An Essay On The Trial By Jury

Part 2 Commentary

Commentary

In his book, No Treason Spooner maintained that the U.S. Constitution literally bound no one (in a legal sense) to perform, including the very men who drafted and signed it! Yet, in 1991, we are beset with thousands upon thousands of "laws"-local, state & Federal-which, undoubtedly, only a few have read, much less comprehended, including many judges (who are supposedly intended to uphold them). This being the case, justice is often ignored or denied in today's tribunals and courts. As Patrick Henry exclaimed, "What right have they (the framers of the U.S. Constitution) to say 'We, The People'?!" binding each succeeding generation with pains of punishment for violation of statutes where there was no universal popular consent. What "check" do we have on bad legislation?

Enter the Jury

Historically, under the Common Law (originating in the Holy Bible), juries have been bodies of conscience, confirming either the correctness or corruption of Man's laws. As Spooner noted:

But it is in the administration of justice, or of law, that the freedom or subjection of a people is tested. If this administration be in Accordance with the arbitrary will of the legislator-that is, if his will, as it appears in his statutes, be the highest rule of decision known to judicial tribunals,--the government is a despotism, and the people are slaves. If, on the other band, the rule of decision be those principles of natural equity and justice, which constitute, or at least are embodied in, the general conscience of mankind, the people are free in just so far as that conscience is enlightened.

Today the mass of society appears not only unenlightened, but incapable of judging right from wrong, or at least this is what opponents of jury powers notification will tell you (their vested interests usually lie in upholding the legislative elite). Spooner rightly stated that one motive for legitimate government was "protection of the weak against the strong," and America's jural society provided this avenue for the weak and, yes, the unenlightened. In the very first jury trial before the U.S. supreme Court in 1794 ("supreme" is not capitalized in the U.S. Constitution, though the term "Behavior" is), the judges said, "it is presumed, that the juries are the best judges of facts; it is, on the other hand, presumed that the courts are the best judges of law. But still, both objects are within your power of decision. You have a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. " (Georgia vs. Brailsford, et al, 3 Dall. 1, emphasis ours)

Indeed, these popular powers existed long before, and are independent of, the U.S. Constitution:

Under constitutional scheme, grand jury is not and should not be captive to any of the three branches of government; the grand jury, is a pre-constitutional institution given constitutional stature by the Fifth Amendment but not relegated by the Constitution to a position within any of the three branches of government, as the federal grand jury is a constitutional fixture in its own right (U.S.C.A. Const. Amend. 5; U.S. vs. Chanen, 549 F.2d 1306, certiorari denied 98 s. Ct. 72, 434 U.S. 825, 54 L.Ed.2d 83) ... (There is a difference between a common law grand jury, and a "federal grand jury," which applies only to "federal citizens"-residents of Washington, D.C. and its enclaves).

Grand jury is (an) investigative body acting independently of either prosecutor or judge whose mission is to bring to trial those who may be guilty and clear the innocent. (Marston's Inc. vs. Strand, 560 P.2d 778, 114 Ariz. 260).

It must be clearly understood that, in America, court decisions (though they be called case law) are NOT law at all, but merely decisions "of a court" applicable only to the case at hand. They may be good decisions, and they may be bad, but in a legitimate government, they are unanimous concensus of a properly empanelled jury which has acted independently of a judge or prosecutor, according to the dictates of conscience If the consciences of any particular jurors are seared, keep in mind that the same applies to government employees, whose job it is to uphold the liberties of the common man, not his own interests.

CURRENT CONSTITUTIONAL AUTHORITY FOR JURY NULLIFICATION

The Constitutions of Maryland (Art. XXIII, entire), Indiana (Art. I, sec. 19), Oregon (Art. I, sec. 16), and Georgia (Art. I sec. 1, para. 11, subsec. A), currently have provisions guaranteeing the right of jurors to "judge the law"; that is, to nullify the law.

Although these provisions have not been strong enough to withstand decades of hostile judicial interpretation, and have relatively little current impact, they do remain "on the books".

