Restricted Knowledge on Jury Nullification and its Repercussions
Most Americans are not wholly informed of the concept of jury nullification, even whilst participating in one of the foundational aspects of civic duty as American citizens: jury duty. Jury nullification is the right of a panel of jurists to acquit a defendant that they find guilty for breaking a law because they do not agree with the law in question that has been broken. Although jury nullification is not explicitly named in the Constitution, it has been established through practice by juries. The first Chief Justice of the Supreme Court and Founding Father, John Jay, alluded to the inherent power of jurors to nullify when he said jurors have "a right ... to determine the law as well as the fact in controversy." [1] The writings of Jefferson, Adams, Hamilton, and other founders, Federalists and Anti-Federalists alike, have all supported the belief in a jury responsible for deciding both fact and law. [2] The last Supreme Court opinion on jury nullification, dating back to 1895, set the precedent that judges do not have to inform jurors of their right to nullify, yet nullification power has still been consistently exercised throughout history until today. In recent years, citizens have been arrested when informing the public on this subject. The ability for the public to inform jurists has become restricted due to a lack of legal clarification on citizens’ rights to inform jurists, not only violating freedom of speech, but also threatening the future of juries to be fully informed of their originally intended role to judge both the facts and the laws in question.
Jury nullification has historically been used to challenge the moral validity of established laws since before the founding of the United States up until the 20th century. The earliest usage of jury nullification was in the case of Peter Zenger being tried for libel in 1734 for printing newspapers that wrote falsehoods about the governor of New York. [3] Although his jurists clearly found him guilty of printing libelous material, they took it upon themselves to judge the validity of the law and dismissed his accountability. It continued to be exercised throughout history such as during the Vietnam War Protests in 1971 by a group of anti-war activists known as The Camden 28, who successfully appealed to jurors to exercise their right to nullify the law and send a signal to the government about their stance on the war. [4] Juries have also used their nullification power in cases where people have been prosecuted for not adhering to the Fugitive Slave Act as well as for Prohibition laws.
The last time the Supreme Court of the United States directly acknowledged jury nullification dates back to 1895 in Sparf and Hansen v. United States, where it ruled that “In the courts of the United States, it is the duty of the jury, in criminal cases, to receive the law from the court, and to apply it as given by the court, subject to the condition that by a general verdict a jury of necessity determines both law and fact as compounded in the issue submitted to them in the particular case.” [5] The opinion, written by Justice Harlan, held that a trial judge would inform the jury of the law but had no responsibility to inform the jury of their ability to question that law. Importantly, it did not specifically deny the right that jurors have to nullify. The very essence of jury nullification is that jurors exonerate based on laws that they do not believe are right, so certainly a judge would clarify which law in question has been broken. This case established that judges have the right to not inform jurors, which has become the common practice. Therefore, it was left to citizens to inform both themselves and one another.
Jury nullification is evidently a power exercised by jurors. The question remains how jurors can become informed of this right without facing legal punishments for attempting to influence a jury. Today, because of unclear and incomprehensive rulings on jury nullification, citizens have been arrested and charged with jury tampering when informing jurists of their de facto right to question a law. In 2012, a man named Julian Heicklen was arrested and charged with a federal criminal misdemeanor for holding pamphlets outside a New York courtroom to inform jurors of their right. His conviction was upheld for attempting to influence the action or decision of a juror. The case, US. v. Heicklen, led to the dismissal of the indictment due to reasoning that the language of the statute requires that jury tampering be done with a specific case in mind. [6] Three years later, this precedent was not upheld. In 2015, two men, Eric Brandt and Mark Iannicelli, were arrested outside a Colorado courtroom for distributing pamphlets with information on jury nullification. They were each charged with multiple counts of criminal jury tampering for communicating with a juror with the intent to influence the juror’s vote in a case. [7]
The government’s argument that Brandt and Iannicelli’s speech was criminal jury tampering can be applied to almost any statement advocating jury nullification that juries may encounter. Without proper clarification, states can continue setting contradicting precedents for this matter. This right to peacefully and informatively educate and discuss this concept in public should be allowed without question: arresting citizens for discussing a matter explicitly not only violates the right to freedom of speech guaranteed in the First Amendment but threatens our democracy with its inconsistent enforcement. The knowledge of jury nullification is critical as it is another essential component of checks and balances between the people and the government on the justness of laws. If citizens were freely able to inform jurors of their nullification powers, they would be able to exercise their dissent against modern laws that they may disagree with, such as mandatory minimum drug sentencing for low-level drug offenses.
The right to a trial by a jury of one’s peers is a right guaranteed by the Constitution. Those opposing jury nullification reason that it has the possibility for misuse; however, nullification is like any other democratic power with the potentiality of abuse. It deserves to be an uninfringed power that the informed jurors reserve the right to exercise. If laws were black and white, the Founding Fathers would not have included jurors and emphasized “the people” as the basis of our governance. The inconsistent prosecution and rulings in the civil cases of those who attempted to educate the public of jury nullification is not conducive to an effective democracy. There remains a need for a new Supreme Court opinion clarifying the application of jury nullification knowledge as it is one of the most direct vehicles of governance by the people. It is critical that jury nullification continue to be acknowledged and accepted under the First Amendment Right to Free Speech. It should spread without government interference in order to create a more informed general public and for jurors to have the prerogative to protest the current and future unjust laws of society.
Sources:
[1] "Juries: A History of Jury Nullification." Liberty International. June 12, 2001. Accessed April 10, 2019. https://liberty-intl.org/2001/06/juries-a-history-of-jury-nullification/.
[2] Middlebrooks, Donald M. "Reviving Thomas Jefferson's Jury: Sparf and Hansen v. United States Reconsidered." The American Journal of Legal History 46, no. 4 (2004): 353-421. doi:10.2307/3692404.
[3] Conrad, Clay. "History Is Clear: Juries Were Supposed to Be Able to Overturn Laws." The Washington Post. April 08, 2016. Accessed April 10, 2019.
[4] "The Camden 28." National Catholic Reporter. September 18, 2007. Accessed April 10, 2019. https://www.ncronline.org/blogs/road-peace/camden-28.https://www.aclu.org/blog/free-speech/its-perfectly-constitutional-talk-about-jury-nullification.
[5] Harlan, John Marshall, and Supreme Court Of The United States. U.S. Reports: Sparf and Hansen v. United States, 156 U.S. 51. 1894. Periodical. https://www.loc.gov/item/usrep156051/.
[6] Ibid.
[7] Weiser, Benjamin. "Prosecution Explains Jury Tampering Charge." The New York Times. November 28, 2011. Accessed April 02, 2019. https://www.nytimes.com/2011/11/28/nyregion/brief-details-jury-nullification-case-against-julian-heicklen.html.https://www.aclu.org/blog/free-speech/its-perfectly-constitutional-talk-about-jury-nullification.
[8] Gilens, Naomi. "It's Perfectly Constitutional to Talk About Jury Nullification." American Civil Liberties Union. January 22, 2019. Accessed April 10, 2019. https://www.aclu.org/blog/free-speech/its-perfectly-constitutional-talk-about-jury-nullification