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 worst 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?
What can be done? In a word, join. Join FIJA today and begin helping us tell all Americans about their powers, rights and responsibilities as trial jurors! Call 1-800-TEL-JURY for hard copy of what you've just read, plus other information, and you'll also receive an invitation to join. We'll also tell you what else needs doing--reinstating jury veto power is only the first of several solutions to a badly broken justice system that FIJA proposes.
When you join, you'll find it's already working! As FIJA activists, people from all across the country, representing all walks of life and political viewpoints, have been re-empowering jurors by providing them the truth about their rights. As in the past, fully informed juries will deliver not only better justice, but will send public opinion on the law to our lawmakers, resulting in more respectable legislation.
Each new membership is vital. The government can't and won't fix itself--it will require grass roots citizen power, focused on a winning strategy, and that's what FIJA is all about. If you want to see a return of "liberty and justice for all" in America, it's your call: again, the number is 1-800-TELL-JURY. Your children will thank you!