Timothy N. Baldwin, JD.
July 12, 2013
Some States are challenging long-standing law in most jurisdictions that rejects what is called jury nullification. Jury nullification is the power of the jury to determine that the law at issue in the trial is unconstitutional or unjust and thus unenforceable in that trial. New Hampshire is perhaps the model for this movement (source). Since New Hampshire enacted jury nullificationinto law, a jury has nullified thefederal marijuana laws in a criminal case (source), showing that the law has had an impact in that State.
In states like Colorado and Washington where the people have similarly rejected federal drug laws by legalizing marijuana, a jury nullification law may be well received. Of course, the federal drug laws are not the only federal laws juries would likely nullify. “Obamacare” also comes to mind, and with the IRS scandals coming to light, laws against tax evasion are likely to be found unenforceable by people where jury nullification is the law.
The question is, will informing juries of their power to nullify help restore liberty (in republican form), or will it cause greater harm to the rule of law? If it is determined that jury nullification is a necessary part of restoring liberty, then the practical methods of accomplishing that must be put into action.
Jury Nullification: A Divisive Issue
The subject of jury nullification is a divisive topicand has been for a long time. People were arguing the topic in 1787, with founding fatherJames Wilsonbeing the most notable critic of jury nullification. Our own history shows that the subject of even jury trials has never been a clear one,and some of the Federalist Papers wereused to clarify the arguments made against the Constitution based on jury trial concerns. Hamilton expressed in some papers that “there are no expressions more vague and indeterminate than those which have been employed to characterize THAT species of causes which it is intended shall be entitled to a trial by jury.” (FP 83.)The issue of jury nullification is no more certain and determinate.
Since 1787 many courts have addressed the issue of jury nullification, and the Appellate Court in Hawaii described it well in 1997, saying,
[w]hile the existence of jury nullification is not questioned, the contemporary issue is “whether juries should be encouraged to nullify, and in particular whether they should be told by the judge that they have this power.” The two competing interests which emerge on the question is the jury's long recognized power to nullify on the one hand, and the jury's duty to adhere to the court's instructions on the other hand.” State v. Hatori, 990 P.2d 115, 120 (Hawaii App. 1999).
It is important to observe that state and federal courts do not deny the jury’s power to nullify. But most courts reject the proposition that the judgeshould or must inform the jury of this power because it would undermine the rule of law and encourage juries to ignore the law. The United States Supreme Court expressed their rejection of a jury-nullification-instruction rule this way:
We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence. Upon the court rests the responsibility of declaring the law; upon the jury, the responsibility of applying the law so declared to the facts as they, upon their conscience, believe them to be.
Under any other system, the courts, although established in order to declare the law, would for every practical purpose be eliminated from our system of government as instrumentalities devised for the protection equally of society and of individuals in their essential rights. When that occurs our government will cease to be a government of laws, and become a government of men. Liberty regulated by law is the underlying principle of our institutions. (Sparf v. United States, 156 U.S. 51, 102-103 (1895).)
Most States have followed this rationale and do not inform or encourage juries to nullify the law.
Therefore, the practical issue in today’s context is not even about the “right” or “power” of the jury to nullify the law (even though most advocates for jury nullification spend a lot of time “proving” the matter). Rather, it is whether our laws should provide the defendant with a right to have the judge instruct the jury of their duty or power to nullify the law where the jury deems the law unconstitutional or unjust.A question of “should” is more about prudence and discretion than anything. So far, most Americans have not found prudence in informing juries of the power of jury nullification.
Reasonable Fears of Jury Nullification
A Jury More Powerful Than the People and Government
The arguments against informing juries of their power of nullification are not unfounded. As James Wilson argued, a jury should not be more powerful than the constitutional process that goes into passing, executing and judging a law in a republican form of government. All that isrequired to make and expound on law demonstrates the reverence for and impact ofthe law’s stability and predictability.
This observation appears truer considering a jury that has no accountability to the people, has no obligation to justify its position through legal analysis, and is not subject to appeal by higher courts. Even from an originalist standpoint, Hamilton recognized that the courts had the ability to control an arbitrary jury. He said, “where the jury have gone evidently wrong, the court will generally grant a new trial.” (FP 83.)
This correctable error would includethe law as well as the facts, and many states today provide the Judiciary with the power to grant new trials to the aggrieved party where the jury demonstrates egregious errors of fact or law. This, in itself, effectively undermines the jury of their power to nullify the law.
