WHY DID OUR FOUNDING FATHERS EXPECT CITIZEN JURIES TO JUDGE OUR LAWS AS WELL AS THE GUILT OF THE INDIVIDUAL ?
Because: "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)
"Jury nullification of law", as it is sometimes called,
is a traditional American right defended by the Founding Fathers.
Those Patriots intended the jury serve as one of the tests a law
must pass before it assumes enough popular authority to be enforced.
Thus the Constitution provides five separate tribunals with veto
power-representatives, senate, executive, judges and jury-that
each enactment of law must pass before it gains the authority
to punish those who choose to violate it. 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."
The power of the jury to judge the justice of the law and to hold
laws invalid by a finding of "not guilty" for any law
a juror felt was unjust or oppressive dates back to the Magna
Carta, in 1215. At the time King John could pass any laws any
time he pleased. Judges and executive officers, appointed and
removed at his whim, were no more than servants of the king. The
oppression became so great that the nation rose against the ruler
and the barons of England compelled their king to pledge that
no freeman would be punished for a violation of any laws without
the consent of his peers.
King John violently protested when the Magna Carta was shown to
him, "and with a solemn oath protested, that he would never
grant such liberties as would make himself a slave." Afterwards,
fearing seizure of his castle and the loss of his throne, he granted
the Magna Carta to the people, placing the liberties of the people
in their own safekeeping. (Echard's History of England, p. 1067.)
The Magna Carta was a gift reluctantly bestowed upon his subjects
by the Its sole means of enforcement, the jury, often met with
hostility from the Crown. By 1664 English juries were routinely
fined for acquitting a defendant. Such was the case in the 1670
political trial of William Penn for preaching Quakerism to an
unlawful assembly. Four of the twelve jurors voted to acquit and
continued to acquit even after being imprisoned and starved for
four days. The jurors were fined and imprisoned until they paid
the fines. One juror, Edward Bushell, refused to pay the fine
and brought his case before the Court of Common Pleas. Chief Justice
Vaughan held that jurors could not be punished for their verdicts.
Bushell's Case (1670) was one of the most important developments
in the common law history of the jury.
Jurors exercised their power of nullification in 18th
century England in trials of defendants charged with sedition
and in mitigating death penalty cases. In the American Colonies
jurors refused to enforce forfeitures under the English Navigation
Acts. The Colonial jurors' veto power prompted England to extend
the jurisdiction of the non-jury admiralty courts in America beyond
their ancient limits of sea-going vessels. Depriving "the
defendant of the right to be tried by a jury which was almost
certain not to convict him [became] ... the most effective, and
therefore most disliked" of all the methods used to enforce
the acts of trade. (Holdsworth, A History of English Law (1938)
Xl, 110)
John Hancock, "the wealthy Massachusetts patriot and smuggler
who as President of the Continental Congress affixed the familiar
bold signature which adorns the parchment Declaration of Independence"
(United States Court of Appeals, 1980, 618 F.2d 453), was prosecuted
through this admiralty jurisdiction in 1768 for a fine of 9,000
pounds-triple the value of the goods aboard his sloop "Liberty"
which had been previously forfeited. John Adams eloquently argued
the case, chastising Parliament for depriving Americans of their
right to trial by jury. Adams later said of 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." (Yale
Law Journal, 1964:173.)
Earlier in America jury nullification had decided the celebrated
seditious libel trial of John Peter Zenger (Zenger's Case, 1735).
His newspaper had criticized the royal governor of New York.
The law made it a crime to publish any statement, true or false,
criticizing public officials, laws or government. The jury was
only to decide if the material in question had been published;
the judge was to decide if the material was in violation of the
statute. The defense asked the jury to make use of their own consciences
and although the judge ruled that the truth was no defense, the
jury acquitted Zenger. The jury's nullification in this case is
praised in history textbooks as a hallmark of freedom of the press
in the United States.
At the time of the American revolution, the jury was considered
the judge of both law and fact. In a case involving the civil
forfeiture of private property by the state of Georgia, first
Supreme Court Chief Justice John Jay, instructed jurors that the
jury has "a right ... to determine the law as well as the
fact in controversy." (Georgia vs. Brailsford, 1794:4.)
