Jury Nullification: Right, Remedy, or Danger?
McElroy, Wendy, Freeman
Last December a "mutiny" occurred in a Montana courtroom. At least that's what a stunned county deputy attorney called it. One of 27 members of a jury pool spoke up to ask why taxpayer money was being wasted to prosecute a man accused of possessing l/16th of an ounce of marijuana. When polled, a large majority of the potential jurors indicated their reluctance to convict on such a minor possession.
The judge called a recess and the prosecutor worked out a plea deal, which read, "Public opinion, as revealed by the reaction of a substantial portion of the members of the jury ... is not supportive of the state's marijuana law and appeared to prevent any conviction from being obtained. . . ."
Technically jury nullification did not occur because no jury had been seated. Nullification occurs when a jury in a criminal case either acquits or refuses to convict a defendant despite the letter of the law or the weight of evidence. In effect the jury passes judgment on the justice of the law and refuses to facilitate what it deems to be unjust.
Nullification is often held up as a populist defense against oppressive or corrupt law, but many questions surround the legal procedure.
Natural Right, Necessary Legal Procedure?
The most basic question: Is jury nullification - or, more broadly, trial by jury - a natural right or merely a legal procedure to be judged on its utility in preserving justice? If trial by jury is a natural right, akin to freedom of speech, then no other consideration should interfere with it. If it is a strategy, then other considerations become powerful.
Trial by jury has acquired the air of a natural right for several reasons.
The proceeding has been enshrined in some of Western civilization's most venerated statements of individual rights. In Trial by Jury, the nineteenth-century American legal scholar Lysander Spooner translated Article 39 of Magna Carta (1215) as protecting all free men from the abridgment of liberty except "by the lawful judgment of his peers, and or by the law of the land."
Among the "repeated injuries and usurpations" of King George listed in the American Declaration of Independence was "depriving us [colonials] . . . of the benefits of Trial by Jury." The Sixth Amendment to the U.S. Constitution opens, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. ..."
In practice, trial by jury has sometimes served as a clear front-line defense against oppressive laws. Jury nullification was explicitly embedded into British common law in 1670, when an English jury refused to convict William Penn for preaching Quakerism; the jurors were imprisoned. In ruling on their imprisonment the English high court stated that juries must be able to reach their own decisions without fear of punishment. In 1735 jury nullification was affirmed in colonial America when jurors refused to convict publisher John Peter Zenger for printing criticisms of the governor of New York.
Moreover, prominent nineteenth-century libertarians viewed trial by jury as an indispensable weapon against injustice. The publisher Benjamin Tucker declared, "The truth is that jury service is of much higher importance than the right of suffrage."
But others argued that trial by jury was neither a right nor a trustworthy service to liberty.
Certainly it is difficult to view the act of passing legally binding judgment on others or demanding others to pass such judgment on you as a direct right based on self-ownership. For one thing, if the procedure is a right, then others have a duty to provide it for you; in other words it would be an entitlement or positive right, not a natural or negative one. Instead advocates like Spooner and Tucker considered trial by jury to be a delegated right. Since an individual can properly weigh evidence and facts for himself - that is, can try his own case - he could properly delegate that right to others who were willing to assume it. …