Jury Nullification

[Osborn F Enready]

I am posting this verbatim, because it is very well written.
This post comes from here originally: http://www.e-thepeople.org/article/52197/view

Today, boys and girls, we shall discuss the concept of Jury Nullification. Don't let the big word at the end scare you, it isn't as complicated as it seems. We already know that our great republic was founded on the concept of people power and the concept of jury nullification exists to further that end. We already know what a jury is. It is a group of twelve regular people pulled from the voter lists to decide fault at a trial. They have the duty of dispensing justice at the end of a trial. They are instructed by the judge as to the particulars of the law and then hear the cases of both the prosecution and the defense. They are then ushered into another room where they decide the fate of the accused. Everyone on the same page so far? Good, it is time to move on to the scary, long word at the end of the phrase. Nullification is of course, a word that means "to nullify", to make something undone, like it never existed. Together, the phrase jury nullification means that a jury has the right to basically nullify a law. Even if they believe the accused is guilty of breaking the law they can look at the law itself and decide that the law was improperly applied or improperly passed, (meaning legislators had no constitutional authority to write such a law). They can even determine that while the law was broken, the accused didn't intend any harm and indeed, harmed no one, and let him walk free. There is a reason why one of our Constitutional rights is to a trial by jury. The founders wanted a jury of our peers to review the case, not to leave it to a judge to decide. They also wanted a jury of peers to review the law, because law is not always just. In this way, they made the jury higher than the prosecutor and the higher than the judge. I have heard that many states have made this concept illegal and that juries are not informed of their full rights before trial. I thought I would inform you of these rights and ask you to share your states laws in this matter and for your thoughts Remember people, you run this country, don't let the politicians and lawyers take that away from you. “The jury has a right to judge both the law as well as the fact in controversy.” John Jay, U.S. Supreme Court Justice, 1794 “The jury has the right to determine both the law and the facts.” Samuel Chase, U.S. Supreme Court Justice, 1796 “The jury has the power to bring a verdict in the teeth of both law and fact.” Oliver Wendell Holmes, U.S. Supreme Court Justice, 1920 “The jury has an unreviewable and irreversible power . . . to acquit in disregard of the instructions 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.” U.S. v. Dougherty, 1972

[Osborn F Enready]

How many of you KNOW or can LOCATE INFORMATION if your state has or has not outlawed jury nullification rights?

[Keith Hamburger]

Well, I don't know if I can find the article, or if it will fit. But, I'll try.

Author(s): Keith Hamburger
Section: EDITORIAL
Publication title: Colorado Springs Gazette - Telegraph. Colorado Springs, Colo.: Sep 4, 1991. pg. B.4
Source type: Newspaper
ProQuest document ID: 246679681
Text Word Count 1045
Document URL: http://proquest.umi.com/pqdweb?did=2...=309&VName=PQD

Copyright Freedom Newspapers, Inc. Sep 4, 1991
Label: FORUM

On Sept. 5, people all across America will be celebrating Jury Rights Day. This day is to commemorate the protection the jury provides us from oppressive government.

In 1670, William Penn, an active Quaker, was arrested for preaching his outlawed religion to his London congregation (who were gathering in the street because the police had locked them out of their church). It was on this day 321 years ago that, despite clear evidence that he was guilty, a jury of his peers refused to convict them because they believed that he had the right to worship as he pleased. This case contributed to the common law recognition of freedom of religion, freedom of assembly and ultimately, to the United States' First Amendment protections of such freedoms.

In 1735 John Peter Zenger was arrested for seditious libel. He had written harsh criticisms of the governor of New York, then, of course, a British colony. Although his writings were clearly illegal under then current British law he was not convicted. The jury, empowered to determine quilt or innocence, felt that justice would not be served by finding him guilty under that law, that he had the right to say whatever he wished without fear of government interference.

In the 1850s juries refused to convict people for harboring runaway slaves. These people, in clear violation of the fugitive slave laws, were willing to give up their lives, if necessary, to protect the freedom of others. In the 1920's thousands of people were being tried for owning and consuming liquids that others thought were harmful. Many of these trials ended in acquittals because juries felt that such issues were not the governments business.

