Jury Nullification – An Abuse of Power

With the proposed New Hampshire law requiring juries to be notified of their “right” to nullify laws (following that state’s 2012 decision to allow such notifications) the issue of jury nullification is front and center – again.  So, I offer the following blog-sized version of a subchapter in Fixing the Engine of Justice:  Diagnosis and Repair of Our Jury System.

Advocates for nullification want jurors to vote their consciences, even if those feelings run counter to law, and to do so in spite of an oath they take to the contrary.  It’s an issue that is quite old.

John Gay, English poet and dramatist (1685–1732), once said, “The jury has a right to judge both the law as well as the fact in controversy.”[1] You will notice John Gay was not a legal scholar, nor was he American for that matter, but the notion of jurors as judges of the law, the essence of nullification, has found support among those who at least claim to be legal scholars and who are definitely Americans.  Among those who are both is James Joseph Duane, an associate professor at Regent Law School in Virginia Beach, Virginia, and some members of the Fully Informed Jury Association (FIJA).  FIJA supports its position in two works by Duane, Juror’s Handbook, A Citizen’s Guide to Jury Duty and Jury Nullification: The Top Secret Constitutional Right.

Duane writes, “In a Constitutional system of justice, such as ours, there is a judicial body with more power than Congress, the President, or even the Supreme Court. Yes, the trial jury protected under our Constitution has more power than all these government officials. This is because it has the final veto power over all ‘acts of the legislature’ that may come to be called ‘laws.’…That is the power of the jury at work; the power to decide the issues of law under which the defendant is charged, as well as the facts.”[2]

One would think that if a writer would reference the Constitution in support of a position, he would actually cite it. Show us the language in the original document or any of the amendments. He doesn’t, nor can he. It isn’t there, and when you read both of Duane’s pieces, the actual connection between this right and the Constitution is revealed as an illusion.

He also attempts to lay a foundation for his position begins with his assertion that the right started with the Magna Carta, which he says “created the basis for our Constitutional system of justice.”[3] No, it didn’t, and no, it isn’t. The Magna Carta doesn’t touch the issue of jurors’ rights to determine the law, and a full read of it will not remind the reader much of our Constitution – luckily for us.

Then Duane justifies his position by claiming, “At the time the Constitution was written, the definition of the term ‘jury’ referred to a group of citizens empowered to judge both the law and the evidence in the case before it.”[4] I can’t comment on that claim because I don’t have a dictionary printed at the turn of the nineteenth century; however, I did find Noah Webster’s 1828 edition that defines “jury” as “a number of freeholders, selected in a manner prescribed by law, empanneled and sworn to inquire into and try any manner of fact, and to declare the truth on the evidence given them in the case.”[5] Other than Webster’s archaic spelling of “empanneled,” that definition reads as if it were written today, with no mention made of juries also determining the law.

Supporters of nullification cite examples such as the Salem witch trials in colonial America, in which jurors nullified the anti-witch laws by setting defendants free even in the face of overwhelming evidence they had broken the law. Another example of the good that has come from nullification is the history of Northern juries nullifying the runaway slave laws existing prior to the Civil War. Both of these are fine examples of jurors overruling the laws of their times for the sake of justice.  What they do not site are the many examples of all white juries in the south freeing Klan members in lynching cases.  For that matter, they also do not touch the issue of potential “guilty” verdicts by jurors, who would also be exercising their FIJA-given rights, in spite of the evidence, because they believe a law in question is too lenient.

FIJA publications teach prospective jurors how to practice nullification, including how to cope with the conflict between the oath jurors take to follow the law and the act of nullifying that law.  Essentially, they teach how to justify violating their oath, get away with it and feel OK about it.  That advice includes informing jurors that they can’t be punished for their decision, regardless of their oath.  FIJA literature also advises jurors to disguise nullification verdicts by attributing them to reasonable doubt so as to avoid criticism.[6]

According to FIJA, nullification sends a message regarding unjust laws.  In their opinion, sending enough messages will effect changes in those laws, but, as noted above, they teach jurors to disguise the practice.  So, how do the lawmakers get the message that, perhaps, the law needs changing? They don’t.

In a de facto sense, juries have the power to nullify anyway in the form of a general verdict.  They don’t have to explain their decisions, and unlike guilty verdicts, verdicts to acquit are irreversible in America.  The fact that the power exists doesn’t create a legal right to use it.  That, I believe, is the crux of difference in the two schools of thought, but there is another dividing factor.  If we look at this issue as FIJA teaches it, we the people need the power to change bad laws.  Fine, so how do we, and how have we, best done so in the past?  I submit that our best efforts in that regard have come when activists have been willing to pay a price.

Those of us who are old enough to remember the Civil Rights Movement of the fifties and sixties know what I’m talking about.  Protestors broke the law by engaging in illegal demonstrations to protest segregation laws.  That resulted in many thousands of people going to jail for that cause, but it worked.  These demonstrators were willing to go to jail for the cause. It’s a very American thing to do.

Martin Luther King Jr. seems to have agreed with that position in the following quote:

In no sense do I advocate evading or defying the law … That would lead to anarchy. An individual who breaks the law that his conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.[7]

Paying the price for protesting an injustice is usually preceded by more conventional methods within the system, such as voting, voicing your opinion in the press, or participating at a public forum.  If that fails, and assuming the cause is worth it, those efforts can be followed by participating in civil demonstrations or even civil disobedience that carries the risk of incarceration.  The civil rights laws on our books, just to name a few, came about in this fashion, not through jury nullification.

I don’t see the advocates for nullification positioning their cause as a last resort.  Instead, it is offered as a chance to pull the trigger on an issue under a cloak of secrecy and, further, a trigger that can be pulled by a single gunman, not the will of the people.

That lack of consequences and avoidance of responsibility identifies what, for me, is the insidious nature of nullification.  It’s a stealth tactic.  It is subterfuge, and the perpetrator needn’t even have a strong enough commitment to the cause to suffer for it.  Indeed, the cause itself needn’t be important to anyone but that one juror.

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