Jury Nullification - Do You Understand?
I'm not sure civics classes ever taught it (certainly not now!), and I know you can't
get the information openly through lawyers and judges, but one of the best checks
and balances we have as Citizens in the judicial process is jury nullification.
Colorado Judicial Review Project
Fully-Informed Juries
by Dave Kopel
"In this country, we have three ways to secure our freedom," remarked Idaho
Senator Steve Symms, "The ballot box, the jury box, and if those don't work, the
cartridge box." This article discusses how doing your legal duties in the jury box can
help protect your right to own a cartridge box, and to exercise all the rest of your
constitutional rights.
In Oak Park, Illinois a few years ago, a gas station owner drew a gun to defend
himself against an armed robbery. Oak Park has a handgun ban, so the prosecutor
threw the book at the gas station owner. A jury speedily acquitted him, although the
facts seemed to clearly prove the station owner guilty. Was the jury acting illegally?
Not at all. The jury was simply exercising its power to judge the law as well as the
facts. The jury apparently determined that in the particular case, it would be unjust
to punish the gas station owner for violating the handgun prohibition.
In one infamous prosecution under the Gun Control Act of 1968, the federal
government brought 88 felony charges against a skeet shooter who sold guns as
hobby, to pay for some of his shooting expenses. The "crimes" worth 88 felony
counts and up to 440 years in prison? Letting his customers try out the guns for a
few days before buying them, and making gun sales at the range rather than at his
business office. Although the defendant admitted his actions on the stand -- and his
acts were technical violations of the Gun Control Act -- the jury found him "not
guilty" on every count.
Jury acquittal of a defendants who is technically guilty, but who does not deserve
punishment, is called "jury nullification." In the American legal system, the jury's
power to nullify is unquestionable. The District of Columbia Court of Appeals -- the
second highest court in the United States -- explains that the jury has an
"unreviewable and irreversible power... to acquit in disregard of the instruction on the
law given by the trial judge..." (U.S. v. Dougherty, 473 F.2d 1139 (1972).)
Or as another federal court of appeals summarizes: "If the jury feels the law under
which the defendant is accused is unjust, or that exigent circumstances justified the
action of the accused, or for any reason which appeals to their logic or passion, the
jury has the power to acquit and the courts must abide by that decision." (United
States v. Moylan, 417 F.2d 1002, 1006 (4th Cir. 1969).)
The court was re-affirming what John Jay, the first Chief Justice of the U.S. Supreme
Court, told jurors: they possess "a right...to determine the law as well as the fact in
controversy." (Georgia v. Brailsford 3 Dallas 1, 4 (1794).)
In what situations does jury nullification come into play? One of the most common
situations for nullification is self-defense and defense of property, when prosecutors
throw the book at crime victims who might have technically exceeded the legal
boundaries of self-defense. The acquittals for self-defense are typical of acquittals in
other cases, where overzealous prosecutors bring charges that violate common
justice.
During the years preceding the Civil War, juries would often refuse to convict persons
accused of harboring runaway slaves. In the Prohibition era of the 1920s, many juries
refused to send their fellow citizens to prison merely for possessing a bit of liquor.
The acquittals laid the foundation for repeal of a bad law. In modern Kentucky, juries
make it difficult for the government to obtain convictions for marijuana possession.
Paying taxes is never pleasant, and some people add a little note at the bottom of
their tax form, such as "signed under protest." Internal Revenue Service bureaucrats
have actually prosecuted these people for failing to file a proper return. Juries laugh
the I.R.S. out of court.
Columbia Law Professor George Fletcher observes that jury nullification might at first
seem "to conflict with the rule of law, but careful historical reflection underscores
the power of the jury not to defeat the law, but to perfect the law, to realize the
law's inherent values." He points to jury acquittal of John Peter Zenger in a 1735 trial
for seditious libel. ("Seditious libel" was the criminal offense of harming a government
official's reputation.) Zenger's lawyer told the jury that they were the ultimate
judges of law as well as fact; the jury acquitted Zenger on the grounds that his
articles in The New York Weekly Journal about a corrupt governor were true -- even
though the formal law did not yet recognize truth as a defense to seditious libel.
