Jurors should acquit, even against the judge’s instruction…if exercising their judgement with discretion and honesty they have a clear conviction that the charge of the court is wrong. – Alexander Hamilton, 1804
True or False?
When you sit on a jury, you may vote on the verdict according to your own conscience? “TRUE”, you say and you’re right. But then……
 Why do most judges tell you that you may consider “only the facts”, that you are not to let your conscience, opinion of the law, or the motives of the defendant affect your decision?
Be sure to read:
In a trial by jury, the Judge’s job is to referee the trial and provide neutral legal advice to the jury beginning with a full and truthful explanation of a juror’s rights and responsibilities.
But judges rarely “fully inform” jurors of their rights, especially their power to judge the law itself and to vote on the verdict according to conscience. Instead they end up assisting the prosecution by dismissing any prospective juror who will admit to knowing about this right starting with anyone who also admits having qualms with the law.
Judges seem to have lost sight of the fact (or just ignore it) that law cannot be rigidly applied to every case without consideration of the merits of that law. This is why it is humans and not highly evolved computers that determine whether or not a law is fair and just.
We can only speculate on why: Distrust of the citizen jury? Disrespect for the idea of government “of, by, and for the people”? Unwillingness to part with power? Ignorance of all the rights and powers that trial jurors necessarily acquire upon assuming the responsibility of judging a case? Actual concern that trial jurors might “misuse” their power if told about it?
How can people get fair trials if the jurors are told they can’t use their consciences?
Many people don’t get fair trials. Too often, jurors actually end up apologizing to the person they’ve convicted or to the community for acquitting when evidence of guilt seems perfectly clear.
Something is definitely wrong when the jurors feel ashamed of their verdict. They should never have to explain “I wanted to use my conscience, but the judge made us take an oath to apply the law as given to us, like it or not”.
Too often, jurors who try to vote their consciences are talked out of it by other jurors who don’t know their rights, or who believe they are required to reach a unanimous verdict because the judge “said so”.
If jurors were supposed to judge “only the facts”, their job could be done by computer. It is precisely because people have feelings, opinions, wisdom, experience, and conscience that we depend upon jurors, not upon machines, to judge court cases.
When it’s your turn to serve, remember:
 you may, and should, vote your conscience;
 you cannot be forced to obey a “juror’s oath”;
 It Is your responsibility to ‘hang’ the jury with your vote if you disagree with the other jurors.
JURY POWER in the system of checks and balances: In a Constitutional system of justice, such as ours, there is a judicial body with more power than Congress, the President, or even the Supreme Court. Yes, the trial jury protected under our Constitution has more power than all these government officials. This is because it has the final veto power over all “acts of the legislature” that may come to be called “laws”
JURY NULLIFICATION or jury nullification of law, as it is sometimes called, is a traditional right that was rigorously defended by America’s Founding Fathers. Those great men, Patriots all, intended the jury to serve as a final safeguard – a test that laws must pass before gaining sufficient popular authority for enforcement. Thus the Constitution provides five separate tribunals with veto power – representatives, senate, executive, judges – and finally juries. Each enactment of law must pass all these hurdles before it gains the authority to punish those who may choose to violate it.
The Right Decision When The Law Is Wrong!
What is the Fully Informed Jury Association “FIJA”?
FIJA is a national jury education organization which both educates juries and promotes laws to require that judges resume telling trial jurors “the whole truth” about their rights, or at least to allow lawyers to tell them. FIJA believes “liberty and justice for all” won’t return to America until the citizens are again fully informed of their power as jurors, and routinely put it to good use.
Resume? Did judges fully inform jurors in the past? Yes, it was normal procedure In the early days of our country, and in colonial times. And if the judge didn’t tell them the defense attorney very often would. The nation’s Founders understood that trials by juries of ordinary citizens, fully Informed of their powers as jurors, would confine the government to its proper role as the servant, not the master, of the people.