Twenty­three states currently include jury nullification provisions in their Constitutions under their sections on freedom of speech, specifically with respect to libel and sedition cases:

Alabama (Art.I, Sec. 12); Colorado (Art.II, sec. 10); Connecticut (Art. First, sec. 7); Delaware (Art. I, sec. 5); Georgia (Art. I, sec. II, Para. 1); Kentucky (Bill of Rights, sec. 9); Louisiana (Art. XIV, sec. 9); Maine (Art. I, sec. 4); Mississippi (Art. 3, sec. 13); Missouri (Art. 1, sec. 8); Montana (Art. II, sec. 7); New Jersey (Art. I, sec. 6); New York (Art. I, sec. 8); North Dakota (Art. I, sec. 9); Oregon (Art. I, sec. 16); Pennsylvania (Art. I, sec. 7); South Carolina (Art. II, sec. 21); South Dakota (Art. VI, sec. 5); Tennessee (Art. I, sec. 19); Texas (Art. I, sec. 8); Utah (Art. I, sec. 15); Wisconsin (Art. I, sec. 3); Wyoming (Art. I, sec. 20).

Source: Alan W. Scheflin, "Jury Nullification: the Right to Say No", Southern California Law Review, 45, p. 204 (1972). [List has been updated to 1993.]

Educating jurors and prospective jurors is the only way to make certain that justice is done. Fully informed juries is appealing to anyone with a concern for the importance of the Constitution, to anyone who believes that justice should be tempered with mercy, to anyone worried about the increasing interference of the various arms of Big Government, to anyone who thinks that state-mandated sentences for various crimes fail to take into consideration the human element and the differences of fact in individual cases.

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."
John Adams, 1771

We take a lots of rights and privileges for granted in this country, among them the right to a trial by jury, though this right exists only in Britain and its former colonies. Juries of one's peers are the final check on a government's power when it has an interest in convicting. Trial by jury is under attack in America in several ways: in what they are allowed to judge, what they're allowed to hear and how they're allowed to rule. Trial by jury replaced trials of water and fire as a means of establishing guilt or innocence. It is a basic right in English-speaking lands.

"Unsatisfactory verdicts" will be a thing of the past when jurors are fully informed. In 1670 an "unsatisfactory verdict" was delivered by the jurors acquittal of William Penn in that the king's law against preaching quaker doctrine was nullified. When William Penn beat the rap for his sermon justice prevailed as jurors said "He may be guilty, but he's guilty of breaking a lousy law--and we're not going to convict him." Three Hundred and Twenty Years later, jurors cry after delivering their verdict because they followed the judge's instructions but violated their own good sense and conscience. The judge instructed them to follow the law as he saw fit to give it to them, like-it-or-not. Today's "unsatisfactory verdicts" are delivered in contravention of everyone's natural rights, common law rights, and constitutional rights. ...(It is the juries) 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, 185

SELECTED QUOTES

John Adams, who became the second U.S. President, in 1771 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." Quoted in Yale Law Journal 74 (1964):173.

Alexander Hamilton (1804): Jurors should acquit even against the judge's instruction "...if exercising their judgment with discretion and honesty they have a clear conviction that the charge of the court is wrong." Quoted in Joseph Sax, Yale Law Review 57 (June 1968): 481­494.

John Jay, first Chief Justice, U.S. Supreme Court, in Georgia v. Brailsford, 1794:4 said: "The jury has a right to judge both the law as well as the fact in controversy."

Samuel Chase, Supreme Court Justice and signer of the Declaration of Independence, 1804: "The jury has the right to determine both the law and the facts."

Thomas Jefferson, in a letter to Thomas Paine, 1789: "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

Theophilus Parsons, "...a leading supporter of the Constitution of the United States in the convention of 1788 by which Massachusetts ratified the Constitution, appointed by President Adams in 1801 Attorney General of the United States, but declining that office, and becoming Chief Justice of Massachusetts in 1806" said:

"The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his fellow citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation." 2 Elliot's Debates, 94; 2 Bancroft's History of the Constitution, p. 267. Quoted in Sparf and Hansen v. U.S., 156 U.S. 51 (1895), Dissenting Opinion: Gray, Shiras, JJ., 144.

