Jury Nullification (Part 2)
Intro To The Constitution (Part 7)
Previous article in this series: Trial-By-Jury & the People’s Power of Nullification
All of this may sound a bit confusing to anyone who has served on a jury. You may think that all that a jury is supposed to do is determine if there is enough evidence to prove that someone broke the law, right? In fact, some of you may have even been explicitly told that by a judge or lawyer. And that is precisely my point: the courts have been corrupted, just like every other branch of government. That is not how a trial-by-jury is supposed to work.
In the Supreme Court case of “State of Georgia v. Brailsford” in 1794, Chief Justice John Jay (The first Chief Justice of the United States Supreme Court), wrote: [64]
“It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. 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, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.”
In other words, in recognition that {lawyers & judges} understand the law better than the average person, when reasonable, respect should be given to the division of roles within the court, and the jury should defer to such legal professionals on questions of law. So, in general, the jury should focus on the facts, and leave the questions of law to the legal professionals. However, this distinction is one of {practicality & wisdom}, rather than a question of supreme authority. Ultimately, “we the people” through our representatives in the jury, possess the ultimate authority over both {[the facts] & [the law]}, and it is fully within the rights of the jury to cast judgement upon the law, by refusing to uphold it and finding the defendant innocent, regardless of whether or not they have broken the given law.
This is called “Jury Nullification”, because such an act by a jury “nullifies” (i.e. voids, or invalidates) the law.
To those who might think that such a power is too dangerous, Thomas Jefferson addressed such fear in a letter to William Charles Jarvis in 1820: [74]
“I know no safe depository of the ultimate powers of the society, but the people themselves: and if we think them not enlightened enough to exercise their controul with a wholsome discretion, the remedy is, not to take it from them, but to inform their discretion by education. this is the true corrective of abuses of constitutional power.”
— Thomas Jefferson
Here’s some more quotations on the subject. In the first case of John Fries before the Grand Jury in 1799, during his instruction to the Grand Jury, Judge Peters said: [65]
“Gentlemen of the Jury–As this case is important both in its principle and consequences, I think it my duty to give my opinion, formed with as much deliberation as the intervals of this lengthy trial would permit, on the most prominent points of law which have been made in this cause … The president’s proclamation should have been pleaded as a pardon, if it was intended to be relied on as such. This not having been done, it is not legally before us … Whether the prisoner is or is not guilty of the treason laid in the indictment, in the manner and form therein set forth, it is your province to determine. It is the duty of the court to declare the law; though both facts and law, which, I fear, are too plain to admit a reasonable doubt, are subjects for your consideration. We must all obey our public duty, whatever may be our private feelings. Mercy is not deposited in our hands. It is entirely within the constitutional authority of another department.”
He explicitly upholds the jury’s right to judge both {[the facts] & [the law]}, but he makes an important distinction, though admitting it to be his opinion: the {role & power} of the jury to judge even the law is held within the nuance of doing so for the purpose of judging whether that law is just, and whether it is being applied in the proper {context & circumstances}. However, this power is not, he believes, intended for the purpose of showing mercy to individuals who have violated just laws in appropriate circumstances. In other words, the jury’s power to nullify the law is intended for overthrowing unjust laws, and for preventing the unreasonable application of good ones; but, if the jury agrees that the given law is indeed {just & valid}, and that the alleged crime was a genuine violation of said law in valid circumstances, then the jury should uphold the law and convict the person, regardless of whether or not the jury wishes to show mercy, and look the other way. The mechanism for mercy, he argues, is the presidential pardon. While I don’t agree with that (since the jury is the conscience of the law, and conscience may often demand mercy, though tempered by wisdom), nonetheless, it is a reasonable position to hold.
In the second case of John Fries in 1800, Justice Chase wrote: [66]
“It is the duty of the court in this case, and in all criminal cases, to state to the jury their opinion of the law arising on the facts; but the jury are to decide, on the present, and in all criminal cases, both the law and the facts, on their consideration of the whole case.”
