Did you know that you qualify for another, much more powerful vote than the one which you cast on election day? This opportunity comes when you are selected for jury duty, a position of honor for over 700 years.
The principle of a Common Law Jury or Trial by the Country was first established on June 15, 1215 at Runnymede, England when King John signed the Magna Carta, or Great Charter of our Liberties. It created the basis for our Constitutional, system of Justice.
JURY POWER in the system of checks and balances:
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".
In fact, the power of jury nullification predates our Constitution. In November of 1734, a printer named John Peter Zenger was arrested for seditious libel against his Majesty's government. At that time, a law of the Colony of New York forbid any publication without prior government approval. Freedom of the press was not enjoyed by the early colonialists! Zenger, however, defied this censorship and published articles strongly critical of New York colonial rule.
When brought to trial in August of 1735, Zenger admitted publishing the offending articles, but argued that the truth of the facts stated justified their publication. The judge instructed the jury that truth is not justification for libel. Rather, truth makes the libel more vicious, for public unrest is more likely to follow true, rather than false claims of bad governance. And since the defendant had admitted to the "fact" of publication, only a question of "law" remained.
Then, as now, the judge said the "issue of law" was for the court to determine, and he instructed the jury to find the defendant guilty. It took only ten minutes for the jury to disregard the judge's instructions on the law and find Zenger NOT GUILTY.
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. In our system of checks and balances, the jury is our final check, the people's last safegard against unjust law and tyranny.
A Jury's Rights, Powers, and Duties:
But does the jury's power to veto bad laws exist under our Constitution?
It certainly does! 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. Then, in the February term of 1794, the Supreme Court conducted a jury trial in the case of the State of Georgia vs. Brailsford (3 Dall 1). The instructions to the jury in the first jury trial before the Supreme Court of the United States illustrate the true power of the jury. Chief Justice John Jay said: "It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision." (emphasis added) "...you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy".
So you see, in an American courtroom there are in a sense twelve judges in attendance, not just one. And they are there with the power to review the "law" as well as the "facts"! Actually, the "judge" is there to conduct the proceedings in an orderly fashion and maintain the safety of all parties involved.
As recently as 1972, the U.S. Court of Appeals for the District of Columbia said that the jury has an " unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge.... (US vs Dougherty, 473 F 2d 1113, 1139 (1972))
Or as this same truth was stated in a earlier decision by the United States Court of Appeals for the District of Maryland:
YOU, as a juror armed with the knowledge of the purpose of a jury trial, and the knowledge of what your Rights, powers, and duties really are, can with your single vote of not guilty nullify or invalidate any law involved in that case. Because a jury's guilty decision must be unanimous, it takes only one vote to effectively nullify a bad "act of the legislature". Your one vote can "hang" a jury; and although it won't be an acquittal, at least the defendant will not be convicted of violating an unjust or unconstitutional law.
The government cannot deprive anyone of "Liberty", without your consent!
If you feel the statute involved in any criminal case being tried before you is unfair, or that it infringes upon the defendant's God-given inalienable or Constitutional rights, you can affirm that the offending statute is really no law at all and that the violation of it is no crime; for no man is bound to obey an unjust command. In other words, if the defendant has disobeyed some man-made criminal statute, and the statute is unjust, the defendant has in substance, committed no crime. Jurors, having ruled then on the justice of the law involved and finding it opposed in whole or in part to their own natural concept of what is basically right, are bound to hold for the acquittal of said defendant.
It is your responsibility to insist that your vote of not guilty be respected by all other members of the jury. For you are not there as a fool, merely to agree with the majority, but as a qualified judge in your right to see that justice is done. Regardless of the pressures or abuse that may be applied to you by any or all members of the jury with whom you may in good conscience disagree, you can await the reading of the verdict secure in the knowledge you have voted your conscience and convictions, not those of someone else.
So you see, as a juror, you are one of a panel of twelve judges with the responsibility of protecting all innocent Americans from unjust laws.
Jurors Must Know Their Rights:
You must know your rights! Because, once selected for jury duty, nobody will inform you of your power to judge both law and fact. In fact, the judge's instructions to the jury may be to the contrary. Another quote from US vs Dougherty (cited earlier):
Look at that quote again. the court ruled jurors have the right to decide the law, but they don't have to be told about it. It may sound hypocritical, but the Dougherty decision conforms to an 1895 Supreme Court decision that held the same thing. In Sparf vs US (156 US 51), the court ruled that although juries have the right to ignore a judge's instructions on the law, they don't have to be made aware of the right to do so.
Is this Supreme Court ruling as unfair as it appears on the surface? It may be, but the logic behind such a decision is plain enough.
In our Constitutional Republic (note I didn't say democracy) the people have granted certain limited powers to government, preserving and retaining their God-given inalienable rights. So, if it is indeed the juror's right to decide the law, then the citizens should know what their rights are. They need not be told by the courts. After all, the Constitution makes us the masters of the public servants. Should a servant have to tell a master what his rights are? Of course not, it's our responsibility to know what our rights are!
The idea that juries are to judge only the "facts" is absurd and contrary to historical fact and law. Are juries present only as mere pawns to rubber stamp tyrannical acts of the government? We The People wrote the supreme law of the land, the Constitution, to "secure the blessings of liberty to ourselves and our posterity." Who better to decide the fairness of the laws, or whether the laws conform to the Constitution?
Our Defense - Jury Power:
Sometime in the future, you may be called upon to sit in judgment of a sincere individual being prosecuted (persecuted?) for trying to exercise his or her Rights, or trying to defend the Constitution. If so, remember that in 1804, Samuel Chase, Supreme Court Justice and signer of the Declaration of Independence said: "The jury has the Right to judge both the law and the facts". And also keep in mind that "either we all hang together, or we most assuredly will all hang separately".
You now understand how the average citizen can help keep in check the power of government and bring to a halt the enforcement of tyrannical laws. Unfortunately, very few people know or understand this power which they as Americans possess to nullify oppressive acts of the legislature.
America, the Constitution and your individual rights are under attack! Will you defend them? READ THE CONSTITUTION, KNOW YOUR RIGHTS!
Remember, if you don't know what your Rights are, you haven't got any!
Fully Informed Jury Association
The LAW & LITIGATION
2 mar 2000