Jury’s Disregard for the Law
The Hawaii Appellate Court also showed that “the risk posed by jurors' disregard of the law has provided the impetus for rejecting nullification instructions.” Hatori, 990 P.2d 121 (1997) (emphasis added). Reason dictates that if government is bound by the law, so is the jury. But where the jury is lawfully able to nullify a law, the people have no remedy from an irrational or ignorant jury’s decision.
Having no such recourse undermines what a republican government is all about. At least with decisions of law made by a Judge, the people know the basis for the decision and can amend the constitution or law accordingly. Moreover, the aggrieved party may appeal that decision to a higher court for a determination of the law.
From the normal procedures of determining law, the States get a large body of jurisprudence that is known and predictable, again, giving the people the power of self-government to change their political course as they deem necessary through constitution or statutory changes. The people do not have these abilitieswhere a jury nullifies the law under the power of nullification.
Civil Case Comparison
If one were to put this power in context of civil cases, it would not take much to see how placingproperty or contractual rights in the hands of six peopleat their arbitrary power contradicts the essence of a republican system. Hamilton admitted, “I cannot readily discern the inseparable connection between the existence of liberty, and the trial by jury in civil cases.” (FP 83.)Hamilton said more, “the trial by jury in ALL cases would have been an unpardonable error in the [Constitution]” and the “security of liberty is materially concerned only in the trial by jury in criminal cases.” (FP 83.)
Can a jury disregard a settled law, for example, providing for the right of inheritance? One can see how a jury consisting of poor people may rejectthislaw as being unfair based on their unfortunate, uncontrollable station in life and would ground their decision in the philosophy that no person should be able to transfer large amounts of capital upon death. Would the Estate of the deceased have solid ground to claim a grave injustice in that decision even though that jury did so based on conscientious grounds? The answer appears self-evident.
This proves that jury nullification is desirable in a very limited sense—only as it relates to criminal laws and a finding of not guilty. Logic begs the question,if the right of jury nullification exists by right, how can we deny the right in civil cases? If there is a natural right of jury nullification in a criminal case, would there not be the same right in a civil case?
Additionally, this illustration shows that the jury should not be encouraged to disregard the law in civil cases, without which property would not be secure and would be subject to the ever-changing dynamics of individual juries. Talk about bad for business. But if it is bad for business in civil cases, is it also bad for the rule of law in criminal cases?
Jury’s Inability to Judge Rightly
Another reasonable argument against jury nullification is the jury’s inability to make a sound, constitutional decision regarding the law. AsHamilton and Madison showed in the Federalist Papers, a republic will always have voluminous laws, which makes judging the law that more difficult.
The same difficulty applies regarding decisions of constitutional law. As the body of law grows, the more difficult it is for lay people to decipher. On the flip side of that, the less precedence there is, the more those who are determining the law must have skills of interpretation—an even more difficult job than analyzing a large body of law where the “wheel has been invented” already.
Thus, the best way laws can be properly and consistently applied is through the Judiciary, and Hamilton describes this need as follows.
It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government…[I]t will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. (FP 78, emphasis added.)
Hamilton shows the reasonableness of this question: how can a jury be knowledgeable enough of the law such that they are making the right decision?
Obviously, one can argue that the potential for jury abuse or misjudged decisions is not a reason to deny the power, but the point should be well taken: juries will not likely possess the kind of legal skills and knowledge necessary to make correct decisions of law. The reality is,the judgment of law is a specialized matter for thosedevoted to the law’s study and practice. This is reflected well in that the fact that most of the signers of the Declaration and Constitution were lawyers, and those who were not regularly studied the law.
Changing Attitudes About Jury Nullification
Most Americans do not appear eager to change the anti-jury-nullification precedent, although the trend appears to be growing in some areas. Regardless of why support of jury nullification is not the major attitude, it remains that educating people to favorjury nullification will require much time, discussion, education and assimilation for the majority of people in each State to shift our precedence. Of course, an idea has no binding effect until it becomes law. So, how can liberty advance by ideas that have little or no chance of becoming law? Reason teaches: it cannot. Does this matter to liberty proponents?
As for my home state, Montana, the Republican Party expresses its approval of jury nullification, undoubtedly an influence by Ron Paul. The platform states as follows,
We reaffirm the principle espoused by our nation's founders that our court system belongs to the people, not the government. We recognize both the power and the moral obligation vested in juries to secure justice by judging both the facts of a case and application of the law itself. We support requiring judges to fully inform jurors of their constitutional rights and responsibilities. (source.)
Using this platform, Republican State House representative, Jerry O’Neil, successfully introduced a Jury Nullification bill in 2013 in Montana, and it was put to vote. The result was 38-62 against the bill.
