While once considered a very important role in our nation, jury duty is now most commonly viewed as another hindrance in the lives of the American people. I wonder if people knew just how much power they wield as jury members, if that would change? I hope so.
The first Chief Justice, John Jay, stated the following to the first jury in the first Supreme Court trial held in the United States:
It may not be amiss, here, gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact controversy. On this, and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for, as on the one hand, it is presumed that juries are the best judges of facts; it is, on the other hand, presumable that the courts are the best judges of law. But still, both objects are lawfully within your power of decision (Georgia vs Brailsford 1794).
The power of the jury to rule on both fact and law was considered by our Founding Fathers to be paramount in the protection of civil liberties, and a last safeguard against government tyranny. Thomas Jefferson acknowledged the right of a judge to rule alone in the question of law only, but if the case were based on a combination of fact and law then, “it is usual for the jurors to decided the fact, and to refer the law arising from it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact. If they be mistaken, a decision against right, which is casual only, is less dangerous to the State, and less afflicting to the loser, than one which makes part of a regular and uniform system… But the common sense of twelve honest men gives still a better chance of a just decision…” (The Writings of Thomas Jefferson pp372). In other words, if a law (or a judge) stands to deprive a person of life, property, or liberty unjustly, then it is in the power of the jurors to find that person to be innocent, and stand as a “palladium” of protection. In Jefferson’s opinion, even if the jurors are incorrect in their interpretation of the law, their mistake poses less of a threat to our justice system than the damage that can be done by a biased judge and an unjust or unconstitutional law.
Interestingly, the power of jury nullification still exists within the American court system– Americans just don’t know about it. In 1895, the Supreme Court ruled that while juries have the right to ignore a judges instructions in regard to law, they do not have to be informed of this right (Sparf vs U.S.). With one of the last safeguards to American liberty neatly dealt with, law makers and the courts can hold the American people hostage via the legal system.
The right to complain is not nearly as potent as the right to nullify. As American citizens, it is the responsibility of each of us to uphold the Constitution and protect the right to life, liberty, and property– while we may not be able to control the laws that Congress and our President pass, we can control whether or not our fellow Americans are harmed by them. As jurors, it is our prerogative, dare I say obligation, when facing an unjust law or biased judge to rule “not guilty” for the defendant and send a message to our lawmakers that we will tolerate the demise of our liberty no more.
Sabrina Reynolds [send her mail] is the deputy chapter coordinator for the Utah Tenth Amendment Center. She worked in independent schools for 10 years as an English Literature and U.S. History teacher and is a proponent for parental choice in education.
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