Jury Nullification, heard of it?

Probably not, unless you are pretty well read and follow political issues.  On the other hand, you do read my blog, so here's a brief summary.

You have a right to trial by jury in this country.  The Constitution says "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury;".  The government routinely gets around this by defining most things they don't want you to do as "not crimes", also known as infractions, misdemeanors, etc.  But what if the government passes a law that most people think is unjust?  What recourse do you have as a citizen other than constantly contacting your representative or filing an expensive lawsuit?

Jury Nullification.

Jury nullification occurs when a defendant is clearly guilty but a jury refuses to convict based on a moral opposition to the law in question.

The most famous example is the Fugitive Slave Act of 1850.  Escaped slaves were required to be returned to their masters, even if they were captured in the northern states where slavery was illegal.  Anyone helping them to escape and remain free could be charged under the FSA.  However, if someone was brought before you as a juror, charged with helping a slave escape, you could vote to acquit based on the immorality of the law and the institution being defended.

Jury nullification is the last defense before armed rebellion against unjust laws.  The government can pass a law, the courts can uphold the law, but if the people refuse to implement the law then it fails.

So why haven't you heard of this?  Well, there are some issues.  First of all, judges don't like it when you usurp their power as arbiters of all that is right in the courtroom.  Prosecutors don't like it when they build an airtight case and you overturn all their hard work.  The government generally doesn't like it when you don't follow the laws they passed for your own good.  There is also some evidence that defendants get treated differently depending on how they appear to the jury, a sympathetic defendant accused of the same crime as a non-sympathetic defendant is more likely to have their conviction nullified.  This last is an issue but in my issue doesn't eliminate the need for jury nullification as a check on overbearing government.

Jury nullification can also be used as a tool to overturn unjust law.  In 1992 California passed a law requiring that all motorcyclists wear helmets.  You can argue about whether motorcyclists should wear helmets, but in a free society I hope we can agree that the government shouldn't be making that decision.  The law was an infraction as mentioned above, so you don't get a trial by jury.  A judge (actually a traffic commissioner) rules on your guilt or innocence if you choose to contest.  Generally they have no incentive to actually rule on the facts of the case but rubber stamp most tickets unless there is an egregious violation by the officer.  California has a twist in their law, however, that requires repeated infractions of the same law to be upgraded to a misdemeanor, presumably to punish repeat offenders more severely, and certain types of misdemeanor get you a trial by jury.

So imagine this situation.  You are standing in front of a judge and jury.  You have been accused of not wearing a proper motorcycle helmet.  The jury, if they convict you, will be sending you to jail.  For not wearing a motorcycle helmet.  If you could tell them about jury nullification how many people do you know that would send someone to jail for not wearing a motorcycle helmet when they rode?  Many states, however, make it illegal to even mention jury nullification.  You can be held in contempt, your trial can be declared a mistrial, and as a juror you can be prosecuted if you don't disclose the fact in advance that you think jury nullification is a legitimate tool of the citizenry.

The Fully Informed Jury Association has been working for years to try to ensure that jurors know their rights.    You can see what they are doing and read their arguments at their website http://fija.org/

Also, here is a short (but entertaining) video on the subject.

Enjoy, but remember, if you think this makes sense you will probably never get to serve on a jury.  You threaten their power.

Jury Nullification

Many people are not aware that juries can find a person "not guilty" even if they clearly violated the law IF the jury believes that the law is unjust.  This concept, called "jury nullification" is enshrined in the concept of our right to trial by jury and is really the whole point.  Why do you need a  jury if their job is just to determine if you actually broke the law?  A panel of judges or a computer system could analyze the evidence and come to a conclusion just as easily.

Alexander Hamilton wrote in The Federalist Papers that juries act as check against judicial despotism by preventing "arbitrary methods of prosecuting pretend offenses".  One way that a government can control dissidents is to charge them with a multitude of minor crimes, crimes which,  under normal circumstances, most people would not consider an issue.

For example, from 1981 to 2003 Washington state law required that you have and use a litter bag in your car.

RCW 70.93.100 The owner of any vehicle or watercraft who fails to keep and use a litter bag in his vehicle or watercraft shall be guilty of a violation of this section 

Didn't matter if you actually littered, you were required to have a bag in your car for litter.

Under jury nullification a  jury of your peers could recognize that this was a ridiculous attempt by the government to either raise revenue or harass an otherwise innocent citizen and refuse to find the defendant guilty.*

Obviously this is a trivial example and a law that was undoubtedly rarely enforced, but the point remains that governments, being at least as fallible as individuals if not more so, are going to pass laws that are either immoral, unjust, or both.  One of the purposes of a jury based system is to prevent (or at least diminish) the effect of such injustices.

Recently both prosecuting attorneys and judges got in an uproar in Washington, D.C. when the Fully Informed Jury Association passed out handbills in Judiciary Square, an area where many federal and district courts are located.  Why would these attorneys and judges be upset unless this was somehow a threat to their power?

A little history.  In addition to Alexander Hamilton's remarks in The Federalist Papers, in 1649 a jury refused to convict John Liburne for inciting rebellion, and again in 1670 William Penn was acquitted by a jury of his peers on charges of illegally preaching.  The concept of jury nullification thus dates back almost five hundred years to the Common Law on which our legal system is based.

So why have you probably never heard of the concept?  The idea of jury nullification has the power to rile judges who feel that they should be the determiner of law in their courtroom.  Over the years lawyers and defendants have been found in contempt of court for daring to introduce ideas of law rather than evidence into their arguments, more recently activists in New Jersey and Florida have been charged with jury tampering for daring to educate people regarding the law.  The judge as overlord of the law, the jury a computer to weigh the evidence and determine which side it falls on.  Not the original intent, by any stretch of the imagination.**

It is a fact of life that governments are, on occasion, going to pass laws that the majority of people generally disagree with.  It's the nature of the system.  A vocal minority strongly behind a concept, pushes their proposal using whatever means necessary.  They are heard, but the majority of folks, having a less strong opinion one way or the other, don't bother speaking up.  Now a law is on the books that most people wouldn't agree with if asked.  The concept of carrying a litter bag in your car all the time is probably one of those times.  What now?  How do you get rid of the law without having to spend a lot of time lobbying against some hypothetical opponents such as Big Litter Bag, the manufacturers association, or the environmentalist lobby, who think that the alternative to having a litter bag is throwing each piece of litter out your window onto the highway.  You definitely don't have the money to fight them, you really don't have the time between your job and your family and whatever little recreation time you have to yourself, so you don't.  You accept that it's a stupid law and you hope that no police officer ever gets a wild hair and starts pulling people over to check their litter bags.  The law rarely gets repealed.

Enter jury nullification.  Sitting on that jury are twelve people, ten of whom think it's ridiculous that someone is going to be sent to jail for not having a bag in their car specifically designated for litter. Out it goes.


*Unfortunately this type of crime has also been placed under the term "misdemeanor" or "infraction" and you have no right to a jury in most states.

**BTW If you really want to be off a jury, mention that you believe that it is the right of juries to nullify bad laws.  The prosecuting attorney will do everything in his power to make sure that you are on the first train headed home.