I've had this argument before. So let me take one thing at a time. First...
SCOTUS has never ruled on this point, but given the state of the law over the last 50 years I'm confident that they would reach a similar conclusion to mine.
Emphasis, mine.
Actually, CJ John Jay did, in his instructions to the Jury in Georgia v. Brailsford, 3 Dall 1 (1794). I believe I sort of quoted from that one (This has never been questioned nor overturned), but see the more complete quote later in this post. The presumption of the right of the Jury to "determine the law" is from several common law sources.
To be fair, let's simply review what our founders have said:
"It is not only his [the juror's] 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." John Adams
"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." Thomas Jefferson
"The friends and adversaries of the plan of the [Constitutional] convention, if they agree on nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists of this: the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government." Alexander Hamilton
"If it [jury power] is not law, it is better than law, it ought to be law, and will always be law wherever justice prevails." Ben Franklin
Then we have Noah Webster, whose purpose in publishing a dictionary was to preserve the meaning of the language used in the Constitution, in his first Dictionary of the English Language (1828), included the following in his definition of "jury":
"Petty juries, consisting usually of twelve men, attend courts to try matters of fact in civil causes, and to decide both the law and the fact in criminal prosecutions."
Having written this, there are some caveats that go along with this "power" of the Jury:
* Jury judgment of law can operate in only one direction - that of mercy. It cannot create new law, nor may jurors convict under nonexistent law, or escalate charges.
* Jury refusal to apply a law does not abolish it. A jury may be merciful only in the case before it.
* Jury refusal to apply a law does not set precedent, nor can a jury declare a law unconstitutional.
* Jury nullification is an important way to inform governmental representatives about the changing conscience and values of the community, free from special interest pressure.
* Fully informed jurors can better dispense justice, thereby preventing people from being imprisoned wrongly and reducing prison overcrowding.
STAGE 2 said:
Jury nullification is not a right per say and certianly not a duty or function of a jury. You can't remove jury nullification from our system and still maintain the sanctity of the jury box. Its a byproduct, and its here to stay. But is is NOT a right or a duty. That much is clear. The vast majority of states include anti-nullification paragraphs in their pattern jury charges. Judges reiterate this point as well.
But it is a power of the Jury. You may not think all of the above conclusive, but our Founders most certainly did. Remember one thing, up until
Sparf, all criminal juries were told of their powers and duties. John Jay set that stage! Let me give you the complete qoute:
The most quoted instruction empowering a jury to judge the law comes from a civil case. In a rare jury trial in the United States Supreme Court, Chief Justice John Jay, speaking for a unanimous Court, instructed the jury:
“The facts comprehended in the case are agreed; the only point that remains, is to settle what is the law of the land arising from those facts; and on that point, it is proper, that the opinion of the court should be given. It is fortunate, on the present, as it must be on every occasion, to find the opinion of the court unanimous: we entertain no diversity of sentiment; and we have experienced no difficulty in uniting in the charge, which it is my province to deliver.
“It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of fact; it is, on the other hand, presumable, that the court are the best judges of the law. But still both objects are lawfully within your power of decision.” Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794)
The only Supreme Court Justice ever impeached, Samuel Chase, was charged with denying the right of jurors to judge the law. History is a wonderful subject, yes?
The fact remains, not in ANY law school, or ANY court room, or ANY legislature will you find them teaching or endorsing jury nullification as a viable right or duty of a jury.
In simple terms then. Because it is not taught, does not invalidate the concept as it was originally thought. We can certainly see such things in our public school system today.
And with that, we are now severely off topic.
! I see a trend by our law enforcement officers to see the 'law' as something alive in and of itself. It reminds me of the way Judge Dread looked at it.....up until the time he was arrested of course. The law is made by humans (actually by politicians so this is a strech of the term) and therefore is imperfect. We as individuals know what is 'right' and 'wrong'. Whether we choose to follow that which we know is true or not (ethics) is our choice and why we have a police force. Any further enforcement than that and a nation becomes a police state in my opinion. And lets face facts a police state is a nation of laws.
