Liberating the Jury
The Right of Jury Nullification Stands Timeless and Irrevocable
MARCH 01, 1998 by NATHAN LAPP
Nathan Lapp is a dairy farmer and coordinator of the New York Fully Informed Jury Association in Cassadaga, New York.
When disputes arise over who has the freedom to do what, fundamental principles of fairness, or “right reason,” as Roman philosopher Cicero phrased it, must come into play. For this task, the founders recommended trial by jury.
As George Mason stated in his Virginia Declaration of Rights (1776): “In controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred.” Thomas Jefferson endorsed trial by jury as a damper on government, writing in a letter to Thomas Paine in 1789 that he considered trial by jury “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
Fifteen years after Mason authored the Virginia Declaration of Rights, the U.S. Bill of Right’s Seventh Amendment inherited Mason’s original theme: “. . . where the value in controversy exceeds twenty dollars, the right of trial by jury shall be preserved. . . .” In other words, if even a seemingly insignificant portion of someone’s liberty was disputed—whether by government or private individuals—trial by jury would be mandatory. The jury became a maintenance tool of freedom.
But today our juries are in trouble. In a passion to uphold law and order, America’s legal institutions have almost forgotten the jury’s role as protector of freedom. The jury is frequently tinkered with in ways that government planners consider progress. Prospective jurors may be graded for religious, philosophical, and personal beliefs. This involves a terribly inefficient selection process that yields juries sanitized to government specification, in lieu of the ancient, randomly chosen jury of peers. Once selected, jury members can be quarantined, gagged, and barred from taking notes or asking questions. Trial judges may suppress critical evidence or even conduct much of the proceedings in the jury’s absence.
As an advocate of jury rights and a court watcher, I have observed the treatment of trial jurors. I find it remarkable that in a free country certain citizens not accused of any crime can be ordered about in such a cold, cavalier manner. Like so many vassals, jurors resign their freedoms to the court—with only modest remuneration for their efforts.
Meanwhile, our state, federal, and administrative tribunals operate in a fashion that precludes all but a trifle of criminal cases even to be tried by jury. This is the form of due process that many Americans, especially judicial system insiders, seem to feel comfortable with.
Hard Times for Juries
I believe there is reasonable doubt whether our jury system, thus regimented, can fulfill the purpose for which it was intended. In 1973, Supreme Court Justice William Douglas wrote: “It is indeed common knowledge that the grand jury, having been conceived as a bulwark between the citizen and the Government, is now a tool of the Executive.” If the deterioration of the grand jury is any indicator of the subversion of due process in our courts, it stands to reason that our trial jury system is equally dysfunctional.
Perhaps the practice that most frequently undermines jurors is the mandate that they must render a verdict based exclusively on their finding of facts, with no consideration of the integrity of the law or its application. During the charge to the jury, jurors often hear a command of this sort from the bench: “You must take the law as I give it to you whether you agree with it or not. You are the sole judges of the facts, I am the sole Judge of the law.”
Vogue as it may be, such instruction delivers a three-dimensional invasion into the province of the jury.
First, to forbid the jury to assess the law adulterates trial by jury as originally instituted. The founders—both in practice and in principles that formed early American governments—expressly endorsed the jury’s role as judges of both law and fact. John Adams, in a statement prior to his election as the second president, was not in the least oblique regarding the jury’s proper sphere: “It is not only . . . [the juror's] right, but his duty to find the verdict according to his own best understanding, judgement, and conscience, though in direct opposition to the direction of the court.”
Second, the prohibition legalizes a double standard of justice. One set of rules exists for jurists, who may exercise veto power by dropping charges, dismissing cases, overruling previous court decisions, or using ordinary discretion in the execution of laws. Another set of rules is laid out for common citizens, the jurors. Hearing identical arguments in a case, the jurors must follow the rules imposed by the court, with no consideration for conscience or justice. Thus, a great chasm divides the ordinary citizen from the people outfitted with badges and gavels.
Third and most important, instructions that tell jurors they have no discretion when it comes to law are untrue and an encroachment upon the people’s mind and conscience. To tell the jury that it does not have the right to consider the law in reaching its verdict is to stipulate that it may not mistrust the government. It is also to concede that common-sense appraisal of individual circumstances is not permitted without legislative consent.
Times Have Changed
Consider the dichotomy between contemporary jury instructions and those given during the first jury trial conducted by the Supreme Court of the United States: “But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction (Judges as judges of law, jurors as judges of facts), you have, nevertheless, a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.”
The function of trial juries was also defined by lexicographer Noah Webster in 1828: “[Petty juries], consisting usually of twelve men, attend courts to try matters of fact in civil causes, and to decide both the law and the fact in criminal prosecutions.” Webster’s observation solidifies the contention that jury latitude in applying the law was once axiomatic of trials by jury.
Webster did not invent the meaning of trial by jury. Jury power was tested 150 years earlier in England, when jurors refused to return a guilty verdict based on facts in the trial of William Penn. Penn’s crime? Allegedly, disturbing the peace by publicly preaching the Quaker religion.
