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The Right Which Dare Not Speak Its’ Name

In this age where ancient protections of Liberty are openly scoffed upon by the powers that be, it behooves us to proclaim loudly from the rooftops those rights they much prefer buried and forgotten. I wonder how many of you know it is a basic Right of an American Juror to judge not only on fact but on law as well? As this forum has a large libertarian readership, I wager it is far higher than in the general public – but still depressingly low.

Jury Nullification is an ancient right of law inherited from England. It is yet another of the many glorious innovations in the defense of liberty invented here and forsaken in the rush to fascism of the last hundred years. Jury trial, Double Jeopardy, Habeas Corpus and Innocence until Proven Guilty all seem destined to follow it into the Westminster tip.

These foundational protections are still fairly safe in America. It is also the case Jury Nullification is still valid law there. This is not a matter of strange interpretations. It is a dirty little secret which is not easily swept under the courthouse rug.

I’ve known a number of activists in the battle to pass Fully Informed Jury laws, so I’ve long been aware of the importance of this concept in American history. The ancestors of many black Americans owe their freedom to this not-so-arcane bit of legal history. Juries could not be found that would convict workers on the “Underground Railroad” which helped so many escape the degradation of being self portable property. In both English and American history, Jury Nullification has been a bulwark of Liberty. It does not matter who buys the legislature if the courts cannot find a Jury of Peers willing to go along – or be bullied into going along – with the scam.

This is why “The System” hates it so much. It lets you, the six-pack drinking slob on the street tell them the Law itself is unjust – and make it stick. It makes you, the citizen, the final arbiter of what is Just.

I bring this up tonight because I finally “got around to” reading a legal paper by Glenn Reynolds on the topic. It’s quite a good one and I think anyone interested in how the system used to work to protect liberty should read it.

Make sure everyone you know who might possibly be called for jury duty knows it as well, and knows if the Judge or Prosecutor threatens them… it is the Judge or Prosecutor who is breaking the law, not the Juror.

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16 comments to The Right Which Dare Not Speak Its’ Name

  • The historical flip side of jury nulification was that murderers of African Americans, like the lynchers of Emmit Till and Sheriff Clark could act with impunity because no southern jury would convict them.

  • Dale Amon

    It’s rather obvious you didn’t read the article. Jury Nullification had little to do with it when the Judge, the Prosecutor, the Sheriff and everyone else were collaborating to keep the things from even coming to trial, and in the rare cases such things had to have a show trial, they manipulated jury selection to ensure 100% white juries in near 100% black areas.

    This is not to say Jury Nullification couldn’t ever do something wrong. That is the price of Liberty. Perfection does not exist in this world. No matter how many freedoms are sacrificed on the alter of “injustice” we will still have injustice – but we will not have Liberty.

    I suggest you read the fully researched and well cited legal paper rather than argue over a small number of introductory words I’ve written.

  • I did try, but could not DL the article.

    And also most of those states, by law, had all white juries.

    It is a classic two edged sword, though not as sharp now as then.

  • Larry

    No democratic system can practice higher ethical or moral standards than the average of its people.

    It is a fools’ gambit to blame Jury Nullification, or the Death {enalty, or whatever for the past prejudices of the American white majority.

    Future generations might discuss with horror the 21st century American habit of killing inocent animals, burning them, and eating them!

  • Dale Amon

    Guilty as charged! Carnivorous and Proud!

  • Dale Amon

    Mea Culpa on the download. I mistyped the domain. Should be fixed now.

  • T. J. Madison

    Remember, “legal” is what the men with the guns say it is.

    It is unwise to assume that your “rights” or “the law” will protect you.

  • mmm… Cow… (drooling noises)

  • Dale Amon

    Legal is what exists because brave souls stood up against such threats centuries ago. Courts cannot convict unless the people acquiesce. That is your English heritage.

    Read Glenn’s article. It’s a really good summary. (Summary because it would take a book to give the entire history. I’ve only read it in bits and pieces, here and there and never seen a single “compleat” book on the subject – although there probably is a brilliant one which someone is about to suggest in an aghast tone that “you never heard of xxx!!!!???”

  • Val

    As an American I am proud of this basic right. Wasn’t it Jefferson who said that being tried by your peers was more important than electing your representatives? On the other hand, trial by jury in America today is a caricature of the original idea, which was closer to random selection among able citizens. On high-stakes cases, in order to pass (both) lawyers’ filters you either have to be almost an idiot or lie to your hearts’ content.

  • Geo

    This is exactly why I like reading Samizdata.

    I will admit that, no, I did NOT know jury nullification, by judging the law, was legal. The conditioning I have always had was that juries “must find solely on the facts.” This seems to be the rote.