That's how the American system works; the law is created by "We the People." If a
power-hungry prosecutor exercises bad judgement, the people, acting through the
jury, can stop him. Accordingly, it is not only the juror's right, but his obligation to
vote his conscience. As future President John Adams explained, it is the juror's
"duty... to find the verdict according to his own best understanding judgement, and
conscience, though in direct opposition to the direction of the court."
Curiously, although there is no legal doubt about the jury's right to vote its
conscience and acquit, there is generally no rule that the jury be told about that
right. In 1895, a divided Supreme Court held that there was no Constitutional
requirement that juries be informed of their power to nullify. (Spars and Hanson, 156
U.S. 64.) The case came from an era when the Court was devoted to protecting
corporate power. Going on strike or joining a union was generally illegal, but juries
were refusing to convict workers accused of these "crimes."
Maryland and Indiana, through their state Constitutions, do require that the jury be
fully informed. Maryland's Constitution explicitly makes the jury "the Judges of Law,
as well as of fact." (Maryland Const., Declaration of Rights, Art. 23.) Indiana's
Constitution states that "the jury shall have the right to determine the law and the
facts." (Indiana Const., Art. I, section 19.)
Citizens in other states are working to put a "Fully Informed Jury Amendment" (FIJA)
on their own state statutes. Juries in all states, like Indiana and Maryland juries,
would be explicitly instructed about the right that is already theirs. As the cases
discussed above illustrate, many jurors already know of their power to reject unfair
applications of bad laws.
When juries don't know their rights, the results can be tragic. For example, in
Phoenix, Arizona a few years ago, a pair of United States marshals burst into the
home of 72-year-old Bill Span and his 74-year-old wife Virginia. According to
newspaper and magazine reports, when Mr. Span asked to see a search warrant, one
marshal pinned him against the wall, while another searched the home. The marshals
then proceeded to the family's store, where Mrs. Span and two of her adult children
were spending the day. The marshals flashed a picture of a criminal suspect they
were looking for. When Mrs. Span said she did not know the suspect, the marshals
attacked the adult son and daughter from behind. The brother resisted by raising his
hands to ward off the blows, and trying to wiggle out of a chokehold. When the
horrified mother snapped photographs, a marshal grabbed the camera from the
mother's hands, ruined the film, and knocked the
72-year-old mother to the ground, sending her to the hospital, where she nearly
died. The customers present at the store during the attack backed up the Spans'
version of the assault.
Why the attack on this family? Mistaken identity. The elderly couple had a son --
who hasn't lived in Phoenix for 39 years -- who has the same name as an entirely
different person the marshals were seeking to arrest. Rather than being reprimanded,
the marshals were commended by their superiors for acting appropriately.
The victims of the marshals attack were placed on trial. Both marshals had a
reputation with the marshal service for provoking assaults, but the judge refused to
let the jury know that fact. At the trial, the judge (incorrectly) told the jury that the
only legal choice for a person being beaten by a government agent is "to submit
peaceably," and file charges later. The judge also ordered, as is standard in most jury
instructions, "You must apply the law as I give it to you. You must follow the law as
I give it to you whether you agree with it or not." He never informed the jury of its
power to nullify the particular application of law.
The jury determined that the marshals had indeed initiated the attack. Believing the
law forbidding self-defense to be completely unfair, the jury nevertheless obeyed the
judge's misleading instructions, and convicted the victims of assaulting the marshals.
After the trial, five jurors tearfully told the defendants that they knew the marshals
were perpetrating an illegal attack, but the jury thought it had no choice except to
convict, according to the judge's instructions.
Had the judge not misinformed the jury -- had he told the jury that they had the
unreviewable power to bring refuse to convict if they thought a conviction would be
unjust -- the victims of the crime would have been acquitted.
Opponents of the Fully Informed Jury Amendment, warn that juries cannot be trusted
to exercise all of their legal rights. For example, in the South during the 1950s and
1960s, all-white juries would often refuse to find perpetrators of racist violence
guilty. The problem there, however, was not the jury knew its rights, but that the
jury was not truly representative of the community, since Blacks and women were
frequently excluded.
Fortunately, recent Supreme Court decisions have made it nearly impossible for
lawyers to select lily-white or otherwise bigoted juries. Moreover, this is 1990s, not
the 1950s. With the concern most people have about violent crime, there's little
reason to feel that our fellow citizens will refuse to convict a defendant who
deserves prison.
