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Jury Nullification: Why It Is Important – Shari Dovale

It is vital that the citizens learn and understand all of their rights.

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Jury Nullification – Why It Is So Important

On its website, the Fully Informed Jury Association — the country’s leading advocates of jury nullification — sums up the reason jury nullification is a good idea and one supported by constitutional principles of freedom from tyranny:

The primary function of the Independent juror is not, as many think, to dispense punishment to fellow citizens accused of breaking various laws, but rather to protect fellow citizens from tyrannical abuses of power by the government.

Jury nullification occurs when a jury returns a verdict of “Not Guilty” despite its belief that the defendant is guilty of the violation for which they have been charged. The jury in effect nullifies a law that it believes is wrongly applied to the defendant.

Is it legal? Yes, juries have the right to nullify, if they believe the law is being misapplied in that particular case. When a jury pronounces “not guilty’, even in cases of nullification, the ‘Double Jeopardy’ rules are attached and the defendant cannot be tried again.

In his 1998 book “Jury Nullification: The Evolution of a Doctrine,” Clay S. Conrad defines “jury nullification” this way: “Jurors in criminal trials have the right to refuse to convict if they believe that a conviction would be in some way unjust.”

In 1790, Pennsylvania Supreme Court Justice James Wilson said, “a difference in sentiment takes place between the judges and jury, with regard to a point of law,…The jury must do their duty, and their whole duty; They must decide the law as well as the fact.”

In 1879, the Pennsylvania Supreme Court held that “the power of the jury to be judge of the law in criminal cases is one of the most valuable securities guaranteed by the Bill of Rights.”

In 1941, Harlan F. Stone, Chief Justice of the U. S. Supreme Court, declared: “The law itself is on trial quite as much as the cause which is to be decided.”
Is jury nullification the right thing to do? There are arguments on both sides of this issue.

Supporters of jury nullification say that nullification is not the only means of checking the government, however, it is the best means. In some cases jury nullification may be the only way for the public to express opposition to an unjust law, or against the unfair application of well-intended laws.

jury nullificationOn the other hand, there are Judges that believe nullification will lead to jury anarchy. A rogue jury can ignore laws in favor of their own sympathies or political agendas. They site Jim Crow cases in which all-white juries in the southern states refused to convict whites of crimes against blacks, as some examples.

In 1895, the Supreme Court ruled that judges were not required to tell jurors about jury nullification. The ruling didn’t say that jurors didn’t have the power to nullify. Nor did it say that judges couldn’t tell the jury about nullification; it simply said that they didn’t have to.

However, this decision has led to the common practice by U.S. judges of penalizing criminal defense lawyers who try to present a nullification argument in front of the jury.

Judges routinely instruct jurors that they are not to determine the justness of the law in question, only whether the defendant is guilty of breaking it. But, this is simply not true.

Opponents commonly state that it is not the role of the jury to disregard the law. Instead, they should work to change the law. Jury nullification critics tend to misrepresent their case by claiming that jury nullification “overrides the democratically expressed will of the citizenry.”

Consequently, jury nullification is seen as a de facto power of juries.

Jury nullification does not repeal bad laws, rather it allows juries to show mercy for defendants if they believe the law is wrong or is simply being misapplied.

One of the most important cases of jury nullification was that of the 1735 trial of John Peter Zenger, a newspaper editor charged with Seditious libel. As the law was written, Zenger was indeed guilty, however, the jury found that the printer’s writings were truthful, therefore a defense to libel. This standard continues today.

On July 21, 1865, Wild Bill Hickok and the cowboy Davis Tut had a one-on-one pistol quick-draw duel in the town square of Springfield, Missouri. Judge Sempronius Boyd first instructed the jury that conviction was their only option under the law, but later instructed them that they could apply the unwritten law of a fair fight and acquit, whereupon Hickok was acquitted.scales of justice

In 1920, The Constitution was amended to prohibit the sale of alcohol because a majority who did not drink wished to impose their morals on the minority of citizens who did. Juries however nullified alcohol control laws about 60 percent of the time.

The fact that most juries would not convict on alcohol control laws made the use of alcohol widespread throughout Prohibition. Ultimately jury nullification led to the adoption of the 21st amendment repealing Prohibition.
If juries had obeyed the judge’s instructions that “the law is the law,” alcohol might still be illegal today.

However you stand on the issue, it is vital that the citizens learn and understand all of their rights. This includes the Constitutional protections of jury nullification.

Not only is this your right as a juror, some would say it’s your obligation.


by Shari Dovale


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3 Comments on Jury Nullification: Why It Is Important – Shari Dovale

  1. My opinion, and although I’m not familiar with this instant case and or the origin of the charges, I believe by the judge’s statements, not only is this a denial of due process, this is not an Article III court, but appears to be an Article I administrative hearing, whereby, jurisdiction may be non-existent and should be challenged immediately, because the parties bringing the action may not have any standing to do so. No standing, no case. This may only be a common law action if there was an actual victim of a real crime.

