#FFP04: JURY NULLIFICATION

by Frederick Mann

[Editor: More information about FIJA can be found at the FIJA Official Web Page at <http://www.fija.org>.]

Acknowledgment
Much of the information for this chapter was provided by FIJA (Fully Informed Jury Association). FIJA is an educational organization whose primary goal is to inform all Americans how the trial jury can serve as their last line of defense against bad or badly applied laws.

State FIJA organizations are often political: many have been promoting laws requiring judges to inform all trial jurors of their right and responsibility to judge not only the evidence, but also the law itself, and how doing so is the citizens' "check and balance" on government, a power that our nation's founders intended us to have. Locally and nationally, then, FIJA is working to restore sanity, compassion, and justice itself to the American legal system.

Introduction
Most people don't know of the awesome power juries have to nullify laws and to thereby cut down Big Government to its proper size and function as defined by the U.S. Constitution. It just takes one member of a jury to say, "not guilty; it's a bad law," to not convict an accused. This is called jury nullification. If enough juries refuse to convict defendants for violating a particular law, then that's a message to lawmakers to repeal the law.

In this fashion William Penn (who gave his name to Pennsylvania) was acquitted by a jury in London in 1670 when prosecuted for preaching Quakerism. The Salem witch trials ended in 1693 after 52 consecutive jury acquittals. Similarly, John Peter Zenger was acquitted by a jury in 1735 in New York when prosecuted for criticizing the mayor. The Fugitive Slave Acts were effectively nullified by juries in the 1850s. Similarly, juries effectively put an end to Prohibition during the 1920s.

The American political system is supposed to be one of checks and balances. The most important check is the power and the duty of the individual juror to acquit anyone accused of violating a bad or unconstitutional law. An unconstitutional law is one which violates the constitution, not as interpreted by judges, but as originally written and intended by the framers. In common law there is a principle: for there to be a crime, there must be a victim - someone who has suffered harm. This is one of the standards jurors could use for deciding when to acquit.

The Jury Nullification Principle
JUDGES WON'T TELL YOU THIS, but when you sit on a jury, you have the right to vote according to your conscience, no matter what the judge may say, and no matter what oath you may be obliged to take. If you think that the charge is based on a bad law - or a good law wrongly applied - or if other factors would make you regret finding the defendant guilty or liable, then it is your right and responsibility as a juror to vote according to conscience.

When our country was young, all jurors were told this, and they recognized that legislators often pass bad laws - laws which serve special interests at public expense, for example. They also knew that even good laws can be abused, and used to persecute harmless or politically unpopular people. Reminded of their power by the court, jurors knew they could refuse to convict people accused of helping runaway slaves, speaking out against the government, or violating liquor laws during Prohibition - and they did. Ultimately, the laws changed to fit the standards of the people, just like they're supposed to do in our country.

Nowadays, jurors are often misled - told they must apply the law as given by the judge, and that they must convict if there is enough evidence, whether you agree with the law or not. That is simply not true. As jurors, our duty to the defendant is to do the right thing, and that means listening to our conscience taking full personal responsibility for our vote on the verdict. It means staying true to our feelings, even if no one else on the jury agrees.

Massachusetts Supreme Court Chief Justice Theophilus Parsons, a leading supporter of the Constitution, in 1788 said, "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..."

The following is from an editorial that appeared in The Arizona Republic of March 29, 1992:

"In 1735 a New York printer named John Peter Zenger dared to publish pamphlets critical of the king's mayor. Under British law this was a crime, and the publisher was charged with sedition.

Zenger's defense was that the articles in question were true and factual. The crown prosecutor replied that truth had no bearing in the case, that criticizing the king's agent was a crime and "the law is the law."

Rising to the printer's defense, lawyer Andrew Hamilton thundered that the jury had the right "beyond all dispute to judge both the law and the fact." The jury agreed and found Zenger "not guilty."

