Jury Nullification

Jury Nullification

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Jury Nullification

Jury nullification means that a jury finds a defendant innocent because the law itself is unjust, or is unjust in a particular application, and so should not be applied. So really what this means is that no mater what the law says the jury will pretty much have the right to choose weather the person is going to be guilty or innocent and that is kind of ok in some cases but then again its not in others so we should not expect our juries to judge our laws only the case that person is being tried in and they should only judge that person on all of the facts given.

Amendment VI

This is the sixth amendment and this tells you about what juries can do in cases of law. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.” What all of this means is that everyone that gets convicted of a crime gets all of the same benefits weather its a misdemeanor, felony, or capital crime. Everyone get the rights to a speedy trial and an impartial jury.

Some of the people in the world always ask themselves this question when in the court room “ WHY DID OUR FOUNDING FATHERS EXPECT CITIZEN JURIES TO JUDGE OUR LAWS AS WELL AS THE GUILT OF THE INDIVIDUAL ?” Well the answer is really simple its Because: "If a juror accepts as the law that which the judge states then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen's safeguard of liberty." (1788) (2 Elliots Debates, 94, Bancroft, History of the Constitution, 267) "Jury nullification of law", as it is sometimes called, is a traditional American right defended by the Founding Fathers. Those Patriots intended the jury serve as one of the tests a law must pass before it assumes enough popular authority to be enforced. Thus the Constitution provides five separate tribunals with veto power -- representatives, senate, executive, judges and jury -- that each enactment of law must pass before it gains the authority to punish those who choose to violate it.

