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.
On 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.
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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