Jury Nullification

Representative democracy is a poor substitute for real control over our government. In the battle between power and the people, concentrated interests – politicians and special interests, are at a distinct advantage over the diffuse and disorganized interest of the common citizens. The few protections we have on runaway abuse of political power: checks and balances, courts, constitutions, and elections, serve the majority of the time only as legitimizing spectacles and diversions that consume our activist energies and blunt our horror and fury at the idiocy, rapacity, and bloodthirstiness, of our public officials.

Can any elected representative simultaneously maintain his principles and his political efficacy in the fetid swamps of our national and state capitals? Can a good and honest person even get elected under our current system? Even in the most directly democratic institution in our system, the public referendum, the politicians pick the proposals we vote on and enforce or ignore them largely as they please. States’ rights and federalism? Fine said the Republicans, until the people of California voted to allow the production and distribution of marijuana to sick individuals, then the federal government’s domestic military came down on the peaceful growers and marijuana clubs and rode roughshod over the will of the state electorate.

One institution remains where citizens retain the power as individuals to interpret constitutional law, veto the laws of their legislatures, and reject the actions of their legal system: jury nullification. Jury nullification is the act of a jury judging the law itself, of which a defendant is accused of violating, and rendering a not-guilty verdict based upon its judgment of the law as invalid or unjust. It is a legal right firmly based in common law principals and legal precendent: courts are prohibited from punishing juries for their verdicts and prohibited from retrying acquitted criminal defendants. As a result no juror’s oath is enforceable and a jury’s decision to acquit can not be reversed no matter what judges or prosecutors think the law demands. Our English and American ancestors fought and suffered for these important rights and we should not surrender them. As Thomas Jefferson said, “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.”

If this power is so important and powerful why have most people never heard of it? For obvious reasons our political masters have had reason to fear this legal principal and have continually taken steps to obscure its existence and limit its use. The right of jury nullification is not normally disclosed to jurors in their instructions from the court. Potential jurors who seem too knowledgeable of their rights are unlikely to make it past the jury selection process. Hold-out jurors are often pressured by judges and their fellow jurors "...to avoid the expense of a hung jury and mistrial."

But the purpose of a trial is not to carry out the will of prosecutors and judges as quickly and efficiently as possible. If it were, jury trial would be a stupid way to go about it. Its purpose is to judge the guilt of the accused by the standards of his peers. Even hung juries send powerful messages to legislatures about problems with the law. All law and government depend, at least, on the passive acquiescence of the ruled. Jury nullification is our most practical legal defense against the runaway power of the police state.

The Fully Informed Jury Association 

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