Jury Nullification


Preliminary Figure of Merit 97%

Jury Nullification, the power of the jury to acquit if it disagrees with the law or the way the law is being applied, even if it is contrary to the law as given by the trial judge is legal, available to, and at the sole discretion of the American juror.

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Summary

Jury Nullification is the power, the “right” and the “duty” of the jury to judge not just the guilt or innocence of the accused, but the quality of the law itself and whether that law is being fairly applied, even if doing so runs counter to the law as given by a trial judge. (cites-3, 4, 5, 6, 7)

Jury Nullification is considered to be an integral, inextricable part of the jury system because; A) a juror may not be questioned by the judge for their decision regardless of what they decide. B) an acquitted defendant cannot be retried for the same crime (double jeopardy).

Further, it is thought that jurors regularly and subliminally practice nullification unknowingly in that they sometimes adjust their own subjective idea of “reasonable doubt” down to accommodate acquittal, because of problems they have with the integrity of a law or the way it is being applied.

The jury system, of which Jury Nullification is implicit, has a very long history dating back to the Magna Carta of the tenth century and later adopted by America's founders. (cites-1, 2)

Some consider it to be a way to overrule and disregard the law. Indeed, it does. That appears to be the essential idea of Jury Nullification. It clearly seems to have been the founders intent, i.e. sometimes law should be "overruled and disregarded", but then only by representitives of the people, the jury. Jury Nullification also performs another service to society, in that it sends a message to lawmakers  that "victimless law" crime laws are inapporpriate and that it's time to change the law.
(cite-8)

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(cite 1)

From: JURY NULLIFICATION: EMPOWERING THE JURY AS THE FOURTH BRANCH OF GOVERNMENT

By Justice William Goodloe, Washington State Supreme Court, retired.

Source: F.I.J.A. - E.S. Goodloe - (source text is highlighted yellow)

The Founders view of the jury as being of paramount importance in defending liberty is easily seen when examining the words of the Constitution. There are only 14 words describing freedom of speech and of the press in the Constitution. But there are 186 words describing trial by jury in the Constitution. It is guaranteed in the main body in Article 3, Section 2, Paragraph 3, and in two amendments, the Sixth and the Seventh. No other right is mentioned so frequently, three times, or has as many words devoted to it. It is plain that the Founders viewed the jury trial right as the most important right since it gave birth to, and defended, all other rights. It should also be noted that trial by jury and jury nullification were common law rights at the time of the drafting of the Constitution and so are also included as rights retained by the people under the Ninth Amendment”


The following are quotes from America's founders concerning the high regard they placed on the institution of the jury and Jury Nullification:


(cite 2)

"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 it's constitution."

Thomas Jefferson, drafter of the Declaration of

Independence and Third President, in a letter to

Thomas Paine, 1789, The Papers of Thomas Jefferson Vol. 15, p. 269, Princeton University Press, 1958

http://en.wikipedia.org/wiki/Jury_nullification


(Cite 3)

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

John Adams, first proponent of the Declaration of Independence and Second President, 1771 2 Life And Works of John Adams 253-255 (C.F. Adams ed. 1856)

http://en.wikipedia.org/wiki/Jury_nullification


(cite 4)

"You [the jurors] have, nevertheless, a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy."

John Jay, first Chief Justice of the United States Supreme Court, charging the jury in Georgia v. Brailsford, 3 Dallas 1, 4 (U.S. 1794)

http://en.wikipedia.org/wiki/Jury_nullification


(cite 5)

"That in criminal cases, the law and fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, is intrusted with the power of deciding both law and fact."

Alexander Hamilton, first Secretary of the Treasury People v. Croswell, 3 Johns Cas. 361, 362 (1804) as reprinted in Sparf and Hansen v. United States, 156 U.S. at 147-148, dissenting opinion, (1895)

Source: F.I.J.A. - E.S. Goodloe - (source text is highlighted light red)


Note: In the above by Alexander Hamilton his quote was taken from the dissenting opinion of a case 91 years after his statement. That case was Sparf and Hansen v. United States in which Jury Nullification took a heavy hit. In that case a judge did not inform the jury of their right of Jury Nullification, (an action that is most often referred to as; the Fully Informed Jury), which was later upheld on appeal. From approximately that time forward, though Jury Nullification was regularly affirmed and reaffirmed by the courts, trial judges simply ceased the practice of informing the jury of their “right” and “duty”.


The following are citations from several prominent court decisions that touched on the right of the jury to nullify the law:


(cite 6)

We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. 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.

U.S. vs Moylan, 417 F 2d 1002, 1006 (4th Circuit Court of Appeals - 1969).

http://en.wikipedia.org/wiki/Jury_nullification


(cite 7)

On the other hand, we have the District of Columbia Circuit Court of Appeals, in United States v. Dougherty, 1972, saying: [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.

"POINTS OF LAW - Which Support And In Turn Are Supported  By The Constitution of The Unied States of America." - (listed as cite #47)
mhkeehn.tripod.com/ptsoflaw.pdf



Opposition To Jury Nullification


First and foremost, Jury Nullification has a long, settled and well established judicial history that leads directly back through the U.S. Constitution and on to the Magna Carta. It cannot be prevented except through ignorance and even then jurors still quietly, within themselves nullify by lowering their own personal standard of doubt.


Opponents of Jury Nullification primarily charge that it allows jurors to overrule and disregard the law. Indeed it does, as that appears to be the essential idea of Jury Nullification. Clearly from the foregoing that was the founders intent, i.e. sometimes law should be "overruled and disregarded", but then only by representitives of the people, the jury. The following  answers oppostion charges and more:


(cite 8)

Hung juries and inconsistent jury verdicts arising because of jury nullification are actually performing a service for society. They are sending messages to lawmakers in a peaceful, routine and institutionalized way that it is time for changes in the law. Jury nullification is an antidote for the kind of anarchy caused by the victimless crime laws. America now leads the world in the percentage of its population behind bars largely because of victimless crime laws and the ancillary crime that such laws generate. A long series of jury refusals to apply such laws will advise legislatures to repeal or modify them. As Scheflin and Van Dyke have noted: "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." Scheflin and Van Dyke, Jury Nullification: The Contours of a Controversy, Law and Contemporary Problems, Vol. 43, No. 4, 71 (1980).

Source: F.I.J.A. - E.S. Goodloe - (source text is highlighted green)

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Figure of Merit Calculations



Source FOM / Support FOM

Cite 1 - 95% / *99%

Cite 2 - 99% / 99%

Cite 3 - 99% / 99%

Cite 4 - 99% / 99%

Cite 5 - 95% / **99%

Cite 6 - 99% / 99%

Cite 7 - 95% / **99%

Cite 8 - 85% / ***99%

Total 95.75% / 99%

95.75% + 99% / 2 = 97.375% = 97%



*Cite 1 Was an excellent cite by a retired Supreme Court Justice of the State of Washington. The only reason it did not get a 99% is that it was from a source not listed with TATP as a reference.

**Cites 5 & 7 Number five's quote was of a founder of this country and number seven's was from a court opinion. Both were corroborated by other Internet websites that listed and cited it similarly. The only reason they did not get a 99% is they were from a source not listed with TATP as a reference.

*** Cite 8 Was from a source not listed with TATP as a reference. The argument was however compelling, thus the higher figure of 85% for an uncorroborated cite.



Originally Published by:
 The American Truth Project
07/31/07