All of these actions were due to a principle that has largely been lost to today's judicial system. That is the right of juries to make decisions on the validity of the law rather than just the facts in the case.

Ever since the Magna Carta, juries have been the final legal protection from bad laws. Jury nullification, the power of the jury to judge the law and its application, in addition to the facts of the case, was recognized by our nation's founders as critical to the maintenance of freedom.

Thomas Jefferson wrote, "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."

John Adams advised a jury that "It is not only the juror's right, but his duty, in that case, to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court."

Alexander Hamilton advised jurors to acquit against the judge's instructions" . . . if exercising their judgment with discretion and honesty they have a clear conviction that the charge of the court is wrong."

Samuel Chase, signer of the Declaration of Independence and Supreme Court Justice, said simply "The jury has the right to determine both the law and the facts."

But today little is heard of this right, the right of juries to protect the citizens from misuse of government power. As with many protections envisioned by our nation's founders, the power of jury nullification has been eroded over the last 200 years. Indiana and Maryland protect jury nullification in their state constitutions, but in most states judges attempt to prevent juries from exercising their power.

In the late 1800s a number of special interest groups pressured for a series of rulings limiting the powers of juries. These interest groups usually consisted of powerful business interests opposed to the actions of organized labor groups and other groups that had used their powers to lobby for laws that gave them an advantage over those in their communities that were less powerful than themselves. They often found that they could not retain this power when enforcement ultimately depended on the decision of jury of the peers of those opposed to that power.

Following these decisions, judges stopped informing jurors of their right to judge both the law and the facts in a case. Although, after a century of such positions in the courtroom, no court has dared deny such rights to juries, judges have effectively denied the use of this power in the courtroom.

They do this by refusing to inform the jury of their power of nullification, by explicitly instructing them that they may only consider the law as explained by the judge, and by refusing to allow defense counsel to mention the power of nullification on pain of a contempt of court citation. This has led to judges having near complete control over the decisions that are returned. They can do this by such actions as only telling juries of the parts of the laws they feel will lead to the verdict they feel is appropriate. And no one can challenge these instructions in the courtroom without fear of a contempt citation. A national movement, the Fully Informed Jury Association, seeks to return the intended powers of the jury to the people by returning jury nullification to its rightful position as a check on the abuses of government.

Next year, the Colorado Legislature will be asked to consider placing the following constitutional referendum on the ballot: "Whenever government is a party in a trial by jury, the jurors must be informed that in addition to their responsibility to judge the facts of the case, they have an inherent right to judge the law and its application in the case before them."

With this simple amendment we can begin to address the fears of one debater of ratification of the U.S. Constitution: "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."

Hamburger is chairman of the El Paso County Libertarian Party and a former candidate for the U.S. House of Representatives.

@QUOTE: Ever since the Magna Carta, juries have been the final legal protection from bad laws. The power of the jury to judge the law and its application, in addition to the facts of the case, was recognized by our nation's founders as critical to the maintenance of freedom.

The editorial page editor gave up his column to print this on Jury Day in 1991. I guess I've heard of this topic.

Keith

[Autolykos]

I remember reading about a drug case where the jury upheld the defendant's conviction. However, after the case was closed, members of the jury spoke out about why they made that decision. It turns out that they were afraid that, if they failed to convict the defendant, the judge would punish them.

Here we can see that, regardless of the legal situation, the laws of this country are de facto ruled by judges, not by juries.

- Rob

[PatrickHenry]

Heh. If you don't wanna serve on a jury just tell the legal system what you know about jury nullification...

[Keith Hamburger]

Quote by: PatrickHenry Heh. If you don't wanna serve on a jury just tell the legal system what you know about jury nullification...

And, of course, if you want to make a difference, don't say a word unless ask. I would never lie to a judge concerning this but, if I'm not ask I wouldn't tell them.

Keith

[Osborn F Enready]

Great article Keith. Thanks for sharing that.

I wonder where our resident lawyers are?