Thus was the principle of jury nullification applied in one of the most famous court cases in American history. Until recently it was common knowledge that juries had the right - even the duty - to judge not only the facts in a case, but also the law itself. Thus did Northern juries often refuse to return runaway slaves to their owners under the Fugitive Slave Act. Jury nullification was widely accepted as yet another protection against potential abuses of the state's power.

In 1895 the U.S. Supreme Court in Sparf vs. United States upheld the constitutionality of jury nullification. The court said, however, that when instructing juries, judges were not obligated to inform them of their right to weigh the law as well as the facts. Consequently, the doctrine gradually fell into disuse. Today judges regularly and mistakenly instruct jurors that they are required in every instance to apply the law if the facts so dictate. In other words, they would have found Zenger guilty." [emphasis added]

Article III, Section 2 of the U.S. Constitution, as well as Amendments VI and VII, guarantees the right to trial by jury. In his Dictionary of the English Language (1828) Noah Webster defined the term "jury" as "consisting usually of twelve men... to decide both the law and the fact in criminal prosecutions."

The U.S. Constitution is the supreme law of the land. When the Constitution says "trial by jury" it means a jury that judges both fact and law. If the jury is not properly informed of their rights and duties, there can be no fair trial.

The Supreme Court judges, who in Sparf vs. U.S. in 1895 found that judges need not inform juries of their right and duty to judge the law, were corrupt in that they violated their oaths to uphold the U.S. Constitution. The modern judges who routinely misinform (deliberately lie to) juries, are corrupt. Attorney-at-Law Thomas J. Devine of Houston, TX says that, "The American Judicial System is a scam, a fraud and an organized extortion racket." The supreme law is not what Supreme Court judges say it is, but what the U.S. Constitution says. Anything that judges (including those of the Supreme Court) say that is contrary to the Constitution, is null and void. However, because they constitute the worst organized-crime organization, backed by government guns, judges get away with their corruption.

Judges are mostly lawyers wearing black robes. In the U.S. - possibly with a few exceptions - they are the worst criminals of all.

• Thomas Jefferson (in a letter to Thomas Paine in 1789) wrote: "I consider trial by jury as the only anchor ever imagined by man, by which government can be held to the principles of its constitution."

• "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 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." Elliot's Debates, 94, Bancroft, History of the Constitution, 267; 1788.

• "If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence... If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision." U.S. vs. Moylan, 4th Circuit Court of Appeals, 417 F. 2d at 1006 (1969).

Fully Informed Jury Association (FIJA) is a national educational organization, with representatives and branches in all 50 States. It publishes a superb magazine the FIJA Activist. It also campaigns for legislation to compel judges to properly inform juries. FIJA is one of our best hopes for restoring constitutional rights and freedoms. They deserve your support.

General Jury Information
MUST I SHOW UP WHEN SUMMONED FOR JURY DUTY?
Only if you wish to remain a law-abiding citizen, of course. In most parts of the country, those who fail to appear are rarely prosecuted, but our justice system and our liberty depend upon people taking jury service seriously - which begins with being there when needed.

MUST I ANSWER ALL THE QUESTIONS THEY ASK ME?
No. Being asked to answer questions, whether written or oral, regarding eligibility for jury service need not compromise your privacy or embarrass you. You can decide how much you want to divulge about yourself, and no one can punish you for refusing to answer anyone's question or questions, any more than you can be punished for your verdict. True, the lawyers or judge may ask you tough questions, but you may exercise your right to privacy when answering.

IF I DISAGREE WITH THE LAW, MUST I USE IT ANYWAY?
No. And there is no requirement that you agree with the law, though you are unlikely to be empaneled if you admit disagreement with it. If you are asked whether you agree with the law (or will swear to apply it as given) and you know that you don't (or won't) then you have a moral choice to make - to abandon a defendant who may need your point of view in the jury, or to tell the truth.

IF ALL THE JURORS BUT ME AGREE, SHOULD I GIVE IN?
Not unless you actually have a change of mind or heart. The whole idea of requiring a unanimous verdict either to acquit or convict someone is to give special weight to individual perception and conscience. There is nothing wrong with a "hung" jury. Sometimes, a series of hung juries involving a certain law can send a message to the lawmakers that the law needs work.

