Fully Informed Juries

  Colorado Judicial Review Project
  Fully-Informed Juries
  by Dave Kopel

  "In this country, we have three ways to secure our freedom,"
  remarked Idaho Senator Steve Symms, "The ballot box, the jury
  box, and if those don't work, the cartridge box." This article
  discusses how doing your legal duties in the jury box can help
  protect your right to own a cartridge box, and to exercise all
  the rest of your constitutional rights.

  In Oak Park, Illinois a few years ago, a gas station owner drew a
  gun to defend himself against an armed robbery. Oak Park has a
  handgun ban, so the prosecutor threw the book at the gas station
  owner. A jury speedily acquitted him, although the facts seemed
  to clearly prove the station owner guilty. Was the jury acting
  illegally? Not at all. The jury was simply exercising its power
  to judge the law as well as the facts. The jury apparently
  determined that in the particular case, it would be unjust to
  punish the gas station owner for violating the handgun

  In one infamous prosecution under the Gun Control Act of 1968,
  the federal government brought 88 felony charges against a skeet
  shooter who sold guns as hobby, to pay for some of his shooting
  expenses. The "crimes" worth 88 felony counts and up to 440 years
  in prison? Letting his customers try out the guns for a few days
  before buying them, and making gun sales at the range rather than
  at his business office. Although the defendant admitted his
  actions on the stand -- and his acts were technical violations of
  the Gun Control Act -- the jury found him "not guilty" on every

  Jury acquittal of a defendants who is technically guilty, but who
  does not deserve punishment, is called "jury nullification." In
  the American legal system, the jury's power to nullify is
  unquestionable. The District of Columbia Court of Appeals -- the
  second highest court in the United States -- explains that the
  jury has an "unreviewable and irreversible power...to acquit in
  disregard of the instruction on the law given by the trial
  judge..." (U.S. v. Dougherty, 473 F.2d 1139 (1972).)

   Or as another federal court of appeals summarizes: "If the jury
  feels the law under which the defendant is accused is unjust, or
  that exigent circumstances justified the action of the accused,
  or for any reason which appeals to their logic or passion, the
  jury has the power to acquit and the courts must abide by that
  decision." (United States v. Moylan, 417 F.2d 1002, 1006 (4th
  Cir. 1969).)

  The court was re-affirming what John Jay, the first Chief Justice
  of the U.S. Supreme Court, told jurors: they possess "a
  right...to determine the law as well as the fact in controversy."
  (Georgia v. Brailsford 3 Dallas 1, 4 (1794).)

  In what situations does jury nullification come into play? One of
  the most common situations for nullification is self-defense and
  defense of property, when prosecutors throw the book at crime
  victims who might have technically exceeded the legal boundaries
  of self-defense. The acquittals for self-defense are typical of
  acquittals in other cases, where overzealous prosecutors bring
  charges that violate common justice.

  During the years preceding the Civil War, juries would often
  refuse to convict persons accused of harboring runaway slaves. In
  the Prohibition era of the 1920s, many juries refused to send
  their fellow citizens to prison merely for possessing a bit of
  liquor. The acquittals laid the foundation for repeal of a bad
  law. In modern Kentucky, juries make it difficult for the
  government to obtain convictions for marijuana possession.

  Paying taxes is never pleasant, and some people add a little note
  at the bottom of their tax form, such as "signed under protest."
  Internal Revenue Service bureaucrats have actually prosecuted
  these people for failing to file a proper return. Juries laugh
  the I.R.S. out of court.

  Columbia Law Professor George Fletcher observes that jury
  nullification might at first seem "to conflict with the rule of
  law, but careful historical reflection underscores the power of
  the jury not to defeat the law, but to perfect the law, to
  realize the law's inherent values." He points to jury acquittal
  of John Peter Zenger in a 1735 trial for seditious libel.
  ("Seditious libel" was the criminal offense of harming a
  government official's reputation.) Zenger's lawyer told the jury
  that they were the ultimate judges of law as well as fact; the
  jury acquitted Zenger on the grounds that his articles in The New
  York Weekly Journal about a corrupt governor were true -- even
  though the formal law did not yet recognize truth as a defense to
  seditious libel.

  That's how the American system works; the law is created by "We
  the People." If a power-hungry prosecutor exercises bad
  judgement, the people, acting through the jury, can stop him.
  Accordingly, it is not only the juror's right, but his obligation
  to vote his conscience. As future President John Adams explained,
  it is the juror's "duty...to find the verdict according to his
  own best understanding judgement, and conscience, though in
  direct opposition to the direction of the court."

  Curiously, although there is no legal doubt about the jury's
  right to vote its conscience and acquit, there is generally no
  rule that the jury be told about that right. In 1895, a divided
  Supreme Court held that there was no Constitutional requirement
  that juries be informed of their power to nullify. (Spars and
  Hanson, 156 U.S. 64.) The case came from an era when the Court
  was devoted to protecting corporate power. Going on strike or
  joining a union was generally illegal, but juries were refusing
  to convict workers accused of these "crimes."

  Maryland and Indiana, through their state Constitutions, do
  require that the jury be fully informed. Maryland's Constitution
  explicitly makes the jury "the Judges of Law, as well as of
  fact." (Maryland Const., Declaration of Rights, Art. 23.)
  Indiana's Constitution states that "the jury shall have the right
  to determine the law and the facts." (Indiana Const., Art. I,
  section 19.)

