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The Jury’s Role in Mitigating Harsh Law” from “Part IV: Defenses and Constitutional Challenges,”
Spectre of Forfieutre by Judy Osburn © 1991
The Jury’s Role in Mitigating Harsh Law
Our nation’s founders placed a time honored barrier between government oppression and the people. Since the Magna Carta, in 1215, the common law jury had served as the mitigating force tempering inflexible law with the community’s common sense of justice and fairness. The Magna Carta’s requirement that no man shall be deprived of life, liberty or property “except by the legal judgment of his peers or by the law of the land,”—a trial by jury according to common law—placed the protection of liberty in the hands of the governed. Ever since, the trial jury has functioned “to check the execution of a cruel, or oppressive law. ... Thus, not only are juries real judges..., they possess a power no judge would venture to exercise, namely, that of refusing to put the law in force.”[1][1]
Jury nullification of the law played a major role in the gradual abolishment of the death penalty in England.[2][2] English juries frequently used their power in mitigating death penalties from the thirteenth century through the first half of the nineteenth century.[3][3] By the early 1800s English law mandated the death penalty for over 230 types of capital crimes.[4][4] Merciful juries adjusted their findings of fact to avoid sending defendants to the gallows. Such acquittals brought harsh law into accord with the community’s sense of justice and were accepted and sometimes even encouraged by the bench.[5][5]
The jury’s power to say “no” was put to the test in 1670. The trial of William Penn and William Mead resulted in one of the most important developments of the common law jury. During the previous six years English juries often acquitted Quakers for violating Parliment’s command that all religious services include Anglican ritual. The King’s Bench often responded to verdicts for acquittal in such political trials by fining jurors.
When the common law juries failed to enforce the Crown’s religious intolerance London soldiers locked and guarded the doors of the Quaker Church. Penn and Mead preached in the streets and were arrested when a large crowd came to listen. Rather than pay a fine they demanded a jury trial. Penn asked the jury, as “my only true judges,” to bring in a verdict according to “higher law” as dictated to them though their consciences. Many historically significant trials were held at the Old Bailey in London. This is the only one that is commemorated by a memorial plaque in the present courthouse:
“Near this site William Penn and William Mead were tried in 1670 for preaching to an unlawful assembly in Gracechurch Street.
This tablet commemorates the courage and endurance of the Jury, Thomas Vere, Edward Bushell and ten others, who refused to give a verdict against them although they were locked up without food for two nights and were fined for their final verdict of Not Guilty.
The case of these jurymen was reviewed on a writ of Habeas Corpus and Chief Justice Vaughan delivered the opinion of the court which established the Right of Juries to give their Verdict according to their conviction.[6][6]”
Common law juries also refused to press the law upon defendants charged with seditious libel against the government. Juries were to decide only whether the defendant published the alleged criticism of government and the judge was to decide if the material was criminally seditious. Jury nullification of seditious libel law eventually lead to the historic 1792 Fox’s Libel Law, which declared juries to be the judges of the seditious na*ture of publication in libel cases.
In the American colonies, publisher John Peter Zenger was prosecuted in 1735 un*der a similar seditious libel law prohibiting any criticism, true or false, of government.[7][7] The publication consisted of articles by anonymous authors criticizing the royal governor of New York. Though Zenger’s name was the only one listed on the publication and he freely admitted publishing the illegal newspaper, the jury acquitted him. Zenger’s Case is considered a hallmark of freedom of the press in America.
Colonial juries also refused to enforce forfeitures under the English Navigation Acts. The early American jury veto power prompted England to extend the jurisdiction of the non-jury admiralty courts in America beyond their ancient limits of sea-going ves*sels. Depriving “the defendant of the right to be tried by a jury which was almost certain not to convict him [became] the most effective, and therefore most disliked”[8][8] of all the methods used to enforce the acts of trade. The Crown’s action was denounced in the Declaration of Independence and again by the first Continental Congress in the resolu*tions of October 14, 1774,[9][9] and was a major contributing factor to the revolution.[10][10]
John Adams 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 di*rect opposition to the direction of the court.”[11][11] Thomas Jefferson wrote in a letter to Thomas Paine in 1789, “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.”