AM I ABLE TO ASK QUESTIONS AS A TRIAL JUROR?
Request the judge ahead of time to define what to do if you want a witness to answer a question that the attorneys have not asked. There should be an orderly procedure for this, and for asking the judge any questions you may have about the law both during the trial and while you're deliberating.

WHAT ABOUT TAKING NOTES OR TAPING THE TRIAL?
Judges may allow note taking, but taping is often prohibited by law. Ask.

WILL I EVER HAVE TO REVEAL HOW I VOTED OR WHY?
Never. But you may be asked, and there is no reason you should not explain what happened, if you wish. Other jurors are likely to do the same, especially if interviewed by the media. And your commentary may be important - to the public, to the defendant, or to the police, prosecutors, and legislators.

REMEMBER, as jurors your job is justice, and the hard part is to keep your eye on that ball. If it ever seems you're being told how to think, recall that the jury is the most powerful participant in the trial: no one can punish jurors for their decision, nor overturn a jury acquittal, nor make a juror account for his or her decision. Besides, the jury is supposed to be an independent force in the courtroom - the direct voice of the community, not controlled by politics or special interests or anything besides common sense and conscience.

YOU CAN ONLY USE YOUR POWER IF YOU KNOW ABOUT IT, THOUGH. We just told you the basics. Ready for more? Contact "FIJA", the Fully Informed Jury Association, Box 59, Helmville, MT 59843; (406) 793-5550.

Call the FIJA office to talk with Don Doig or Larry Dodge about joining FIJA, contributing, or getting actively involved educating all Americans in their powers, rights, and responsibilities as trial jurors.

Or, just call our 800 line for more information, via taped message, plus an opportunity to tell us where to send you a free Jury Power Information Kit. Free Information Message: 1-800-TEL-JURY (1-800-835-5879).

JURY RIGHTS SUMMARY SHEET
CONCEPT:
Judges should be required by law to tell juries about their right to judge not only the evidence, but also the law, in the case before them. Jurors already have the right to bring in a general verdict of guilty or not guilty, for any reason whatever, without explanation - and a jury acquittal cannot be overturned. Nor can jurors ever be punished for their verdict. But failure to tell them so effectively usurps these rights.

HISTORY:
In the past, both English and American juries were routinely told about their power to refuse to apply the law, and they wielded that power wisely for centuries. Known as the doctrine of jury nullification, or jury veto power, it was used to establish and defend individual rights and values that we still treasure:

• Our freedoms of speech, religion, and peaceable assembly were established by jury acquittal of William Penn (arrested for preaching Quakerism to his congregation), in London, 1670.

• Jury acquittals (fifty-two in a row) ended the Salem witch trials, Massachusetts Colony, 1693.

• Jury acquittal of John Peter Zenger in 1735, arrested for (accurately) criticizing New York's colonial government, gave us freedom of the press.

• Life, liberty and pursuit of happiness were assured for people of all races, as juries refused to apply the Fugitive Slave Acts in the 1850s, until slavery was abolished by proclamation in 1863.

• Juries defended the value of labor and the rights of workers by refusing to enforce laws against striking, lobbied into place by big business in the late 1800s, until those laws were eliminated.

• Our freedom to consume alcoholic beverages was restored by juries during the 1920s, when juries refused to convict people of liquor law violations - until Prohibition was repealed.

Then, in 1895, the U.S. Supreme Court refused to remand a murder case (Sparf and Hansen v. US) appealed to them because the jury had not been fully informed of its rights, saying "they shouldn't have to be told." The Court thus acknowledged the right of jury nullification, but left it to judges to decide whether jurors should be so informed. Since then, judges have gone beyond staying mum - they typically tell jurors to convict if the evidence supports a conviction, whether or not you approve of the law."

