Jury nullification makes that possible, which is why the government doesn’t want us to know, learn, or use it.
WHAT IS JURY NULLIFICATION?
By Michael Boldin
The Fully Informed Jury Association (FIJA) describes it this way:
“In its strictest sense, jury nullification occurs when a jury returns a Not Guilty verdict even though jurors believe beyond reasonable doubt that the defendant has broken the law. Because the Not Guilty verdict cannot be overturned, and because the jurors cannot be punished for their verdict, the law is said to be nullified in that particular case.”
In short, a jury can decide that despite the facts showing the defendant broke the law, they still render a ‘Not Guilty’ verdict, nullifying the law for that case.
FIJA also points to another situation which qualifies as a form of jury nullification:
“In what can be said to be a milder form of jury nullification, some of the jurors, or even just one in most cases, can hang the jury by maintaining a Not Guilty verdict even though they believe the defendant broke the law. There is no requirement that jurors must come to a unanimous verdict. If the jury cannot unanimously agree on a verdict of either Guilty or Not Guilty, this is known as a hung jury. When further deliberation clearly will be unproductive, the judge will declare a mistrial. The prosecution may or may not retry the case in the future, but the law has at least been nullified in the trial at hand.”
IT’S UP TO THE JURY
The Founders saw this tool as essential. For example, the First Chief Justice, John Jay, put it this way in the case of The State of Georgia v. Brailsford, et al. (1794):
“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.”
In short, even though the general practice would be for the jury to decide the facts of the case, and the courts to do so on the law itself, the jury still has a right to render a judgment on both.
Thomas Jefferson took a similar position over a decade earlier in his Notes on the State of Virginia:
“These magistrates have jurisdiction both criminal and civil. If the question before them be a question of law only, they decide on it themselves: but if it be of fact, or of fact and law combined, it must be referred to a jury. In the latter case, of a combination of law and fact, it is usual for the jurors to decide the fact, and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only.” [emphasis added]
Jefferson then emphasized how essential this discretion is supposed to be in situations that impact “the public liberty,” or to guard against bias in judges:
“And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact.”
HISTORY AND TRADITION
This power was considered so important that it was listed as one of the grievances in the Declaration of Independence:
“For depriving us, in many cases, of the benefits of trial by jury”
As Clay S. Conrad, author of Jury Nullification: The Evolution of a Doctrine, has pointed out, this wasn’t something invented by the Founders and Old Revolutionaries. This was part of their legal tradition for over a century before the War for Independence:
“British courts guaranteed the independence of criminal trial juries in 1670, in a case concerning four jurors who had acquitted William Penn for illegally preaching about his Quaker beliefs. Those jurors were imprisoned for their “not guilty” verdict because they had ignored the trial judge’s instructions to vote for Penn’s conviction. An English appellate court released the jurors from prison, establishing the principle that juries cannot be punished for bringing in the “wrong” verdict. The freedom of American jurors to vote according to conscience can be traced to that landmark precedent.”
Trial by jury was enshrined in the English Bill of Rights of 1689, influencing the Founders. In book 3, Chapter 23 of his widely read Commentaries on the Laws of England, Sir William Blackstone wrote:
“The trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law.”
In the colonies, jury nullification in the 1735 case of printer and journalist John Peter Zenger, who was being prosecuted by Governor William Cosby, the British colonial governor of New York, for satirical publications that were considered seditious libel, became what some referred to as the “germ of American freedom.” Benjamin Franklin published Zenger’s narrative of the trial in 1736, ensuring widespread knowledge of the case that was referred to in the decades to follow.
TRIAL BY THE COUNTRY
Blackstone called trial by jury “trial per pais,” meaning “trial by the country,” distinguishing it from “trial by the government.”
In his must-read Essay on the Trial by Jury (1852), Lysander Spooner explained that this is about the people defending their liberty against the power of government:
“The object of this trial “by the country,” or by the people, in preference to a trial by the government, is to guard against every species of oppression by the government. In order to effect this end, it is indispensable that the people, or “the country,” judge of and determine their own liberties against the government; instead of the government’s judging of and determining its own powers over the people.”
Like Thomas Jefferson and others noted decades earlier, Spooner called a government that can determine the extent of its own powers – is one with unlimited power – the very definition of tyranny:
“Any government, that is its own judge of, and determines authoritatively for the people, what are its own powers over the people, is an absolute government of course. It has all the powers that it chooses to exercise. There is no other – or at least no more accurate – definition of a despotism than this.”
POWER FROM THE PEOPLE
All this reinforces the structure of the entire system – that is, the people are in charge, and government is supposed to be nothing more than their agent. As George Mason put it in the Virginia Declaration of Rights (1776), “all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants and at all times amenable to them.”
Spooner pointed to this principle as well:
“Any people, that judge of, and determine authoritatively for the government, what are their own liberties against the government, of course retain all the liberties they wish to enjoy. And this is freedom.”
In the debates over the ratification of the Constitution, leading federalists pointed to this power from the people as an essential tool to keep the government in check. For example, Theophilus Parsons in the Massachusetts Ratifying Convention:
“The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his own fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainty will pronounce him, if the supposed law he resisted was an act of usurpation.”
THE ANCHOR
A real, or true trial by jury – trial by the country, rather than a trial by the government – means the jury must not only judge the facts of the case itself, but also
- the admissibility and weight of all the evidence presented
- the true exposition of the law
- the justice of the law, and
- the very existence of the law itself.
Putting it all together, it’s easy to understand why Thomas Jefferson, in a 1789 letter to Thomas Paine wrote that he considered the trial by jury as “the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution.”
Michael Boldin
Michael Boldin [send him email] is the founder of the Tenth Amendment Center. He was raised in Milwaukee, WI, and currently resides in Los Angeles, CA. Follow him on twitter – @michaelboldin and Facebook.