News & Op-Ed Commentary from The People's Republic of Moscow (Idaho)
The right and duty of jury nullification
I have not had the opportunity to sit on a jury yet. I’ve not ever been called. I think a lot of it has been that while I was serving in the military, I was automatically exempt. I wonder if I’m still flagged somewhere in the system.
All that said, I’d be honored to serve on a jury. But I’m not sure that they would let me. As soon as the lawyers find out that I support jury nullification, either the defense or the prosecution will reject me.
Too bad. I’d love to throw out some unjust laws.
An important avenue in which we can, and must, currently work to restore the principles of liberty is through jury nullification. This practice, once widely accepted among Christian and early American jurists and lawyers, has been largely forgotten—until very recently. Thanks to the increasing interest in liberty, civic involvement, and the advance of individual rights, we are seeing a resurgence of this principle. An interest in the principles of God’s law will take the Christian even further.
The principle itself is quite simple: juries have the perfectly legal right to determine both the facts and the law in cases over which they sit in judgment. This concept sounds radical to most modern ears, but it’s absolutely true. In cases where the application of a current law would actually cause an unjust outcome, or where the applicable law itself is unpopular or simply a bad law, the jury has the full power to remedy the situation—even if the defendant is technically guilty of breaking that law—by refusing to find that defendant guilty, by declaring the person innocent. Juries have this right even if the judge instructs them otherwise in any way.
Several of the founding fathers understood the fundamental importance of jury nullification. 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.”Likewise, the first Chief Justice of the U. S. Supreme Court, John Jay, stated that “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. . . . [B]oth objects are lawfully, within your power of decision.”Unsurprisingly, Jefferson joined these federalists in this view. He explained why we should support jury nullification: “To consider judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy.” ((Jefferson to William Charles Jarvis, The Works of Thomas Jefferson, 12 vol., ed. Paul Leicester Ford (New York and London: G. P. Putnam’s Sons and The Kinckerbocker Press, 1905), 12:162.))
This power was preserved as basic to preventing government abuse of power. During the ratification debates over our Constitution, jury nullification was upheld as a fundamental check against potential abuse under the proposed Constitution. During the debates in Massachusetts, Theophilus Parsons—a supporter of the Constitution and later State Supreme Court Chief Justice—proclaimed that
the people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his own fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainty will pronounce him, if the supposed law he resisted was an act of usurpation. ((In Jonathan Elliot, ed., The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, 4 vols. (Washington, 1836), 2:94. Partially quoted also in Thomas Woods, Jr., Rollback: Repealing Big Government Before the Coming Fiscal Collapse(Washington, D.C.: Regnery, 2011), 179.))