On August 31, 1670, William Penn was arrested and brought before the court at the Old Bailey in London. The jury heard from two constables and a sergeant who testified about Penn’s preaching at a time when England’s Conventicle Act forbade Quakerism as a form of worship. With all evidence pointing to Penn’s defiance of the act, the court charged the jury, coaxing them to deliver a speedy verdict of guilty.
When the jury returned, the foreman announced that they could find Penn guilty only of preaching, but not of causing tumult or committing any crime. This so incensed the ten presiding judges that one, Sir Samuel Starling, remanded them to the jury room without food, water, or accommodations “until they brought in a lawful verdict.” Undaunted, these 12 defiant men repeatedly returned to reiterate their true verdict, while the court each time stipulated a verdict of guilty. The stalemate continued, with the Penn jury incarcerated under most ignominious conditions.
Ten weeks later England’s highest court ruled that the penalties and detention imposed upon the jury were illegal. William Penn’s acquittal was acknowledged, and the prisoners—Penn’s jury—were vindicated. The high court stated that “the court has no power to superimpose its opinion over that of the jury,” resulting in a historic and powerful precedent for jury rights.
Nullification Repeatedly Affirmed
The idea that juries have the right to nullify bad laws was underscored on numerous occasions following Penn’s acquittal, but perhaps with most historical significance during the 1735 New York case of newspaper publisher John Peter Zenger. Zenger printed a series of articles containing scathing accusations against colonial Governor William Cosby. Although the attorney general failed on several attempts to have Zenger indicted by a grand jury, the governor’s council proceeded to carry out a campaign against Zenger on its own, charging him with the crime of seditious libel.
Presiding at Zenger’s trial, Chief Justice James Delancey instructed the jury that they should leave matters of law to the court. Defense attorney Andrew Hamilton, citing the case of William Penn, responded that such a rule “in effect renders Juries useless, to say no worse.” Hamilton hailed the people’s right to remonstrate against the oppressions and evil conduct of their governors by “exposing and opposing arbitrary power.” Were this right denied, Hamilton said, “the next step may make them slaves.”
The jury voted to acquit after brief deliberation.
John Peter Zenger’s defiant position not only secured the freedom of press Americans enjoy to this day, it also helped annul the dubious crime of seditious libel. But the unsung heroes in the Zenger case remain the jurors who withstood the dictation of a corrupt government so that justice could prevail.
By trial and error, so to speak, the jury evolved from the status of a subservient entity of the English Crown to the independent body that eighteenth-century jurist William Blackstone would extol as a palladium of liberty. To this day, the state constitutions of Maryland, Indiana, and New York specifically honor jurors as “Judges of Law, as well as of fact.”
But today many judges despise the concept that made juries instrumental in freeing this country from the tyranny of witch hunts, slavery, and prohibition. In the case of Wisconsin v. Leroy Reed, subject of a 1995 PBS “Frontline” television documentary “Inside the Jury Room,” the presiding judge declined to instruct jurors concerning their right to weigh the application of a law because “that would be an invitation to anarchy.” (The defense counsel was permitted to argue to the jury that it had such a right.) A Rhode Island prosecutor recently told the grand jury in a criminal case: “We do not have jury nullification in Rhode Island.”
In a report published in The Judges’ Journal in 1996, Justice Frederic B. Rodgers of Gilpin County, Colorado, alluded to the danger of “runaway juries,” recommending that courts monitor closely for evidence of nullification sentiment. Unrepentant nullifiers, he advised, should be excused from service.
Not all modern judges agree, however. In 1972, Chief Judge David Bazelon of the U.S. Court of Appeals for the District of Columbia acknowledged the jury’s right to judge the law: “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge.” He cited the Zenger case and prosecutions of violators of the fugitive slave law. His opinion also quoted eminent legal scholar Roscoe Pound, who said in 1910, “Jury lawlessness is the greatest corrective of law in its actual administration.”
Today this is a minority view. But judicial opinion notwithstanding, the right of jury nullification stands timeless and irrevocable. To doubt its existence is to embrace the myth that judges can acquire lordship of the jury’s conscience. In fact, no government authority can steal the people’s last check on laws haphazardly written—or good laws haphazardly enforced. Judges cannot proclaim a monopoly on the law—without aligning themselves with the likes of the ten judges who prosecuted William Penn. No prosecutor or judge can demand that a verdict be rendered exclusively on the jury’s finding of fact, without trivializing the moral reasoning on which the Penn jury and many juries since then have stood firm.
The Flaws of Written Law
As responsible citizens, we ought to think about the consistency of written law. Laws are often byproducts of special-interest, legislative, and judicial power struggles. The desired result of law is to protect society from bullies, or as Thomas Jefferson said, “to restrain men from injuring one another.” Unfortunately, every law, regardless of how well it works, can be turned to violate the rights of the people.
Take the case involving one-year-old Andrew Roberts, who was mauled by a wandering dog while waiting with his mother outside a California coffee shop. Andrew’s father, after seeing what the dog had done to his son, located the Akita-Chow mix and dispatched him with a baseball bat.