Of the Democrat house members, 39 out of 40 voted against the jury nullification bill. Of the Republican house members, 23 out of 60 voted against it. In percentage terms, 97.5% of the Democrats voted against it, and 38.3% of the Republicans voted against it.
If only 13 Republicans voted differently, the bill would have passed and this Ron-Paul-platform would have become law in Montana. Plainly, there is a huge difference between the two main parties on this issue. This shows that jury nullification supporters in Montana should support Republicans, and additionally, should advance the candidatesin the primaries that will advance these goals.
Of course, even if that bill had passed, the chances of Governor Steve Bullock allowing this bill to become law would have been very improbable—one can surely say, impossible. This, once again, focuses political realities onthe question, what if the Republican governor candidate running against Bullock would have become elected?
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Though not agreeable on other issues perhaps, Rick Hill would have likely signed this bill into law because it is expressly a part of the Party platform and had large Republican support. Thus, liberty’s movement in Montana would have been advanced by Rick Hill becoming governor. I ronically, some of those who strongly advocate for the necessity of jury nullification strongly dissuaded people from voting for Rick Hill. Does this make sense? Was liberty benefitted?
Liberty zealots cannot avoid the practical realities of politics, but unfortunately many do to everyone’s demise. I believe one of the biggest deterrents to restoring liberty is letting emotions and passions control our political thinking. This thought process was rejected by the Americans who considered the ratification of the Constitution, and it should be rejected today as well. The better approach for liberty is for citizens to accomplish all the good they can while they can, and this includes putting personal preferences aside for the greater principle of restoring liberty.
Part 6, Constitutional Convention
Part 7, Revolution
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“Courts may still affirmatively tell the jury ‘it has a duty
to follow the law, even though it may in fact have the power not to.’”U.S.
v. Polizzi, 549 F.Supp.2d 308, 444 (E.D.N.Y., 2008).“That juries
do have the power to refuse to convict or to convict of a lesser offense
has been fully established.” Id., referencing Neder
v. United States, 527 U.S.
2. Compare, “The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory, it is not law, and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his fellow citizens can convict him—they are his jury, and if they pronounce him innocent, not all the powers of congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation.” Constitutional Convention Debates, 1787, Massachusetts, statement made by Mr. Parson. See also, “The power of juries to decide the law as well as the fact involved in the issue of not guilty, and without legal responsibility to any other tribunal for their decision, is universally conceded. In my opinion, such power is equivalent to right.” State v. Croteau, 23 Vt. 14, 45 (1849) (overruled by State v. Burpee, 65 Vt. 1, 25 A. 964 (1892).
3. “The constitutions of Indiana, Maryland, and Georgia contain provisions which empower the jury to determine both law and fact”. State v. Hatori, 92 Hawai'i 217, 990 P.2d 115 (Hawai‘i App.,1999) (Footnote 8). People v. Wilson, 972 P.2d 701, 706 (Colo. App., 1998) (“[m]ost courts have held that trial courts should not instruct the jury that it may nullify a verdict of guilt.”)
4. “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?” James Madison, Federalist Paper 62.
5. “This power of a jury is doubtless liable to abuse; and so is the power conferred on a court, or on any other human tribunal. But while a jury or court keep within their proper sphere of jurisdiction, they are in the exercise of the powers conferred on them, and are in the performance of a legal right; and this though they may, by the abuse of the power, be guilty of a moral wrong.” State v.Croteau, 23 Vt. 14, 45 (1849).
© 2013 Timothy N. Baldwin, JD - All Rights Reserved
Timothy Baldwin, born in 1979, is an attorney licensed to practice law in Montana (and formerly Florida) and handles a variety of cases, including constitutional, criminal, and civil. Baldwin graduated from the University of West Florida in 2001 with a Bachelor of Arts (BA) degree in English and Political Science. In 2004, Baldwin graduated from Cumberland School of Law at Samford University in Birmingham, AL with a Juris Doctorate (JD) degree. From there, Baldwin became an Assistant State Attorney in Florida. For 2 1/2 years, Baldwin prosecuted criminal actions and tried nearly 60 jury trials. In 2006, Baldwin started his private law practice and has maintained it since.
Baldwin is a published author, public speaker and student of political philosophy. Baldwin is the author of Freedom For A Change, Romans 13-The True Meaning of Submission, and To Keep or Not To Keep: Why Christians Should Not Give Up Their Guns–all of which are available for purchase through libertydefenseleague.com. Baldwin has also authored hundreds of political articles relative to liberty in the United States of America. Baldwin has been the guest of scores of radio shows and public events and continues to exposit principles which the people in America will need to determine its direction for the future.
Web site: libertydefenseleague.com