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Posted as a public service by Ralph Fucetola JD
Jury Nullification before U.S. Supreme
Court - 10/18/03
One of the moral obligations of lawyers is to "speak truth to power" on behalf of clients.
One truth that is being "dropped down the memory hole" is Jury Nullification, the right of jurors to make a finding of Not Guilty despite the facts and the law; to judge the justice of the law in the particular case.
"For more than six hundred years--
that is, since Magna Carta, in
1215--there has been no clearer principle of English or American
constitutional law, than that, in criminal cases, it is not only the right
and duty of juries to judge what are the facts, what is the law, and what
was the moral intent of the accused; but that it is also their right, and
their primary and paramount duty, to judge the justice of the law, and to
hold all laws invalid, that are, in their opinion, unjust or oppressive,
and all persons guiltless in violating, or resisting the execution of, such
law." --Lysander Spooner, The Right of Juries
If the jury feels the law is unjust, we recognize the undisputed power of
the jury to acquit, even if its verdict is contrary to the law as given by
a judge, and contrary to the evidence.
-- 4th Circuit Court of Appeals, US v Moylan, 1969
Every jury in the land is tampered with and
falsely instructed by the judge
when it is told that it must accept as the law that which has been given to
them, or that they can decide only the facts of the case.
-- Lord Denham, O'Connell v Rex (1884)
The jury has the power to bring in a verdict in the teeth of both the law
and the facts. -- Justice Holmes, Homing v District of Columbia, 138 (1920)
If a juror accepts as the law that which the judge states then that juror
has accepted the exercise of absolute authority of a government employee
and has surrendered a power and a right that once was the citizen's
safeguard of liberty. -- Bancroft, History of the Constitution
When a jury acquits a defendant even though he or she clearly appears
to be guilty, the acquittal conveys significant information about community
attitudes and provides a guideline for future prosecutorial
discretion...Because of the high acquittal rate in prohibition cases in the
1920s and early 1930s, prohibition laws could not be enforced. The repeal
of these laws is traceable to the refusal of juries to convict those
accused of alcohol traffic.
-- Sheflin and Van Dyke, Law and Contemporary Problems, 43, No. 4, 1980
It is not only the juror's right, but his duty,
to find the verdict according to his own best
understanding, judgment and conscience, though in
direct opposition to the directions of the
court.-- John Adams
More information: Fully Informed Jury - www.fija.org
From: rex [mailto:email@example.com]
Sent: Saturday, October 18, 2003 4:46 PM
Subject: Jury Nullification before U.S. Supreme Court
Op/Ed (for publication)
Jury nullification is now before the U.S. Supreme Court. The argument that
jurors should be able to reject vice laws and acquit is in a new Petition
for Writ of Certiorari. The Petition also argues various reasons why vice
laws are unconstitutional. The nullification arguments and the entire brief
can be viewed at http://rexcurry.net .
As an attorney and a libertarian I am urging the nation's highest court to
recognize jury nullification, also known as jury pardon and jury veto.
During my legal career, I have often been asked if jurors can overturn bad
laws. The askers fear compulsory jury duty to convict defendants accused of
vices (gambling, prostitution, drugs) or other non-violent charges (tax
non-payment, gun possession).
The fear has risen because many non-violent consensual acts now carry
mandatory sentences of 10 years and even life in prison. Jurors are not told
that their verdict will result in a non-violent defendant with no prior
record going to prison for a decade or more. The jurors won't know what they
have done and if they find out, then they might become ill.
Most courts hold that jurors do not have the right to acquit in defiance of
the law, though courts recognize that jurors have the power to do so, and
that nothing can be done about jury nullification when it happens.
In history, jury veto has been used for acquittals against charges involving
miscegenation, slavery, etc.
For more information on jury nullification, jury veto, and jury pardon see:
for more ideas on liberty and libertarianism see
Attorney At Law
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