Although the law enforcement establishment predicts anarchy and "blood in the
streets" if juries are informed about their rights, the evidence provides no support for
the fear-mongering. Indiana and Maryland -- where the state Constitutions affirm
jury rights
-- are no more lawless than their sister states. Indeed, up until 1895, most of the
United States got along quite well with fully informed juries, and the crime rate was
far lower than it is today.
The jury's right and duty to vote its conscience is one of the most important checks
in our systems of checks and balances. Accordingly, the Fully Informed Jury
Amendment has drawn support from an amazingly diverse coalition of groups.
Tree-hugging EarthFirsters attend FIJA meetings with timber-cutting Wise Use
advocates. Radical pro-abortion feminists sit next to Eagle Forum anti-feminists.
Interestingly, while anti-nuclear and pacifist groups are also part of the FIJA
coalition, the anti-gun movement is not. Perhaps the anti-gun lobby fears that fully
informed juries would be a significant obstacle to enforcement of repressive gun
control laws. Accordingly, the Fully Informed Jury Amendment is supported by many
pro- Second Amendment groups, including National Rifle Association and the Gun
Owners of America. These groups recognize that the whole Bill of Rights is one
magnificent and interwoven tapestry of freedom. When we protect the rights of
juries, we protect the rights of all other citizens as well, including gun owners.
Sources: Florida gun prosecution: "Neal Knox Report," Shotgun News, Apr.
10, 1990.
George Fletcher quote: George Fletcher, A Crime of Self-Defense: Bernhard Goetz
and the Law on Trial (New York: Free Press, 198 , pp.
154-55.
John Adams: Quoted in 74 Yale Law Journal 173 (1964).
Jury nullification common in self-defense cases: Valerie P. Hans & Neil Vidmar,
Judging the Jury (New York: Plenum, 1986), pp.
151-53.
Arizona marshals: "A Challenge to Marshals' Use of Force," Chicago Tribune, Sept. 8,
1991, p.
24.
New Times (Phoenix weekly newspaper), May 16, 1990; "Juries Possess Great Power;
They Just Aren't Told About It," Phoenix Gazette, May 21, 1991, p. A9 (op-ed).
I'm not sure civics classes ever taught it (certainly not now!), and I know you can't
get the information openly through lawyers and judges, but one of the best checks
and balances we have as Citizens in the judicial process is jury nullification.
Colorado Judicial Review Project
Fully-Informed Juries
by Dave Kopel
"In this country, we have three ways to secure our freedom," remarked Idaho
Senator Steve Symms, "The ballot box, the jury box, and if those don't work, the
cartridge box." This article discusses how doing your legal duties in the jury box can
help protect your right to own a cartridge box, and to exercise all the rest of your
constitutional rights.
In Oak Park, Illinois a few years ago, a gas station owner drew a gun to defend
himself against an armed robbery. Oak Park has a handgun ban, so the prosecutor
threw the book at the gas station owner. A jury speedily acquitted him, although the
facts seemed to clearly prove the station owner guilty. Was the jury acting illegally?
Not at all. The jury was simply exercising its power to judge the law as well as the
facts. The jury apparently determined that in the particular case, it would be unjust
to punish the gas station owner for violating the handgun prohibition.
In one infamous prosecution under the Gun Control Act of 1968, the federal
government brought 88 felony charges against a skeet shooter who sold guns as
hobby, to pay for some of his shooting expenses. The "crimes" worth 88 felony
counts and up to 440 years in prison? Letting his customers try out the guns for a
few days before buying them, and making gun sales at the range rather than at his
business office. Although the defendant admitted his actions on the stand -- and his
acts were technical violations of the Gun Control Act -- the jury found him "not
guilty" on every count.
Jury acquittal of a defendants who is technically guilty, but who does not deserve
punishment, is called "jury nullification." In the American legal system, the jury's
power to nullify is unquestionable. The District of Columbia Court of Appeals -- the
second highest court in the United States -- explains that the jury has an
"unreviewable and irreversible power... to acquit in disregard of the instruction on the
law given by the trial judge..." (U.S. v. Dougherty, 473 F.2d 1139 (1972).)
