Jury nullification

By Charles A. Morse
web posted March 12, 2001

About a year ago, I was called upon by the county of Norfolk in Massachusetts to serve on a jury. I reported for jury duty at the District Court in Quincy, Mass. Before the selection process, in which I was not picked, I, along with my fellow potential jurists, was shown a film that was supposed to inform me of my responsibilities as a jurist. This film was misleading to say the least.

JuryThrough vagaries and sophistic sleight of hand, the film, which involved instructions from a local judge, prosecutor, and lawyer, left the impression, without a direct statement, that the juror was subordinate to the judge. This impression is false and a misrepresentation of the meaning and purpose of our jury system. The juror, in a criminal case, is sworn to render a verdict of guilty or not guilty and no judge or lawyer has a right to interfere in any way. It is also a little known fact that the juror is empowered to judge the legality and constitutionality of the law upon which the case is based.

The responsibility of a juror can best be summed up in a statement by John Jay, the first Chief Justice of the U.S. Supreme Court. He stated, in 1789, that "The jury has a right to judge both the law as well as the fact in controversy." This means that a juror judges both the merits of the case and the law upon which the case is based. A juror, by voting not guilty, can literally void a law. The misconception is that any law passed by a legislature constitutes the law of the land. Theoretically, a single juror can nullify a law concerning gun control, drug regulation, hate speech, or other legislation.

The sitting juror, in judging a controversy, is also empanelled to examine the law upon which the controversy is based. In this regard, he holds the power to undo a law enacted by Congress, the President, or the Judiciary. Harlan Stone, 12th Chief Justice of the Supreme Court, in 1941 stated "The law itself is on trial quite as much as the cause which is to be decided." In addition, Oliver Wendell Holmes, U.S.Supreme Court Justice, in 1902 stated "The jury has the power to bring a verdict in the teeth of both law and fact."

The Minneapolis Star and Tribune, in an article published Nov. 30, 1984, discusses the history of the jury system. The article says "At the time of the adoption of the Constitution, the jury's role as defense against political oppression was unquestioned in American jurisprudence." In the early years, American citizens understood that in the course of enforcing a law, the government would have to get permission from a panel of common citizens, who, when empanelled as a jury, make up a sort of peoples Congress. This was seen as an essential part of the system of checks and balances. The government was "checked" by the jury from enacting oppressive laws.

This continued until the Fugitive Slave Act of 1850 which required juries in free states to render judgments that would result in escaped slaves being forcibly returned to slave owners. Juries in the North were beginning to refuse to convict in these cases on the grounds that this law was an interference by the Federal Government in states rights and that it was unconstitutional. Judges responded with a process of eroding the institution of the free jury over time.

Today, according to the Minneapolis Star article, juries are not informed of their right to return a not guilty verdict regardless of the facts. The article goes on to state that "As originally conceived, juries were to be a kind of safety valve, a way to soften the bureaucratic rigidity of the judicial system by introducing the common sense of the community. If they are to function effectively as the 'conscience of the community' jurors must be told that they have the power and the right to say no to a prosecution in order to achieve a greater good."

Citizens called to jury duty should understand the sacred trust placed in them. They should be made aware of the nature of their office and they should exercise that responsibility as it was meant to be exercised which was in the service of freedom. They should be apprised of the full extent of their responsibility to do justice not only in the specific case at hand, but for the community, and the nation as a whole.

Chuck Morse is the author of Thunder out of Boston which you can buy at Amazon.com.

Buy Clay S. Conrad's Jury Nullification: The Evolution of a Doctrine from Amazon.com for $22.50

Other related articles: (open in a new window)

Current Issue

Archive Main | 2001

E-mail ESR




1996-2023, Enter Stage Right and/or its creators. All rights reserved.