Jury nullification is the term used when a jury – or a single juror – votes to acquit a criminal defendant who is guilty of breaking a law, but whom juror(s) do not believe deserve punishment.
It can occur when one juror believes the law is wrong and refuses to vote with other jurors and hangs a jury, preserving the liberty of the accused –at least until the time the government chooses to retry the defendant.
The trial by jury” is a “trial by the country”- by the people- as distinguished from a trial by government.
It means the jury has final say on every law, on a case by case basis.
A jury has the power to nullify a law and find anyone “not guilty” of any “crime” if they, in good conscience, do not believe the law is just.
The government cannot coerce a juror to vote with the majority. One juror can hang a jury.
This is not taught in public schools. It is nonetheless easy to verify.
Jury ended The Power of Kings
The Barons of England compelled King John to sign the Magna Carta,
Trial by jury was established.
With the imposition of the jury, the King had to seek permission through citizens unanimous in their verdict before he could take anyone’s freedom away. It was understood then that the reason we have jury trials is to protect people from government oppression – not simply to try to figure out if somebody broke the king’s law.
Jury Nullification brought Freedom of Religion
Back in the 17th century, the British government did not approve of a citizen preaching the Quaker religion and made laws against public assembly.
In 1670, Quakers William Penn and William Mead broke the law and were prosecuted for preaching Quakerism to people.
At the trial, evidence showed that Penn and Mead preached the Quaker religion to an assembly. Judge Samuel Starling instructed the jury to return a guilty verdict since Penn and Mead broke the law.
Four jurors, led by Edward Bushnell, refused to return a guilty verdict. They did not think it should be a crime.
The judge ordered the jury locked up until they returned a lawful verdict- guilty.
For two days, the jury refused to return a guilty verdict. The judge ended the trial and ordered the jurors imprisoned until they paid a fine.
Bushnell refused and spent time in jail. He was eventually released after his habeas corpus petition prompted the Court of Common Pleas to rule that a judge cannot punish jurors for their verdicts. Penn and Mead were free to preach the Quaker religion.
A jury nullified the law and established freedom of religion.
Jury nullification ended Witch trials
The Salem witch trials began in 1692.
After a splendid year-long, nearly 100 percent government conviction rate, and the execution of 33 witches, in May, 1693, juries decided the court of Oyer and Terminer had gone too far.
The jurors took it upon themselves to nullify the witchcraft law with 52 consecutive hung juries and/or acquittals.
Because of repetitive hung juries, the government could not execute witches. Often at retrial, a second hung jury made the government wroth since many known witches were surviving in direct contravention to government’s wishes. After all, these women had broken the law, the government believed.
Unable to get witchcraft convictions, prosecutors stopped bringing witches to trial.
Juries made it impossible to put to death people the government knew to be witches in Salem.
Freedom of speech won by jury
In 1734, John Peter Zenger’s newspaper criticized the Royal Governor of New York. It was against the law to criticize the government in Colonial America, as it still is in many countries that do not have jury trials. The British charged Zenger with seditious libel.
At his trial, Zenger’s lawyer, Andrew Hamilton, admitted Zenger broke the law but asked the jury to acquit because the law was wrong and, after all, Zenger published the truth.
Chief Justice James Delaney disagreed. “The truth is no defense,” he ruled, if one breaks the law.
Hamilton urged the jury “to make use of their own consciousness and understandings in judging of the lives, liberties or estates of their fellow subjects,” declaring jurors “have the right, beyond all dispute, to determine both the law and the fact.”
Hamilton added, if jurors cannot nullify bad laws, then “juries (are) useless, to say no worse . . . The next step would make the people slaves.”
The jury acquitted Zenger.
The transcripts of the trial were widely published and the verdict encouraged more literature critical of England by Franklin, Jefferson, Paine and others.
If Zenger’s jurors had obeyed the judge’s directions, the people of America might still enjoy British rule.
Jury trial in the bill of rights
Given the jury’s role in Zenger’s and other Colonial trials, the framers of the Constitution envisioned that juries would continue their freedom ensuring role. That is why they guaranteed jury trials in the Sixth Amendment.
Benjamin Franklin said that jury nullification is “better than law, it ought to be law, and will always be law wherever justice prevails.”
Thomas Jefferson wrote, “Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative. The execution of the laws is more important than the making [of] them.”
In other words, Jefferson said jury nullification is more important than voting since jurors have the final say on what laws can be enforced!
Alexander Hamilton said of the framers of the constitution, “If they agree on nothing else, (they) concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists of this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.”
