Jury Nullification Constitutional Right

Jury nullification is an effective way of countering prosecutorial abuse and limiting the power and intrusiveness of the legislature. The historical records indicate jury nullification played a major role in abolishing slavery, winning women’s suffrage, and the Repeal of Alcohol Prohibition.

Perhaps jury nullification will become the way the war on marijuana ends as happened in the Loren Swift case.

Juries are our last line of defense against the inappropriate use of power by the government.

Sam Smith wrote in What lawyers & judges won’t tell you about juries that according to the Yale Law Journal in 1964, during the first third of the 19th century judges did inform juries of the right, forcing lawyers to argue “the law — its interpretation and validity — to the jury.”

San Francisco Public Defender Jeff Adachi noted that “jury nullification is a constitutional right that every individual person who is called for jury duty possesses, and unless we appreciate that right, we will lose it because the courts will take it from us.”

“I think jury nullification is going to be part of the answer regarding states’ rights in future cases,” said former jury foreman Charles Sackett.

Clay S. Conrad wrote the 1998 book Jury Nullification: The Evolution of a Doctrine, that

Central to the history of trial by jury is the right of jurors to vote “not guilty” if the law is unjust or unjustly applied.

When jurors acquit a factually guilty defendant, we say that the jury “nullified” the law. The Founding Fathers believed that juries in criminal trials had a role to play as the “conscience of the community,” and relied on juries’ “nullifying” to hold the government to the principles of the Constitution.

Yet over the last century and a half, this power of jurors has been derided and ignored by American courts, to the point that today few jurors are aware that an important part of their role is, in the words of the Supreme Court, to “prevent oppression by the government.”

The Words of the Founding Fathers

Jurors should acquit, even against the judge’s instruction…
if exercising their judgement with discretion and honesty
they have a clear conviction the charge of the court is wrong.
– Alexander Hamilton, 1804

It is not only the juror’s right, but his duty to find the verdict
according to his own best understanding, judgement and conscience,
though in direct opposition to the instruction of the court.
–John Adams, 1771

I consider trial by jury as the only anchor yet imagined by man
by which a government can be held to the principles of its constitution.
– Thomas Jefferson, 1789

It will be of little avail to the people that the laws are made
by men of their choice, if the laws are so voluminous that they
cannot be read, or so incoherent that they cannot be understood;
if they… undergo such incessant changes that no man who knows
what the law is today can guess what it will be tomorrow
– James Madison

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