By: George Noga – October 10, 2014
Of all I learned writing this blog, nothing is more crucial to achieving more liberty and less government than the issue of jury nullification, i.e. the idea that juries are sovereign and have the absolute right to vote to acquit for any reason. The right to a jury trial was enshrined in the Constitution and Bill of Rights not solely for the defendant, but for the jury. Nullification is not to be used lightly; but following are 10 specific examples where it may apply.
- Laws have proliferated such that honest citizens acting in good faith unknowingly violate laws they never knew, or reasonably should have known, existed or that were so vague as to be meaningless;
- The accused never intended to commit a crime and did not have a mens rea – or guilty mind – which formerly was a requirement for charging or convicting citizens;
- Victimless crimes;
- Laws that shouldn’t exist like Wisconsin’s making it a crime for a farmer to provide raw milk to the owner of the cows he boards even though consuming raw milk is perfectly legal;
- Crimes for which the probable sentence (or minimum sentence) is out of proportion;
- Disagreement with the law or the way it is being applied; laws only seldom or selectively enforced;
- Abuse by police or prosecutors and/or charges that are political in nature;
- Overzealous enforcement or profiling – one third of all adults have been arrested as have 40% of males before age 23 – 50% for black males under age 23. This is prima facie unreasonable;
- Instances where justice is not being served; and
- Matters of conscience.
Although widely sanctioned and practiced in the early years of our republic, today defense attorneys seldom are permitted to raise jury nullification at a trial. It should be permitted throughout our land. Following is the closing argument I would address to a jury if I were the defense attorney in a case that cried out for jury nullification.
Closing Speech to Jury from Defense Attorney
Ladies and gentlemen of the jury: Under our Constitution and common law you, when sitting as a jury, are sovereign. This means you can vote to acquit and thereby nullify the charges against my client for any reason or even for no reason and not be held to account or even asked to explain. You have absolute power including the right to ignore your juror’s oath and the judge’s instructions. This is a sacred right with a lengthy and honorable provenance.
In 1670 William Penn was tried in London for the putative crime of preaching Quakerism. The judge wanted him convicted but the jury refused. The judge then jailed the jury for four days without food, water or toilet facilities; they still refused to convict Penn. Ultimately England’s highest court ruled that a juror’s right to reject law and to vote conscience is traceable to the Magna Carta signed nearly exactly 800 years ago in 1215. Our laws are based on and incorporate English common law which, of course, traces back to Magna Carta and even earlier.
In America, a juror’s right to vote conscience emanates from the Constitution and Bill of Rights. The Constitution provides five separate sources with effective veto power before any law can be used to punish an offender; these are: (1) house of representatives; (2) senate; (3) president; (4) judiciary; and (5) jury. Even Congress passes a law, the president signs it and the courts allow it, the law will not stand if juries such as this one refuse to convict under it.
The right of juries to nullify was well understood by our founding fathers. President John Adams said: “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.” President Thomas Jefferson said: “Trial by jury is the only anchor by which a government can be held to the principles of its constitution.” The first chief justice, John Jay, stated: “The jury has the right to determine both the law and the facts.” I could continue for a long time with other similar quotes from great Americans, but I believe you already understand.
Jury nullification has a long and glorious history in America; let me tell you about just a few of the many instances where valiant juries have voted their conscience.
- The Salem witch trials in 1692 ended for one reason and one reason only: jury nullification. Beginning in 1693 there were 52 consecutive hung juries and/or acquittals and prosecutors ceased bringing new cases.
- In the 1760s juries refused to enforce forfeitures under the Navigation Acts. England then restricted jury trials as part of the Intolerable Acts which led directly to the American Revolution.
- In the 1850s northern juries began acquitting abolitionists under the Fugitive Slave Laws.
- In the 1890s corporations began losing jury verdicts in cases involving the organization of labor unions and strikes resulting in workers winning the right to organize.
- Jury nullification played a big role in ending prohibition in the 1930s.
- During the Vietnam War, juries acquitted protesters when informed of their sovereign power.
- Juries refused to convict admitted consensual sex among adult gays under sodomy laws.
- In 2012 an Iowa jury acquitted an “occupy” protester who admittedly violated curfew and trespass laws to remain on the grounds of the statehouse to peacefully protest. Immediately thereafter, 15 others accused under the same laws demanded jury trials.
Ladies and gentlemen of the jury, this case cries out for you to nullify an unjust law. Use your independent life experience, concept of justice, wisdom and beliefs; do not mindlessly follow the judge, other jurors or a bad law. You can and must hang a jury, by yourself if necessary, if your conscience so dictates; you must resist all pressure from other jurors to compromise. Ignore the cost of a retrial. It is your right and your duty.
“A majority is one person with courage.”
History shines upon courageous juries. Remember what your valiant ancestors did for peaceable Quakers, accused witches, fugitive slaves, workers’ rights, war protestors and persecuted homosexuals and do your duty as a sovereign jury. By doing so, other juries will follow suit; even one solitary American citizen voting his or her conscience can overturn an unjust law for a nation of 315 million. Finally, always remember that a majority is one person with courage!