Jury veto power is incorporated into American constitutional law, although you would never know it according to today’s jury instructions and oath. First Chief Justice John Jay, instructed jurors in a 1794 civil forfeiture trial (under original jurisdiction of the Supreme Court) that the facts of the case had been determined, and the only judgment remaining was on the law itself. After instructing the jury on the law he stated:
“It may not be amiss, here, Gentlemen, to remind you 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. But it must be observed that by the same law, which recognized the reasonable distribution of jurisdiction, you have, nevertheless, a right to take upon your*selves to judge of both, and to determine the law as well as the fact in controversy .”[12][12]
Court instructions informing jurors they have the right and the power to judge the law itself, as well as the facts of the case, were commonplace from the birth of our nation until the mid 1800s.[13][13] In fact, only one judge in the United States between 1776 and 1800 ever denied the jury the right to decide law in criminal cases. “He was afterwards impeached by the house of Representatives of Pennsylvania and removed by the Pennsylvania Senate, on the grounds of interference with the rights [of] a fellow judge in the charging of grand and petit juries.”[14][14]
Juries continued to function as the “citizens’ safeguard of liberty”[15][15] throughout the first century of our nation. But when abolitionists refused to enforce the 1850 Fugitive Slave Act judges responded by questioning jurors to find out if they were prejudiced against the government, dismissing any who were.[16][16]
By the end of the nineteenth century the judiciary effected a redistribution of legal power. According to a commentator in the Yale Law Journal, “the jury at the outset of the century had been regarded as a mainstay of liberty and an integral part of democratic government. But by the end of the century the jury had come to be seen as an outmoded and none-too-reliable institution for resolving disputed questions of fact.”[17][17]
Directed verdicts, judgments notwithstanding the verdict and special verdicts—each a means of subjugating jury power—were all developed during the late 1800s. In 1895 the Supreme Court ruled that, although juries have the power to judge the law as well as the facts, they do not have the right to do so.[18][18] As a result judges are no longer required to inform juries of their traditional right to say no to unjust or misapplied law. (Three years earlier, following frequent jury verdicts against corporations in prosecutions and suits pressed against union organizers, the American Law Review wrote that jurors had “developed agrarian tendencies of an alarming character.” According to Steven Barkan the alarm reflected the American Bar Association’s fear that jurors were becoming too hostile to the lawyers’ corporate clients and too sympathetic to the poor.[19][19])
The Supreme Court still holds that the Sixth Amendment guarantees a trial by jury as understood and applied at common law, and includes all essential elements as they were recognized in this country and England at the time the Constitution was adopted.[20][20] Although the jury’s power to refuse to apply law is still legally recognized,[21][21] defense at*torneys are rarely allowed to argue the jury’s right to judge law.[22][22] Indeed, most judges instruct jurors that they must judge only the facts of the case, according to the law as the judge dictates, and may not let their conscience or “opinion of the law” affect their deci*sion.[23][23]
Still, juries made aware of their power to temper harsh law with common sense judgment can continue to function as the conscience of the community. However, in*forming the jury of their power to nullify harsh law must be accomplished in a manner subtle enough to avoid contempt of court charges, yet powerful enough for the jury to understand the message.[24][24]
[1][1]. Russel, History of the English Government and Constitution, quoted by Alan W. Scheflin in Jury Nullification: The Right to Say No, 45 Southern Calif. Law Review 168, at 192.
2. Barkan, Steven E., Protesters On Trial—Criminal Justice in the Southern Civil Rights and Vietnam Antiwar Movements, Rutgers University Press, NJ (1985), at 136, citing Kalven and Zeisiel, 1966:49.
3. See Thomas Andrew Green, Verdict According to Conscience, Perspectives on the English Criminal Trial Jury, 1200–1800, University of Chicago Press, 1988.
4. Barkan, (1985), at 136.
5. Thomas Andrew Green, (1988).
6. Scheflin, Jury Nullification: The Right To Say No, 45 So. Cal. Law Review 168, (1972) opening paragraph. The case the plaque refers to is Bushell’s Case, 6 Howell’s State Trials 999, 124 Eng. Rep. 1006 (1670).
7. Zenger’s Case (1735).
8. Holdsworth, A History of English Law (1938) XI, 110).
9. United States v. One 1976 Mercedes Benz 280S, 618 F.2nd 453 at 464, note 49, citing Journals (W.C. Ford ed. 1904) I, 74 and Edward Dumbauld, The Declaration of Independence and What It Means Today (1950, 2nd ed. 1968) 116-17, 132-33.
10. Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, 43 Law and Contemporary Problems 4:51, (1980).
11. 74 Yale Law Journal 173 (Nov. 1964).
12. Georgia v Brailsford, 3 US (3 Dall.) 1 (1794).
13. Howe, Juries As Judges of Criminal Law, 52 Harv. L. Rev. 582 (1939); Everett v. United States, 336 F.2nd 979, 984 (1964) (dissenting opinion of Judge Wright).
14. Scheflin & Van Dyke, 1980, page 54, quoting Lloyd E. Moore, The Jury: Tool of Kings, Palladium of Liberty, at 107 (1973).
15. 2 Elliots Debates, 94, Bancroft, History of the Constitution, 267, (1788) “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.”
16. Lysander Spooner, An Essay on the Trial By Jury, 1852, reprinted in Jury Nullification, Vol. I, Mike Timko, Box 25908, Los Angeles, CA 90025.
17. The Changing Role of the Jury in the Nineteenth Century, 74 Yale Law Journal 170 (Nov. 1964).
18. Sparf and Hanson v. United States, 156 U.S. 51 (1894).
19. Jury Nullification in Political Trials, University of Maine, 31 Social Problems 1 (Oct., 1983).
20. United States v. Johnson, 718 F.2nd 1317, (1983, 5th Cir.), citing Patton v. United States, 281 US 276, 288, (1930).
21. United States v. Dougherty, 473 F.2d, 1130 (1972), “[the jury has an] unreviewable and irreversible power ... to acquit in disregard of the instruction 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 instructions of the judge,”; see also: United States v Moylan, 417 F.2nd at 1006: “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.”; and Lessard v. State, 719 P.2d 227, 231 (Wyo. 1986), citing numerous other cases.
22[1][1]. Dougherty, (supra at note 88), despite the court’s recognition of jury power and its historic role in government by the people, the majority held the jury need not be told of their power to acquit despite the facts; Dunn v. United States, 284 U.S. 390, 393 (1932) upheld inconsistent verdicts on related charges, explaining that the acquittal was based on jury nullification—“assumption of a power which [the jury] had no right to exercise, but to which they were disposed through lenity.”; “The court’s holding in Dunn accords with the modern view of the rule which is that, although the jury has the power to nullify the law in a particular case, the defendant has no correlating right to an instruction that informs the jury of that fact. ... To date, every federal circuit court of appeals that has considered the question ... has denied the right of defense counsel to argue directly for jury nullification.” Carol Sobel, Paul Hoffman and Erwin Chemerinsky, Jury Nullification Is Conscience of Community, The Los Angeles Daily Journal, Aug. 31, 1990.
23. However, some judges do allow defense nullification arguments, and a few even issue such instructions on the court’s own motion: see Justice William C. Goodloe, Jury Nullification, May 12, 1987, Washington State Supreme Court, Temple of Justice, Olympia, WA 98504 (28 pages).
24. The extent of permissible indirect argument is unclear and far from uniform. The Eleventh Circuit appeals court held in 1983 that a lawyer could not directly argue nullification (United States v. Trujillo, 714 F.2nd 102), yet several courts have permitted nullification arguments along with counter arguments from the prosecution or qualifying instructions from the judge. See United States v. Coupez, 603 F.2d 1347 (9th Cir. 1979). Several attorneys in the Kern Co., CA, Public Defenders Office have been allowed to argue jury nullification in Superior Court this year.
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[1][1]. Russel, History of the English Government and Constitution, quoted by Alan W. Scheflin in Jury Nullification: The Right to Say No, 45 Southern Calif. Law Review 168, at 192.
[2][2]. Barkan, Steven E., Protesters On Trial—Criminal Justice in the Southern Civil Rights and Vietnam Antiwar Movements, Rutgers University Press, NJ (1985), at 136, citing Kalven and Zeisiel, 1966:49.
[3][3]. See Thomas Andrew Green, Verdict According to Conscience, Perspectives on the English Criminal Trial Jury, 1200–1800, University of Chicago Press, 1988.
[4][4]. Barkan, (1985), at 136.
[5][5]. Thomas Andrew Green, (1988).
