A majority is one person with courage.
Conscientious Acquittal a/k/a Jury Nullification
By: George Noga – June 17, 2020
In America, the right of a juror to vote conscience is enshrined in our founding documents. Jury trial is the only right mentioned in both the Constitution and Bill of Rights and more words are devoted to it than any other right. The founders intended to put citizens at the very heart of the criminal justice system. Plea bargains, unknown at our founding, now account for over 95% of all criminal cases. Following are but ten situations where a juror may choose to exercise conscientious acquittal.
- The accused never intended to commit a crime
- An honest citizen acting in good faith violated vague or unknown laws
- Victimless crimes
- Crimes where the probable or minimum sentence is out of proportion
- Laws that should not exist
- Disagreement with the way the law is being applied or selectively enforced
- Abuse by police or prosecutors or charges that are political in nature
- Overzealous enforcement, reliance on paid informants or profiling
- Instances where justice would not be served by a conviction
- Matters of morals or conscience
Closing Speech to the Jury in a Case Crying Out for Nullification
Ladies and gentlemen of the jury: Under our Constitution and common law you are sovereign. You can vote to acquit my client for any reason or for no reason and never be held to account or to explain. You have absolute power to ignore your juror’s oath and the judge’s instructions. This is a sacred right with a lengthy and honorable provenance and is intended for cases like this that cry out for conscientious acquittal.
The Constitution provides 5 sources that have veto power before a law can punish an accused; you are familiar with 4 of them: (1) house of representatives; (2) senate; (3) president; and (4) judiciary. This jury is the fifth and final source of veto power. Even if a law is passed by both houses of congress, signed by the president and upheld by the judiciary, it will not stand if juries such as this one refuse to convict under it. This is consistent with our Constitution and repeated Supreme Court rulings and is as understood by our founding fathers. John Adams said, “It is not only a juror’s right, but his duty to find the verdict based on his own judgment and conscience.”
The right to jury nullification goes back over 1,000 years. In 1670 William Penn was tried in London for preaching Quakerism. The judge wanted Penn convicted but the jury refused. The judge jailed the jury for four days without food or toilet facilities, but they still refused to convict. Ultimately, England’s highest court ruled that a juror’s right to reject law and vote conscience is traceable to Magna Carta signed in 1215 and even further back many centuries to Anglo-Saxon customs and practices.
Conscientious acquittal has a long, glorious history in America. The Salem witch trials ended only after 52 straight acquittals or hung juries. Juries refused to enforce the Navigation Acts in the 1760s causing England to restrict jury trials. Northern juries in the 1850s acquitted abolitionists charged under the Fugitive Slave Laws. Nullification speeded the end of prohibition. Juries acquitted protesters during the Vietnam War and refused to convict those charged with consensual sex under sodomy laws. In 2012 an Iowa jury acquitted trespassing occupy members peacefully protesting at the statehouse. Immediately thereafter, 15 others similarly accused demanded jury trials.
Your duty as jurors goes well beyond determining facts and includes a duty to prevent injustice. This case cries out for conscientious acquittal. Use your independent life experience, concept of justice, wisdom and beliefs; do not mindlessly follow the judge, other jurors or a flawed law. You can and must hang a jury, by yourself if necessary if your conscience so dictates. You must resist pressure from other jurors to compromise. Ignore the cost of a retrial; it is your right and your duty.
Ladies and gentlemen of the jury, history shines on courageous juries. Remember what your valiant ancestors did for peaceable Quakers, accused witches, fugitive slaves, war protestors and persecuted gays and then do your duty as a sovereign jury. By doing so, other juries will follow suit; even one solitary American citizen voting his/her conscience can bring about justice for 325 million countrymen.
Finally, always remember that a majority is one person with courage!