Academic journal article St. John's Law Review

State Constitutional Provisions Allowing Juries to Interpret the Law Are Not as Crazy as They Sound

Academic journal article St. John's Law Review

State Constitutional Provisions Allowing Juries to Interpret the Law Are Not as Crazy as They Sound

Article excerpt


Today, just about everyone in the legal profession takes for granted that judges should interpret the law and juries should only determine facts. That attitude would have surprised many colonists who settled in the New World as well as citizens in the new republic after independence. In several colonies, juries had the right not just to decide factual disputes, but to interpret the law in criminal cases. After the founding, many states codified the right of juries to resolve legal questions-a right retained for much of the nineteenth century.

slowly but surely, this right was eroded. Today, only three states-Maryland, Georgia, and Indiana-have constitutional provisions recognizing juries' right to interpret the law in criminal cases. Maryland and Georgia courts have nullified the provisions, while Indiana has applied it, albeit narrowly. A consensus has developed that professionally trained judges with legal expertise are better suited to interpret the law than lay jurors. Unsurprisingly, modern lawyers, commentators, and judges have taken for granted that state constitutional provisions such as Indiana's, Maryland's, and Georgia's are "outmoded relicls]"1 that no longer belong in a modern justice system. These provisions have been described as "ridiculous," "absurd," and "comical."2

This Article questions that consensus. Joining a larger debate about the jury's proper role, it argues that, even today, these provisions are a defensible component of a criminal justice system. First, this Article argues that the jury is the entity in the justice system most incentivized to approach legal questions with an eye to what the best interpretation is and not the most politically palatable result. Second, this Article argues that the jury's ability to deliberate and consider opinions from individuals hailing from a wider variety of backgrounds than those who typically become judges may provide advantages over a single trial court judge in interpreting the law. Third, it acknowledges practical difficulties that allowing juries to interpret the law could cause, but argues that they are not so insurmountable as to make it unreasonable for state constitutional provisions like Indiana's, Maryland's, and Georgia's to allow juries to interpret the law. Finally, this Article contemplates ways such provisions could dramatically change plea bargaining.


A.History in England

America's jury system originated in England. So, English history offers valuable insights into how American juries came to acquire the power to resolve legal questions.

The consensus view from England was traditionally that juries could only determine factual issues.3 William Blackstone argued that jurors were "the best investigators of truth," but should not determine issues of law, since "if the power of judicature were placed at random in the hands of the multitude, their decisions would be wild and capricious, and a new rule of action would be every day established in our courts."4 There was a minority view. During the 1600s, the Levellers advocated giving the jury a greater role in the legal system and allowing it to interpret the law.5 To Levellers, law "was a form of divine command comprehensible and accessible to the common man."6 That is to say, ordinary jurors were just as capable as judges of interpreting the law. In some ways, the Puritans who settled in the New World held similar views towards religion. Puritans believed in a "priesthood of all believers" and that laymen had a responsibility to study the scriptures on their own rather than simply relying on a minister's teaching.7

This attitude found expression in John Lilburne's 1649 trial for high treason. Lilburne allegedly "maliciously, advisedly, and traiterously did plot, contrive and endeavour to stir up, and to raise force" against the Crown.8 As evidence against him, the government quoted his writings.9 Denied a lawyer, Lilburne asked to address the jury about matters of law. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.