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 democracy. The Constitution provides five separate tribunals with veto power Ñ 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 Ñ but true Ñ 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 Ñ 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 Ñ 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 Ñ meaning tough, fully informed juries Ñ in our Constitution and Bill of Rights.
"Bad law" Ñ special-interest legislation which tramples our rights Ñ 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 incidence 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 that "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 their 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. 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 jurys 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", their job could be done by computer. 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" effects 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.
Copyright Mendocino College Eagle 1995
Permission granted to excerpt or use this article if source is cited