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Thomas Jefferson said, "I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution." The power of the jury to judge the justice of the law and to hold laws invalid by a finding of "not guilty" for any law a juror felt was unjust or oppressive dates back to the Magna Carta, in 1215. At the time King John could pass any laws any time he pleased. Judges and executive officers, appointed and removed at his whim, were no more than servants of the king. The oppression became so great that the nation rose against the ruler and the barons of England compelled their king to pledge that no freeman would be punished for a violation of any laws without the consent of his peers. King John violently protested when the Magna Carta was shown to him, "and with a solemn oath protested, that he would never grant such liberties as would make himself a slave." Afterwards, fearing seizure of his castle and the loss of his throne, he granted the Magna Carta to the people, placing the liberties of the people in their own safekeeping. (Echard's History of England, p. 1067.) The Magna Carta was a gift reluctantly bestowed upon his subjects by the Its sole means of enforcement, the jury, often met with hostility from the Crown. By 1664 English juries were routinely fined for acquitting a defendant. Such was the case in the 1670 political trial of William Penn for preaching Quakerism to an unlawful assembly. Four of the twelve jurors voted to acquit and continued to acquit even after being imprisoned and starved for four days. The jurors were fined and imprisoned until they paid the fines. One juror, Edward Bushell, refused to pay the fine and brought his case before the Court of Common Pleas. Chief Justice Vaughan held that jurors could not be punished for their verdicts. Bushell's Case (1670) was one of the most important developments in the common law history of the jury. Jurors exercised their power of nullification in 18th century England in trials of defendants charged with sedition and in mitigating death penalty cases. In the American Colonies jurors refused to enforce forfeitures under the English Navigation Acts. The Colonial jurors' veto power prompted England to extend the jurisdiction of the non-jury admiralty courts in America beyond their ancient limits of sea-going vessels. Depriving "the defendant of the right to be tried by a jury which was almost certain not to convict him [became] ... the most effective, and therefore most disliked" of all the methods used to enforce the acts of trade. (Holdsworth, A History of English Law (1938) Xl, 110) John Hancock, "the wealthy Massachusetts patriot and smuggler who as President of the Continental Congress affixed the familiar bold signature which adorns the parchment Declaration of Independence" (United States Court of Appeals, 1980, 618 F.2d 453), was prosecuted through this admiralty jurisdiction in 1768 for a fine of 9,000 pounds -- triple the value of the goods aboard his sloop "Liberty" which had been previously forfeited. John Adams eloquently argued the case, chastising Parliament for depriving Americans of their right to trial by jury. Adams later said of the juror, "it is not only his 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." (Yale Law Journal, 1964:173.) Earlier in America jury nullification had decided the celebrated seditious libel trial of John Peter Zenger (Zenger's Case, 1735). His newspaper had criticized the royal governor of New York. The law made it a crime to publish any statement, true or false, criticizing public officials, laws or government. The jury was only to decide if the material in question had been published; the judge was to decide if the material was in violation of the statute. The defense asked the jury to make use of their own consciences and although the judge ruled that the truth was no defense, the jury acquitted Zenger. The jury's nullification in this case is praised in history textbooks as a hallmark of freedom of the press in the United States. At the time of the American revolution, the jury was considered the judge of both law and fact. In a case involving the civil forfeiture of private property by the state of Georgia, first Supreme Court Chief Justice John Jay, instructed jurors that the jury has "a right ... to determine the law as well as the fact in controversy." (Georgia vs. Brailsford, 1794:4.) Until the middle of the 1800s federal and state judges often instructed juries they had the right to disregard the court's view of the law. (Barkan, Steven, Jury Nullification in Political Trials, citing 52 Harvard Law Review, 582-616) Then northern jurors refused to convict abolitionists who had violated the 1850 Fugitive Slave Law. In response judges began questioning jurors to find out if they were prejudiced against the government, dismissing any who were. In 1852 Lysander Spooner, a Massachusetts lawyer and champion of individual liberties, complained, "that courts have repeatedly questioned jurors to ascertain whether they were prejudiced against the government ... [The reason] was, that 'the Fugitive Slave Law, so called', was so obnoxious to a large portion of the people, as to render a