especially that which is prohibited [i.e., by the Roman Catholic Church].”

The European jurisprudential model is generally secular and authoritarian. There are no trials by jury; Justice is meted out by panels of professional judges; i.e., the judges – employees of the government all -- are the jury. Accused persons are presumed guilty until or unless they can prove their innocence. The logical consistency of legal theory as determined by experts, and overriding state interests as divined by experts, ever take precedence over the rights of the individual defendant. The individual has no rights against the state: he is a subject, not a citizen. And the courts may use whatever stratagems to trip him up and involve him in self-contradiction they like in order to return a guilty verdict against him, whether or not such stratagems have any substantial merit or direct relevance to his case. He stands in the dock alone, before naked power…. His legal outcome will largely depend on the efficacy of his lawyer – who is probably of the same legal class with the same jurisprudential sympathies as the judges sitting in his judgment.

In contrast, English law’s core principle is the right of the citizen to be secure against abusive state power. Unlike, say, in France, the individual has rights against the state. This understanding goes all the way back to Magna Carta (1215), in which the English barons forced King John (under severe duress) to recognize the right of every freeman to a trial by jury in all cases where the state indicts for alleged crimes.

What was the enormous significance of this? After Magna Carta, the defendant was entitled to the interposition of a jury of his peers – members of his own community who might in general share his knowledge of social and moral norms, local knowledge, customs, traditions, values, beliefs – to stand between him and the exercise of naked state power. It would be his neighbors, members of his own community, not the state, who alone could render a just verdict of “guilty.”

In other words, after Magna Carta, no state in the English-speaking world has the legitimate power or authority to punish any individual, unless a panel of his own neighbors is willing to convict him first: The individual stands or falls by the judgment of his own community, and only by its judgment. And to convict, that judgment must be unanimous. Otherwise, there is a “hung jury,” and probably a mistrial, which the judge or an enterprising district attorney might push to get retried.

But if the jury acquits, that’s the end of it -- the double-jeopardy provision of Article V of the Bill of Rights kicks in: That defendant may not twice be put in jeopardy of loss of life or liberty for the same alleged offense. He walks, scot-free.

Nor in regard to their verdict may jury members ever be questioned, punished, or overruled. Their decision is final, absolute: The state has no power to appeal it to a higher authority for – absent God only – there is no higher authority under our Constitution to appeal to.

“Courts have recently 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 [i.e., by the sitting judge], whether they agree with the law or not. Only in a handful of states [e.g., Indiana, Maryland] 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. [bold added]

[I was so instructed myself, on reporting for jury duty in Massachusetts district court recently: In so many words, I was told “the judge does the law, and you, as juror, get to do the facts.” (I wasn’t selected to serve, let alone made it to voir dire. Apparently all defendants plea-bargained that day….)]

“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.” -- unsigned article at http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification….

And yet consider this assertion logically: The judge’s instruction as to the law is yet another fact in the case. Thus even if we believed that juries were only authorized to deal with “fact,” wouldn’t the jury be well within its authority to admit the judge’s instruction as a most salient fact – perhaps the most salient -- to be appraised by them?

Regarding jury nullification, in all fairness we must consider the typical attitude of modern courts:

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.

Time out for a brief list of some issues that jury nullification got right over time, which were subsequently “mainstreamed” into American society at large: freedom of the press (John Peter Zenger case of 1735); the abolition of slavery; the labor movement; the repeal of prohibition (on the grounds that the Eighteenth Amendment was unenforceable because juries routinely refused to convict traffickers in adult beverages).

…that informing jurors of their power to nullify places too much weight on their shoulders – that it 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.

Such a finding, if established, would represent the absolute surrender of individual conscience as having any application or relevance to the struggles of American sociopolitical life. The ratifiers of the Constitution, their sovereign authority having been passed down to us now living through the generations, would no longer have any say in what the Constitution says, or how it is to be applied to changing social conditions. This is the “leave it to the experts” mentality that is literally killing Europe right now, right before our own very eyes….

But make no mistake: America is not Europe. America from its very inception – quite consciously and deliberately -- has understood itself as the AntiEurope: We were to be a system of, for, and by an active people, not a passel of passive subjects, ever in submission to the vagaries of virtually absolute authority vested in power-hungry kings or oligarchs. Which may be at least part of the reason why Jacques Chirac and other European heads of state are so p*ss*d *ff at us lately….

In the teeth of such facts, we might wonder: What has the United States Supreme Court had to say about jury nullification?

John Jay, the first Chief Justice of the U. S. Supreme Court stated in 1789: “The jury has the right to judge both the law as well as the fact in controversy.” Samuel Chase, U.S. Supreme Court Justice and signer of the Declaration of Independence, said in 1796: “The jury has the right to determine both the law and the facts.” U.S. Supreme Court Justice Oliver Wendell Holmes said in 1902: “The jury has the power to bring a verdict in the teeth of both law and fact.” Harlan F. Stone, the 12th Chief Justice of the U.S. Supreme Court, stated in 1941: “The law itself is on trial quite as much as the cause which is to be decided.”

In a 1952 decision (Morissette v United States), the U. S. Supreme Court recognized the powers of juries to engage in nullification. The court stated:

“Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges....They might have refused to brand Morissette as a thief. Had they done so, that too would have been the end of the matter.”

In a 1972 decision (U. S. v Dougherty, 473 F 2nd 1113, 1139), the Court said: “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge.”

Likewise, the U. S. Supreme Court in Duncan v Louisiana implicitly endorsed the policies behind nullification when it stated: “If the defendant preferred the common-sense judgment of the jury to the more tutored but less sympathetic reaction of the single judge, he was to have it.” -- Julian Heicklen, “Jury Nullification”

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?” – unsigned article, http://nowscape.com/fija/_adhope.htm

It’s probably fair to say that jury nullification is about as popular with the American political class, including its myrmidons in the media and academe, as the Second Amendment guarantee of the right to keep and bear arms. Yet the former may well find a way to be helpful to the latter in the courts of law. There is no law that says “elite opinion” must inevitably get the last word on such questions.

In closing, let the foundational principle of the American system of liberty and equal justice under law be stated here: The sense and consent of We the People is the final and unimpeachable test of the legitimacy of our government and the laws it propagates.

I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution.

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.

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.

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?

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.

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.

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

"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?

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.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.