We The People : We The Jury
The History, Responsibilities, and Powers of the Jury
The History, Responsibilities, and Powers of the Jury
Edward M. Renner
So,… you’re contemplating the possibility of serving on a jury. I’m guessing that like most people you don’t look forward to this responsibility. You may feel that it is an inconvenience and an interruption of your work and daily life. That you have family responsibilities to take care of and the courts make no provisions for this other than your excusal from jury duty. And, that at the rate Jurors are paid, it’s an economic hardship or even a financial catastrophe if you’re a bread winner for your family. Most of these are valid concerns that ought to be addressed by Federal and State legislative action or even a Constitutional amendment. But don’t expect any action by lawmakers. By making jury duty inconvenient, as well as using selective screening methods to “adjust” the composition, educational level, and state of ignorance of a jury, the courts can control who will sit on a jury and how compliant to their will they will be.
In their wisdom, our Founding Fathers foresaw the dangers inherent in a Republic and the possibility of tyranny in giving power to any governmental body; thus they insured that the American People, by way of the jury, would have the last word and ultimate power in preserving freedom and justice in the face of bad or unjust laws, legislative and executive arrogance, or corrupt courts. But don’t harbor any illusions that this right and power is embraced by our elected officials, … it is not. Rather, it is a power that is feared by the government and the courts, and they have consistently tried to keep knowledge of the real powers of a jury from jury members. Even our public schools have failed in their responsibility to maintain an informed and democratically minded citizenry. Further, while the Supreme Court has ruled that every criminal suspect upon arrest must be advised of their Constitutional rights under the Miranda Act, they have also ruled that Juries do not have to be informed of their rights and powers under the Constitution. It ought to make perfect sense that a potential jury member, upon being summoned, would also be informed or issued a handbook of their rights, responsibilities and Constitutional powers. Thus, it is a travesty that the government has, for only what can be considered nefarious motives, chosen not to support one of the most important duties of citizenship; one which represents the very cornerstone of democracy and freedom for the American people. Why? Because for that brief moment in time a citizen serves as a jury member, they have more unquestionable and constitutionally guaranteed power than all levels of government or even the Supreme Court. They have the power to decide not only whether someone is guilty of breaking a “law”, but also whether the law itself is just, fair, or applied as intended. They are essentially representing the People of the United States in defense of their constitutional rights, freedoms, and collective sense of justice. Without the consent of the people by way of the jury, no person may be deprived of their life, liberty, or property; and bad or unfair laws may be nullified (as applied to a specific case) by a jury’s simple, but constitutionally irrevocable verdict of Not-Guilty!
The History of the Jury
In early human history when we lived together in small groups, clans, or tribes, justice was usually administered by the group itself. We can still see the remnants of this kind of justice in tribal communities and small isolated towns throughout the world. In this social structure, everyone has a stake in the welfare of the community and participates in its’ common defense, as well as in regulating behaviors that might jeopardize community peace and order. Even when clan or tribal leaders were nominally in charge of judging individuals for crimes committed against the group, their decisions had to be supported by the group; for leaders without supporters or followers have no power. Thus democratic justice was a fairly natural state in early human communities, and crimes against the group, or individual members of the group, were decided and judged directly or indirectly by the group.
As hunter-gatherer populations transformed to sedentary agrarian societies and communities grew, wealth either in the form of productive land or material goods often accumulated amongst a few enterprising and ambitious individuals, and these individuals learned to parley that wealth into power, influence, and the means to acquire more wealth and power. When the power of the wealthy and those leaders who could control and support a military-type cadre also grew, their power became no longer dependent upon the collective will or even general welfare of the community. Also, as the general wealth/resources of communities grew, non-professionally defended populations often became the target of armed marauders, who at first only pillaged the communities, but later learned to subjugate and/or enslave communities that could be made to support them in a manner safer and more comfortable than their marauding lifestyle. However it came about, power became centralized in a small group of elite who exerted their will over the rest of the community, and democratic control/justice was minimized or even taken away from the people. This rule of the many by the few has had many manifestations and been called by many names throughout human history, but democracy is not one of them.