"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, For the saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time." 2 Elliot's Debates, 94, Bancroft, History of the Constitution, 267, 1788.

"Unless the jury can exercise its community conscience role, our judicial system will have become so inflexible that the effect may well be a progressive radicalization of protest into channels that will threaten the very continuance of the system itself. To put it another way, the jury is...the safety valve that must exist if this society is to be able to accommodate its own internal stresses and strains...[I]f the community is to sit in the jury box, its decision cannot be legally limited to a conscience­less application of fact to law." William Kunstler, quoted in Franklin M. Nugent, Jury Power: Secret Weapon Against Bad Law, revised from Youth Connection, 1988.

"Every jury in the land is tampered with and falsely instructed by the judge when it is told it must take (or accept) as the law that which has been given to them, or that they must bring in a certain verdict, or that they can decide only the facts of the case." Lord Denman, C.J. O'Connel v. R. (1884).

"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, p. 11.

"In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction." Article XXIII, Constitution of Maryland

"Because of this constitutional mandate, this instruction is given to criminal jurors in Maryland:

'Members of the Jury, this is a criminal case and under the Constitution and the laws of the State of Maryland in a criminal case the jury are the judges of the law as well as of the facts in the case. So that whatever I tell you about the law while it is intended to be helpful to you in reaching a just and proper verdict in the case, it is not binding upon you as members of the jury and you may accept or reject it. And you may apply the law as you apprehend it to be in the case. '" Alan Scheflin and Jon Van Dyke, Jury Nullification: The Contours of a Controversy, Law and Contemporary Problems, 43, 83. (1980)

"If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence...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 or passion, the jury has the power to acquit, and the courts must abide by that decision." United States v. Moylan, 4th Circuit Court of Appeals, 1969, 417 F.2d at 1006.

The jury has an "unreviewable and irreversible power...to acquit in disregard of the instructions on the law given by the trial judge...The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge; for example, acquittals under the fugitive slave law. U.S. v. Dougherty, D.C. Circuit Court of Appeals, 1972, 473 F.2d at 1130 and 1132. (Nevertheless, the majority opinion held that jurors need not be told this. Dissenting Chief Judge Bazelon thought that they ought to be so told.)

"The arguments for opposing the nullification instruction are, in our view, deficient because they fail to weigh the political advantages gained by not lying to the jury...What impact will this deception have on jurors who felt coerced into their verdict by the judge's instructions and who learn, after trail, that they could have voted their consciences and acquitted? Such a juror is less apt to respect the legal system." Alan Scheflin and Jon Van Dyke, "Jury Nullification: the Contours of a Controversy," Law and Contemporary Problems, 43, No.4,105­ 106.

"In a representative government...there is no absurdity or contradiction, nor any arraying of the people against themselves, in requiring that the statutes or enactments of the government shall pass the ordeal of any number of separate tribunals, before it shall be determined that they are to have the force of laws. Our American constitutions have provided five of these separate tribunals, to wit, representatives, senate, executive...jury, and judges; and have made it necessary that each enactment shall pass the ordeal of all these separate tribunals, before its authority can be established by the punishment of those who choose to transgress it...there is no more absurdity in giving a jury a veto upon the laws than there is in giving a veto to each of these other tribunals."
Lysander Spooner, An Essay on the Trial by Jury, 1852.

"In all criminal cases whatsoever, the jury shall have the right to determine the law and the facts." Article 1, section 19 of the Indiana Constitution. Upheld, Holliday v. State 257 N.E. 579 (1970).

"It is useful to distinguish between the jury's right to decide questions of law and its power to do so. The jury's power to decide the law in returning a general verdict is indisputable. The debate of the nineteenth century revolved around the question of whether the jury had a legal and moral right to decide questions of law." Note (anon.), The Changing Role of the Jury in the Nineteenth Century, Yale Law Journal, 74,170 (1964).

