Unless you are very unusual, you groan when you see the notice for jury duty in with your mail. I am told that there are some people who actually look forward to it. But I haven’t met them yet. Perhaps they just don’t know that being a juror is the most powerful position anyone can hold in our country.
The Power of the Juror
In a Constitution based system such as ours in the U.S. the lowly juror has more power than Congress, more power than the Supreme Court, even more power than the President. If they will but use it.
Most jurors are completely unaware of just how much power they have. The juror is the last, and ultimate authority over not just guilt and innocence. The juror is the last and ultimate authority over the law and the courts, government, and the entirety of the citizenry. In 1794 in the first jury trial before the Supreme Court, Chief Justice John Jay gave the jury these instructions; “It is presumed that juries are the best judges of the facts; it is, on the other hand presumed that the courts are the best judges of the law. But still both objects are within your power of decision. You have the right to take it upon yourself to judge both, and to determine the law as well as the facts in controversy.”
Do you understand? The juror is the judge over not just the facts in evidence, but the law being applied as well!
Inside the Courtroom
So if jurors are actually the “judges”, what is going on in the courtroom?
When the State or Federal Government, as duly appointed representatives of the citizenry, believes that one or more of the laws of the land have been violated in or of such severity that it requires the State or Federal government to take something away from the defendant; their wealth, their liberty, or even their life, they must bring the case to court and present it to a jury to decide. The government cannot take anyone’s wealth, liberty, or life, without your consent as a juror.
The attorneys making up the prosecutorial and defense teams are enacting what we call an adversarial system; that is, that the best way for the jurors to determine the facts and judge the quality of the evidence, is to have one side whose sole goal is to convict the defendant, while the others sole goal is to show that either the evidence or the law does not apply to the defendant.
The judge, is there to see to it that everything proceeds in an orderly manner, that both teams of attorneys abide by the rules, and that everyone remains safe.
The Juror’s Duty – Nullification
If you have been selected for jury duty you will go thru a selection process. You may be asked questions by both sets of attorneys, because they get to vote on whether they want you to be a juror on their case. They have a limited number of potential jurors they can “disqualify” and then that’s it.
As a juror, it is your duty to know your constitutional rights regarding being a juror. Our Constitution is what makes us the masters of these public servants. And this is where we come to the crux of being a juror –
A jurors first duty is to protect his fellow man from the abuse of power by government.
Shocking isn’t it? The most powerful right a citizen has, is also the least known by the citizen.
A person, acting in capacity as a juror, can fight tyranny by refusing to convict.
“…to prevent oppression by the Government…protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority.” Duncan v. Louisiana, 391 U.S. 145, 155-56 (1968)
The examples are numerous, such as when jurors in the North refused to convict people who were guilty of breaking the runaway slave laws.
“We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic of passion, the jury has the power to acquit, and the courts must abide by that decision.” US vs Moylan, 417 F 2d 1002, 1006 (1969)
” …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)
At it’s most basic level jury nullification means that the power of the juror is the raw power to free someone regardless of the law, regardless of the facts, for any reason whatsoever, or for no reason, related or unrelated to the case.
Neither the judge, nor the prosecutors will tell you that you have this right. As a matter of fact the judge may “instruct” you to the contrary. But this in no way means that you do not have the right. The right to jury nullification is a constitutional right protected by not one, not two, but three constitutional amendments.
“The fact that there is widespread existence of the jury’s prerogative, and approval of its existence as a necessary counter to case-hardened judges and arbitrary prosecutors, does not establish as an imperative that the jury must be informed by the judge of that power.” US vs Dougherty, 473 F 2d (1972)
It will annoy the attorneys that you understand you have this absolute right. A judge may tell you to the contrary, and even go so far as holding you in contempt. But in so doing he will be violating your constitutional rights and will suffer the penalty for it. In some states there are even laws that within or even near court facilities it is illegal to tell anyone about this right. They will arrest you. It is up you to fight this unconstitutional abuse of power.
What this also means is that if you feel a law is wrong, unjust, unfairly applied, whatever the reason, you can refuse to convict. This is your constitutional right.
Some might try to argue that nullification violates the juror’s oath. It does not. No Constitutional right is capable of violating an oath. The Constitution trumps any such oath, as such oaths are not dictated by the Constitution.
The prime example of nullification, pre-Constitution, is from 1734 in the trial of John Peter Zenger, who was arrested for seditious libel against His Majesty’s government. Zenger published papers that were critical of colonial rule. When brought to trial he admitted to what he published and defended himself by showing how his facts were the truth. The judge instructed the jurors that the truth of the issues had no bearing on the violation of the law. The judge even went so far as to tell the jurors to find Zenger guilty. The jury retired, and it took only ten minutes for them to return and pronounce him not guilty. This is the power of the juror.
It is every citizens duty to know and to understand their constitutional rights. Many many people died so that you could have them. In the scheme of checks and balances that our founding fathers created, the juror, is the last check over the power of a government out of control, if they would only use it.
The juror is the final arbiter over bad laws. For example, if the citizenry of America truly wanted to de-criminalize marijuana, the jurors of the land need only refuse to convict each and every person brought to trial on the charge. And none could gainsay them.
The juror is the last chance, bar force of arms, a citizen has in the normal process of government to prevent tyranny.