Recently I received some thought provoking information from a group called the Fully Informed Jury Association or FIJA. According to their literature, "FIJA is a national jury-education organization which both educates juries and promotes laws to require that judges resume telling trial jurors 'the whole truth' about their rights, or at least to allow lawyers to tell them." Some of you are probably like me and wonder what rights are these people talking about and what truth is being withheld, so with FIJA's help, I did a little checking.
The right to trial by a jury composed of one's peers was a right that our forefathers held dear. Thomas Jefferson, for example, had this to say: "I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution." Judging from the English and Colonial history, with which they were all well familiar, it is not hard to see why they considered this right to be of such paramount importance.
The English right of jury nullification of unjust and/or oppressive laws dates back to the Magna Charta, signed by King John back in 1215. Under the Magna Charta, no person could be taken or imprisoned, or deprived of his freehold or of his liberties or free customs, unless by the lawful judgment of his peers. By 1664, however, strife between the Crown and the people had reached such heights that English juries were routinely fined for acquitting a defendant. In 1670, during the celebrated political trial of William Penn for preaching Quakerism to an unlawful assembly, four of the twelve jurors voted to acquit and continued to so vote even after being imprisoned and starved for four days. Eventually one of the jurors, who refused to pay the fine levied for his refusal to obey the Judge's instruction, brought his case to the Court of Common Pleas (Bushell's Case), where Chief Justice Vaughan held that jurors could not be punished for their verdicts.
This strife between the Crown and the people carried over to the American colonies. In 1735, John Peter Zenger was tried for seditious libel - a term generally understood to mean a written communication inciting the people to change the government otherwise than by lawful means - because his newspaper had criticized the royal governor of New York. Under British law, it was a crime to publish any statement without the Royal Governor's approval, regardless of the truth of the statement. Andrew Hamilton, Mr. Zenger's defense attorney, told the jurors that they "ha[d] the right beyond all dispute to determine both the law and the facts[s]. The jury, despite an instruction from the judge that the truth was no defense, followed defense counsel's advice and acquitted Mr. Zenger of all charges.
These and many other cases greatly influenced our Founding Fathers. This is demonstrated clearly by the fact that three of the ten amendments, composing the Bill of Rights, mention the role of the jury. The Fifth Amendment guarantees that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger. . ." (Black's Law Dictionary defines "Grand Jury" as "[a] jury of inquiry who are summoned and returned by the sheriff to each session of the criminal courts, and whose duty is to receive complaints and accusations in criminal cases, hear the evidence adduced on the part of the state, and find bills of indictment in cases where they are satisfied a trial ought to be had.") The Sixth Amendment states that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. . ." Finally, the Seventh Amendment speaks to civil trials as follows: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."
As if this evidence might be insufficient John Jay, the first Chief Justice of the U.S. Supreme Court, in an early jury trial heard by the Court (Georgia v. Brailsford), instructed jurors that they have "a right . . . to determine the law as well as the fact in controversy." The practice of judges informing juries of their right to disregard the court's view of the law continued for most of the nineteenth century. Throughout this period, fully informed juries exercised their rights to thwart the enforcement of laws, repugnant to significant portions of the public, such as the 1850 Fugitive Slave Law and laws prohibiting the organization of labor unions. However, in 1895 this practice (for the most part) came to an end as a bitterly divided Supreme Court ruled in the case of Sparf and Hansen v. U.S., that the trial judge no longer had to inform juries that they could determine the law as well as the facts. Interestingly, the Supreme Court did not say nor has it said (that I am aware of) that a jury does not have this right, rather the Court, while acknowledging the jury's right to nullify a law, simply ruled that the Judge does not have to inform the jury that it has this right.
Since 1895, only Courts in Maryland and Indiana have continued to properly inform juries of their rights. There may be more now and if so, I am sure we have the efforts of FIJA members to thank, but it has been my experience in Vermont that Judges do not inform jurors of their rights. In fact, a common question asked of jurors during voire dire (i.e. the jury selection process), is how they would decide a case if they disagreed with the law or the application of the law to a particular set of facts. Exclusion of jurors on such grounds is common. This practice flies in the face of the role of the jury, preserved under our Bill of Rights. As John Adams (2nd President of the U.S.) 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."
Our Constitution provides five separate tribunals - the House of Representatives, the Senate, the President, the Courts and the Jury - who must review and approve of a law before it gains the authority necessary to punish those who choose to violate it. "With fully informed juries the government can exercise no powers over the people without the consent of the people. Trial by jury is trial by the people. When juries are not allowed to judge law it becomes trial by the government. 'In short, if the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of government; for there are no oppressions which the government may not authorize by law.'" (an 1852 quote from Lysander Spooner, Massachusetts lawyer and champion of individual liberty, quoted in FIJA brochure). Let us not remain in ignorance of our rights any longer, but rather let us educate ourselves so that we can fully and responsibly exercise our rights.