In the 1794 case of Georgia v. Brailsford, the Supreme Court directly tried a common law case before a jury. The facts in the case were not in dispute, and the legal opinion of the court was unanimous, but the Court was nonetheless obligated to refer the matter to the jury for a general verdict.
Chief Justice John Jay’s instructions informs the country about jury nullification:
“[Y]ou have … a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.”
Nullified fugitive slave act
The fugitive slave law of 1850 was enacted to assist slave owners from the South who were threatening to secede from the Union since their legal property were illegally running away and the North was not doing enough to stop it.
The law provided for stiff punishment for “criminals” who helped slaves escape.
In Syracuse, New York, 24 alleged criminals were indicted for helping a slave escape from jail. A federal judge in Buffalo called the defendants “disturbers of society.”
Jurors nullified the law. Four trials ended in three acquittals and compelled the government to drop the charges.
A crowd broke into a Boston courtroom and grabbed a slave, Shadrach Minkins, and turned him loose. The judge called the defendants’ actions in that case “beyond the scope of human reason.”
President Millard Fillmore demanded prosecution. A grand jury indicted three people. Daniel Webster led the prosecution.
The jury nullified the law.
After one acquittal and several hung juries, the government dropped all charges realizing they could never get 12 men to agree to punish someone for helping a man escape slavery in Boston.
Because of these juries, a network of “criminals” called abolitionists organized, knowing northern juries would not convict them.
Things got worse. Tensions rose. The Southern States decided to secede. The Civil War followed, then the Emancipation Proclamation.
If northern juries had followed the law as the judge directed, African Americans might still be human property in accordance with federal law.
Set Wild Bill Hickok free
Wild Bill Hickok and Davis Tutt engaged in a duel on July 1865 in Springfield, Missouri. Tutt was killed.
Hickok was charged with manslaughter. Mutual combat was against the law.
Witnesses claimed both men fired their pistols, but Tutt was first to display overt aggression. Had Hickok not fought, he would have been branded a coward.
Judge Sempronius Boyd instructed the jury that a conviction was its only option under the law. Then he instructed the jury that they could nullify the law by applying the unwritten law of the “fair fight” and acquit.
The jury acquitted Hickok.
Helped end prohibition
In the US, the Constitution was amended to prohibit the sale of alcohol because a majority wished to impose their moral beliefs on the minority of citizens. The jury protected citizens from the tyranny of the majority.
During Prohibition, juries nullified alcohol control laws about 60 percent of the time. The fact that most juries would not convict on alcohol control laws made the use of alcohol widespread throughout Prohibition. Jury resistance contributed to the adoption of the Twenty-first amendment repealing Prohibition.
During Prohibition the jury made it a toothless amendment and it was repealed in 13 years, forcing an end to the federal criminalization of victimless alcohol offenses.
In short the government could not enforce a constitutional amendment because the jury did not approve.
In the late 19th century, vigorous prosecution on “conspiracy” charges against alleged criminals who, calling themselves “union workers”, who went on strike, was thwarted by jury acquittals and gave unions the right to organize, assemble, and go on strike.
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Throughout history, government has not always been right. It is that government has no capacity to admit its laws are wrong.
By its nature, government must enforce its laws. It is for this reasons we have juries to protect our freedom from tyrannical government.
Today people have lost sight of the historical role of the jury as the palladium of liberty.
Their proper role is to vote in the jury room for each and every law – and for or against the justness of each and every government prosecution – as well as the guilt or innocence of the defendant. They must vote just as they vote in the election booth.
Lysander Spooner wrote:
The jury must judge of and try the whole case, and every part and parcel of the case, free of any dictation or authority on the part of the government. They must judge of the existence of the law; of the true exposition of the law; of the justice of the law; and of the admissibility and weight of all the evidence offered; otherwise the government will have everything its own way; the jury will be mere puppets in the hands of the government; and the trial will be, in reality, a trial by the government, and not a “trial by the country.” By such trials the government will determine its own powers over the people, instead of the people’s determining their own liberties against the government; and it will be an entire delusion to talk, as for centuries we have done, of the trial by jury, as a “palladium of liberty,” or as any protection to the people against the oppression and tyranny of the government.
One might think that since the jury brought us many of our freedoms, the government would want the true role and purpose of the jury taught to every child in every public school. I wonder why that does not happen?
In times of a police state, the deep state, or a deeply corrupt federal government, the jury may the only thing that separates the people from a boot stamping on their face – forever.