Freedomlaw.com FIJA CONSTITUTIONAL AUTHORITY

CURRENT CONSTITUTIONAL AUTHORITY FOR JURY NULLIFICATION

The Constitutions of Maryland (Art. XXIII, entire), Indiana (Art. I, sec. 19), Oregon (Art. I, sec. 16), and Georgia (Art. I sec. 1, para. 11, subsec. A), currently have provisions guaranteeing the right of jurors to "judge the law"; that is, to nullify the law.

For example, the Georgia Constitution says: "In criminal cases, the defendant shall have a public and speedy trial...and the jury shall be the judges of the law and the facts."

Although these provisions have not been strong enough to withstand decades of hostile judicial interpretation, and have relatively little current impact, they do remain "on the books". Attorneys in Georgia and Indiana reportedly are able to request nullification instructions from the judge to the jury and generally receive them, and are sometimes able to argue the law.

Twenty states currently include jury nullification provisions in their Constitutions under their sections on freedom of speech, specifically with respect to libel and sedition cases:

Alabama (Art.I, Sec. 12); Colorado (Art.II, sec. 10); Connecticut (Art. I, sec. 6); Delaware (Art. I, sec. 5); Kentucky (Bill of Rights, sec. 9); Maine (Art. I, sec. 4); Mississippi (Art. 3, sec. 13); Missouri (Art. 1, sec. 8); Montana (Art. II, sec. 7); New Jersey (Art. I, sec. 6); New York (Art. I, sec. 8); North Dakota (Art. I, sec. 4); Pennsylvania (Art. I, sec. 7); South Carolina (Art. I, sec. 16); South Dakota (Art. VI, sec. 5); Tennessee (Art. I, sec. 19); Texas (Art. I, sec. 8); Utah (Art. I, sec. 15); Wisconsin (Art. I, sec. 3); Wyoming (Art. I, sec. 20).

Of these, Texas, Delaware, Kentucky, North Dakota and Tennessee say that the jury is the judge of the law in libel and sedition cases.

Source: Alan W. Scheflin, "Jury Nullification: the Right to Say No", Southern California Law Review, 45, p. 204 (1972). [List has been updated to 1996.]

_____________________________________
For example:

The Texas Constitution - Art 1 - Sec 8
Article 1 - BILL OF RIGHTS
Section 8 - FREEDOM OF SPEECH AND PRESS; LIBEL Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases. Missouri Constitution
Article I - BILL OF RIGHTS
Section 8 - Freedom of speech--evidence of truth in defamation actions--province of jury. That no law shall be passed impairing the freedom of speech, no matter by what means communicated: that every person shall be free to say, write or publish, or otherwise communicate whatever he will on any subject, being responsible for all abuses of that liberty; and that in all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and in suits and prosecutions for libel the jury, under the direction of the court, shall determine the law and the facts.

Go to the Self Help Legal Clinic
Liberty's Educational Advocacy Forum

Indiana's Fully Informed Jury Association, Inc.