Roberts claimed responsibility, and the state of California tried him for cruelty to animals. Roberts faced a year in prison, but a jury voted to acquit him.
The jury did not deny that it was cruel to bludgeon a dog with a baseball bat. They did not say that there should be no law against cruelty to animals. They did not assume the role of legislator and strike the law from the books. But they concluded that justice would not be served by applying the law to the case at hand. By nullifying the law, the Roberts jury actually helped make the animal cruelty law safer since future prosecutors would exercise caution before they used it to harass another citizen. The moral is that laws can be enforced in ways that the legislature or the citizen or even the judiciary never dreamed of. The jury, then, must ensure that justice is delivered whenever the naked force of written law would unduly threaten someone’s freedom.
The late Harry Moss, Sr., a Ventura, California, attorney, once wrote in an essay: “Law, after all is merely a bunch of rules written by the legislature. Justice is based on the relationship between people and is certainly not just a bunch of rules. Anyone who cannot make this distinction should not be sitting on the bench.” Moss illustrated that Germany had many fine judges—until Hitler took over and the horrors of the Nazi state became legal. Then, those same fine judges continued to enforce the law without observing that it had become unjust. Moss does not excuse them: “Justice requires that no law can require you to commit an unjust act.”
No Threat to the Rule of Law
Finally, we should remember that jury nullification no more flouts the rule of law than does jurist nullification or legislative repeal. The jury, by virtue of its commission and verdict, is the law. It is to the jury that we turn for help when human vices and weaknesses prevent us from resolving disputes privately. We implore the jury for justice, for mercy, for circumspection. We put lives and freedom in the hands of jurors. Their influence on the evolution of law is unique because they evaluate its impact firsthand, rather than from the comfortable vantage point of the bench, the legislative chamber, academia, or lobbying outfit. They see and touch the law as applied to fellow human beings and, hence, to themselves.
The championing of jury rights does, however, accompany the sobering realization that jury power can be abused. Jury decisions are only as perfect as the cross section of people it comprises, and if the overall character of a citizenry is deficient, a departure from justice in our courtrooms may certainly follow. But the restoration of American juries to the position they had in times past is unlikely to produce a power as dangerous as the one currently vested in the high places of government.
George Mason wrote in his Declaration of Rights that the blessings of liberty “cannot be preserved to any people but by firm adherence to justice, moderation, temperance, frugality, virtue, and by frequent recurrence to fundamental principles.” Let the institution of trial by jury once again serve as a vehicle for those principles. Let the men and women to whom we delegate the scales of justice be respected for their indispensable role as guardians of liberty.
- See Jim Powell, “Marcus Tullius Cicero, Who Gave Natural Law to the Modern World,” The Freeman, January 1997, p. 47.
- Bernard Schwartz, The Bill of Rights, A Documentary History, vol. 1 (New York: Chelsea House Publishers, 1971), p. 235.
- The Writings of Thomas Jefferson, vol. 7 (Washington, D.C.: The Thomas Jefferson Memorial Association of the United States, 1903), p. 408.
- United States v. Dionisio.
- From court transcripts in the criminal case of The State of New York vs. Homan, 1986.
- No author, “The Changing Role of the Jury,” Yale Law Journal, 74 (December 1964): 173.
- Alan Scheflin and Jon Van Dyke, “Jury Nullification: Contours of a Controversy,” Law and Contemporary Problems, 43 (Autumn 1980): 58.
- Noah Webster, American Dictionary of the English Language, 1828, 2d ed. (San Francisco: The Foundation for American Christian Education, 1980).
- Geoffrey Lehmen, We the Jury: The Impact of Jurors on Our Basic Freedoms (Amherst, N.Y.: Prometheus Books, 1997), p. 37.
- Schwartz, p. 145.
- Lehmen, p. 69.
- Scheflin and Dyke, p. 57.
- Nicholas N. Kittrie and Eldon K. Wedlock, Jr., The Tree of Liberty, A Documentary History of Rebellion and Political Crime in America (Baltimore, Md.: Johns Hopkins University Press, 1986), p. 28.
- Livingston Rutherford, John Peter Zenger, His Press, His Trial (Gloucester, Mass.: Peter Smith, 1963), pp. 93, 106.
- Lehmen, p. 24.
- Don Doig, The FIJAFAX, November 22, 1995, a weekly publication of the Fully Informed Jury Association, Helmville, Montana.
- Justice Frederic B. Rodgers, “The Jury in Revolt? A ‘Heads Up’ on the Fully Informed Jury Association Coming Soon to a Court-house in Your Area,” The Judges’ Journal, vol. 35, no. 3 (Summer 1996): 10.
- United States v. Doughtery.
- First inaugural address, March 4, 1801, American Quotations (Avenel, N.J.: Wings Books, 1992).
- Associated Press, Santa Ana, Calif. The story appeared in the Evening Observer, Dunkirk, N.Y., October 17, 1995.
- Harry W. Moss, Sr., “On Judging Judges,” The Wall Street Journal, July 19, 1996, p. A 12.
- Schwartz, p. 236.