Even though the people in centrally ruled communities had little say as to their individual rights and were subject to the whims of their rulers, such a system was still central in building the cities, nations, and civilizations of the world; thus often indirectly benefiting the people through directed division of labor, public works, new technologies and knowledge, collective building efforts (often forced labor), and general organization. In this system of governance there were sometimes bad leaders, benevolent leaders, or even great leaders; and populations either suffered or prospered under their various rules. But for good or ill, the people had little say in their governance and were usually subject to the whims of their rulers. And when leaders were overthrown by coups, rebellions, and revolutions, the turnovers often just resulted in the substitution of one ruling class/leader for another, with the same potential for tyranny and abuse as that of previous rulers. Thus consistent justice usually remained out of reach of the people.
However, in England in the year 1215 in the reign of King John I, the landed aristocracy became fed up with his despotic rule, excessive taxes (usually to pay off Richard I‘s debts and pilfering of the treasury), and imprisonments without trial. So at Runymede in 1215, the nobility forced the King to sign the Magna Carta, a document that limited the power of the King, enforced the rule of law, and mandated the right to a trial by jury of ones peers. Unfortunately, peers in 11th Century England usually meant the nobility. Eventually though, over time, this Charter became integrated with English Common and Danelaw (imported by settled Norse invaders), and the peasantry became English citizens by virtue of the rule of law and entitlement to a trial by jury. Similar transformations also took place throughout Europe, most notably in Germany, either by way of enlightened rulers who saw the handwriting on the wall, or by way of revolutions and rebellions, or by simply adapting older jury type systems over time. One factor that contributed to the enfranchising of citizenry was the firearm. Prior to the widespread possession of firearms, peasants stood little chance of defending themselves against hired men-at-arms who had been trained most of their lives with the weapons of war and killing. However, with the advent of the gun, even an untrained boy could take down a professional soldier. No longer could the landed and wealthy aristocracy insure their unquestioned power and control through the hiring and training of armed men, and the goodwill of the people became a factor in whether or not a ruler remained in power.
In the seventeenth century, English Common Law and the institution of trial by jury was imported to the new world by English colonists, and for awhile the colonists enjoyed the freedoms of free Englishmen (or so they thought), with jury nullification now an accepted principle of English law (predating our Constitution). This principle is clearly evident in the trial of John Peter Zenger, a New York Printer who was arrested in 1734 for seditious libel against the King’s government; for printing articles critical of the colonial rule in New York (in defiance of colonial law that forbade publication without approval by the government). When he went to trial in 1735, he admitted his violation of the law, but maintained that the truth of his articles warranted their publication as public service. The judge, however, took exception to this, and informed the jury that publishing the truth was more egregious than publishing false claims of bad governance, as true claims were more likely to cause public unrest than false. He also said that the “issue of law” was for the court to decide, not the jury, and since Zenger had admitted his guilt, the judge directed the jury to find Zenger guilty. After deliberating for ten minutes, the jury came back and found Zenger not guilty, a decision that outraged the judge, but one which was upheld by the colonial court system.
In the latter part of the eighteenth century, King George III and parliament started treating the colonists as second class citizens, and enacting laws, taxes, and other onerous Acts that the colonist had no say in by way of representation in the English Parliament. These violations of the rights of free Englishmen, and the punitive actions of the King for defying him, eventually led to the historic Declaration of Independence and the Revolutionary War. Although the war was actually a rebellion that could have been suppressed by the superior English army and resources, the logistical costs to England of fighting a colonial war across an ocean, coupled with the surprising successes of an army of armed citizenry that was able to occasionally defeat the professional army of King George III, resulted in independence for the colonies.