Or as another federal court of appeals summarizes: "If the jury feels the law under
which the defendant is accused is unjust, or that exigent circumstances justified the
action of the accused, or for any reason which appeals to their logic or passion, the
jury has the power to acquit and the courts must abide by that decision." (United
States v. Moylan, 417 F.2d 1002, 1006 (4th Cir. 1969).)
The court was re-affirming what John Jay, the first Chief Justice of the U.S. Supreme
Court, told jurors: they possess "a right...to determine the law as well as the fact in
controversy." (Georgia v. Brailsford 3 Dallas 1, 4 (1794).)
In what situations does jury nullification come into play? One of the most common
situations for nullification is self-defense and defense of property, when prosecutors
throw the book at crime victims who might have technically exceeded the legal
boundaries of self-defense. The acquittals for self-defense are typical of acquittals in
other cases, where overzealous prosecutors bring charges that violate common
justice.
During the years preceding the Civil War, juries would often refuse to convict persons
accused of harboring runaway slaves. In the Prohibition era of the 1920s, many juries
refused to send their fellow citizens to prison merely for possessing a bit of liquor.
The acquittals laid the foundation for repeal of a bad law. In modern Kentucky, juries
make it difficult for the government to obtain convictions for marijuana possession.
Paying taxes is never pleasant, and some people add a little note at the bottom of
their tax form, such as "signed under protest." Internal Revenue Service bureaucrats
have actually prosecuted these people for failing to file a proper return. Juries laugh
the I.R.S. out of court.
Columbia Law Professor George Fletcher observes that jury nullification might at first
seem "to conflict with the rule of law, but careful historical reflection underscores
the power of the jury not to defeat the law, but to perfect the law, to realize the
law's inherent values." He points to jury acquittal of John Peter Zenger in a 1735 trial
for seditious libel. ("Seditious libel" was the criminal offense of harming a government
official's reputation.) Zenger's lawyer told the jury that they were the ultimate
judges of law as well as fact; the jury acquitted Zenger on the grounds that his
articles in The New York Weekly Journal about a corrupt governor were true -- even
though the formal law did not yet recognize truth as a defense to seditious libel.
That's how the American system works; the law is created by "We the People." If a
power-hungry prosecutor exercises bad judgement, the people, acting through the
jury, can stop him. Accordingly, it is not only the juror's right, but his obligation to
vote his conscience. As future President John Adams explained, it is the juror's
"duty... to find the verdict according to his own best understanding judgement, and
conscience, though in direct opposition to the direction of the court."
Curiously, although there is no legal doubt about the jury's right to vote its
conscience and acquit, there is generally no rule that the jury be told about that
right. In 1895, a divided Supreme Court held that there was no Constitutional
requirement that juries be informed of their power to nullify. (Spars and Hanson, 156
U.S. 64.) The case came from an era when the Court was devoted to protecting
corporate power. Going on strike or joining a union was generally illegal, but juries
were refusing to convict workers accused of these "crimes."
Maryland and Indiana, through their state Constitutions, do require that the jury be
fully informed. Maryland's Constitution explicitly makes the jury "the Judges of Law,
as well as of fact." (Maryland Const., Declaration of Rights, Art. 23.) Indiana's
Constitution states that "the jury shall have the right to determine the law and the
facts." (Indiana Const., Art. I, section 19.)
Citizens in other states are working to put a "Fully Informed Jury Amendment" (FIJA)
on their own state statutes. Juries in all states, like Indiana and Maryland juries,
would be explicitly instructed about the right that is already theirs. As the cases
discussed above illustrate, many jurors already know of their power to reject unfair
applications of bad laws.
When juries don't know their rights, the results can be tragic. For example, in
Phoenix, Arizona a few years ago, a pair of United States marshals burst into the
home of 72-year-old Bill Span and his 74-year-old wife Virginia. According to
newspaper and magazine reports, when Mr. Span asked to see a search warrant, one
marshal pinned him against the wall, while another searched the home. The marshals
then proceeded to the family's store, where Mrs. Span and two of her adult children
were spending the day. The marshals flashed a picture of a criminal suspect they
were looking for. When Mrs. Span said she did not know the suspect, the marshals
attacked the adult son and daughter from behind. The brother resisted by raising his
hands to ward off the blows, and trying to wiggle out of a chokehold. When the
horrified mother snapped photographs, a marshal grabbed the camera from the
mother's hands, ruined the film, and knocked the
72-year-old mother to the ground, sending her to the hospital, where she nearly
died. The customers present at the store during the attack backed up the Spans'
version of the assault.
