JURIES ARE ALLOWED TO JUDGE THE LAW, NOT JUST THE FACTS
In order to guard citizens against the whims of the King, the right to
a trial by jury was established by the Magna Carta in 1215, and it
has become one of the most sacrosanct legal aspects of British and
American societies. We tend to believe that the duty of a jury is
solely to determine whether someone broke the law. In fact, it's not
unusual for judges to instruct juries that they are to judge only the
facts in a case, while the judge will sit in judgment of the law itself.
Juries are the last line of defense against the power abuses of the authorities. They have the right
to judge the law. Even if a defendant committed a crime, a jury can refuse to render a guilty
verdict. Among the main reasons why this might happen, according to attorney Clay S. Conrad:
When the defendant has already suffered enough, when it would be unfair or against the
public interest for the defendant to be convicted, when the jury disagrees with the law
itself, when the prosecution or the arresting authorities have gone "too far" in the singleminded
quest to arrest and convict a particular defendant, when the punishments to be
imposed are excessive or when the jury suspects that the charges have been brought for
political reasons or to make an unfair example of the hapless defendant...
Some of the earliest examples of jury nullification from Britain and the American Colonies were
refusals to convict people who had spoken ill of the government (they were prosecuted under
"seditious libel" laws) or who were practicing forbidden religions, such as Quakerism. Up to the
time of the Civil War, American juries often refused to convict the brave souls who helped
runaway slaves. In the 1800s, jury nullifications saved the hides of union organizers who were
being prosecuted with conspiracy to restrain trade. Juries used their power to free people charged
under the anti-alcohol laws of Prohibition, as well as antiwar protesters during the Vietnam era.
Today, juries sometimes refuse to convict drug users (especially medical marijuana users), tax
protesters, abortion protesters, gun owners, battered spouses, and people who commit "mercy
Judges and prosecutors will often outright lie about the existence of this power, but centuries of
court decisions and other evidence prove that jurors can vote their consciences. When the US Constitution was created, with its Sixth Amendment guarantee of a jury trial, the
most popular law dictionary of the time said that juries "may not only find things of their own
knowledge, but they go according to their consciences." The first edition of Noah Webster's
celebrated dictionary (1828) said that juries "decide both the law and the fact in criminal
Jury nullification is specifically enshrined in the constitutions of Pennsylvania, Indiana, and
Maryland. The state codes of Connecticut and Illinois contain similar provisions.
The second US President, John Adams, wrote: "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." Similarly, Founding Father Alexander Hamilton
declared: "It is essential to the security of personal rights and public liberty, that the jury should
have and exercise the power to judge both of the law and of the criminal intent."
Legendary Supreme Court Chief Justice John Jay once instructed a jury:
It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions
of fact, it is the providence of the jury, on questions of law, it is the providence 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 the right to take upon yourselves to
judge of both, and to determine the law as well as the fact in controversy.
The following year, 1795, Justice James Irdell declared: "[T]hough the jury will generally
respect the sentiment of the court on points of law, they are not bound to deliver a verdict
conformably to them." In 1817, Chief Justice John Marshall said that "the jury in a capital case
were judges, as well of the law as the fact, and were bound to acquit where either was doubtful."
In more recent times, the Fourth Circuit Court of Appeals unanimously held in 1969:
If the jury feels that the law under which the defendant is accused is unjust, or that exigent
circumstances justified the actions of the accused, or for any reason which appeals to their
logic and passion, the jury has the power to acquit, and the courts must abide that decision.
Three years later, the DC Circuit Court of Appeals noted: "The pages of history shine on
instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and
instructions of the judge."
In a 1993 law journal article, federal Judge Jack B. Weinstein wrote: "When juries refuse to
convict on the basis of what they think are unjust laws, they are performing their duties as
Those who try to wish away the power of jury nullification often point to cases in which racist
juries have refused to convict white people charged with racial violence. As attorney Conrad
shows in his book, Jury Nullification: The Evolution of a Doctrine, this has occurred only in very
rare instances. Besides, it's ridiculous to try to stamp out or deny a certain power just because it can be used for bad ends as well as good. What form of power hasn't been misused at least once
in a while?
The Fully Informed Jury Association (FIJA) is the best-known organization seeking to tell all
citizens about their powers as jurors. People have been arrested for simply handing out FIJA
literature in front of courthouses. During jury selections, FIJA members have been excluded
solely on the grounds that they belong to the group.
FIJA also seeks laws that would require judges to tell jurors that they can and should judge the
law, but this has been an uphill battle, to say the least. In a still-standing decision (Sparf and
Hansen v. US, 1895), the Supreme Court ruled that judges don't have to let jurors know their full
powers. In cases where the defense has brought up jury nullification during the proceedings,
judges have sometimes held the defense attorney in contempt. Still, 21 state legislatures have
introduced informed-jury legislation, with three of them passing it through one chamber (ie,
House or Senate).
Quite obviously, the justice system is terrified of this power, which is all the more reason for us
to mow about it.