A lot of people think of jury duty as something to avoid so they will come up with a plethora of reasons to avoid serving. The lives of jurors are disrupted and they are forced to watch endless wrangling between lawyers and judges and witnesses covering the minutiae of law–it’s boring. Why take time off from work or life to sit with eleven other strangers to decide if some other stranger committed some crime? Those who take jury duty lightly, acquiesce to a system that is broken and puts non-violent offenders of arbitrary laws into cages or financial peril. It is a failure to realize the power and the potential of a jury.
Juries were very important in the history of our country–so important that a trial by jury was recognized by the nascent United States as an integral right to be included in the Bill of Rights. Why was this so important? Thomas Jefferson said, “I consider trial by jury as the only anchor ever yet imagined by man, by which the government can be held to the principles of its constitution.” (emphasis mine). If Juries are the only anchor to keep government accountable, are you sure you’d rather be doing something else?
Jefferson’s words incorporate the practice of Jury Nullification. Jury Nullification is when a jury refuses to convict a person of a crime despite the fact that the person violated the law because the jury believes that a law is either unjust or should not be applied in the case before it. Jury Nullification is an old practice in English Common Law, from which we get our American judicial system. In 1650, William Penn was arrested and tried for preaching in public and the jury refused to convict him. The judge in Penn’s case jailed four of the jurors for refusing to follow his instructions; however, a higher court overturned the ruling, stating that juries have the power to judge both wisdom of the law and facts of the case. Since that time, juries have had the (very) undisclosed power to refuse to convict under laws they deem unjust.
Juries have used this power during times of social conflict, by refusing to convict those who harbored and hid fugitive slaves, those who consumed alcohol during Prohibition, and physicians who assisted patients with suicide. As juries refused to convict under those laws, they were rendered meaningless–which is dangerous to those in power who write those laws. It should be noted that juries were nullifying bad laws in the above cases well before the government took any action in freeing slaves, ending Prohibition, or allowing patients to die on their terms.
In the 1969 case of United States v. Moylan, the Supreme Court acknowledged the “undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence.” (United States v. Moylan, 417 F2 1002 (1969)). Justice Byron White stated, “The purpose of a jury is to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge.” (Taylor v. Louisiana, 419 US 522, 530 (1975)). Jury nullification is the relative at the family reunion that the legal and political establishment eventually has to acknowledge.
Why is jury nullification important to the liberty movement? Because it gives ordinary citizens the veto over unjust laws that they don’t want and which restrict people’s liberty. Once a defendant has been acquitted of a crime, he or she can never be re-charged with that same crime. Should a hung jury result, the state may well rethink its use of resources to prosecute victimless crimes. In a state, such as Oklahoma, with a Department of Corrections bursting at the seams with non-violent offenders, a juror could do what thousands of bureaucrats and hundreds of politicians have failed to do: keep non-violent people out of prison.
Needless to say, there have been obstacles to getting fully informed juries, as well as some more recent promising developments in New Hampshire (of course). Keep in mind that juries retain the power to nullify laws regardless of whether they are informed of that right.
In 2002, voters in South Dakota had the opportunity to vote on a state constitutional amendment which would have required judges to inform juries of their right to nullify bad laws. The state bar and the political class mounted a fear campaign and the amendment failed spectacularly. The chief complaint? “It was dangerous to allow a law to be voided by so few people…” Apparently it’s not dangerous to allow 535 individuals to make laws for 300 million people but twelve individuals refusing to apply a law or determining that it has no merit? Inconceivable!
Ten years later, in New Hampshire, Governor John Lynch signed HB 146, which reads, “In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.” HB 146 provided some opportunity for attorneys to fully inform juries of their power, the drawback being that it uses the term “application of the law” instead of a term more closely associated with the justness of the law. There is currently an attempt to clarify this further with HB 1270, which includes the statement: “However, if you [the jury] find, that the state has proved all of the elements of the offense charged beyond a reasonable doubt, but you find that based upon the facts of this case a guilty verdict will yield an unjust result, you may find the defendant not guilty.” To date, this bill is still in committee.
More recently, in Denver, CO, two individuals who were passing out leaflets outside of the courthouse with information on jury nullification were arrested and charged with jury tampering. The district attorney filed charges because of his belief that they were targeting potential jurors. District Court Judge Kenneth Plotz dismissed the charges because the literature gave general statements about juror rights and said nothing about a specific case or defendant. The pamphlets were held to be protected speech outside a courthouse.
Such recent events have shown that courts are loath to uphold charges of “jury tampering” against pamphleteers who are exercising their freedom of speech to inform not just jurors but the public at large. It could be that courts are hoping that the matter will go away quietly rather than making an individual or group a “martyr” for the cause.
Oklahoma, of course, is a state with page upon page of model jury instructions for nearly every conceivable offence. None of the instructions disclose to jurors their right to nullify, in fact, jurors are instructed to decide cases solely on evidence presented in court, which makes jury nullification in Oklahoma a bit tricky. A bill to provide for informed juries was proposed in the late 1990s but failed to gain passage and the subject has not had serious discussion at the state level since. As it stands now, mentioning jury nullification will get a person excused from jury duty in a split second.
If you are called to serve on a jury, bear the following in mind: In Oklahoma, a juror is under oath and is required to be truthful before and during the trial. During voir dire questioning, a prospective juror must answer truthfully and attorneys or the judge would likely be inclined to remove a juror who they suspect is informed about jury nullification. They will not likely ask such a question directly, to do so, would be to (ironically) inform others in the jury pool about the concept. The best practice is to keep your answers short and succinct, but always truthful. Never give more information than would be required, remember you don’t want to give the judge or counsel a reason to dismiss you from the pool. During deliberation, if you find a law is unjust, simply state “Not Guilty. The facts do not substantiate a guilty verdict,” and leave it at that. You owe no further explanation. You may be pressured by the rest of your fellow jurors, but if you are convinced that the law as applied and executed is unjust, stay strong! If you endure, you may just start a revolution and begin an incremental pushback against tyranny.
If you want to be a citizen revolutionary in the Sooner State, begin by informing yourself and others. Next, accept your jury selection with relish!