Still, four state constitutions (MD, OR, IN and GA) have explicit provisions recognizing the right of jury nullification, and twenty four others imply it in their sections on freedom of speech. In Texas, Article I section 8 concludes "...and in all indictments for libel, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases." [emphasis added]

ISSUES:
• Jury judgment of law can operate only in the direction of mercy. Juries cannot escalate charges or add new charges. That remains for the prosecution to decide.

• Juries cannot create a law, abolish a law, set precedent, or declare a law to be unconstitutional. These remain the province of the legislature or courts of record, respectively.

• Series of hung juries or acquittals of people accused under a given law can inform legislators that it is time for that law to be changed so that it reflects community standards, not special-interest demands or pressure from the federal government.

• To the extent that fully informed juries more accurately dispense justice, which in Texas includes matching punishments to crimes, excessive imprisonment of people for victimless/political crimes should diminish, reducing prison overcrowding and allowing lengthier incarceration of truly dangerous criminals.

• Minority defendants will have a better chance of receiving justice in court when jurors are fully informed that their individual consciences are more important and more powerful than majority opinion.

• Consistent application of law, currently minimized by plea bargains, bench trials, then appeals, will be maximized by jury trials, which require group consensus, and are less likely to be appealed.

Questions and Answers
DO JURORS HAVE THE RIGHT OR JUST THE POWER TO JUDGE THE LAW ITSELF?
(1) They have both. They have the power, because (a) no one can tell the jury what verdict it must reach, nor restrict what goes on in jury-room deliberations; (b) no one can punish jurors for the verdict they bring in; (c) jurors can't be forced to explain themselves or otherwise account for their decisions; and (d) a verdict of not guilty cannot be appealed by the government.

(2) They have the right, because (a) they bear the responsibility for deciding on a just verdict for the accused person; (b) the defendant has a right to a full and fair hearing, which depends upon the jury knowing all its rights and responsibilities; and (c) the authors of the U.S. Constitution recognized it as a right.

(3) Whether we like the idea or not, there is very little real-world difference between a right and a power: generally, if someone has the power to do something with impunity, it's considered a right, ipso facto. Dictionaries treat the words as synonyms.

ARE JURORS GENERALLY INTELLIGENT & EDUCATED ENOUGH TO JUDGE LAW?
(1) Neither intelligence nor education is a prerequisite to judging right and wrong, which is what juries do. Twelve illiterate men decided it was not wrong for William Penn to deliver a Quaker sermon, even though it was illegal at the time. Many excellent verdicts have come from people of ordinary mental capacity. In short, if a jury can understand the law, it can certainly judge it.

(2) If the jury cannot understand the law, then it's unreasonable to expect ordinary people to obey it, which is an excellent reason to acquit anyone accused of breaking it, and to continue to do so until the legislature makes the law understandable.

(3) Any defendant who doubts the ability of a jury to understand the law he/she is accused of violating can always opt for trial by judge, and thus be tried by a trained legal professional - but may be better off arguing that the law is vague or confusing to a fully informed jury.

WOULD FIJA VOID SOME GROUNDS FOR DISMISSING POTENTIAL JURORS?
(1) Yes. Jurors could no longer be dismissed for "cause" if they express a willingness to judge the law itself, or qualms about the punishment a convicted defendant might receive. But juries were invented in order to provide a buffer between the accused and the state - to find their verdicts after review of both law and fact, and to match the punishment to the crime. So there is no valid reason to dismiss jurors for saying they might want to take the law and/or the punishment into account in their deliberations.

(2) An attorney can also use a peremptory challenge to dismiss a juror, though these are usually few in number. If there are not enough such challenges to dismiss everyone willing to judge law and/or punishment, it may indicate that the citizenry sees that law as defective in some way - and the government should listen.

(3) Ideally, "voir dire" (the right to question jurors about their personal backgrounds to determine what impact that might have on their verdicts) should be abolished. It's just a costly fight to see who can best "stack" a supposedly "impartial" panel.