Why the attack on this family? Mistaken identity. The elderly couple had a son --
who hasn't lived in Phoenix for 39 years -- who has the same name as an entirely
different person the marshals were seeking to arrest. Rather than being reprimanded,
the marshals were commended by their superiors for acting appropriately.
The victims of the marshals attack were placed on trial. Both marshals had a
reputation with the marshal service for provoking assaults, but the judge refused to
let the jury know that fact. At the trial, the judge (incorrectly) told the jury that the
only legal choice for a person being beaten by a government agent is "to submit
peaceably," and file charges later. The judge also ordered, as is standard in most jury
instructions, "You must apply the law as I give it to you. You must follow the law as
I give it to you whether you agree with it or not." He never informed the jury of its
power to nullify the particular application of law.
The jury determined that the marshals had indeed initiated the attack. Believing the
law forbidding self-defense to be completely unfair, the jury nevertheless obeyed the
judge's misleading instructions, and convicted the victims of assaulting the marshals.
After the trial, five jurors tearfully told the defendants that they knew the marshals
were perpetrating an illegal attack, but the jury thought it had no choice except to
convict, according to the judge's instructions.
Had the judge not misinformed the jury -- had he told the jury that they had the
unreviewable power to bring refuse to convict if they thought a conviction would be
unjust -- the victims of the crime would have been acquitted.
Opponents of the Fully Informed Jury Amendment, warn that juries cannot be trusted
to exercise all of their legal rights. For example, in the South during the 1950s and
1960s, all-white juries would often refuse to find perpetrators of racist violence
guilty. The problem there, however, was not the jury knew its rights, but that the
jury was not truly representative of the community, since Blacks and women were
frequently excluded.
Fortunately, recent Supreme Court decisions have made it nearly impossible for
lawyers to select lily-white or otherwise bigoted juries. Moreover, this is 1990s, not
the 1950s. With the concern most people have about violent crime, there's little
reason to feel that our fellow citizens will refuse to convict a defendant who
deserves prison.
Although the law enforcement establishment predicts anarchy and "blood in the
streets" if juries are informed about their rights, the evidence provides no support for
the fear-mongering. Indiana and Maryland -- where the state Constitutions affirm
jury rights
-- are no more lawless than their sister states. Indeed, up until 1895, most of the
United States got along quite well with fully informed juries, and the crime rate was
far lower than it is today.
The jury's right and duty to vote its conscience is one of the most important checks
in our systems of checks and balances. Accordingly, the Fully Informed Jury
Amendment has drawn support from an amazingly diverse coalition of groups.
Tree-hugging EarthFirsters attend FIJA meetings with timber-cutting Wise Use
advocates. Radical pro-abortion feminists sit next to Eagle Forum anti-feminists.
Interestingly, while anti-nuclear and pacifist groups are also part of the FIJA
coalition, the anti-gun movement is not. Perhaps the anti-gun lobby fears that fully
informed juries would be a significant obstacle to enforcement of repressive gun
control laws. Accordingly, the Fully Informed Jury Amendment is supported by many
pro- Second Amendment groups, including National Rifle Association and the Gun
Owners of America. These groups recognize that the whole Bill of Rights is one
magnificent and interwoven tapestry of freedom. When we protect the rights of
juries, we protect the rights of all other citizens as well, including gun owners.
Sources: Florida gun prosecution: "Neal Knox Report," Shotgun News, Apr.
10, 1990.
George Fletcher quote: George Fletcher, A Crime of Self-Defense: Bernhard Goetz
and the Law on Trial (New York: Free Press, 198 , pp.
154-55.
John Adams: Quoted in 74 Yale Law Journal 173 (1964).
Jury nullification common in self-defense cases: Valerie P. Hans & Neil Vidmar,
Judging the Jury (New York: Plenum, 1986), pp.
151-53.
Arizona marshals: "A Challenge to Marshals' Use of Force," Chicago Tribune, Sept. 8,
1991, p.
24.
New Times (Phoenix weekly newspaper), May 16, 1990; "Juries Possess Great Power;
They Just Aren't Told About It," Phoenix Gazette, May 21, 1991, p. A9 (op-ed).