JURIES AND THEIR SERIOUS PROBLEMS TODAY
By Dr. Lawrence Wilson
© November 2017, LD Wilson Consultants, Inc.
All information in this article is for educational purposes only. It is not for the diagnosis, treatment, prescription or cure of any disease or health condition.
This article is excerpted from the book by this author, Legal Guidelines For Unlicensed Practitioners.
The Magna Charta, in 1215, established a clear principle of English and American law. In criminal cases, it is the right and duty of the jury to judge not only the facts of a case, namely whether the accused broke the law. They were also to judge the validity of the law itself. The jury may acquit the accused either because 1) he did not break the law, or because 2) the law itself is unfair or otherwise faulty.
This dual role for the jury is sometimes called the power of jury nullification. That is, the jury has the power to nullify the law itself. A little reflection will show this dual power of the jury is essential:
"If the jury have no right to judge of the justice of a law of the government, then plainly, they can do nothing to protect the people against the oppressions of the government; for there are no oppressions which the government may not authorize by law." - from An Essay on the Trial by Jury (1852) by Lysander Spooner.
"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 the law. But still both objects are within your power of decision. You have a right to take upon yourselves to judge both, and to determine the law as well as the facts in controversy."
- Instructions to the jury given by John Jay, chief justice, in the first case tried before the Supreme Court of the United States, State of Georgia v. Brailsford, 3 Dall I, 1794.
"There is the existence of an unreviewable and irreversible power in the jury, to acquit, in disregard of the instructions on the law ..."
- U.S. v. Dougherty, 473 F2d 1113, pg.1132 (1972).
"The verdict, therefore, stands conclusive and unquestionable, in both law and fact ... it may be said that juries have a power and legal right to pass upon both the law and the fact."
- Sparf v. U.S., 156 US 51, pg 80, 15 Sup. Ct. 273, pg 285.
In America and Great Britain, the jury was intended to be the final arbiter of the law. It matters not if the legislature passes laws. If a jury declares the law unjust or not in conformity with the Constitution, the law is of no effect. The intent was to give ultimate power to the citizens, not to judges or legislators.
TodayŐs juries are so poorly informed it is almost comical, yet it is accepted as normal. The rest of this article is about how juries have lost their way in America and in Great Britain.
PROBLEMS OF JURIES
Not knowing that a jury can nullify or abolish a law that is unjust or unconstitutional is only part of the problem of juries today. Here is a more complete list of the problems of juries today that make them almost comical in their bad decision-making practices:
Not informing the jury of their right to nullify the law. Most judges today do not inform juries of their right and ability to nullify the law if they believe it is unconstitutional or otherwise abhorrent.
Withholding evidence. Today, one often hears on the news that a judge refused to allow certain testimony, or refused to allow the jury to consider certain issues.
A judge often tells a jury exactly upon what they can and cannot base their decision of guilt versus innocence. This is often done improperly and prevents justice from being done.
For the record, jurors may not be punished for anything they say in the sanctity of a deliberation room or for any decision they make.
Disqualifying jurors. Attorneys today are usually able to disqualify and thereby get rid of any juror who thinks independently or who might be a problem for him or her to convince (or brainwash/hypnotize). This is an abomination and an abuse of the jury system.
No jury at all. Finally, in many cases in our courts today, there is no jury at all and judges alone try the case. This also goes against the founding principle of the nation - that everyone is entitled to a trial by a jury of oneŐs peers provided it is an important matter.
The result of the above corruption is the jury system, a potent safeguard of our liberty, is in serious disarray.
WHAT IF A JURY NULLIFIES A GOOD LAW?
Jury nullification means that a jury could nullify a good law if they donŐt understand the law or just do not agree with it for some reason. This is the potential difficulty with jury nullification.
In this case, the prosecutors or opposition could file an appeal, or ask that the law be rewritten. However, this takes time, during which a dangerous or objectionable behavior would be allowed, presumably. It is true that a judge can issue a stay or injunction against the person until the next trial, perhaps, but this may not happen.
One can and must argue, however, that this is far preferable to convicting a person of a crime because the jury is not allowed to judge the validity of a bad law. In this type of case (an unfair conviction), the person can appeal the decision. However, this is costly and often the person loses his home, his business and perhaps more than this for several years until the appeal occurs.
We believe that the founders of America, and indeed those who wrote the Magna Charta, thought of this objection, and decided to err on the side of the citizens and against the government, which has far more power and financial means at their disposal. In most cases, this is undoubtedly true.
THE FULLY INFORMED JURY AMENDMENT
The Fully Informed Jury Association is an organization seeking to restore the fully informed jury. They have an excellent website that explains the rights of jurors. They have also proposed an Amendment to the US national Constitution entitled the Fully Informed Jury Amendment. It would require judges to inform juries that they are empowered to judge not only the facts of their case, but also the law itself. It would return power to the citizens and reduce the tyranny of judges and lawyers.
We recommend this organization very strongly. Their website is also excellent to check if you are called for jury duty. For more information, call 1-800-835-5879 and visit www.fija.org.