Here’s a quote from John Adams in 1771, before the American Revolution, which gives some context for the cultural climate in which the US Constitution would eventually be written [67] [68] [76] [80] (the constitution he refers to in this quote is the British constitution, which is known as an “uncodified constitution” [216]):
“There is nothing to distinguish the Government of Great Britain, from that of France, or of Spain, but the Part which the People are by the Constitution appointed to take, in the passing and Execution of Laws. Of the Legislature, the People constitute one essential Branch–And while they hold this Power, unlimited, and exercise it frequently, as they ought, no Law can be made and continue long in Force that is inconvenient, hurtful, or disagreable to the Mass of the society. No Wonder then, that attempts are made, to deprive the Freeholders of America and of the County of Middlesex, of this troublesome Power, so dangerous to Tyrants and so disagreable to all who have Vanity enough to call themselves the better Sort.–In the Administration of Justice too, the People have an important Share. Juries are taken by Lot or by Suffrage from the Mass of the People, and no Man can be condemned of Life, or Limb, or Property or Reputation, without the Concurrence of the Voice of the People. As the Constitution requires, that, the popular Branch of the Legislature, should have an absolute Check so as to put a peremptory Negative upon every Act of the Government, it requires that the common People should have as compleat a Controul, as decisive a Negative, in every Judgment of a Court of Judicature. No Wonder then that the same restless Ambition, of aspiring Minds, which is endeavouring to lessen or destroy the Power of the People in Legislation, should attempt to lessen or destroy it, in the Execution of Lawes. … The british Empire has been much allarmed, of late Years, with Doctrines concerning Juries, their Powers and Duties, which have been said in Printed Papers and Pamphlets to have been delivered from the highest Trybunals of Justice. Whether these Accusations are just or not, it is certain that many Persons are misguided and deluded by them, to such a degree, that we often hear in Conversation Doctrines advanced for Law, which if true, would render Juries a mere Ostentation and Pagentry and the Court absolute Judges of Law and fact. It cannot therefore be an unseasonable Speculation to examine into the real Powers and Duties of Juries, both in Civil and Criminal Cases, and to discover the important Boundary between the Power of the Court and that of the Jury, both in Points of Law and of Fact. … whenever a general Verdict is found, it assuredly determines both the Fact and the Law. It was never yet disputed, or doubted, that a general Verdict, given under the Direction of the Court in Point of Law, was a legal Determination of the Issue. Therefore the Jury have a Power of deciding an Issue upon a general Verdict. And if they have, is it not an Absurdity to suppose that the Law would oblige them to find a Verdict according to the Direction of the Court, against their own Opinion, Judgment and Conscience?”
Note: The final sentence in that quote: “…against their own Opinion, Judgement and Conscience”, is clearly worded as a question (“And if they have, is it not an Absurdity…”), however, in the original source document, it ends with a period. This text comes directly from his diary, and thus was not edited. Some official documents which quote this passage choose to correct the syntax to a question mark (such as the quotation within the Supreme Court case “Sparf and Hansen v. United States 156 U.S. 51 (1895)” [69]). So, I wasn’t sure if I should do the same for ease of understanding, or leave it as a period for technical accuracy. Ultimately, I decided to follow suit with the official sources, and clarify with this Note.
In fact, 5 years later in 1776, three of the “repeated injuries and usurpations” committed by the King, cited as reasons in the Declaration of Independence, were: [27]
“He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”
“For depriving us in many cases, of the benefits of Trial by Jury”
“For transporting us beyond Seas to be tried for pretended offences”
This emphasizes several key things whose influence can be seen later in the way the founders designed the US Constitution & Bill of Rights:
- Judges are human, and can be influenced, and thus it is dangerous to have your entire fate decided by a single one of such individuals who are loyal to the State.
- One of the purposes of trial-by-jury is to avoid this problem. Thus, to deny a trial-by-jury and revert to trial by only a single State-loyal judge is both dangerous, and also a violation of rights, when a trial-by-jury is guaranteed.
- A trial-by-jury is of little benefit if the jury is composed of foreign people who have no shared {sympathies, experience, or perspective} with you, which is why a jury of your peers is so important, and also why Article 3 Section 2 of the Constitution, as well as the 6th Amendment, both require that the jury trial be held within the same state as the alleged crime is claimed to have been committed.
- A sympathetic jury is vital for the trial-by-jury to serve its purpose of protecting the people from {[unjust laws], [unreasonable circumstances], [trumped up charges], & [malicious prosecutors]} (i.e. “pretend offences”).
Theophilus Parsons, one of the drafters of The US Constitution, said in 1788, during the Massachusetts Convention on whether or not to Ratify the Constitution: [70]
“the people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his own fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation.”
Later, in 1806, Parsons became the Chief Justice of the Massachusetts Supreme Court, and in the case of “Coffin v. Coffin” in 1808, he said: [71]
“Both parties had submitted the trial of this issue to a jury. The issue involved both law and fact, and the jury must decide the law and the fact. To enable them to settle the fact, they were to weigh the testimony: that they might truly decide the law, they were entitled to the assistance of the judge. If the judge had declined his aid in a matter of law, yet the jury must have formed their conclusion of law as correctly as they were able.”