To consolidate their victory, and for a united front and mutual defense against possible reprisals, the Founding Fathers came together and formed a new country based on a Constitution. It was to be a Republic founded on equality under the law and based on a compact between government and the people that insured personal rights and freedoms (Bill of Rights). In other words, they put the high minded words of the Declaration of Independence into written Constitutional laws applicable to all citizens (but not slaves as yet). Within this new constitution was firmly incorporated the principal of Jury Nullification, the ultimate safeguard against unjust or unfair laws and the possibility of governmental tyranny. And although this principal makes legislators, prosecutors, and judges nervous and often frustrated, this principal has played an important part in protecting freedoms many times during the history of our country.
The Affirmation of Jury Nullification in America
One of the first affirmations of the power of the jury came relatively early in our history, specifically in the first jury trial (of the case of the State of Georgia vs. Brailsford) conducted by the Supreme Court in 1794. In instructions to the jury, Chief Justice John Jay (a founding father) informed them that they had the right and power to not only determine the facts of the case, but to decide whether the law itself was just and should be enforced, not the Court. This power was reaffirmed by John Adams when he said of jurors: “It is not only his 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;” and again in 1804 when Supreme Court Justice Samuel Chase (a signer of the Declaration of Independence) said: “The jury has the Right to judge both the law and the facts”.
Another instance where jury nullification played an important role in defying unjust laws was prior to the Civil War when the Federal Government enacted the Fugitive Slave Act of 1850, making it a federal crime to harbor fugitive slaves or help them escape. However, when many Northern juries, utilizing the power of jury nullification, acquitted defendants, they did much to advance the cause for the abolition of slavery. This jury right also came into play during Prohibition, when many juries refused to convict people accused of drinking or selling liquor, thus advancing the eventual repeal of Prohibition.
Further, in every instance where a high court has interceded in cases where jury nullification has been an issue, they have always upheld this right and power; i.e., In 1969 in the case of US vs. Moylan, the U.S. Court of Appeals for the District of Maryland recognized: “the undisputed power of the Jury to acquit, even if its verdict is contrary to the law… or contrary to the evidence… and the courts must abide by that decision”. In 1972 in the case of US vs. Dougherty, the U.S. Court of Appeals for the District of Columbia said that the jury has an “unreviewable and unreversible power… to acquit in disregard of the instructions on the law given by the trial judge…”. However, this same Court of Appeals also said that the judge in a case does not have to inform the jury of this power. This ruling conformed to the Supreme Court decision of 1895 (Sparf vs. US), whereby a jury’s right to ignore a judge’s instruction on law was affirmed, but also that there was no obligation to inform the jury of the right to do so. Thus it is the responsibility of the people to know their rights and powers before sitting on a jury, and judges will only inform jury members of the specifics of the law in question, and even declare that this is all the jury can do (a lie!). This is (basically) to insure that only guilt or innocence is determined, not the validity or justness of the law itself. Ergo, it is the jury who must insure Justice prevails, not the courts or government.
Other Quotes from Notable Historical Figures and Court Decisions:
The trial of William Penn in 1670 London was a defining precedent in “Jury Nullification” for English Common Law and US Constitutional Law; i.e., the right of a jury to acquit both in the face of the evidence and the law. It was also a basic lynchpin in the laws governing liberty in that the trial established the right of a jury to defy a directed verdict from the court, ignore the letter of the law, and instead, deliver a verdict based wholly upon justice and individual liberty.
Jury Nullification has the effect on nullifying any bad laws, laws passed illegally, unnecessary laws, laws inappropriately applied, or laws which are unjust for any reason. Jury Nullification is about seeking justice, not adhering to the letter of the law.
“I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.” -- Thomas Jefferson
“It is not only his 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.” - John Adams. Adam’s words are fundamentally important in that every member of every jury must know they have an inalienable right to IGNORE Court-directed verdicts, public opinion, and/or the letter of the law (however interpreted by law enforcement agencies), as well as to be allowed to search for the truth (beyond what is presented or allowed in the court) in their deliberations.
