Juries

Let's say you get called for jury duty. Let's also say that the accused was arrested for evangelising in a public place without a license. A law was recently passed which restricted proselytizing on public property without a permit, and the accused was found to be handing out fliers and asking people if they wished to take spiritual surveys.

You are shocked to learn that such a law even existed and believe that it is terribly unfair and is in direct contradiction with the 1st Amendment, but when it is your turn to be interviewed, the judge asks you the following question, "If it is demonstrated that the accused was indeed handing out fliers of a religious nature and asking people to take surveys, also of a religious nature, and that the accused was doing so without a permit as required by law, would you be prepared to render a guilty verdict and sentence the man to the minimum 12 months in prison?" What would you say? What would you be thinking?

Let's say that you answer, "Yes, I would be willing to render a guilty verdict," and you are put on the jury. During the trial you are instructed by the judge that your job is to render a verdict on the facts only, that it is your job to determine whether or not the accused was evangelising, and whether or not he was doing so without a permit, and that it is not your job to determine whether the law is just or fair, it is only to determine whether the law as it is written was broken.

Based on the witnesses and the writing of the law it is clear that the accused was in direct violation of the law against evangelising. What would you do? Would you follow the judges direction? After all, you were specifically instructed that your only role in this matter is to determine the facts, and the facts are obvious: the law is written plainly, and the accused was clearly in violation of the law. Would you return a guilty verdict?

The case I just described is pretty similar to a the case brought against William Penn for preaching a Quaker sermon before an assembly in the street. The judge in the case attempted to force the jury to render a guilty verdict without even hearing the defense. When the jury refused, they were sequestered several nights in jail cells where they were told to rethink their verdict. The jury stood firm, and refused to render a guilty verdict even though the law was clear, and William Penn had plainly and openly violated the law.

This process is called jury nullification, and it's built into the jury system, although most jurors don't realize it. Since the judge cannot force a juror to render a particular verdict, and cannot punish a juror for how the verdict was determined, a juror is able to render a verdict of "not guilty" for pretty much any reason they find acceptable.

Aside from William Penn's case, jury nullification was also commonly used to nullify the Fugitive Slave Act. Enough Northerners thought the law was an abomination that it was very difficult to get a conviction. There were enough citizens of conscience that even when slaves were caught, and those harboring them were brought before the court, the juries would not convict them.

Unfortunately, jury nullification has fallen out of favor in the U.S. Juries are selected based on whether they will apply the law as it is written, regardless of whether they agree with it or not, jurors discovered to be intent on practicing their power of nullification are often removed, and defense attorneys are often prevented from informing juries of their nullification powers or imploring them to exercise their power.

It had never occurred to me that jurors had this ability. I had always operated under the assumption that juries "have" to render a verdict based on the facts, and it is up to the judges to determine whether the law is just or not. But the reality is that the courts cannot force the juries to abide by any particular instruction, and once a "not guilty" verdict has been rendered the question cannot be raised again. So juries certainly have the power, although many judges may attempt to remove those jurors intent on exercising that power.

I would also argue that jurors have the right to exercise their power of nullification, that they have the moral obligation to do so when the law is repugnant, and that a jury cannot be considered "impartial" if it is screened for jurors that may not agree with the law in question.