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WHY A FULLY INFORMED JURY IS ESSENTIAL FOR LIBERTY
April 8, 2003
"The jury is a fundamental institution of liberty, because it is the only anchor yet imagined by man by which a government can be held to the principles of its constitution. The jury has the right and the authority to acquit if jurors feel justice will be served, or the law itself is unjust in a particular case. Instructions to the jury should reflect this fact." –Utah Republican Party Platform
Trial by a jury is one of the great bulwarks of constitutional protection we enjoy along with, 1) an independent judiciary, with powers to declare bad laws at any level unconstitutional, 2) specific constitutional prohibitions on tyrannical legal practices (double jeopardy, ex-post facto laws, self incrimination, warrantless search and seizure, etc.), and 3) a written Bill of Rights.
All of the foregoing, including the right to a trial by jury, have been seriously eroded in the last 200 years as all three branches of government have openly disregarded the Constitution’s strict guidelines on government authority. Nothing cries out more for correction than dangerous laws passed recently under the guise of the war on drugs, and terrorism. Without minding to amend the Constitution, various laws now allow for warrantless searches, confiscation of property without charging an owner with a crime, criminalizing of the right to bear arms, and the incarceration of parents for resisting medical drugging of their children.
Where is this leading? Despite legislative assurances that these new draconian laws will never be aimed at innocent citizens, the facts prove otherwise. Husbands and wives who defy the state over anti-home schooling laws are sometimes prosecuted under racketeering laws (RICO) designed originally for large syndicates of organized crime. The new PATRIOT Act’s definition of terrorism is so loose and dangerous as to place all critics of government at serious risk of their liberty. Only this year, jumping on the anti-terrorism bandwagon, a group of Oregon legislators attempted to pass laws that would have prosecuted anti-war demonstrators as terrorists. In the heat of the Elizabeth Smart kidnapping heightened punishments are legislated that will also put innocent parents in prison, whose only crime is to “kidnap” their children from improper state custody [California v. Diane Booth], when justice is denied—which is no rare occurrence.
Often only a jury has the power to stop such abuses when judges won’t. The need for an informed jury with the power to acquit has never been greater now that under the guise of Homeland Security, basic constitutional protections against warrantless surveillance, searches, and incarceration without charge, have been eroded.
Is it not sufficient to simply repeat the oft heard call to “go change the law through the legislative process” if you don’t like it? Not at all. Almost all these laws are passed by huge overwhelming majorities after being stampeded into action through fear of the consequences of terrorism, drugs and crime. It is nearly impossible for a tiny minority of aggrieved persons to affect a change in the law when the majority isn’t motivated to listen to their plea. And, how does a small minority reach the public ear when the establishment media is insensitive? It is the judicial system’s job to make sure that injustices do not occur in these specific cases, and the jury system is the ultimate check on whether the law is being properly applied to the situation.
Juries are the final safety valve in the judicial process. Traditionally, from English Common Law through the first century of American constitutional experience, it was commonly known that juries had the power to judge both the law and the facts. Under English Common Law, a London jury refused to convict William Penn for violating a law against preaching an unlawful religion (the Quaker sect). In one of the most famous Colonial cases on freedom of the press, jurors acquitted newspaper editor John Peter Zenger, who was accused of seditious libel for printing truthful criticisms of the governor of New York. The court had the audacity to tell the jury that “truth is no defense.” This is one of the first examples of a jury’s right to directly disregard the instructions of the judge. Judges have never liked jury power and have sought incessantly to curtail it. They were not successful in the first century of the US Constitution, but succeeded in the second.
In 1804, Supreme Court Justice Samuel Chase was impeached for denying a jury’s right to judge law—the only Supreme Court Justice ever to be removed for cause. John Jay, the first US Supreme Court Chief Justice, reaffirmed the common law principle that jurors have a right “to determine the law as well as the fact in controversy.” John Adams agreed when he intoned, “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.”
This principle is often referred to as jury nullification, which is not entirely correct. Juries did not have the power overturn the law, but simply to acquit if they felt the law was being applied improperly. Now, let’s look at the other side of the equation. What about the potential of juries failing to convict when they sympathize with the criminal? Jury nullification was given a dark name when a hand picked, mostly black jury refused to convict O. J. Simpson of murder--mostly out of racial sympathy. In Missouri during the mid-1800’s Mormons were persecuted by local mobs and could not get justice anywhere in the state due to the predominance of judges and juries who were themselves participants in mob actions.
The appropriate way to handle these rare but serious breaches of a jury’s duty to prosecute criminal behavior is to more carefully specify in law the basic criteria for a jury’s right to disregard the law—not to deny it altogether. I would suggest the following:
When a mandatory punishment was deemed excessive in a minor infraction of a law. When there was a lack of intent (where gross negligence and/or drugs or alcohol impairment was not an issue.) When the law itself is deemed unjust or inappropriate to the circumstances. When there was justification for violation of a lesser law to preserve a higher fundamental right (as in using an unregistered or concealed weapon in defense of life.) When the jury views the law as unconstitutional.
Today, trial by jury is barely a shadow of its former self—and offers almost no protection against judicial tyranny. The courts have restricted jury trials to certain criminal offenses, and disallowed jury trials for a number of low monetary crimes. The courts have erected totally extra-constitutional rules allowing lawyers to engage in jury selection procedures, which ensure that only predictable and manipulable jurors will be impaneled.
Of course, the greatest restriction by far is the common practice of judges refusing to alert jurors to their full powers, instead dictating the jury’s limits of action through detailed instructions. Judges warn and threaten jurors about strict compliance with the judge’s view of the law from the moment they begin jury selection to the final jury instructions prior to deliberations.
Judges not only refuse to tell jurors about their option to exercise a case by case veto over unjust or misapplied laws, they almost always dismiss potential jurors who let the Court know they are aware of this power. In 1895, the Supreme Court said that even though jurors have the power to judge both law and fact, a case cannot be appealed or retried, or a verdict reversed on grounds that the judge failed to inform them about it, and/or would not let the attorney(s) tell them about it. After this ruling judges knew they would never be disciplined for suppressing jury rights. This was reaffirmed as recently as 1972 when the DC Court of Appeals (after praising jury nullification as a check upon bad law in slavery issues) confirmed that jurors didn't need to be told about their power to judge the law. Over time this attitude among high judges has grown to establish an outright prohibition against telling jurors of this power, though no court has had the forthrightness to so rule.
As Congress moves to restrict essential liberties in the name of Homeland Security, there never will be a more appropriate time to petition Congress and State Legislators particularly to reestablish in direct legal language the right of juries to judge both the facts of the case and the appropriateness of the law to the specific circumstances. The best way to begin is to review the material on the Fully Informed Jury Association website (www.fija.org). They have some very cogent guidelines for those about to enter jury service and also discuss examples of pending legislation in various states that need our support.
 quoted in Georgia v. Brailsford, 3 Dallas 1, 4, US (1974)
 Julian P. Boyd, The Papers of Thomas Jefferson, (New Jersey: Princeton University Press, 1950), vol. 15, p. 269.; US. v. Watts__US.__117S.Ct.633, 136L.Ed.2d554 (1997)
 Sparf and Hansen v. US, 156 US 51 (1895)
 US v. Dougherty, et.al., 473 F.2d1113, 1130 (1972)
© 2003 Joel M. Skousen - All Rights Reserved
Joel M. Skousen is political scientist by training, and currently editor-in-chief of the World Affairs Brief www.joelskousen.com
"Often only a jury has the power to stop such abuses when judges won’t. The need for an informed jury with the power to acquit has never been greater now that under the guise of Homeland Security..."