WHAT IF THE JURY NULLIFIES A GOOD LAW?
(1) Unless the lawyers and judge have conspired to stack the jury with people they can count on to let prejudice or bigotry guide their deliberations, this is a straw man. Juries generally are very supportive of laws they see as essential to the safety and security of their communities - i.e., "good laws." And all the jurors would have to agree to nullify a good law in order to get an acquittal on that basis, so the chances are infinitesimal.

(2) Research has shown that people tend to be more responsible and conscientious as jurors than at any other time in their lives. This is probably why none of the states whose constitutions have explicit provisions acknowledging the right of jurors to judge the law have reported problems in administering justice as a result of jurors being informed of that right.

HOW WOULD FIJA AFFECT CASE LAW, OR "PRECEDENT?"
(1) Previous court decisions would remain useful as examples of earlier applications of a law, but no jury should be expected to base its decision on how a law has been interpreted in the past.

(2) Community standards tend to evolve slowly, so that radical departures from previous interpretations of law by juries would be rare, and always in the direction of mercy. But standards do evolve, and must evolve, or we might still be hanging "witches," sending runaway slaves back to their owners, or prosecuting people for operating a tavern. One of FlJA's main objectives is to provide an orderly, routine basis for evolution of law, to keep the gap between what's moral and what's legal to a minimum. We believe the most appropriate and least political way to reach that objective is to institutionalize feedback to legislatures from citizen juries. To insist that juries follow precedent would defeat that goal, encourage anarchy, and invite totalitarianism.

COULD FULLY INFORMED JURIES ESCALATE OR ADD NEW CHARGES?
(1) No. Juries have never had such powers, and FIJA does not create, grant or reveal them. Jury judgment of law can operate only in the direction of mercy, which may include a reduction of charges, provided the charge they choose is "wholly contained" within the original charge. Most recent versions of FIJA make this explicit, though it is not actually necessary to do so.

(2) Juries cannot "make law" or "set precedent" either. Their power to judge the law and its application is limited to the case at hand.

"WE ARE A NATION OF LAWS, NOT MEN."
(1) So was Nazi Germany. And when Nazi war criminals were tried in Nuremburg, they tried to hide behind the laws of that land, only to find that the rest of the world insisted that they be judged according to conscience.

(2) We not only have to make the laws we live by, we have to take responsibility for them. So far, the best institution ever devised for so doing is the common-law trial jury, by judging both law and fact in search of justice. We want everyone to know that before serving as a trial juror. That's why there is a FIJA movement.

WOULD CONSISTENCY IN JURY VERDICTS BE SACRIFICED?
No two trials are ever "alike" anyway, but...

(1) It is unlikely that alleged {variation" in jury verdicts rendered in different places and times for similar crimes can compete with variations in verdicts - and in sentences - given for similar crimes by different judges. This is because group decisions are less likely to be extreme or unique than individual decisions. Telling jurors the truth about their rights is not likely to change this.

(2) Different juries are likewise inherently more consistent than different individual attorneys, whose relative competence can vitally affect how a case turns out in one time or place, and how a similar case concludes elsewhere, with different attorneys.

(3) Variation in verdicts can help people, whose values contrast with the majority, find supportive surroundings, and can initiate socially beneficial evolution of the laws we live by.

WOULD PASSAGE OF FIJA FLOOD THE COURTS WITH JURY TRIALS?
(1) For a time, demand for trials by jury might increase from the current 5% of all cases, until those laws which the public finds least relevant to its safety are no longer used by juries, enforced by police, applied by prosecutors, or espoused by lawmakers.

(2) Once the courts again focus on trying crimes against persons and property, it will become pointless and rare for defendants to ask juries to nullify the law, because laws against actions which inflict damage are inevitably supported by the community.

(3) Big savings in court time and cost could be realized via fewer appeals, expectable as fully informed juries deliver justice in the first place. Defendants are likely to be both more satisfied and less inclined to try an appeal after conviction by jurors who knew they could have nullified the law and acquitted, but did not.

(4) More courts and juries could be provided to meet demand, if ever necessary - at less cost than more police and more prisons.