"...[T]he 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:

'It is not only...[the juror's] right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.'

There is much evidence of the general acceptance of this principle in the period immediately after the Constitution was adopted." Note (anon.), The Changing Role of the Jury in the Nineteenth Century, Yale Law Journal 74, 173 (1964).

"During the first third of the nineteenth century,...judges frequently charged juries that they were the judges of law as well as the fact and were not bound by the judge's instructions. A charge that the jury had the right to consider the law had a corollary at the level of trial procedure: counsel had the right to argue the law, its interpretation and its validity to the jury." Note (anon.), The Changing Role of the Jury in the Nineteenth Century, Yale Law Journal 74, 174,(1964).

Alexander Hamilton, acting as defense counsel in a seditious libel case, said: "That in criminal cases, nevertheless, the court are the constitutional advisors of the jury in matter of law; who may compromise their conscience by lightly or rashly disregarding that advice, but may still more compromise their consciences by following it, if exercising their judgments with discretion and honesty they have a clear conviction that the charge of the court is wrong." 7 Hamilton's Works (ed. 1886), 336­373.

New York Supreme Court Justice Kent (1803): "The true criterion of a legal power is its capacity to produce a definitive effect, liable neither to censure nor review. And the verdict of not guilty in a criminal case, is, in every respect, absolutely final. The jury are not liable to punishment, nor the verdict to control. No attaint lies, nor can a new trial be awarded. The exercise of this power in the jury has been sanctioned, and upheld in constant activity, from the earliest ages." 3 Johns Cas., 366­368. Quoted in Sparf and Hansen v. U.S., 156 U.S.51, 148­149. (1894) (Gray, Shiras, JJ, dissenting).

"Within six years after the Constitution was established, the right of the jury, upon the general issue, to determine the law as well as the fact in controversy, was unhesitatingly and unqualifiedly affirmed by this court, in the first of the very few trials by jury ever had at its bar, under the original jurisdiction conferred upon it by the Constitution.

"The report shows that, in a case in which there was no controversy about the facts, the court, while stating to the jury its unanimous opinion upon the law of the case, and reminding them of 'the good old rule, that on questions of fact it is the province of the jury, on questions of law it is the province of the court to decide,' expressly informed them that 'by the same law, which recognizes this reasonable distribution of jurisdiction', the jury 'have nevertheless a right to take upon themselves to judge of both, and to determine the law as well as the fact in controversy.'" Supreme Court, Sparf and Hansen v. U.S., 156 U.S. 51, 154­155 (1894), from the dissent by Gray and Shiras.

"It is universally conceded that a verdict of acquittal, although rendered against the instructions of the judge, is final, and cannot be set aside; and consequently that the jury have the legal power to decide for themselves the law involved in the general issue of guilty or not guilty." From the dissent by Gray and Shiras, Supreme Court, Sparf and Hansen v. U.S., 156 U.S. 51, 172 (1894).

"...[I]t is a matter of common observation, that judges and lawyers, even the most upright, able and learned, are sometimes too much influenced by technical rules; and that those judges who are...occupied in the administration of criminal justice are apt, not only to grow severe in their sentences, but to decide questions of law too unfavorably to the accused.

"The jury having the undoubted and uncontrollable power to determine for themselves the law as well as the fact by a general verdict of acquittal, a denial by the court of their right to exercise this power will be apt to excite in them a spirit of jealousy and contradiction..."

"...[A] person accused of crime has a twofold protection, in the court and the jury, against being unlawfully convicted. If the evidence appears to the court to be insufficient in law to warrant a conviction, the court may direct an acquittal...But the court can never order the jury to convict; for no one can be found guilty, but by the judgment of his peers." From the dissent by Gray and Shiras, Supreme Court, Sparf and Hansen v. U.S., 156 U.S. 51, 174 (1894).

