I have often heard friends and acquaintances complain when they are selected for jury duty. It is easy to understand their gripes – as a result of the obligation, people are often displaced from their jobs and other pursuits, often for long hours and for little compensation.
I find it hard not to empathize with their qualms. After all, it is easy to find disfavor with required government service of any kind. However, serving on a jury remains one of the most effectual ways to preserve someone’s liberty.
What if a jury felt that a defendant was being charged under bizarre or unreasonable circumstances? What if that jury understood that the individual charged acted in good faith, and did not violate anyone else’s health or well-being? What if the state built a perfect case to convict under current law, but the jury decided the law was plainly outlandish or unnecessary?
What if the jury could simply exercise common sense and decide to acquit?
For decades, juries not only practiced this technique to thwart repulsive government law, but many states required their courts to instruct its juries on this power.
At the time of the founding, jury nullification was a widely recognized principle. Even those who favored a relatively high degree of governmental power affirmed its legitimacy.
In the 1794 case of Georgia vs. Brailsford, Chief Justice of the United States Supreme Court John Jay instructed the jury:
“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. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.”1
Jay made it clear: juries have the power not only to decide if the state has proven its case to convict a defendant, but also the power to determine the legitimacy of the law in question and whether it should even apply to the case before them.
Jay was not an outlier when it came to this principle. In Thomas Jefferson’s Notes on Virginia (1782), the same principle was clarified:
“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. 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.”2
Prior to the Civil War, northern juries regularly refused to convict individuals for violations of the 1850 Fugitive Slave Act. Juries stood up against the tendency for runaway slaves and those who assisted them to be held liable to the punishments handed down by the government. In one case, a large crowd broke into a Boston courtroom and rescued a runaway slave. When the government indicted three of those involved, an acquittal and a series of hung juries forced the government to drop the charges.3
Clearly, the people on these juries understood liberty and their civic duty to protect those who would be held captive by an oppressive and unjust federal government.
Even by 1969, the United States Supreme Court conceded the independent power of juries in considering the law in question at the time of a trial:
“We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. 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 or passion, the jury has the power to acquit, and the courts must abide by that decision.”4
If a state passes laws at odds with the tenets of liberty, a jury is often the last shield of defense against the government. A state can build a perfect case, but a jury that finds the law’s aims deplorable can respond accordingly by acquitting those charged. Juries are a check on the arbitrary power of the courts because they are composed of citizens not belonging to the government. While a state can wield immense power, an educated jury can dismantle it.
This type of protection can be used to disrupt any policy the state chooses to prosecute, including a continuance of the drug war, charges made after egregious privacy violations, or laws that authorize unconstitutional power. It is a way to impede the state even it has succeeded in the passage of oppressive law.
Today, most people that find themselves on juries have never heard of this practice, for good reason. Most educational curriculum never mentions the topic, and many law schools do not even approach the subject, and most courts no longer instruct its juries of its potential or legitimacy. It is rare to find people who have even heard of the concept, let alone those that understand its importance in a free society.
At the same time, judges have gradually accepted more power and authority over juries. This has been accomplished through how they instruct the juries, how sentencing discretion is utilized, and how defense counsels are treated. It is not shocking that this idea has fallen out of favor in the modern world, where the power of courts has grown far beyond its original design.
The best advice to give a friend that learns of his upcoming jury duty is this: don’t convict unless someone else is hurt or afflicted. Giving the state a rubber-stamp conviction for its dreadful policy makes one complicit with its objectives. Jurors should stand up for what is right, and teach other jurors to understand this concept when called to do so. Practicing jury nullification is a retroactive way to hinder abominable law from affecting someone’s life. To preserve liberty, these techniques can be used in a way that is even more powerful than donating to political causes, reaching out to legislators, or voting.
- The Albany Law Journal: A Weekly Record of the Law and the Lawyers, Volume VIII, Edited by Isaac Grant Thompson (Albany: Weed, Parsons and Company, 1874), 203. ↩︎
- Thomas Jefferson, Notes on the State of Virginia (London: Burlington-House, 1787), 214. ↩︎
- Steven Barkan, Jury Nullification in Political Trials, Volume 31, Social Problems, in Dictionary of American History, Edited by James Truslow Adams (New York: Scribner’s Sons, 1940), 28-44. ↩︎
- United States v. Moylan, 417 F.2d 1006 (1969). ↩︎
