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New Hope for Freedom
FULLY INFORMED JURIES
by Larry Dodge & Don Doig
edited by Mark Valverde & Larry Dodge
"For more than six hundred years – that is, since Magna Carta, in 1215, there has been no
clearer principle of English or American constitutional law, than that, in criminal cases, it
is not only the right and duty of juries to judge what are the facts, what is the law, and
what was the moral intent of the accused; but that it is also their right, and their primary
and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that
are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or
resisting the execution of such laws."
Lysander Spooner
"An Essay on The Trial By Jury," 1852
Jury Veto Power
America's founders worried that the government they created might
someday grow too powerful, passing and enforcing laws which would violate the rights of the very
people it was intended to protect: ordinary, peaceful, productive folks. So they kept an "ace in the
hole," a trump card they believed citizens could and would 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 can a jury restrain a government? Answer: Juries can just say
"no" to bad laws and to arbitrary and unjust prosecutions. It's that simple!
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 to have a government "of, by and for the
people", the people would routinely have to assert their authority over the leadership, and would
need the power to check and balance all three branches. Because law is the main tool by which a
government exerts control, trusting juries of ordinary citizens to decide if and when to apply the
laws of the land was the logical way to perpetuate citizen authority over government.
That is why 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 are judges of the law as well as the evidence. Noah Webster, who wrote his original
1828 dictionary in order to preserve the integrity of the language in our Constitution, defined "jury"
exactly that way.
In the courts of our new nation, judges would often remind jurors of
their veto power, so that they began their deliberations fully-informed. If the jury found the law to
be wrong or wrongly applied, or that the defendant's rights had been violated during the arrest, it
would often "veto" (refuse to apply) the law, and acquit, despite clear evidence of "guilt".
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. Jurors can not be harassed by the judge for voting to acquit. Jurors can not punished for
voting their consciences, even after being sworn to follow the law as given by the judge. Jurors may
be asked, but cannot be obliged, to explain their verdicts.
An Anglo-American Common Law Tradition
Citizen jurors fought against the powerful interests of the British
crown for centuries to establish these rights, and secured them about the time the American colonies
were established. But victory didn't come easily:
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 sequestered 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 legal landmark. Zenger, a publisher, was tried for printing news about corruption on the part
of the Royal Governor of New York Colony and his cronies. His accusations were true, but the court
informed his jury that by 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
find Zenger guilty 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, and truth as a defense in
trials for libel.
Part Of The Political Heritage Of
America's Founders
Cases like these therefore were part of the political heritage of
America's Founders, which may explain why they had such great appreciation for jury power.
President John Adams said it well in 1771:
"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 US 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."
Chipping Away At A Vital Right
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
biggest "chip" or 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 quit explaining jury
nullification to juries, and to forbid lawyers to tell them.
That is why very few lawyers or law professors, only some judges, and
practically no school teachers now 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 be slapped with contempt of court charges if they tell jurors they can acquit if they
think the law is invalid, misapplied, or unjust. And self-defenders are usually stopped and rebuked if
they even mention their motives for breaking the law, or why they disagree with the law, to the jury.
Yet to this day, trial jurors still have the right to veto, or to
"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 merits of the law. This practice destroys the protections jurors were supposed to be able to
invoke on behalf of fellow citizens against unjust prosecutions. It also contradicts the Supreme
Court's pronouncement that juries should re present a "fair cross-section of the community."
Reasserting Control
We, the American people, urgently need to reassert control of our
various governments – particularly, the federal government, all of which seem bent on achieving
nearly complete top-down control over all of us. Their favorite technique is to pass and enforce laws
which create "crimes against the state," where no victim (except perhaps the perpetrator) exists. This
means the government can make absolutely anything illegal, and begin prosecuting anyone it doesn't
like for these "political crimes." Those convicted fill our jails and cause a statistical "crime wave,"
which the government then uses as a basis for passing and enforcing still more such laws.
These laws have already infringed on many of our rights, including
our right to express ourselves freely; to practice the religion of our choice; to decide with whom we
will do business; to make decisions about our own life, health, and death; to choose the school
curriculum to which our children will be exposed; to decide whether or not to self-medicate; to enjoy
personal privacy unless a proper search warrant is served; to travel and transport ourselves where and
how we wish; to keep and bear arms (just in case we need to protect ourselves from our very own
government); to enjoy the fruits of our labors; to pursue happiness as we define it; and to be tried
by an impartial jury!
What Can You Do?
Spread the good word – to friends, family, and co-workers. You
can also tell fellow jurors, but do not bring any printed information about jury power into the
deliberation room.
Jury rights education has already reached jurors in victimless crime
cases ranging from marijuana possession to tax-evasion, from seatbelt law violations to sales of
"unapproved" nutritional supplements, and from "illegal" gun ownership to alleged poisoning of eagles
by a Montana sheep rancher, many of them ending in acquittals.
The sooner everyone knows the truth about his or her rights and
powers as a trial juror, the more quickly we can all get back to pursuing the American Dream, instead
of worrying about what Big Brother is going to do to us next.
Big Brother's next move may be to try and stop trial jurors from
acting as a final check and balance upon his actions, so your first moves may have to be defensive.
Oppose any effort you hear about to "improve" the jury system which
calls for:
- reducing the number of people on a jury;
- allowing juries to reach verdicts with "super-majority," instead of unanimous votes;
- making it easier to remove "hold-out" jurors from juries;
- using "professional" juries (i.e., government-certified jurors, instead of ordinary
citizens);
- prosecuting jurors who don't answer jury questionnaires or the questions asked during
jury selection the way the government wants them answered;
- eliminating the right of trial by jury for "less serious" crimes; or
- instituting any other measure which would reduce the power of the people and increase
the power of the government when it comes to dispensing justice by jury.
The government can't and won't fix itself. It will require a
grass-roots effort and a winning strategy, and that's what the Fully Informed Jury Association is all
about.
If you want to see a return of "liberty and justice for all" in
America, this is how . . . and your children will thank you!
****************************************
Larry Dodge and Don Doig are
co-founders of the Fully Informed Jury Association(FIJA)
The American Jury Institute (Fully Informed Jury Association), is a national, non-profit, tax-exempt, educational
organization dedicated to informing jurors of their right, power, and responsibility to reach a verdict according to conscience.
AJI headquarters is prepared to assist people from nations worldwide in pursuit of Fully Informed Jurors everywhere.
American Jury Institute
(Fully Informed Jury Association)
P.O. Box 5570, Helena, MT 59604-5570
Tel: (406) 442-7800. Fax: (406) 442-9332
Web sites:
www.americanjuryinstitute.org
www.fija.org
This pamphlet was originally published in 1991 and revised in September 1999.
It is part of ISIL's educational pamphlet series. Click here for the full index of pamphlets online.
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