conviction under it hopeless, if the jurors were taken indiscriminately from among the people." Modern treatments of abolitionism praise these jury nullification verdicts for helping the anti-slavery cause -- rather than condemn them for undermining the rule of law and the uniformity of justice. In 1895, the Supreme Court, under pressure from large corporations, ruled in a bitter split decision that courts no longer had to inform juries they could veto an unjust law. The giant corporations had lost numerous trials pressed against labor leaders trying to organize unions. Striking was against the law at that time. "Juries also ruled against corporations in damage suits and other cases, prompting influential members of the American Bar Association to fear that jurors were becoming too hostile to their clients and too sympathetic to the poor. As the American Law Review wrote in 1892, jurors had 'developed agrarian tendencies of an alarming character'." (Barkan, 1983, emphasis added.) Despite the courts' refusal to inform jurors of their historical veto power, jury nullification in liquor law trials was a major contributing factor in ending alcohol prohibition. (Today in Kentucky jurors often refuse to convict under the marijuana prohibition laws.) Fewer incidences of jury veto actions occurred as time increased after the courts began concealing jurors' rights from American citizens and falsely instructing them that they may consider only the facts as admitted by the court. Researchers in 1966 found that jury nullification occurred only 8.8 percent of the time between 1954 and 1958, and suggested that "one reason why the jury exercises its very real power [to nullify] so sparingly is because it is officially told it has none." (California's charge to the jury in criminal cases is typical: "It becomes my duty as judge to instruct you concerning the law applicable to this case, and it is your duty as jurors to follow the law as I shall state it to you ... You are to be governed solely by the evidence introduced in this trial and the law as stated to you by me.") Today no officer of the court is allowed to tell the jury of their veto power. Counsels for Vietnam war protest defendants tried to introduce moral and political arguments on the war to gain jury sympathy. Most often the jury was given instructions such as "You must apply the law that I lay down." (Conspiracy trial of Benjamin Spock et al., 1969.) Jurors receiving such instructions usually convicted while feeling the pang of conscience expressed by the typical responses from Spock trial jurors: "I had great difficulty sleeping that night ... I detest the Vietnam war ... But it was so clearly put by the judge." And "I'm convinced the Vietnam war is no good. But we've got a Constitution to uphold ... Technically speaking, they were guilty according to the judge's charge." But in the few anti-Vietnam war trials where juries were allowed to hear of their power they acquitted. Jury acquittals in the colonial, abolitionist and post-Civil War eras helped advance political activist causes and restrained government efforts at social control. Steven Barkan suggests that the refusal of judges during the Vietnam war to inform juries of their power to disregard the law frustrated the anti-war goals. As Lysander Spooner pointed out regarding the questioning of jurors to eliminate those who would bring in a verdict according to conscience (a practice effectively accomplished today through the jurors' oaths) "The only principal upon which these questions are asked, is this -- that no man shall be allowed to serve as juror unless he be ready to enforce any enactment of the government, however cruel or tyrannical it may be.... A jury like that is palpably nothing but a mere tool of oppression in the hands of the government." Authoritarians may argue that the Constitution without jury veto power provides the necessary protection of liberties. But legislatures will always confirm the constitutionality of their own acts. And the oaths sworn to uphold the Constitution by judges and public servants have historically been only as good as the power to enforce such oaths. Nor are free elections adequate to prevent tyranny without jury veto power, because elections come only periodically and give no guarantee of repealing the damage done. Additionally, the second body of legislators are likely to be as bad as the first since they are exposed to the same temptations and use the same tactics to gain office. Further, the jury's veto power protects minorities from "the body of the people, operating by the majority against the minority." (James Madison, June 8, 1789.) Twelve men taken randomly from the population will represent both friends and opponents of the party in power. With fully informed juries the government can exercise no powers over the people without the consent of the people. Trial by jury is trial by the people. When juries are not allowed to judge law it becomes trial by the government "In short, if the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of government; for there are no oppressions which the government may not authorize by law." (Spooner, 1852) (Excerpted from "Jury Power" by L.& J. Osburn)