COULD FIJA CAUSE A BIG INCREASE IN THE NUMBER OF HUNG JURIES?
(1) There is a backlog of laws which have escaped jury review since the Supreme Court allowed judges to withhold information about the right of jurors to judge both law and fact. That may be why America leads the world in % of population imprisoned, and why there could be many hung juries following passage of FIJA - but if so, it should be regarded as a sign of relief from injustice.

(2) Juries hung because some of their members disagree with the law are actually performing a service for society: they are sending messages to lawmakers in a peaceful, routine, and institutionalized way that it's time for changes in the law. When those changes have been made, hung juries will again be rare.

(3) The wrong way to deal with discrepancies between current moral standards and the law is to avoid hung juries by allowing juries to convict without reaching unanimity. This threatens the individual rights of minorities, and fosters tyranny of the majority.

WOULD FIJA VIOLATE THE FOURTEENTH AMENDMENT (EQUAL PROTECTION)?
(Equal protection under the law is a conceptual ideal which is regularly "reality-checked" by our judicial system: judges have their biases, attorneys theirs, jurors theirs. Media often make matters worse, by setting & aggravating fads in law enforcement. The worst offenders are prosecutors whose plea-bargaining is too often based on race, creed, politics, and ability to pay. At least juries are likely to contain people of different backgrounds, so that at least some "averaging" takes place in the direction of equal treatment of defendants. To improve upon this, we urge that every effort be made to more randomly select trial jurors.)

FIJA might help: (1) people who lie during voir dire in retaliation for being misinformed about their rights by the judge might be truthful if told the truth; (2) the lawyers, knowing they'll be facing a fully informed jury, might pick at least some jurors they believe capable of moral philosophical debate, fairness, and leadership.

WOULD FIJA ENCOURAGE JURIES WHO ARE PREJUDICED AGAINST THE VICTIM TO ACQUIT GUILTY DEFENDANTS?
(1) Prejudiced juries are a result of prejudiced jury selection, not of informing jurors of their right to judge both law and fact. If both attorneys and the judge and all twelve jurors are bent on acquitting a guilty defendant, it will happen, regardless of the charge to the jury.

(2) If jurors were encouraged to follow their own consciences when the law or fellow jurors seem wrong, as FIJA would inform them they have the right to do, it might actually reduce the (already rare) instances of jury corruption: one or more conscientious jurors might decide to thwart the prejudice of the others, by voting "guilty."

(3) Victims unsatisfied by a criminal trial jury verdict may seek relief via civil suit, perhaps a federal civil rights action.

WOULD MINORITY & INTEREST GROUPS ABUSE EACH OTHER WITH FIJA?
(1) Experience to date tells us "no." FIJA is quite unique in its attractiveness to groups who have opposing political views. It is probably because, unlike most issues, everyone wins if anyone wins. The FIJA organization is thus an "unholy coalition," which seems to encourage tolerance among those in hot pursuit of a common goal: "justice for me...and, incidentally, you too."

(2) Even if this kind of tolerance never extends beyond the FIJA organization itself, fully informed juries will make it easier for minorities (and we're all minorities by one or another definition) to defend themselves in court against any majoritarian attempts to take advantage of them, so long as verdicts either of "guilty" or "not guilty" require a unanimous vote of the jurors, and jury selection is reasonably random.

WON'T FIJA LEAD TO ANARCHY?
(1) FIJA may be an antidote to the current anarchy, crime rates, & prison crowding caused by victimless/political crime laws:

(a) long series of jury refusals to apply such laws will advise legislatures to rescind or modify them;

(b) respect for/compliance with remaining laws will increase, as they more accurately reflect community standards;

(c) secondary crime, caused by victimless crime laws, will necessarily subside, for lack of motive;

(d) respect for the criminal justice system, including trial by jury, will increase as jurors are told the truth by courts.

(2) Maryland, Georgia, Indiana, and Oregon constitutions have general provisions guaranteeing the right of jurors to judge law as well as fact, and have had no resultant "anarchy."

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