HISTORY OF JURY VETO POWER

From the Jury Power Information Web Page
For comments please contact Richard Coursey

America's Founders worried that the government they created might someday grow too powerful, and begin to pass laws which would violate the rights of the very people it was intended to protect: ordinary, peaceful, productive folks. But they kept an "ace in the hole", a
trump card they believed citizens could use to hold this new, experimental government in check. That ace was the right to a trial by a jury of one's peers.

How a jury can restrain a government? The key is that juries can say "no" to bad laws and to arbitrary and unjust prosecutions. It's true!

The Founders realized that the temptations of power and corruption would eventually prove to be too much for any of the three branches of our government to resist, let alone check and balance the other branches. They knew that government "of, by and for the people" meant
that the people would every so often have to roll up their sleeves and exert their authority, to act as the final check and balance on the whole system. Since law is the main tool by which a government exerts its control, trusting juries of ordinary citizens to veto the use of bad law was the logical choice.

So they provided for trial by jury--once in the Constitution, and twice more in the Bill of Rights. In those days, it was part of the definition of the word "jury" that its members could judge the law as
well as the evidence, and the judge would often remind them of this power. For example, if jurors found the law to be unjust or misapplied, or that the defendant's rights had been violated in
bringing the him or her to trial, they would acquit for those reasons, despite good evidence.

In addition to veto power, our common law legal traditions also provide that if a jury decides to acquit, its decision is final. A verdict of "not guilty" cannot be overturned, nor can the judge harass
the jurors for voting for acquittal, or punish them for voting their consciences, even after making them swear to follow the law as given by the judge! And jurors may be asked, but cannot be obliged, to explain their verdicts.

These principles were subject to contention for centuries in England and the British Empire as citizen jurors fought to assert their rights against the power interests of the crown.

In 1670, William Penn was arrested in London for preaching a Quaker sermon, which broke a law establishing the Church of England as the only legal church. His jurors, led by Edward Bushell, refused to convict him, despite being held for days without food, water, tobacco or toilet facilities -- and then fined. The most defiant four of them refused to pay the fine and were then put in prison for nine weeks.

The highest court of England, upon releasing them, both acknowledged and established that trial jurors could not be punished for their verdicts. Recognition of our freedoms of religion, peaceable assembly and speech thus all trace to the exercise of jury power, wielded by a jury unintimidated by government judges.

In colonial America, the sedition trial of John Peter Zenger established another landmark case. Zenger, a publisher, was arrested for printing news critical of the Royal Governor of New York Colony and his cronies, accusing them of corruption. His accusations were all true, but the court informed his jury that under the law, "...truth is no defense".

"Philadelphia lawyer" Andrew Hamilton then told the jurors the story of William Penn, and argued that as judges of the merits of the law, they should not in good conscience convict Zenger of violating such a bad law. The jurors agreed. Zenger was acquitted in about fifteen minutes, and his case spawned recognition of our right to a free press.

Cases like these therefore were part of the political heritage of the Founders, which may explain why they so appreciated jury power.

John Adams said it so well in 1771 that the Fully Informed Jury Association (FIJA) put his words on a coffee mug: "It is not only...[the juror's] 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."

First U.S. Supreme Court Chief Justice John Jay, writing in Georgia v. Brailsford, 1794, concluded: "The jury has the right to judge both the law as well as the fact in controversy".

President Thomas Jefferson in 1789 told Thomas Paine: "I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution."

And Noah Webster, who wrote his original 1828 dictionary in order to preserve the integrity of the language of the Constitution, defined "petty jury" as "...consisting usually of twelve men [who]...attend courts to decide both the law and the fact in criminal prosecutions".

A detailed historical analysis of jury veto power, also called jury nullification of law, appeared in the Yale Law Review in 1964. It held that "The right of the jury to decide questions of law was widely
recognized in the colonies. In 1771, John Adams stated unequivocally that a juror should ignore a judge's instruction on the law if it violates fundamental principles: There is much evidence of the general acceptance of this principle in the period immediately after the Constitution was adopted."

However, during the next century, judges began chipping away at this vital and fundamental right of free citizens, thereby transferring citizen power to themselves. The biggest "chip" or usurpation took place in 1895, when in Sparf and Hansen v. U.S., a bitterly split decision by our Supreme Court held that failure of the judge to remind the jurors of their powers was not a basis for mistrial or appeal. That was the green light for trial judges to go mum on the topic, and
they did.

That is why very few lawyers or law professors, only some judges, and practically no school teachers know about jury veto power: it's "not part of the curriculum". Few history books give juries the credit they're due -- for stopping the Salem witch trials, for overturning slavery in state after state before the Civil War, and for ending Prohibition -- all by refusing to convict because they thought the law itself was wrong.

These days, trial by jury often doesn't accomplish all that it should. And the usurpation continues: trial judges now falsely tell jurors that their only job is to decide if the "facts" are sufficient to convict, and that if so, they "should" or "must" convict. Defense attorneys can face contempt of court charges if they urge jurors to acquit if they think the law is unconstitutional or unjust. And
self-defenders are usually stopped and rebuked if they even mention their motives, or why they disagree with the law, to the jury.

Yet to this day, trial jurors retain the right to veto, or "nullify" bad laws, though they are rarely told this by the courts. Prosecutors and judges try to exclude people from serving on juries who admit
knowing they can judge the law, or who have doubts about the justice of the law. This destroys the protections jurors were supposed to be able to invoke on behalf of fellow citizens against unjust prosecutions: how can our right to a trial by an impartial jury be met if those with any qualms about the law are excluded from serving?

The fact is, it cannot. Jury selection has degenerated into a jury-stacking contest between the attorneys and judge involved. And then, if those who survive the selection process bring in a verdict that the community does not like, who gets the blame?

Worse, after enough verdicts have disappointed or angered enough people, the politicians move in for the kill, arguing that the "jury system needs reform". By that they mean stripping even more power from the jury, using juries in fewer and fewer kinds of cases, allowing verdicts to be reached by a super-majority instead of a unanimous vote, replacing ordinary citizens with government-licensed professional jurors, etc.

Beware! All such reforms will lead only to a still more powerful government, and a less powerful citizenry. Justice would come to mean whatever the government says it means, and the people would be left with no peaceful method of controlling government tyranny.

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