"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 case, 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-three 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. First, sec. 7);
Delaware (Art. I, sec. 5); Georgia (Art. I, sec. II, Para. 1); Kentucky (Bill of Rights,
sec. 9); Louisiana (Art. XIV, 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); Oregon (Art. I, sec. 16);
Pennsylvania (Art. I, sec. 7); South Carolina (Art. II, sec. 21); 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, "as in all other 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 1994.]"
"JURY VETO POWER
America's Founders worried that the government they created might someday grow
too powerful, and begin to pass laws which would violate the rights of the very
people it was intended to protect: ordinary, peaceful, productive folks. But they kept
an "ace in the hole", a trump card they believed citizens could use to hold this new,
experimental government in check. That ace was the right to a trial by a jury of one's
peers.
How a jury can restrain a government? The key is that juries can say "no" to bad laws
and to arbitrary and unjust prosecutions. It's true!
The Founders realized that the temptations of power and corruption would eventually
prove to be too much for any of the three branches of our government to resist, let
alone check and balance the other branches. They knew that government "of, by and
for the people" meant that the people would every so often have to roll up their
sleeves and exert their authority, to act as the final check and balance on the whole
system. Since law is the main tool by which a government exerts its control, trusting
juries of ordinary citizens to veto the use of bad law was the logical choice.
So they provided for trial by jury--once in the Constitution, and twice more in the Bill
of Rights. In those days, it was part of the definition of the word "jury" that its
members could judge the law as well as the evidence, and the judge would often
remind them of this power. For example, if jurors found the law to be unjust or
misapplied, or that the defendant's rights had been violated in bringing the him or her
to trial, they would acquit for those reasons, despite good evidence.
In addition to veto power, our common law legal traditions also provide that if a jury
decides to acquit, its decision is final. A verdict of "not guilty" cannot be overturned,
nor can the judge harass the jurors for voting for acquittal, or punish them for voting
their consciences, even after making them swear to follow the law as given by the
judge! And jurors may be asked, but cannot be obliged, to explain their verdicts.
These principles were subject to contention for centuries in England and the British
Empire as citizen jurors fought to assert their rights against the power interests of the
crown.
In 1670, William Penn was arrested in London for preaching a Quaker sermon, which
broke a law establishing the Church of England as the only legal church. His jurors,
led by Edward Bushell, refused to convict him, despite being held for days without
food, water, tobacco or toilet facilities--and then fined. The most defiant four of them
refused to pay the fine and were then put in prison for nine weeks.
The highest court of England, upon releasing them, both acknowledged and
established that trial jurors could not be punished for their verdicts. Recognition of
our freedoms of religion, peaceable assembly and speech thus all trace to the exercise
of jury power, wielded by a jury unintimidated by government judges.
In colonial America, the sedition trial of John Peter Zenger established another
landmark case. Zenger, a publisher, was arrested for printing news critical of the
Royal Governor of New York Colony and his cronies, accusing them of corruption. His
accusations were all true, but the court informed his jury that under the law, "...truth
is no defense".
"Philadelphia lawyer" Andrew Hamilton then told the jurors the story of William Penn,
and argued that as judges of the merits of the law, they should not in good
conscience convict Zenger of violating such a bad law. The jurors agreed. Zenger was
acquitted in about fifteen minutes, and his case spawned recognition of our right to a
free press.
Cases like these therefore were part of the political heritage of the Founders, which
may explain why they so appreciated jury power.
John Adams said it so well in 1771 that the Fully Informed Jury Association (FIJA)
put his words on a coffee mug: "It is not only...[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."
First U.S. Supreme Court Chief Justice John Jay, writing in Georgia v. Brailsford,
1794, concluded: "The jury has the right to judge both the law as well as the fact in
controversy".
President Thomas Jefferson in 1789 told Thomas Paine: "I consider trial by jury as
the only anchor yet devised by man, by which a government can be held to the
principles of its constitution."
And Noah Webster, who wrote his original 1828 dictionary in order to preserve the
integrity of the language of the Constitution, defined "petty jury" as "...consisting
usually of twelve men [who]...attend courts to decide both the law and the fact in
criminal prosecutions".
A detailed historical analysis of jury veto power, also called jury nullification of law,
appeared in the Yale Law Review in 1964. It held that "The right of the jury to decide
questions of law was widely recognized in the colonies. In 1771, John Adams stated
unequivocally that a juror should ignore a judge's instruction on the law if it violates
fundamental principles: There is much evidence of the general acceptance of this
principle in the period immediately after the Constitution was adopted."
However, during the next century, judges began chipping away at this vital and
fundamental right of free citizens, thereby transferring citizen power to themselves.
The worst usurpation took place in 1895, when in Sparf and Hansen v. U.S., a bitterly
split decision by our Supreme Court held that failure of the judge to remind the jurors
of their powers was not a basis for mistrial or appeal. That was the green light for
trial judges to go mum on the topic, and they did.
That is why very few lawyers or law professors, only some judges, and practically no
school teachers know about jury veto power: it's "not part of the curriculum". Few
history books give juries the credit they're due--for stopping the Salem witch trials,
for overturning slavery in state after state before the Civil War, and for ending
Prohibition--all by refusing to convict because they thought the law itself was wrong.
These days, trial by jury often doesn't accomplish all that it should. And the
usurpation continues: trial judges now falsely tell jurors that their only job is to
decide if the "facts" are sufficient to convict, and that if so, they "should" or "must"
convict. Defense attorneys can face contempt of court charges if they urge jurors to
acquit if they think the law is unconstitutional or unjust. And self-defenders are
usually stopped and rebuked if they even mention their motives, or why they disagree
with the law, to the jury.
Yet to this day, trial jurors retain the right to veto, or "nullify" bad laws, though they
are rarely told this by the courts. Prosecutors and judges try to exclude people from
serving on juries who admit knowing they can judge the law, or who have doubts
about the justice of the law. This destroys the protections jurors were supposed to be
able to invoke on behalf of fellow citizens against unjust prosecutions: how can our
right to a trial by an impartial jury be met if those with any qualms about the law are
excluded from serving? "
http://nowscape.com/fija/fija_us.htm
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"Quis custodiet ipsos custodes"
I don't think I could have recieved a more complete answer!