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The Evolution of Jury Power
Published in the USABULLETIN, CUMULATIVE INDEX March 1999
David Farnham, Senior Trial Attorney
Office of Consumer Litigation
US Department of Justice—Civil Division
Editor’s note: If you think that these beliefs, concerning the power of juries, are just extremism, please make note of who the author is.
The idea of jury nullification is generally viewed as an abuse of power by twelve citizens whose only legitimate role is to apply the law as given to them by a judge to the facts that they find in a case. Yet it has not always been so. There are legal, historical, and philosophical arguments to justify a jury’s right—as opposed to its inherent power—to nullify the judge’s instructions on the law.
Medieval English juries were not called to sit in impartial judgment of facts passively presented to them. Instead, they were supposed to render a verdict based upon their own knowledge of the facts. Jurors were called from the location of the crime, which was the origin of the notion of a trial venue and which is the very opposite of the modem concept of a trial jury ignorant of the facts, parties, and witnesses. Nonetheless, problems arose with jurors because of the costs involved with serving. Jurors had to pay for their own transportation to the town where the court was sitting, and had to bear their expenses of room and board for the duration of the case. Consequently, wealthier litigants were tempted to “help” jurors with these costs. As the line between assistance and bribery became blurred, there necessarily arose the need to reverse corrupt verdicts. The only means then available was by a writ of attaint, in which a super-jury of twenty-four was summoned not only to reconsider the facts disputed in the first trial, but also to try the first jury for perjury. If the first judgment was demonstrably false, then the first panel of jurors must have violated their oath to tell the truth about the facts known to them. If convicted, the original jurors faced severe penalties for their malfeasance, such as imprisonment and forfeiture of all possessions to the King.
The logic for such severe punishment ebbed as the function of the jury changed. With the increased presentation of evidence and testimony to assist the jury’s fact-finding effort, jurors were no longer expected to act based on their own knowledge. Thus, a “wrong” verdict was more likely to result from a good faith mistake than from juror “perjury,” and at a time when there were the beginnings of an appeal process. Although attaint fell into disuse, it did not disappear from the law. Instead, it became viewed as a means of controlling an obstinate jury. Even Draconian punishment could not always guarantee a verdict in strict accordance with the law when powerful political sympathies were involved. For instance, in 1544 Sir Nicholas Throckmorton was acquitted on charges of high treason by a London jury, although there was no doubt he played a prominent role in the offense (Wyatt’s Rebellion),* and in spite of the judge’s instructions. Sir Nicholas went free and could not be tried again. However, his twelve jurors were called before the Court of the Star Chamber on a writ of attaint. Four of the jurors recanted their acquittal and went free. The other eight stood by their verdict and were fined and imprisoned. In the next century, the courts’ ability to punish an independent jury was relegated to history by Chief Justice Vaughan in Bushel’s Case, 124 Eng. Rep. 1006 (C.P. 1670). William Penn and another Quaker leader were tried at Old Bailey Courthouse for disturbing the peace by holding an unlawful assembly. They were acquitted despite undisputed evidence that they preached to several hundred fellow Quakers in a public street.
The Court instructed the jury that a meeting of such size in such a place was legally a disturbance of the peace, and he instructed the jury to find so. The jury, however, refused to convict, and after being threatened by the judge and imprisoned without food, drink, or heat, they acquitted the defendants. The jury was imprisoned again, this time on a writ of attaint, until they paid a heavy fine. Four of the jurors refused to pay, and spent several months in jail, until one of them—Bushel— obtained a writ of habeas corpus from the Court of Common Pleas. In discharging the attaint and freeing the jurors, Chief Justice Vaughan reached back to the medieval notion of jurors as quasi-witnesses. He wrote that jurors, as neighbors of the defendant and the witnesses, might have independent knowledge of the facts or of the credibility of the witnesses.
Vaughan also rested his decision on the alternative ground that a criminal acquittal is a general verdict—as opposed to a special verdict, where the judge applies the law to the facts found by the jury—and it would be impossible to second-guess the jury’s application of the law to the facts, since no one else could know how the jury resolved the facts.
Bushel’s Case found favor with lawyers in the American Colonies, and its impact is known to many through the 1753 libel trial of John Peter Zenger, the publisher of the New York Weekly Journal. Although the Zenger trial is remembered for establishing truth as a defense to libel, it did so only because defense counsel successfully appealed to the jury to nullify the controlling law. Nullification was not, however, new to colonial juries. For years colonial juries nullified prosecutions brought under the Navigation Acts, until jurisdiction was removed to Admiralty Court, which had no juries. So Zenger’s attorney, Alexander Wyatt led a popular Protestant uprising against the hated “Bloody Mary,” the Catholic Queen of England whose name derived from the amount of Protestant blood she shed in her effort to return England to Rome’s ambit.