Until the middle of the 1800s federal and state judges often instructed
juries they had the right to disregard the court's view of the
law. (Barkan, Steven, Jury Nullification in Political Trials,
citing 52 Harvard Law Review, 582-616) Then northern jurors refused
to convict abolitionists who had violated the 1850 Fugitive Slave
Law. In response judges began questioning jurors to find out if
they were prejudiced against the government, dismissing any who
were. In 1852 Lysander Spooner, a Massachusetts lawyer and champion
of individual liberties, complained, "that courts have repeatedly
questioned jurors to ascertain whether they were prejudiced against
the government ... [The reason] was, that 'the Fugitive Slave
Law, so called', was so obnoxious to a large portion of the people,
as to render a conviction under it hopeless, if the jurors were
taken indiscriminately from among the people." Modern treatments
of abolitionism praise these jury nullification verdicts for helping
the anti-slavery cause-rather than condemn them for undermining
the rule of law and the uniformity of justice.
In 1895, the Supreme Court, under pressure from large corporations,
ruled in a bitter split decision that courts no longer had to
inform juries they could veto an unjust law. The giant corporations
had lost numerous trials pressed against labor leaders trying
to organize unions. Striking was against the law at that time.
"Juries also ruled against corporations in damage suits and
other cases, prompting influential members of the American Bar
Association to fear that jurors were becoming too hostile to *their
clients* and too sympathetic to the poor. As the American Law
Review wrote in 1892, jurors had 'developed agrarian tendencies
of an alarming character'." (Barkan, 1983, emphasis added.)
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 incidences 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.
Counsels for Vietnam war protest defendants tried to introduce
moral and political arguments on the war to gain jury sympathy.
Most often the jury was given instructions such as "You must
apply the law that I lay down." (Conspiracy trial of Benjamin
Spock et al., 1969.) Jurors receiving such instructions usually
convicted while feeling the pang of conscience expressed by the
typical responses from Spock trial jurors: "I had great difficulty
sleeping that night ... I detest the Vietnam war ... But it was
so clearly put by the judge." And "I'm convinced the
Vietnam war is no good. But we've got a Constitution to uphold
... Technically speaking, they were guilty according to the judge's
charge." But in the few anti-Vietnam war trials where juries
were allowed to hear of their power they acquitted.
Jury acquittals in the colonial, abolitionist and post-Civil War
eras helped advance political activist causes and restrained government
efforts at social control. Steven Barkan suggests that the refusal
of judges during the Vietnam war to inform juries of their power
to disregard the law frustrated the anti-war goals. As Lysander
Spooner pointed out regarding the questioning of jurors to eliminate
those who would bring in a verdict according to conscience (a
practice effectively accomplished today through the jurors' oaths)
"The only principal upon which these questions are asked,
is this-that no man shall be allowed to serve as juror unless
he be ready to enforce any enactment of the government, however
cruel or tyrannical it may be.... A jury like that is palpably
nothing but a mere tool of oppression in the hands of the government."
Authoritarians may argue that the Constitution without jury veto
power provides the necessary protection of liberties. But legislatures
will always confirm the constitutionality of their own acts. And
the oaths sworn to uphold the Constitution by judges and public
servants have historically been only as good as the power to enforce
such oaths. Nor are free elections adequate to prevent tyranny
without jury veto power, because elections come only periodically
and give no guarantee of repealing the damage done. Additionally,
the second body of legislators are likely to be as bad as the
first since they are exposed to the same temptations and use the
same tactics to gain office.
Further, the jury's veto power protects minorities from "the
body of the people, operating by the majority against the minority."
(James Madison, June 8, 1789.) Twelve men taken randomly from
the population will represent both friends and opponents of the
party in power. With fully informed juries the government can
exercise no powers over the people without the consent of the
people. Trial by jury is trial by the people. When juries are
not allowed to judge law it becomes trial by the government "In
short, if the jury have no right to judge of the justice of a
law of the government, they plainly can do nothing to protect
the people against the oppressions of government; for there are
no oppressions which the government may not authorize by law."
(Spooner, 1852) (Excerpted from "Jury Power" by L.&
J. Osburn)
**"FIJA" means Fully Informed Jury Amendment, Act, or Association.**
As law, FlJA. would require that judges resume the practice of informing jurors of their inherent right to bring in a verdict according to conscience and their judgment as to whether the low itself is unjust or unfairly applied in any trial by jury where government is one of the parties. FIJA would also provide that defendants' motives be admissible as evidence.
**You Can Help Guarantee that Every Potential Juror Know the Truth!**
As an association, FIJA publishes and distributes educational
material but depends upon gross roots activists to inform jurors
of their rights and to undertake state-level lobbying and/or ballot-issue
efforts.
Liberty's Educational Advocacy Forum