For a Republic to exist within the meaning of the Constitution for the United States, it is fundamentally important to remember that: “If a juror accepts as the law that which the judge states, then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen’s safeguard of liberty.”
Q&A Summary: We The Jury
Q: What powers and rights do juries have?
A: The right to determine the facts and decide guilt or innocence; the right to ignore instructions from the trial judge if conscience dictates; and the right to ignore the law, even if the person is guilty of breaking it, and declare the individual not guilty. This
power may be exercised if the jury feels a law is unfair or unjust, either generally or in this particular case; or that the defendant deserves no punishment because of perceived justification for breaking the law, or even for other compassionate reasons.
Q: When a jury declares a person not guilty, can their decision be reverse or overturned? A: No. Although a judge can overturn a guilty verdict in light of new evidence or a perceived bias by the jury, neither he nor anyone in the Judicial System, including the Supreme Court, can overturn a not guilty verdict.
Q: Can a person that a jury has acquitted (by evoking jury nullification) be retried?
A: No. Not even if additional incriminating evidence is discovered. The constitutional prohibition against double jeopardy (5th Amendment) precludes this. However, a hung jury (no acquittal or conviction) which results in a mistrial can be retried.
Q: Can a jury be punished for ignoring a law and finding an obviously guilty person innocent?
A: No, absolutely not. The jury’s not guilty verdict is irrevocable and absolutely legal constitutionally.
Q: Is the power of the jury essentially the power to veto bad or unjust laws?
A: Yes it is. And for the brief time a citizen spends on a jury, they have more Constitutionally guaranteed power than Congress, the President, or the Supreme Court (for that specific case and trial).
Q: Does the entire jury, or at least a majority, have to decide on nullification?
A: No. A single vote of not guilty can accomplish this, as a guilty verdict usually requires a unanimous vote; however, if the majority do not support nullification, a judge can declare a mistrial for a “hung” jury.
Q: Do judges or courts have a duty to inform juries of their rights and powers?
A: No they do not. It is the responsibility of a prospective juror to be knowledgeable of their rights. This is based on the constitutional supposition that citizens are the masters of the public servants, and shouldn’t have to be told of their rights and powers.
Q: Why don’t our schools teach students these rights and powers as part of their education in citizenship?
A: A very good question.
Q: When is jury nullification an appropriate power to invoke?
A: This is a matter of conscience and personal or collective sense of justice. If you believe a person does not deserve incarceration for breaking a law, acquit. If you believe the law in question is tyrannical, unfair, unjust, or applied contrary to its’ intent, acquit. If you believe the probable punishment for a particular crime far exceeds its’ severity or need for incarceration, acquit. In other words, by using your knowledge of the Constitution and your sense of right and wrong, vote as your conscience dictates. You do not need to know the laws to know right from wrong.
Q: How can the average person make other citizens aware of these rights and powers?
A: Inform anyone you know who is a prospective juror of these facts. Get your local schools via the PTA to educate our children of these rights as part of their curriculum. Write to you Congressman to pass appropriate legislation requiring courts to inform juries of these rights or requiring the schools to teach it. Discuss these rights and powers with friends, neighbors, and co-workers when an appropriate discussion is taking place.
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For additional questions as to the powers of the jury or jury nullification, send to emrenner@comcast.net
References
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Article III, Section 2. U.S. Constitution.
The Annals of America. Encyclopedia Britannica, Inc. 1968.
en.wikipedia.org/wiki/Jury
Juror’s Handbook: Citizens Guide to Jury Duty. www.caught.net/juror.htm
What is Jury Nullification? en.wikipedia.org/wiki/Jury_nullification
legal-dictionary.thefreedictionary.com/Jury+nullification
www.thelawinsider.com/.../what-is-jury-nullification
www.friesian.com/nullif.htm
http://www.halexandria.org/dward268.htm/…/ Trial By Jury - Nullification
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