    Based on Federal Legislative Jurisdiction, and if this is a “district court“, it is a territorial court and neither the court nor the federal agent’s authority extends beyond boundaries of the US District of Columbia, the territories, and or insular possessions of the same. If any crime was committed in one of the 50 several states and not Federally ceded land, there is zero nexus.

    I find no section of the Constitution for (not of) the United States, that authorizes any control of ownership of private state lands, It would appear that there is absolutely zero jurisdiction and this is a farce and a sham and this man must have given his permission to be subject to this make believe action.

    Jury Nullification : Juries have the right to nullify! Our Republican form of government (We are not a democracy) depends on jury nullification to void tyrannical abuses like these miscreants and especially this judge are perpetrating.

    If anyone has a difference of opinion, please only respond with coherent, on point facts and nothing personal. I am always interested in learning why I may not be correct.

  2. I served on a jury once. As stated above, the judge clearly and definitely advised the jury that they were not to “interpret” the law, but only to convict or not. After the (mis)trial the judge said that if anybody wanted to question him about the trial, to see him in his chambers. I went and asked him if the jury nullification principle was Constitutional or not. He said nothing, but looked at me and got up and removed a heavy volume from his library. It had two plastic clips to indicate pages. He opened the book and showed me the first of two short passages. He said, “If I don’t recite one of these two jury admonitions, the case will be overturned automatically on appeal.” I thanked him and left. Draw your own conclusions. One hopeful one of mine is that he has the passages marked because people keep asking him about this.

  3. But it actually goes beyond that.

    Hamilton, Federalist 33: “But it will not follow from this doctrine [that laws passed by Congress are the Supreme law of the land] that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.”

    The US Constitution and all state Constitution’s make it clear who is delegated the authority create legislation that is binding on the people, that follows the contract they serve under.

    For state governmental positions they first and most important contract they are under is the US Constitution to which they are Oath sworn to it being the supreme LAW of this nation; while second oath (or combined Oath) is to the state Constitution in which they serve.

    The US Constitution makes it clear that all legislation that is binding on the American people MUST come from the Senate and the House of Representatives (“… shall consist of Senate and House of Representatives”, not from their assistants who also serve within the legislative branch but NOT are elected to the Senate or House, nor from the multitude of agencies within that branch or within the other branches; nor can it come from anyone serving in ANY position in any of the other two branches no mater what that position is. If the legislation does not come directly created from those serving within the Senate and the House of Representatives it is then *”Color of Law”, pretend law.

    Most, if not all, state Constitutions require the same as the US Constitution.

    But the other requirement is that all legislation that is binding on the American people MUST be in Pursuance thereof the US Constitution to be lawful.

    So if the people serving as the jury were not that, as John Jay, first Chief Justice of the United States said: “No power on earth has a right to take our property from us without our consent.”

    They might not realize they are being asked to judge a pretend law. Or that no one who serves within our governments have any lawful authority over what we say – they cannot require polita speech.

    Justice William O. Douglas, Terminiello v. City of Chicago (1949): “The vitality of civil and political institutions in our society depends on free discussion… It is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.”

    Justice William Brennan, Texas v. Johnson (1989): “If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.”

    Thomas Jefferson: “The opinions of men are not the object of civil government, nor under its jurisdiction.”

    Nor if they do not recognize that the people fished, hunted, defended themselves by which ever weapon they could afford, used water for various things, traveled by the most advance method they could, gardened where ever on their property they wanted, etc they might punish someone as guilty for fishing without a license, or driving without a license, or hunting without a license not realizing that all laws regulating those things are color of law, as those are all natural rights, protected by the Constitution.

    If those serving as the jury do not understand immigration here in the USA, then they can be told anything ans will follow what is said though it be wrong.

    If the jury does not understand that, as Benjamin Franklin said: “In free governments the rulers are the servants, and the people their superiors and sovereigns. For the former, therefore, to return among the latter was not to degrade but to promote them”, then they will follow the will of tyrants.

    If the jury does not understand, as Thomas Jefferson put it, that: “Our legislators are not sufficiently apprized of the rightful limits of their power; that their true office is to declare and enforce only our natural rights and duties, and to take none of them from us.”

    “If the State converts a right (liberty) into a privilege, the citizen can ignore the license and fee and engage in the right (liberty) with impunity.” (Shuttlesworth v. City of Birmingham, Alabama, 373 U.S. 262)

    *Color of law. The appearance or semblance, without the substance, of legal right. Misuse of power, possessed by virtue of state law and made possible only because wrongdoer is clothed with authority of state, is action taken under “color of law.” Black’s Law Dictionary, Fifth Edition, page 241.

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