  Citizens in other states are working to put a "Fully Informed
  Jury Amendment" (FIJA) on their own state statutes. Juries in all
  states, like Indiana and Maryland juries, would be explicitly
  instructed about the right that is already theirs. As the cases
  discussed above illustrate, many jurors already know of their
  power to reject unfair applications of bad laws.

  When juries don't know their rights, the results can be tragic.
  For example, in Phoenix, Arizona a few years ago, a pair of
  United States marshals burst into the home of 72-year-old Bill
  Span and his 74-year-old wife Virginia. According to newspaper
  and magazine reports, when Mr. Span asked to see a search
  warrant, one marshal pinned him against the wall, while another
  searched the home. The marshals then proceeded to the family's
  store, where Mrs. Span and two of her adult children were
  spending the day. The marshals flashed a picture of a criminal
  suspect they were looking for. When Mrs. Span said she did not
  know the suspect, the marshals attacked the adult son and
  daughter from behind. The brother resisted by raising his hands
  to ward off the blows, and trying to wiggle out of a chokehold.
  When the horrified mother snapped photographs, a marshal grabbed
  the camera from the mother's hands, ruined the film, and knocked
  the 72-year-old mother to the ground, sending her to the
  hospital, where she nearly died. The customers present at the
  store during the attack backed up the Spans' version of the

  Why the attack on this family? Mistaken identity. The elderly
  couple had a son -- who hasn't lived in Phoenix for 39 years --
  who has the same name as an entirely different person the
  marshals were seeking to arrest. Rather than being reprimanded,
  the marshals were commended by their superiors for acting

  The victims of the marshals attack were placed on trial. Both
  marshals had a reputation with the marshal service for provoking
  assaults, but the judge refused to let the jury know that fact.
  At the trial, the judge (incorrectly) told the jury that the only
  legal choice for a person being beaten by a government agent is
  "to submit peaceably," and file charges later. The judge also
  ordered, as is standard in most jury instructions, "You must
  apply the law as I give it to you. You must follow the law as I
  give it to you whether you agree with it or not." He never
  informed the jury of its power to nullify the particular
  application of law.

  The jury determined that the marshals had indeed initiated the
  attack. Believing the law forbidding self-defense to be
  completely unfair, the jury nevertheless obeyed the judge's
  misleading instructions, and convicted the victims of assaulting
  the marshals. After the trial, five jurors tearfully told the
  defendants that they knew the marshals were perpetrating an
  illegal attack, but the jury thought it had no choice except to
  convict, according to the judge's instructions.

  Had the judge not misinformed the jury -- had he told the jury
  that they had the unreviewable power to bring refuse to convict
  if they thought a conviction would be unjust -- the victims of
  the crime would have been acquitted.

  Opponents of the Fully Informed Jury Amendment, warn that juries
  cannot be trusted to exercise all of their legal rights. For
  example, in the South during the 1950s and 1960s, all-white
  juries would often refuse to find perpetrators of racist violence
  guilty. The problem there, however, was not the jury knew its
  rights, but that the jury was not truly representative of the
  community, since Blacks and women were frequently excluded.

  Fortunately, recent Supreme Court decisions have made it nearly
  impossible for lawyers to select lily-white or otherwise bigoted
  juries. Moreover, this is 1990s, not the 1950s. With the concern
  most people have about violent crime, there's little reason to
  feel that our fellow citizens will refuse to convict a defendant
  who deserves prison.

  Although the law enforcement establishment predicts anarchy and
  "blood in the streets" if juries are informed about their rights,
  the evidence provides no support for the fear-mongering. Indiana
  and Maryland -- where the state Constitutions affirm jury rights
  -- are no more lawless than their sister states. Indeed, up until
  1895, most of the United States got along quite well with fully
  informed juries, and the crime rate was far lower than it is

  The jury's right and duty to vote its conscience is one of the
  most important checks in our systems of checks and balances.
  Accordingly, the Fully Informed Jury Amendment has drawn support
  from an amazingly diverse coalition of groups. Tree-hugging
  EarthFirsters attend FIJA meetings with timber-cutting Wise Use
  advocates. Radical pro-abortion feminists sit next to Eagle Forum

  Interestingly, while anti-nuclear and pacifist groups are also
  part of the FIJA coalition, the anti-gun movement is not. Perhaps
  the anti-gun lobby fears that fully informed juries would be a
  significant obstacle to enforcement of repressive gun control
  laws. Accordingly, the Fully Informed Jury Amendment is supported
  by many pro- Second Amendment groups, including National Rifle
  Association and the Gun Owners of America. These groups recognize
  that the whole Bill of Rights is one magnificent and interwoven
  tapestry of freedom. When we protect the rights of juries, we
  protect the rights of all other citizens as well, including gun

    Sources: Florida gun prosecution: "Neal Knox Report," Shotgun
  News, Apr. 10, 1990. George Fletcher quote: George Fletcher, A
  Crime of Self-Defense: Bernhard Goetz and the Law on Trial (New
  York: Free Press, 1988), pp. 154-55. John Adams: Quoted in 74
  Yale Law Journal 173 (1964). Jury nullification common in
  self-defense cases: Valerie P. Hans & Neil Vidmar, Judging the
  Jury (New York: Plenum, 1986), pp. 151-53. Arizona marshals: "A
  Challenge to Marshals' Use of Force," Chicago Tribune, Sept. 8,
  1991, p. 24; New Times (Phoenix weekly newspaper), May 16, 1990;
  "Juries Possess Great Power; They Just Aren't Told About It,"
  Phoenix Gazette, May 21, 1991, p. A9 (op-ed).