Chapter 4 The Role of the Jury IN a jury trial, the judge represents the letter of the law as voted by legislators and interpreted by the highest court of the land, and also considers the precedents of other court decisions. The prosecutor represents the interests of the society and the judicial system. The defense counsel represents the interests of the accused. But it is the jury that judges the validity of the law, its intent, and the guilt or innocence of the accused. A juror has the responsibility to vote his convictions, no matter what the other jurors vote. Frequently we hear of a jury’s vote which is not unanimous when the first polling is conducted. Eventually, however, all jurors finally yield to persuasion or to the pressure to support the jurors who are the strongest or most numerous voices in the group. Each juror’s vote of guilty or not guilty must be respected by other members of the jury and by the court. To yield one’s own conviction to the pressure of the majority is to fail in God-given responsibility as a juror. In reality, each juror stands as a judge. He/she represents the highest judge in the land. The judgment of the jury in favor of the accused cannot be overturned. If one juror withstands the pressures of his fellow jurors and maintains a "not guilty" verdict, even though the other jurors have voted for the "guilty" verdict, it is a hung jury and the judge cannot pronounce guilt on the accused. However, in such a case, the prosecutors do have the right to reprosecute the case in court. The juror must take his role seriously, and it is his responsibility to understand his duties and obligations. Ultimately, in any trial it is the jurors who are the judges. In that sense, the term judge is a misnomer. Sometimes, however, equally significant as the evidence that is presented, is the kind of evidence which the judge rules as inadmissible, or to be struck from the record. While such evidence may be legally inadmissible, it may have great impact upon the guilt or innocence of the accused. Of course every juror must take a common sense and responsible attitude to his duties. For the most part, judges will attempt to be impartial and to direct the trial according to the best principles of fairness. But it is important that jurors not take this matter for granted. If it were true that judges never erred in these matters, then there would be no likelihood of a higher court overturning a lower court judge’s decision. The juror must do all in his or her power to ensure that he/she is not so overawed by the law, nor by his own lack of legal training, as to allow himself to put aside his good judgment when evaluating the facts of a case. In 1794, the Supreme Court conducted a jury trial, and during that trial, stated, It is presumed, that the juries are the best judges of fact; it is, on the other hand, presumed that the courts are the best judges of law. But still both objects are within your [the jury’s] power of decision Citizen’s Rulebook, p. 11 In another case, the State of Georgia versus Brailsford, et al., it was stated, You have the right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. Ibid. In the case of U.S. versus Dougherty it was stated that, The jury has an unreviewable and unreversible power . . . to acquit in disregard of the instructions of the law given by trial judge. Ibid. It is almost certain that a majority of jurors who accept jury duty have no understanding of these principles; and without understanding of them there is no likelihood that they are going to exercise this responsibility in the jury deliberation. The Dougherty trial spoke of jury lawlessness as follows, Jury lawlessness is the greatest corrective of law in its actual administration. The will of the state at large imposed on a reluctant community, the will of the majority imposed on a vigorous and determined minority, find the same obstacle in the local jury that formerly confronted kings and ministers. Ibid. The term lawlessness used here does not mean that the jury has broken the law or that the jury is in danger of indictment. Rather it means that the jury displays a willingness to nullify bad law. (Ibid.) That is a power rarely understood by jurors. When a judge instructs the jury that it must judge according to the law as explained by the judge, this is in violation of the very intent of trial by jury, and of the protective justice of the nation. Jurors are at liberty to put aside any such instruction from the judge if it flies in the face of the concept of common justice. To follow such instruction from a judge will often lead honorable men and women on a jury, who, while recognizing the injustice of the law in respect to the person on trial, will nevertheless wrongly believe it their duty to convict the defendant because he has indeed broken the law. The greatest loyalty that a citizen can exercise in such circumstances, both to uphold the civil and religious freedom of the citizens of the nation and the intent of the Constitution, is to return a "not guilty" verdict in the face of the specific details of the law. For this principle to operate properly, the jurors must come to a trial without preconceived notions as to the guilt or innocence of the defendant. Nor are the jurors to come with an anti-government mind-set, otherwise such a juror will be inclined to vote in favor of the defendant, even when he is patently guilty of a hideous felony. In this way, the jury is able to maintain the justice of a nation, or to peaceably restore the liberty of the nation. (Ibid., p. 13). Such freedom is the cornerstone of the strength of a great nation. In an article published in the Minneapolis Star and Tribune, entitled, "What Judges Don’t Tell the Jury," it was stated, At the time of the adoption of the Constitution, the jury’s role as defense against political oppression was unquestioned in American jurisprudence. This notion survived until the 1850s when prosecutions under the Fugitive Slave Act were largely unsuccessful because juries refused to convict. Then judges began to erode the institution of free juries, leading to the abused compromise that is the current state of the law. While our courts uniformly state juries have the power to return a verdict of not guilty whatever the facts, they routinely tell jurors the opposite. Further, the courts will not permit the defendants or their counsel to inform the jurors of their true power. A lawyer who made . . . Hamilton’s argument would face professional discipline and charges of contempt of court. By what logic should jurors have the power to acquit a defendant but no right to know about