What all of the facts above go out and say would be that people would of needed the jury nullification even back in the old days before it was brought about. The facts go to prove that no man that is on a jury should have to determine the law and the person who is on trial too.


“Men do not make laws. They do but discover them. Laws must be justified by something more than the will of the majority. They must rest on the eternal foundation of righteousness. That state is most fortunate in its form of government which has the aptest instruments for the discovery of law.”

Calvin Coolidge, to the Massachusetts State Senate,
January 7, 1914


This was written from this man so that he would speak his own opinion and in America that can happen because we are a free country and this man was right and yet wrong. Man dose make the laws but yet they only make them after discovering that what someone did or if something happened they think of something that they can help fix it so that it will not happen again and if it dose happen again then they will have a punishment for that thing.




Does jury nullification contribute to, rather than mitigate, such judicial misbehavior? No, because it is part of the system of checks and balances itself -- a check against the bias of judges and the irrationality and corruption that creeps steadily into the law, as irresponsible legislators and judges think about things other than justice. Jury nullification is not a violation of the rule of law because it is part of the rule of law. It represents a basic misconception of the principle of the "rule of law" itself to say that it means that everyone absolutely must obey the law until the law can be changed by the appropriate processes. Indeed, that conception of the rule of law would forbid civil disobedience, which was justified by Martin Luther King, quoting St. Augustine, that, "An unjust law is no law at all." But how can we have the rule of law if we accept something like that? How can people just go around judging for themselves whether a law is just or not? The answer is, that they have to, and that is simply the principle of moral conscience. The rule of law is not contrary to that; for the rule of law is not an injunction to blind obedience. Instead, the rule of law is a principle of the limitation of the authority of government. To be "ruled by laws, not by men," is the old expression. Now, a jury nullifying a law or a protester practicing civil disobedience is not engaged in ruling. Instead, they are doing the precise opposite: negating the instructions and actions of government. The principle of the rule of law does the same kind of thing, for it means that the authority and power of government and of individuals in office is limited to those spheres, those issues, and those actions that are specified by the law. The rule of law denies to government unlimited or discretionary power and authority. The rule of law is thus part of a system of checks and balances to prevent dictatorship and despotism. Because of that, it is curiously the case that you do not need to have laws to have the rule of law: for the whole system of Common Law developed through the practice of the courts in considering claims that someone had committed a wrong. The original purpose of trial by jury in the Magna Carta was similar. The threat, indeed, addressed by the Magna Carta was of the laws and judges of King "perifran.htm" l "england". If Magna Carta juries could not nullify the laws of King John, or ignore the instructions and rulings of his judges, trial by jury would have been a useless protection. But the Barons, in obtaining King John's pledge, as Lysander Spooner wrote in 1852, "were engaged in no such senseless work as that." The jury is the last line of defense, the last check and balance, against tyrannical government, if, that is, it is charged with determining the justice of a case and not just with blindly applying the law as given by a judge. It was become a very interesting perversion of the sytem of checks and balances when, as we are told, the Constitution means whatever the Supreme Court says it means but that we are then expected to obey without resistance. Since the Supreme Court has in general, since the New Deal, interpreted the Constitution to mean exactly the opposite of its original purpose, which had been to establish a federal government of limited and enumerated powers, but which now seems to have gotten us a national government of unlimited and plenary powers, which can legislate or regulate in any matter whatsoever, what we have seen is the destruction of the rule of law, through the arbitrary authority of an irresponsible court, rather than its preservation. When the citizen demands that the government obey the Constitution, and the government replies that it is obeying its interpretation of the Constitution, which gives it authority and discretion far beyond that overthrown in the American Revolution, then the whole idea of the "rule of law" has been turned around to justify the very kind of arbitrary, discretionary, and unaccountable authority that it was supposed to prevent. The interpretation of the law cannot be trusted to those with the power to enforce it also. The separation of powers between the judiciary and the executive in the federal government was not sufficient to prevent this, as "errors.htm" already understood: "How can we expect impartial decision between the General government, of which they are themselves so eminent a part, and an individual State, from which they have nothing to hope or fear?" The federal courts are part of the federal government and will tend to take its side in the long run. This is precisely what has happened. Hence we return to Jefferson's maxim that only trial by jury can hold a government to the "principles of its consitution." Since, as a matter of fact, a jury can practice nullification even if the judge tells it that it can't, because its deliberations are secret and unrecorded, trial by jury is still, as long as jurors are brave and informed, one of the most important protections for freedom. Most Americans on jury duty blindly obey the judge, but occasionally feelings run high enough in important cases for juries to ignore the judge and do the right thing. In defending the rule of law but also complaining about judicial activism, Thomas Sowell says: A judge cannot "do justice" directly in the case before him. This view was strongly expressed in a small episode in the life of Justice Oliver Wendell Holmes. After having lunch with Judge Learned Hand, Holmes entered his carriage to be driven away. As he left, Judge Hand's parting salute was: "Do justice, sir, do justice." Holmes ordered the carriage stopped. "That is not my job," Holmes said to Judge Hand. "It is my job to apply the law." [The Quest for Cosmic Justice, The Free Press, 1999, p. 169] Although Sowell is properly concerned about the erosion of the rule of law by judicial activism in the service of "cosmic" and totalitarian ideology, he and Justice Holmes are wrong in this. The law is supposed to be an instrument of justice, and judges, like any morally conscientious persons, have a duty to see that justice is done. What is required, of course, is a proper sense of justice, which is to respect things like property rights that have been trashed by 20th century American courts. As it happens, property rights are protected by the Constitution, the supreme law of the land. Any judge who threw out an indictment that violated the "Takings" clause of the Fifth Amendment is thus very properly repecting the law -- respecting it as it has not been respected by even the Supreme Court since the New Deal. It is only a belief in blind obedience (to the dishonest Supreme Court), not the rule of law, that prevents judges from doing this.
"times-4.htm", a federal judge in Los Angeles prohibited a cancer patient from smoking marijuana while on bail, even though he would become more ill, and might even die, without it, just because such an exemption would violate the very laws that the patient was being accused of violating. The judge, however "sympathetic" to the "plight" of the dying man, could not authorize a violation of the law. However, in a related medical marijuana case, the Ninth Circuit Court of Appeals subsequently sent back a judgment for reconsideration because the trial judge had not allowed "medical necessity" as a consideration in his opinion. "Necessity," indeed, is an old common law defense: If someone must violate a law or die, one has a perfectly valid reason for violating the law. No "judicial activist" made this up, but the trial judges in both the cases mentioned would not allow it. Who is respecting the rule of law in these cases? The judge who sadly knows that he may be condemning a man to death, or a judge who appeals to an ancient and reasonable exception to laws that are inappropriately applied? In the former, the judge is both a bad judge, rejecting the existing tools of justice, and a bad man, for not at least recusing himself lest he be forced by a perverse duty to do evil. One hopes that something like applying the Nuremberg Laws or the fugitive slave laws would have been too much for Justice Holmes. I should note in closing, however, that government conducts much of its business today through "fiction.htm" and penalties that are imposed summarily, without trial by jury, or often without trial at all. This is becoming the most convenient instrument of tyranny open to modern American government. At the same time, judges who are hostile to nullification, and who have the power of arbitrarily imposing "contempt of court" penalties without trial by jury, or even legal explanation, are beginning to use their powers to intrude on the deliberation processes of juries, trying to make jurors answerable for deliberations that traditionally and constitutionally have been secret, unrecorded, and unreviewable. But, as Jefferson would have said, it is not surprising to see such devices used, by those with tyranny in their hearts, to expand their own power and the domination of government.
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