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Jury Nullification: Why It Matters

January 8, 2012

Juries are often called ‘the palladium of liberty,’ the last and best bulwark against tyranny in our system.  Juries are this in part because they have the right, dating from time immemorial in our Anglo-American tradition, to rule, as sworn officers of the court, to rule on both the facts and the law as they apply in a given case.  This right – this moral obligation – is understood as an essential element of our system by many intelligent observers.

Anglo-American history is filled with examples of juries defying tyranny by refusing to convict defendants accused of breaking unjust laws.  The trials of  William Penn and of the ‘Seven Bishops,’ the latter retold so ably by Lord Macualay, is only one instance among many, although it was one of the first of modern times.  (Jury nullification is an ancient doctrine, confirmed by Magna Charta in 1215.)

American experience with this doctrine includes the trial of John Peter Zenger from colonial times, as well as numerous examples from the 1850s, when Northern juries refused to convict under the Fugitive Slave Law that was enacted as part of the Compromise of 1850.  Lysander Spooner, writing at about that time, made jury nullification a central principle of civil government that could not be dispensed with in a free society, as blind acceptance of whatever the government says is law means that gross injustice may be mandated upon pain of conviction of anyone who fails to comply.

This condition continued after the Civil War, as can be seen in Justice Harlan’s opinion in Sparf (1895) and in Moylan (1969) and United States v. Dougherty (the trial of the ‘D. C. Nine’ for protesting the Vietnam War).  As it is stated in Doherty, “History shines with examples…” of juries refusing to convict under what they deemed to be unjust law.  In this opinion, the Court of Appeals in the District of Columbia is in good company, including that of John Adams, Thomas Jefferson, Justices Oliver Wendell Holmes and Byron White, and many others besides.

Few of us, perhaps none of us, will ever be called to serve on a jury where we will be reminded of our moral duties as regards nullifying unjust laws by refusing to convict under them.  Some of us may, however, find ourselves in the jury box when a defendant’s freedom, and perhaps their life, hang in the balance, and knowing what power lies in our hands as jurors – officers of the court – may decide their fate, if  we have the courage to use it.

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