Here’s an argument made by Alexander Hamilton in 1804, in the trial “People v. Croswell”. I couldn’t find the original court documents for that case anywhere, but these are known quotes, and are also cited in other official documents, such as the Supreme Court case of “United States v. Edwards”. [82]
“The Chief Justice misdirected the jury, in saying they had no right to judge of the intent and of the law. In criminal cases, the defendant does not spread upon the record the merits of the defence, but consolidates the whole in the plea of not guilty. This plea embraces the whole matter of law and fact involved in the charge, and the jury have an undoubted right to give a general verdict, which decides both the law and the fact. … All the cases agree that the jury have the power to decide the law as well as the fact; and if the law gives them the power, it gives them the right also. Power and right are convertible terms, when the law authorizes the doing of an act which shall be final, and for the doing of which the agent is not responsible. … It is admitted to be the duty of the court to direct the jury as to the law, and it is advisable for the jury in most cases, to receive the law from the court; and in all cases, they ought to pay respectful attention to the opinion of the court. But, it is also their duty to exercise their judgments upon the law, as well as the fact; and if they have a clear conviction that the law is different from what it is stated to be by the court, the jury are bound, in such cases, by the superior obligations of conscience, to follow their own convictions. It is essential to the security of personal rights and public liberty, that the jury should have and exercise the power to judge both of the law and of the criminal intent. … it is not only the province of the jury, in all criminal cases, to judge of the intent with which the act was done, as being parcel of the fact; they are also authorized to judge of the law as connected with the fact.”
In the same case, Justice Kent agreed saying:
“In all these cases, from the nature of the issue, the jury are to try not only the fact, but the crime, and in doing so, they must judge of the intent, in order to determine whether the charge be true, as set forth in the indictment. The law and fact are so involved, that the jury are under an indispensable necessity to decide both, unless they separate them by a special verdict. … in this, as in other criminal cases, it is the duty of the court, ‘according to their discretion, to give their opinion and direction to the jury on the matter in issue;’ and it is the duty of the jury to receive the same with respectful deference and attention, and, unless they choose to find a special verdict, they are then to exercise their own judgments on the matter in issue, with discretion and integrity.”
Yet again, they acknowledge that juries should give respect to the legal expertise of the courts, and take their {opinion & advice} into serious consideration, but yet again explicitly confirm that juries have the right to judge both {law & fact} according to their own conscience.
Here’s another relevant excerpt from that John Adams diary entry, in 1771, that we looked at earlier: [67] [68] [76] [80]
“Now should the Melancholly Case arise, that the judges should give their Opinions to the jury, against one of these fundamental Principles, is a juror obliged to give his Verdict generally according to this Direction, or even to find the fact specially and submit the Law to the Court. Every Man of any feeling or Conscience will answer, no. It is not only his right but his Duty in that Case to find the Verdict according to his own best Understanding, Judgment and Conscience, tho in Direct opposition to the Direction of the Court.”
Richard Henry Lee under the pseudonym “the Federal Farmer”, in letter number 15, in 1788: [79]
“I hold it is the established right of the jury by the common law, and the fundamental laws of this country, to give a general verdict in all cases when they chuse to do it, to decide both as to law and fact, whenever blended together in the issue put to them. Their right to determine as to facts will not be disputed, and their right to give a general verdict has never been disputed, except by a few judges and lawyers, governed by despotic principles. Coke, Hale, Holt, Blackstone, De Lo[l]me, and almost every other legal or political writer, who has written on the subject, has uniformly asserted this essential and important right of the jury. Juries in Great-Britain and America have universally practised accordingly. Even Mansfield, with all his wishes about him, dare not directly avow the contrary. What fully confirms this point is, that there is no instance to be found, where a jury was ever punished for finding a general verdict, when a special one might, with propriety, have been found. The jury trial, especially politically considered, is by far the most important feature in the judicial department in a free country, and the right in question is far the most valuable part, and the last that ought to be yielded, of this trial. Juries are constantly and frequently drawn from the body of the people, and freemen of the country; and by holding the jury’s right to return a general verdict in all cases sacred, we secure to the people at large, their just and rightful controul in the judicial department. If the conduct of judges shall be severe and arbitrary, and tend to subvert the laws, and change the forms of government, the jury may check them, by deciding against their opinions and determinations, in similar cases. It is true, the freemen of a country are not always minutely skilled in the laws, but they have common sense in its purity, which seldom or never errs in making and applying laws to the condition of the people, or in determining judicial causes, when stated to them by the parties. The body of the people, principally, bear the burdens of the community; they of right ought to have a controul in its important concerns, both in making and executing the laws, otherwise they may, in a short time, be ruined. Nor is it merely this controul alone we are to attend to; the jury trial brings with it an open and public discussion of all causes, and excludes secret and arbitrary proceedings. This, and the democratic branch in the legislature, as was formerly observed, are the means by which the people are let into the knowledge of public affairs — are enabled to stand as the guardians of each others rights, and to restrain, by regular and legal measures, those who otherwise might infringe upon them. I am not unsupported in my opinion of the value of the trial by jury; not only British and American writers, but De Lo[l]me, and the most approved foreign writers, hold it to be the most valuable part of the British constitution, and indisputably the best mode of trial ever invented.”