[Osborn F Enready]

Here is a great link for those who wish to find out more.

http://www.fija.org/
http://nowscape.com/fija/fija_us.htm

[Osborn F Enready]

I am still irritated because Tivo came in here twice now, and still hasn't replied to this thread.

[lsbskins1]

Mind if I give it a poke. I was thinking about this after I heard about the CIA agent who was fired for leaking the information about the secret torture sites/prisons. The person may be prosecuted for disclosing something that needed to be disclosed to the American people. But, if you apply the law as written, what that person did was against the law. This is what nullification is actually all about, in my opinion. If I sat on that jury, I would use nullification in the same way it was used to protect Zenger. The American people needed to know what their government was up to, especially because our government did not want us to know...

[Osborn F Enready]

I agree, and this would be a valid case for nullification of bad law if it were in a jury situation.

[lsbskins1]

Quote by: Osborn F Enready I agree, and this would be a valid case for nullification of bad law if it were in a jury situation.

See how even WE end up on the same page sometimes. I love it. I may get annoyed with you, but I never want to gag or ignore you. It's the back and forth and the occasional syntehsis that makes my life feel meaningful. Now, go back to the jackbooted feds post and remember how fucking much you hate me...

He,he,he.

[Keith Hamburger]

So, in order to give Dwight a chance to join in, Let's give this one a bump.

[Osborn F Enready]

Dwight, you still out there man?

[Osborn F Enready]

Here is a link from a forum I go to occassionally, on the topic, that is mainly populated with legal types, LEO's, lawyers, etc.

Jury nullification. - TheFiringLine Forums

Interesting to see the arguments used by pro-activist judge advocates.

[Keith Hamburger]

Quote by: Osborn F Enready Here is a link from a forum I go to occassionally, on the topic, that is mainly populated with legal types, LEO's, lawyers, etc. Jury nullification. - TheFiringLine Forums Interesting to see the arguments used by pro-activist judge advocates.

Interesting how all of the members of the Bar oppose jury nullification. Effectively being government officials, how could we expect any differently?

Keith

[Osborn F Enready]

Keith said: Interesting how all of the members of the Bar oppose jury nullification. Effectively being government officials, how could we expect any differently?

Exactly.....

I logicly shredded that lawyer in another thread at that forum, and they banned me, for nothing.

Defenders of free speech...... pffffft.

[Heather]

In my quest to find out what my state has to say on the subject, I came along this article that I think is interesting and may add to conversation as well. It includes some information on individual states as well as examples of specific instances in which jury nullification has been used in the past, and how jury nullification relates to our rights as individual citizens.

http://www.1215.org/lawnotes/lawnotes/jurynul4.htm

[Keith Hamburger]

Quote by: Heather In my quest to find out what my state has to say on the subject, I came along this article that I think is interesting and may add to conversation as well. It includes some information on individual states as well as examples of specific instances in which jury nullification has been used in the past, and how jury nullification relates to our rights as individual citizens. http://www.1215.org/lawnotes/lawnotes/jurynul4.htm

That is an excellent article. Thank you for sharing that.

I am somewhat jealous that your Constitution, in your state, provides explicitly for jury nullification. On a limited basis, for certain, however, where I live doesn't have any such.

Of course, courts have been known to repeatedly usurp power both from the people, in general, and from juries specifically. I wonder if you can find some instances of the actual application of this power, or examples where courts have taken this legitimate power from juries.

Keith

[Osborn F Enready]

Keith said:
That is an excellent article. Thank you for sharing that.

Agreed, and ditto Heather.

Keith said: I am somewhat jealous that your Constitution, in your state, provides explicitly for jury nullification. On a limited basis, for certain, however, where I live doesn't have any such.

Again, agreed and the feelings and facts are mutual.

Keith said: Of course, courts have been known to repeatedly usurp power both from the people, in general, and from juries specifically. I wonder if you can find some instances of the actual application of this power, or examples where courts have taken this legitimate power from juries.

There is an ongoing, or recently ended debate on this in Ohio....

I will see if I can scare up some links and post back when I do.