    I have learned something very valuable about my own civil rights today. Thank you, Dale.

  • Patrick

    I think there are good arguments on the merits on both sides of the jury nullification issue, and I am not a true believer one way or the other. But I’d like to make two points in the interest of sharpening the debate.

    First, I think Mr. Amon overstates the case when he says that Jury Nullification is still valid law in America, unless he’s employing an unusual definition of “valid” or “law” (can’t be too careful in the post-Clinton era). In New York, where I live, juries have a legal duty to acquit or convict criminal defendants based on whether the facts as they find them amount to a violation of the law as given to them by the judge. Juries cannot be *punished* if they violate that legal duty, and thus it is said that they have the *power* to violate it. It is widely acknowledged that American juries have that sort of extra-legal *power,* but at least in New York the exercise of the power is not, as I understand it, valid under the law.

    Second, while the term “Jury Nullification” seems to fairly capture the essential issue, I find the term “Fully Informed Jury” misleading most of the time I encounter it. Just as a jury has the power to acquit a defendant even if its factual findings establish that he violated the law in question, so it also has the power to *convict* a defendant even if its factual findings establish that he did *not* violate the law. Thus, for example, a jury would have the power to convict a defendant whom they believed to be a bad person (say, because they were fully informed about his past criminal record), even if the jurors believed the police were lying about some fact critical to establishing the defendant’s guilt of the specific crime on trial. I don’t know about Mr. Amon, but most people I’ve heard arguing for “Fully Informed” juries want to fully inform them of their power to acquit in the face of proof that the law was broken, but not of their power to convict in the absence of such proof.

  • jeanne a e devoto

    The situation is not as symmetric as you make it sound.

    The difference is that if a jury wrongfully convicts, the verdict can be appealed or (in extreme cases) set aside by the trial judge; thus, there is a backstop available if a jury convicts a defendant despite the absence of proof. Acquittals, on the other hand, are pretty much inviolate: once a duly constituted jury has produced a Not Guilty verdit, the proverbial fat lady has sung, and the acquittal cannot be overturned even if the trial judge or prosecutor disagrees with the jury’s reasoning.

  • Patrick

    I think the situation is quite symmetric, especially for purposes of the present discussion, but sometimes in real life as well. In real life, an appellate court will overturn a conviction on grounds of legally insufficient proof if there is no evidence at all tending to prove some element of the crime. But in cases of conflicting evidence, both the trial court and appellate courts defer to the jury’s authority as finders of the facts. Thus, if the jury thinks the police are lying, but nevertheless returns a guilty verdict, the verdict will probably be upheld on appeal (provided only that the police testimony, if true, would have established the defendant’s guilt). As an aside, I note that it is unlawful to fully inform a jury (in New York, at least) that any guilty verdict it returns will be reviewed by a court to ensure that the evidence of guilt was sufficient.

    For purposes of the present discussion, however, I don’t think it’s relevant whether the courts are likely to “correct” a jury verdict after the fact. The questions here are (1) does a jury have the *power* to return a guilty verdict despite believing that the defendant’s guilt of the specific charge on trial has not been proved [in the same sense that it has the reciprocal power], and (2) if so, should the jury be fully informed that it has that power? If you say you’re in favor of Fully Informed Juries, I think your answer to part (2) has to be Yes.

  • mike

    I had not heard of jury nullification before, but given my libertarian leanings, had felt that the citizens were the last arbiters of any laws passed by government.

    The last time I was called for jury duty in Illinois during jury selection I was asked if I would be willing to convict if I believed that the defendant had violated the law, even if I felt the law was unjust. I replied that I would not. The defense attorney rephrased the question and asked again, just to make sure I understood, and I again said no. There was a conference with the judge and I was dismissed from the jury.

    What amazed me was that prior to asking me they had asked at least 15 other potential jurors and all were willing to send a person to prison for breaking an unjust law. Sheeples.

  • wheels

    The last time I was called up for jury duty, I was dismissed because, when the judge asked if I would judge only on the facts of the case and not on the law, I replied in the negative.

    Here in Colorado, jury nullification is written into the state constitution. By making it standard policy to get you to give up your right/responsibility to judge the law voluntarily, without explaining what you’re giving up, the authorities minimize the chance that they’ll have to deal with it.

    We even had a juror (Laura Kriho) who insisted on her right to acquit because she felt the law was wrong tried and convicted for contempt a few years ago, on the grounds that she should have volunteered that she didn’t agree with laws criminalizing some drugs often used for recreation. It was later overturned on appeal, but still …