From: cdt@sw.stratus.com (C. D. Tavares)
Newsgroups: alt.politics.correct
Subject: Re: Jury Nullification/Duties of a Juror
Date: 26 Aug 92 22:16:15 GMT
Organization: Stratus Computer, Inc.

In article <1992Aug26.144050.25733@magnus.acs.ohio-state.edu>, regeorge@magnus.acs.ohio-state.edu (Robert E George) writes:
> >Point 1:  When one becomes a juror on a case, they are sworn to uphold the
> >law, whether they agree with the law or not.  This is very tough to do, as
> >a couple of respondents have said below.  If one does not agree with a law,
> >they are to see their representative (in this case State of California),
> >and have their legislature change the law (this is what the judge in the
> >case told us).  Also, it is up to the judge to decide sentencing, not the
> >jury.  So the jury's main job is to decide guilt or innocence as it applies
> >to the law in question.
> 
>   I heartily agree with this statement: not only is it morally
>   unassailable in my view but it also conforms to my impression
>   of Anglo-Saxon jurisprudence: the judge decides issues of
>   the law, the jury decides issues of fact. However I have
>   heard of late of something called "jury nullification" . . . 

> "The very essence of individual freedom is equal justice under a rule of
> law, a law to which every man shall be subject and which no executive
> can modify."
>     Senator Robert Taft , March 11, 1944

Statists have worked long and hard to give you your current misimpression
of Anglo-Saxon jurisprudence.  The fact is, in both England and in the US
a jury ALWAYS has the right and DUTY to judge not only the facts of the 
case, but to also judge the law itself.

  "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 of 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 laws." Lysander Spooner, An Essay on the
  Trial by Jury, 1852, p.11.

  "Every jury in the land is tampered with and falsely
  instructed by the judge when it is told it must take (or accept)
  as the law that which has been given to them, or that they must
  bring in a certain verdict, or that they can decide only the
  facts of the case." Lord Denman, C.J. O'Connel v. R. (1884).

The Founders were no less explicit:

  John Adams, who became the second U.S. President,in 1771
  said of the juror: "it is not only his right, but his duty ...
  to find the verdict according to his own best understanding,
  judgment, and conscience, though in direct opposition to the
  direction of the court." Quoted in Yale Law Journal,74
  (1964):173.

  Alexander Hamilton (1804): Jurors should acquit even against
  the judge's instruction "... if exercising their judgment with
  discretion and honesty they have a clear conviction that the
  charge of the court is wrong." Quoted in Joseph Sax, Yale Review
  57 (June 1968): 481-494.

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

Regardless of a given law's legal justification (or lack thereof), 
a member of a jury may ALWAYS vote "not guilty", regardless of the 
facts.  No less an authority than the Supreme Court has stated so, 
many times, as have individual Justices:

  John Jay, first Chief Justice, U.S. Supreme Court, in
  Georgia v. Brailsford, 1794:4., said: "The jury has a right to
  judge both the law as well as the fact in controversy."

  "The jury has the power to bring a verdict in the teeth of
  both the law and facts." Oliver Wendell Holmes, U.S. Supreme
  Court Justice, Horning v. District of Columbia, 138 (1920).

  "The jury has the right to determine both the law and the facts."
  - Samuel Chase, U.S. Supreme Court Justice (1796)

  "The law itself is on trial quite as much as the cause which is to
  be decided." - Harlan F. Stone, 12th Chief Justice (1941)

  "The pages of history shine on instance of the jury's exercise of
  its prerogative to disregard instructions of the judge ..."
  - U.S. vs Dougherty, 473 F 2nd 1113, 1139 (1972)

Subsidiary courts have based other decisions on this right:

 "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...If the jury feels that the law under which the
  defendant is accused is unjust, or that exigent circumstances
  justified the actions of the accused, or for any reason which
  appeals to their logic or passion, the jury has the power to
  acquit, and the courts must abide by that decision." United
  States v. Moylan, 4th Circuit Court of Appeals, 1969, 417 F.2d at
  1006.

Currently, the Indiana and Maryland state constitutions are two of the
few to spell out this right explicitly:

  "In all criminal cases whatesoever, the jury shall have the
  right to determine the law and the facts." Article 1, section 19
  of the Indiana Constitution. Upheld, Holliday v. State 257 N.E.
  579 (1970).

  "In the trial of all criminal cases, the Jury shall be the
  Judges of Law, as well as of fact, except that the Court may pass
  upon the sufficiency of the evidence to sustain a conviction."
  Article XV, section 5 of the Constitution of Maryland.

Because of this constitutional mandate, this instruction must be
given to all criminal jurors in Maryland:

  "Members of the Jury, this is a criminal case and under the
  Constitution and the laws of the State of Maryland in a criminal
  case the jury are the judges of the law as well as of the facts
  in the case. So that whatever I tell you about the law while it
  is intended to be helpful to you in reaching a just and proper
  verdict in the case, it is not binding upon you as members of the
  jury and you may accept or reject it. And you may apply the law
  as you apprehend it to be in the case."  Alan Scheflin and
  Jon Van Dyke, Jury Nullification: The Contours of a Controversy,
  Law and Contemporary Problems, 43, 83. (1980)

Conversely, the legal establishment in less-enlightened states seeks
to keep jurors from learning about this right.  They make use of a
ruling (U.S. v. Dougherty, D.C. Circuit Court of Appeals, 1972, 473 
F.2d at 1130 and 1132) that says that although jurors have this right,
states are not required to INFORM them that they have it.

  "The arguments for opposing the nullification instruction
  are, in our view, deficient because they fail to weigh the
  political advantages gained by not lying to the jury." ... "What
  impact will this deception have on jurors who felt coerced into
  their verdict by the judge's instructions and who learn, after
  trail, that they could have voted their consciences and
  acquitted? Such a juror is less apt to respect the legal system."
  Alan Scheflin and Jon Van Dyke, "Jury Nullification: the Contours
  of a Controversy," Law and Contemporary Problems, 43, No.4,105-
  106.

To my mind, there is a distinct line between not telling someone he
has a right, and telling him that he does NOT (which is what judges do
when they say the juror is BOUND to follow the judge's instructions).

There is an organization called the Fully Informed Jury Association which
is trying to get amendments passed for all state constitutions that will
state this right of the juries, so that prosecutors and judges can not
suppress it as they are currently doing. 

  "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 in the enforcement of the
  laws. Because of the high acquittal rate in prohibition cases
  during 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." Alan
  Scheflin and Jon Van Dyke, Jury Nullification: The Contours of a
  Controversy, Law and Contemporary Problems, 43, No.4, 71.(1980).
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