Hamilton of Philadelphia, found a receptive audience for his plea. As support for his invitation to nullify the libel law, Hamilton relied on Bushel’s Case. See A Brief Narrative
of the Case and Trial of John Peter Zenger (Notable Trials, 1989), pp. 75, 91-92. John Adams was another colonial lawyer of note who held an expansive view of the jury’s role. His notes of authorities for a 1771 case contain quotes from Bushel’s Case and from Blackstone’s Commentaries to support his planned argument that the jury could decide the law and find the facts. Thus, at the time of the Revolution, and among the lawyers who helped to bring it about, the idea of the jury as the conscience of the community with the right and obligation to decide both the law and the facts was conventional.
For the first 60 years of the nation’s existence, federal juries had the right to decide the law. In Georgia v. Brailsford, Chief Justice John Jay instructed the jury:
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 this reasonable distribution of jurisdiction, you have nevertheless a right to take it upon yourselves to judge both, and to determine the law as well as the fact in controversy... [B]oth objects are lawfully within your power of decision.
Georgia v. Brailsford, 3 Dali. 1, 4 (1794). In 1798, Congress enacted the Sedition Act, which approved the jury’s right to decide the law: “the jury who shall try the cause shall have a right to determine the law and the fact, under the direction of the court, as in other cases.” 1 Stat. 597. As the last four words suggest, the Federalist legislators did not believe that they were creating a special role for juries in seditious libel cases. Instead, they adopted the prevailing right of American juries to judge the law. Nullification remained a respectable legal principle until the Civil War, because it was widely applied to acquit those charged with aiding escaped slaves under the Fugitive Slave Act. However, nullification’s death knell was finally sounded by the Supreme Court’s decision in Sparf and Hanson v. United States, 156 U.S. 51(1895), where the Court upheld the murder convictions of two sailors. At trial, the judge instructed the jurors that although they had the power to convict of any lesser included offense, there was no evidence to support such an offense. Thus, if they found the killing to have been felonious, the jury was required to convict of murder rather than manslaughter. Justice Gray’s dissent pointed out the long history of nullification in the United States, and that the majority’s decision would raise an anomaly whereby the defendant is presumed at his peril to know the law, but the jury is not considered competent on the law. Id. at 168, 174-75.
Since Sparf and Hanson, judges do not instruct juries on nullification and counsel cannot argue for it. This also means that prosecutors cannot argue the grounds against it either. Yet it does not mean that juries do not exercise the power of nullification in cases that offend their sensibilities.
In contrast to pre-Civil War juries that refused to convict individuals who aided escaped slaves, recent juries have refused to convict KKK members of crimes against black citizens. See Juan Williams, Eyes on the Prize: America’s Civil Rights Years, 1954–1965, at 38- 57, 22 1-25 (1987). Likewise, nullification has played a major role in death penalty and battered spouse cases, and in cases involving minimum mandatory sentences and the newly favored three-strikes laws. For instance, a mistrial was declared in a California three-strikes case when the jurors refused to deliberate on the validity of the defendant’s two prior convictions. In People v. Jones, Cr. No. 15792 (January 1995), a San Francisco jury convicted Jones of attempted carjacking, but were then told for the first time that it was a three-strikes case. The jurors stated that they felt violated by the system. Such reluctance by juries to ignore their moral sensibilities and become judicial rubber stamps forced the law to introduce discretion into death penalty decisions. Legislation followed and codified the fruits of jury activism. See Woodson v. North Carolina, 428 U.s. 280, 293 (1976).
Conclusion
The concept of jury nullification is currently enjoying a resurgence of popularity. For instance, The Fully Informed Jury Association, based in Montana, has promoted legislation that would require state judges to instruct juries on their right to determine the law. Association members have also been charged with jury tampering for passing out leaflets advocating nullification to a potential jury pool in front of a San Diego courthouse. In Colorado, a juror was held in contempt of court for concealing her belief in jury nullification, thereby causing a mistrial, and for giving a nullification leaflet to a fellow juror. People v. Kriho, No. 96CR91 (February 1997). It is arguable that conscientious jurors would be better off receiving instruction on their ability to determine, or nullify, the law from the judge, with elucidating arguments from both the prosecution and the defense, than from pamphlets written by laymen who may have a hidden political agenda. But the shortcomings of the leaflets and their information are a byproduct of the consolidation of judicial power begun in the mid-nineteenth Century. The fact is that juries are exercising this power anyway, for good reasons, for bad reasons, and sometimes for no reason at all. The legal system might be better served if the jurors were given guidance by the courts and, if the prosecution were allowed to put forward counter arguments to defense invitations (sometimes only subtly hinted at), to nullify.
About the Author
David Farnham is an attorney with the Civil Division, Office of Consumer Litigation. Prior to working for the Civil Division, he spent thirteen years with the Tax Division, Southern Criminal enforcement Section. He has written extensively for EOUSA’s Office of Legal Education and the American Bar Association. For a more complete historical discussion of the evolution of jury power, see the author’s article “Jury Nullification: History Proves It Is Not a New Idea,” in CRIMINAL JUSTICE, vol. 11, no. 4 Winter 1997
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