Jury Nullification

A couple of weeks ago I received a jury summons in the mail. Coincidentally, shortly afterwards I listened to a Mises Institute podcast that happened to explain the concept of jury nullification. Either I never learned that concept in school or, if I did, I promptly forgot it. Tonight, I came across this article written by Jacob G. Hornberger that reiterates the concept of jury nullification.

In a nutshell, jury nullification is the power of a juror to decide not only the facts, but also the law, of a case brought before him. This idea appears to be controversial today, but it shouldn't be. What the Constitution means by the right to trial by jury can be clearly understood from what trial by jury meant immediately before the Constitution was ratified. Pages 95-98 of this paper by James Ostrowski provide quotes by Thomas Jefferson, John Adams, Alexander Hamilton, and others which say a jury has the power to decide both the facts and the law of a case. Even John Jay, the first Chief Justice himself, instructed a jury in a 1794 civil case as follows (boldface mine):

[O]n 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 recognized 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 in controversy. On this, and on every other occasion, we have no doubt, you [the jury] 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 judge of the law. But still both objects are lawfully, within your power of decision.

I find that one of the most interesting aspects of the power of jury nullification (aside from the power itself) is that judges do not inform jurors of it. In fact, judges often mislead jurors into thinking that they have the power to decide only the facts, not the law, of a case. So unless jurors have already been educated outside of court regarding jury nullification, judges leave them ignorant regarding the full extent of their powers. Ostrowski summarizes in the conclusion to his paper:

Jury nullification has gone through the following transformations over the last several hundred years:

• A practice which subjects jurors to punishment by the court—England, circa 1500.
• A right which may not be punished—England, circa 1670.
• A power subject to no judicial review—U.S., 1895.
• A power about which the court and the lawyers may not inform jurors—U.S., circa, 1980.
• A practice which subjects jurors to punishment by the court—U.S., 2000.

Modern, sophisticated legal analysis has succeeded in taking our jury system back to medieval England.

I'll certainly have something to think about as my potential jury duty next week approaches. The courts are starting to crack down heavily on jury nullification, despite its advocacy (intelligently and ethically applied, of course) by John Jay, Jefferson, Adams, Hamilton, et al. If I am asked about my views on jury nullification, I plan to be ready with a well-supported answer in favor of it.