Thomas Jefferson, in a letter to Abbé Arnoux, in 1789. [81] He opens the letter by suggesting a list of “Books on the subject of Juries”, and one of the books he lists, is literally titled “Jurors judges both of law and fact”. Then, he continues:
“The above is a catalogue of all the books I recollect on the subject of juries. With respect to the value of this institution I must make a general observation. We think in America that it is necessary to introduce the people into every department of government as far as they are capable of exercising it; and that this is the only way to ensure a long-continued and honest administration of it’s powers. … They are not qualified to JUDGE questions of law; but they are very capable of judging questions of fact. In the form of JURIES therefore they determine all matters of fact, leaving to the permanent judges to decide the law resulting from those facts. But we all know that permanent judges acquire an Esprit de corps, that being known they are liable to be tempted by bribery, that they are misled by favor, by relationship, by a spirit of party, by a devotion to the Executive or Legislative; that it is better to leave a cause’to the decision of cross and pile [i.e. heads or tails; a coin flip], than to that of a judge biassed to one side; and that the opinion of 12 honest jurymen gives still a better hope of right, than cross and pile [heads or tails] does. It is left therefore to the juries, if they think the permanent judges are under any biass whatever in any cause, to take upon themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges, and by the exercise of this power they have been the firmest bulwarks of English liberty. Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative. The execution of the laws is more important than the making [of] them. However it is best to have the people in all the three departments where that is possible.”
Again, he recognizes that respect should be given to the legal expertise of the professionals of the courts, and also acknowledges the potential for abuse, but nevertheless asserts that not only is this right worth the risk, and capable of being wielded wisely, but that its existence is a vital counter balance to the corruption of the courts. Also, to clarify his remark on only using this power for corrupt judges, you might think that this contradicts my earlier {claims & quotes} which state that it should also be used to counteract unjust laws. Well, it should be clear that even in that quote, Jefferson himself explicitly states that he agrees that this power should be used that way, when he suggests the book named “Jurors judges both of law and fact”, and when he says, “It is left therefore to the juries, … to take upon themselves to judge the law as well as the fact.” So, then why did he make that statement about juries only using this power under the circumstance of corrupt judges? This has to do with a philosophical perspective: judges are supposed to be the first line of defense against corrupt prosecution. Well, prosecutors are supposed to protect against unjust laws by not prosecuting them in the first place, but if they do, then it is the judge who is supposed to intervene. So, if a prosecutor brings an {absurd or corrupt} case against a citizen, the Judge is supposed to throw it out of court. So, if such an {absurd or corrupt} case makes it to a jury, then it means that the judge has approved the case to proceed, and thus, has neglected this duty, and therefore constitutes what Jefferson calls a “biased” judge. He’s talking about the same thing, just in a more indirect way, given an additional understanding of how the courts are supposed to work.
You can also see this in another of Jefferson’s letters, that he wrote to Thomas Paine, in 1789, discussing the French Revolution, in which he expressed his concern that those designing the new French government may not establish it with the protection of trial-by-jury: [77]
“Another apprehension is that a majority cannot be induced to adopt the trial by jury; and I consider that as the only anchor, ever yet imagined by man, by which a government can be held to the principles of it’s constitution.”
Obviously, holding a government to its constitution is a bigger task than just overcoming corrupt judges; it involves overcoming the laws themselves too.
There are many more, but I feel like I’m beating a dead horse at this point. If you don’t believe me by now, I doubt more {quotes & court-rulings} will convince you.
Next article in this series: Unconstitutional Laws Have No Authority
Citations
This entire Constitution series was written as a single big document over the course of several years; so, all the citations are mixed up together. When I went back to break it up into pieces, I wasn’t confident that I could redistribute all the citations & their reference numbers without screwing something up. So, I decided to leave all the citations together, and post them as the final article in the series.