"But, as the experience of history shows, it cannot be assumed that judges will always be just and impartial, and free from the inclination, to which even the most upright and learned magistrates have been known to yield from the most patriotic motives, and with the most honest intent to promote symmetry and accuracy in the law of amplifying their own jurisdiction and powers at the expense of those entrusted by the Constitution to other bodies. And there is surely no reason why the chief security of the liberty of the citizen, the judgment of his peers, should be held less sacred in a republic than in a monarchy." From the dissent by Gray and Shiras, Supreme Court, Sparf and Hansen v. U.S., 156 U.S. 51, 176 (1894).

"The jury has the power to bring a verdict in the teeth of both the law and facts." Oliver Wendell Holmes, U.S. Supreme Court Justice, Horning v. District of Columbia, 138 (1920).

"If juries were restricted to finding facts, cases with no disputed factual issues would be withheld from the jury. But such cases are presented to the jury. By its general verdict of innocence, the jury may free a person without its verdict being subject to challenge. The judge cannot ask jurors to explain their verdict, nor may the judge punish the jurors for it. Although judges now generally tell jurors they must obey the judge's instructions on the law, the jurors may not be compelled to do so. If the jury convicts, however, the defendant is entitled to a broad range of procedural protections to ensure that the jury was fair and honest.

"When a jury acquits a defendant even though he or she clearly appears to be guilty, the acquittal conveys significant information about community attitudes and provides a guideline for future prosecutorial discretion in the enforcement of the laws. Because of the high acquittal rate in prohibition cases during the 1920s and early 1930s, prohibition laws could not be enforced. The repeal of these laws is traceable to the refusal of juries to convict those accused of alcohol traffic." Alan Scheflin and Jon Van Dyke, Jury Nullification: The Contours of a Controversy, Law and Contemporary Problems 43, No.4, 71 (1980).

"Jury acquittals in the colonial, abolitionist, and post­bellum eras of the United States helped advance insurgent aims and hamper government efforts at social control. Widespread jury acquittals or hung juries during the Vietnam War might have had the same effect. But the refusal of judges in trials of antiwar protesters to inform juries of their power to disregard the law helped ensure convictions, which in turn frustrated antiwar goals and protected the government from the many repercussions that acquittals or hung juries would have brought." Steven E. Barkan, Jury Nullification in Political Trials, Social Problems, 31, No. 1, 38, October, 1983.

"...[T]he institution of trial by jurye specially in criminal cases has its hold upon public favor chiefly for two reasons. The individual can forfeit his liberty to say nothing of his life only at the hands of those who, unlike any official, are in no wise accountable, directly or indirectly, for what they do, and who at once separate and melt anonymously in the community from which they came. Moreover, since if they acquit their verdict is final, no one is likely to suffer of whose conduct they do not morally disapprove; and this introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions. A trial by any jury...preserves both these fundamental elements and a trial by a judge preserves neither..." Judge Learned Hand, U.S. ex rel McCann v. Adams, 126 F.2d 774, 775­76 (2nd Circuit, 1942).

"It's easy for the public to ignore an unjust law, if the law operates behind closed doors and out of sight. But when jurors have to use a law to send a man to prison, they are forced to think long and hard about the justice of the law. And when the public reads newspaper accounts of criminal trials and convictions, they too may think about whether the convictions are just. As a result, jurors and spectators alike may bring to public debate more informed interest in improving the criminal law. Any law which makes many people uncomfortable is likely to attract the attention of the legislature. The laws on narcotics and abortion come to mind and there must be others. The public adversary trial thus provides an important mechanism for keeping the substantive criminal law in tune with contemporary community values." D.C. Circuit Court Judge D. Bazelon, "The Adversary Process Who Needs It?" 12th Annual James Madison Lecture, New York University School of Law (April, 1971), reprinted in 117 Cong. Rec. 5852, 5855 (daily ed. April 29, 1971).

If you would like to read the complete work click HERE.

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What say thee? It is one of the answers to be used of many that we have been kept in the dark of to get back the freedom we have lost.