that power? The court decisions that have suppressed the notion of jury nullification cannot resolve this paradox. More than logic has suffered. As originally conceived, juries were to be a kind of safety valve, a way to soften the bureaucratic right of the judicial system by introducing the common sense of the community. If they are to function effectively as the "conscience of the community," jurors must be told that they have the power and the right to say no to a prosecution in order to achieve a greater good. To cut jurors off from this information is to undermine one of our most important institutions. Perhaps the community should educate itself. The citizens called for jury duty could teach the judges a needed lesson in civics. Minneapolis Star and Tribune, November 30, 1984 As presented in Citizen's Rulebook. The issue of jury rights and responsibilities was featured on CBS Evening News, June 10, 1995. Anchorman Dan Rather stated, A jury is supposed to decide facts. Before a jury begins deliberating, the judge gives instructions about what the law is and how to apply the law to the case. But some jurors are now getting instructions from another source, and the message is that they should ignore any law they don’t agree with. Reporter Peter Van Sant commented, These people reporting for jury duty in El Cajon, California, are being told they have an absolute power: the power to simply vote not guilty if they don’t like the law that’s been broken. Van Sant was reporting upon the activities of an organization known as the Fully Informed Jury Association. Van Sant described the organization as— a collection of patriots who simply want jurors to know that they have power to judge the law as well as the defendant, that they can vote their conscience, even if it grieves the evidence and the judge’s instructions. An unidentified judge was quoted as telling a jury, You may not question the wisdom of any rule or law that I have announced to you. The convictions of the founding fathers of the American nation were on the side of the Fully Informed Jury Association, not that judge. An article in The Washington Times prescribed a rather ambivalent view of the concept of jury nullification. In the article, Ron Christie addresses the issue raised by unnamed legal scholars who advocate jury nullification [of a law] as a moral alternative to sentencing criminals guilty of non-violent crimes. Christie acknowledges the valid role of jury nullification in past history, e.g. in the cases of those who violated the 1793 and 1850 Fugitive Slave Acts. Thus many guilty of breaking the law were found not guilty by compassionate juries who determined that the particular law was unfair. Christie then asks, Is an unfair law a law at all? While this is a good question in theory, in practice a bad law is law until overturned by Congress, a court or a jury. (Ron Christie, The Washington Times, July 22, 1997) What concerns Christie is that whereas in the past jury nullification has been used to overturn unjust laws, presently he believes that many advocates of jury nullification are urging such nullification for laws that do serve a justifiable role. We agree with him that efforts to use nullification to overthrow laws against possession, use and distribution of street drugs is a dangerous misuse of jury nullification. But we would add that the misuse of jury nullification is not a ground for denying its use when unjust laws have been passed. We believe juries should seek, in future cases whenever possible, to nullify laws such as the limitation of human religious liberty as voted by the Supreme Court in Smith versus the State of Oregon, 1990. (See chapter 7 entitled "Erosion of the First Amendment," and for the protection of citizens against being subjected to torture in any form to obtain confessions, see chapter 8 entitled "The Supreme Court Overrides the Fifth Amendment.") Of course there are those who fear anarchy if juries exercise absolute power to judge the merits of the law. That is a real fear, yet the framers of the principles of the judiciary saw this danger as preferable to the danger of a legal system that would provide absolute power for judges to bind the citizens to the law as decided by the highest court of the land. In reality, the exercise by a jury of the right to judge the law is much more common than most citizens believe. Van Sant stated, That same power [of the jury to judge the law] was often used in the Vietnam era, when many juries refused to enforce laws against the burning of draft cards. We could add that this has happened more recently in cases such as the assisted suicides of Dr. Kevorkian. While the authors oppose euthanasia (assisted suicides), the juries that have declared his innocence have invoked a principle provided by the early jurists of the United States. Here is a delicate balance. We do not share many of the concepts of the more radical elements of society, and we certainly do not advocate anarchy. It takes a truly Christian ethic for the juror to properly exercise the power that is his by right. Ultimately, a juror is answerable to God alone for his decision, and this solemn responsibility should ever be in each juror’s mind. A republic is a three-vote system of government. It is the three votes, viz., of the ballot box, of a grand jury and of a regular jury, that are meant to safeguard, as well as is humanly possible, the civil and religious freedoms of the citizens of the nation. In a free society, the first vote is at the election of chosen legislators: the right to cast a vote in terms of those who will represent the citizens in the legislative bodies of the nation, state, city, or county. In many places, citizens possess the right to vote for those who will be the judges and law enforcement leaders of the people. The second vote comes, when in a major criminal trial, a grand jury is elected. A grand jury’s purpose is to protect the public from an overzealous prosecutor. Minneapolis Star and Tribune, March 27, 1987 It is the grand jury’s right to decide that the evidence before the court is not sufficient to warrant the sending of the accused for trial. In many British Commonwealth nations a Coronial Inquiry serves a similar purpose to the United States grand jury. The third and final vote in a free society is that of the jury. A "not guilty" verdict is the final disposition of a case from which, under normal circumstances, there is no review. Thus in this sense, it is the juries of the nation which finally define the laws. This places the power of the jury, in this respect, above that of the supreme court of the nation.