[6][6]. Scheflin, Jury Nullification: The Right To Say No, 45 So. Cal. Law Review 168, (1972) opening paragraph. The case the plaque refers to is Bushell’s Case, 6 Howell’s State Trials 999, 124 Eng. Rep. 1006 (1670).
[7][7]. Zenger’s Case (1735).
[8][8]. Holdsworth, A History of English Law (1938) XI, 110).
[9][9]. United States v. One 1976 Mercedes Benz 280S, 618 F.2nd 453 at 464, note 49, citing Journals (W.C. Ford ed. 1904) I, 74 and Edward Dumbauld, The Declaration of Independence and What It Means Today (1950, 2nd ed. 1968) 116-17, 132-33.
[10][10]. Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, 43 Law and Contemporary Problems 4:51, (1980).
[11][11]. 74 Yale Law Journal 173 (Nov. 1964).
[12][12]. Georgia v Brailsford, 3 US (3 Dall.) 1 (1794).
[13][13]. Howe, Juries As Judges of Criminal Law, 52 Harv. L. Rev. 582 (1939); Everett v. United States, 336 F.2nd 979, 984 (1964) (dissenting opinion of Judge Wright).
[14][14]. Scheflin & Van Dyke, 1980, page 54, quoting Lloyd E. Moore, The Jury: Tool of Kings, Palladium of Liberty, at 107 (1973).
[15][15]. 2 Elliots Debates, 94, Bancroft, History of the Constitution, 267, (1788) “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.”
[16][16]. Lysander Spooner, An Essay on the Trial By Jury, 1852, reprinted in Jury Nullification, Vol. I, Mike Timko, Box 25908, Los Angeles, CA 90025.
[17][17]. The Changing Role of the Jury in the Nineteenth Century, 74 Yale Law Journal 170 (Nov. 1964).
[18][18]. Sparf and Hanson v. United States, 156 U.S. 51 (1894).
[19][19]. Jury Nullification in Political Trials, University of Maine, 31 Social Problems 1 (Oct., 1983).
[20][20]. United States v. Johnson, 718 F.2nd 1317, (1983, 5th Cir.), citing Patton v. United States, 281 US 276, 288, (1930).
[21][21]. United States v. Dougherty, 473 F.2d, 1130 (1972), “[the jury has an] unreviewable and irreversible power ... to acquit in disregard of the instruction 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 instructions of the judge,”; see also: United States v Moylan, 417 F.2nd at 1006: “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.”; and Lessard v. State, 719 P.2d 227, 231 (Wyo. 1986), citing numerous other cases.
[22][22]. Dougherty, (supra at note 88), despite the court’s recognition of jury power and its historic role in government by the people, the majority held the jury need not be told of their power to acquit despite the facts; Dunn v. United States, 284 U.S. 390, 393 (1932) upheld inconsistent verdicts on related charges, explaining that the acquittal was based on jury nullification—“assumption of a power which [the jury] had no right to exercise, but to which they were disposed through lenity.”; “The court’s holding in Dunn accords with the modern view of the rule which is that, although the jury has the power to nullify the law in a particular case, the defendant has no correlating right to an instruction that informs the jury of that fact. ... To date, every federal circuit court of appeals that has considered the question ... has denied the right of defense counsel to argue directly for jury nullification.” Carol Sobel, Paul Hoffman and Erwin Chemerinsky, Jury Nullification Is Conscience of Community, The Los Angeles Daily Journal, Aug. 31, 1990.
[23][23]. However, some judges do allow defense nullification arguments, and a few even issue such instructions on the court’s own motion: see Justice William C. Goodloe, Jury Nullification, May 12, 1987, Washington State Supreme Court, Temple of Justice, Olympia, WA 98504 (28 pages).
[24][24]. The extent of permissible indirect argument is unclear and far from uniform. The Eleventh Circuit appeals court held in 1983 that a lawyer could not directly argue nullification (United States v. Trujillo, 714 F.2nd 102), yet several courts have permitted nullification arguments along with counter arguments from the prosecution or qualifying instructions from the judge. See United States v. Coupez, 603 F.2d 1347 (9th Cir. 1979). Several attorneys in the Kern Co., CA, Public Defenders Office have been allowed to argue jury nullification in Superior Court this year.
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