JURY NULLIFICATION: EMPOWERING THE JURY AS THE FOURTH BRANCH OF GOVERNMENT

callmegav.com ^ | March 2015 | Justice William Goodloe, Washington State Supreme Court, retired

[WMarshal]

The Constitution
The Founders view of the jury as being of paramount importance in defending liberty is easily seen when examining the words of the Constitution. There are only 14 words describing freedom of speech and of the press in the Constitution. But there are 186 words describing trial by jury in the Constitution. It is guaranteed in the main body in Article 3, Section 2, Paragraph 3, and in two amendments, the Sixth and the Seventh. No other right is mentioned so frequently, three times, or has as many words devoted to it. It is plain that the Founders viewed the jury trial right as the most important right since it gave birth to, and defended, all other rights. It should also be noted that trial by jury and jury nullification were common law rights at the time of the drafting of the Constitution and so are also included as rights retained by the people under the Ninth Amendment.

For anyone to assert after Zenger, the Navigation Act cases, the Declaration of Independence, and the great volume of language about the jury in the Constitution that the Founders would intend the jury to be a mere factfinder that must blindly follow the law as dictated by a judge is to fly directly in the face of logic and history. It is also to fly directly against the explicit words of the Founders about the jury's role.

"I consider trial by jury as the only anchor, ever yet imagined by man, by which a government can be held to the principles of it's constitution."
Thomas Jefferson, drafter of the Declaration of Independence and Third President, in a letter to Thomas Paine, 1789, The Papers of Thomas Jefferson, Vol. 15, p. 269, Princeton University Press, 1958

"It is not only his right [the juror's], but his duty ... to find the verdict according to his own best understanding, judgment, and conscience even though in direct opposition to the direction of the court."
John Adams, first proponent of the Declaration of
Independence and Second President, 1771
2 Life And Works of John Adams 253-255 (C.F. Adams ed. 1856)

"You [the jurors] have, nevertheless, a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy."
John Jay, first Chief Justice of the United States Supreme Court, charging the jury in Georgia v. Brailsford, 3 Dallas 1, 4 (U.S. 1794)

"That in criminal cases, the law and fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, is intrusted with the power of deciding both law and fact."
Alexander Hamilton, first Secretary of the Treasury People v. Croswell, 3 Johns Cas. 361, 362 (1804) as reprinted in Sparf and Hansen v. United States,
156 U.S. at 147-148, dissenting opinion, (1895)
Arguing Nullification to the Jury

In the Zenger case, defense attorney Andrew Hamilton argued to the jury in contradiction of the judge that truth is or should be a defense to a charge of seditious libel, that the jury has the power and right to judge the law, that the jury should take as the strongest evidence for Zenger the fact that Zenger's proposed evidence of truth had been suppressed by the judge, and that Bushell's Case established the right of the jury to vote its conscience.

"The right of the Jury, to find such a verdict as they in their conscience do think is agreeable to their evidence, is supported by the authority of Bushell's case."
defense attorney Andrew Hamilton, arguing to the jury

[TBP]

Also, defendants found not guilty cannot be retried for the same crime. Hence, once a jury finds a defendant not guilty, there is no mechanism for a prosecutor to bring the case against the same defendant again.

The Establishment has found a way around that as well, in making things both state and Federal violations, so that if you get an acquittal on the state charge, you simply turn around and file a Federal charge. Same act, different offenses.

[TBP]

If I DON’T want to get out of it, should I keep that belief to myself?

[Little Ray]

Absolutely. Don’t mention it to anyone.

[Grampa Dave]

Considering Jury Nullification: When May and Should a Jury Reject the Law To Do Justice

Annotation:
Nullification of the law can take the forms of non- prosecution, judge or jury nullification, and pardon or amnesty. Jury nullification occurs when jurors, based on their own sense of justice, refuse to follow the law and acquit a defendant even when the evidence presented seems to point to an incontrovertible verdict of guilty.

Abstract:
The current concerns with nullification seem to stem from disquieting societal trends, centered around racial disharmony and antagonism. However, nullification is a legitimate result of an appropriate constitutional process safeguarded by judges and the judicial process. This author, for one, maintains that, although juries should not be explicitly instructed that they have the power to nullify, judges should use their discretion to allow nullification by applying the concepts of relevancy and prejudice and by admitted evidence bearing on moral issues. Most jurors, he points out, follow the evidence, deliberate fully, and ask the right questions during their deliberations.

Nullification had its American origins in colonial juries which ignored British law to acquit dissidents. Along with civil disobedience, nullification may be seen as an integral feature of the birth of this nation. The group decisionmaking process inherent in the jury system protects the law from the chaos that would result if each individual could interpret it according to his sense of justice. This author concludes that judges should allow nullification without fostering it.

https://www.ojp.gov/ncjrs/virtual-library/abstracts/considering-jury-nullification-when-may-and-should-jury-reject-law#:~:text=Jury%20nullification%20occurs%20when%20jurors,an%20incontrovertible%20verdict%20of%20guilty.