John Adams, our second president, had this to say about the juror: “It is not only his right, but his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
Our third president, Thomas Jefferson, put it like this: “I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.”
These sound like voices of hard experience. Were they? Yes. Only four decades earlier, a jury had established freedom of the press in the colonies by finding John Peter Zenger not guilty of seditious libel. He had been arrested and charged for printing critical but true news stories about the Governor of New York Colony.
“Truth is no defense”, the court told the jury! But the jury decided to reject bad law, and acquitted. Why? Because defense attorney Andrew Hamilton informed the jury of its rights: he related the story of William Penn’s trial-of the courageous London jury which refused to find him guilty of preaching Quaker religious doctrine (at that time an illegal religion). His jurors stood by their verdict even though held without food, water, or toilet facilities for four days.
The Jurors were fined and imprisoned for refusing to convict William Penn until England’s highest court acknowledged their right to reject both law and fact, and to find a verdict according to conscience. It was exercise of that right in Penn’s trial which eventually led to recognition of free speech, freedom of religion, and of peaceable assembly as individual rights.
American colonial juries regularly thwarted bad law sent over from mother England. Britain then retaliated by restricting both trial by jury and other rights which juries had won or protected. Result? The Declaration of Independence and the American Revolution!
Afterwards, to forever protect all the individual rights they’d fought for from future attacks by government, the Founders of these United States in three places included trial by jury -meaning tough, fully informed juries -in our Constitution and Bill of Rights.
“Bad law” -special-interest legislation which tramples our rights-is no longer sent here from Britain. But our own legislatures keep us well supplied… That is why today, more than ever, we need juries to protect us!
Why haven’t I heard about “jury rights” before now?
In the late 1800’s, powerful special-interest groups inspired a series of judicial decisions which tried to limit jury rights. While no court has yet dared to deny that juries can “nullity” or “veto” a law, or can bring in a “general verdict”, some-hypocritically-have held that jurors need not be told about these rights!
Today, it’s a rare and courageous attorney who will risk being cited for contempt for telling jurors their powers without first obtaining the
However, jury veto power is still recognized. In 1972 the D.C. Circuit Court of Appeals held that the trial jury has an “…unreviewable and irreversible power … to acquit in disregard of the instruction on the law given by the trial judge. The pages of history shine upon instances of the jury’s exercise of its prerogative to disregard the instructions of the judge; for example, acquittals under the fugitive slave law.” (473F.2d 1113)
What will happen when proposed FIJA laws are passed?
Three good things:
(1) Unjustly accused persons and their trial jurors, as well as crime victims and their communities, will more often be satisfied that the jury system actually delivers Justice.
(2) Legislators will again receive regular feedback from ordinary people, sitting on juries, as well as the usual high pressure from special-interest groups, lobbyists and other political sources. With better information, they can better represent the people.
(3) When the laws of the land respect the will of the people, as revealed by their jury verdicts, people, in turn, will show more respect for the law.
BE AWARE Thousands of harmless citizens are in prison only because their trial juries were not fully informed, and the U.S. now leads the world in percent of population behind bars More prisons are being built than ever before-for those whose “crime” is to upset the government “master”, and not to victimize anyone.
BE ALBERT Consider every day to be Jury Rights Day. Be wary and/or critical of any proposals to “streamline” the jury system, or to create jurisdictions or regulations which “do not require” trial by jury (two of the means by which your power as a juror is stolen!)
BE ACTIVE Let other people know what you know about jury veto power!
Advise them all that before a jury deliberates, each member should consider:
Is this a good law?
If so, is the law being justly applied?
Was the Bill of Rights honored in the arrest?
Will the punishment fit the crime?
As a juror, if you answer “no” to any of these questions, your vote should be “not guilty.”
“Jury nullification of law,” as it is sometimes called, is a traditional right that was rigorously defended by America’s Founding Fathers. Those great men, Patriots all, intended the jury to serve as a final safeguard – a test that laws must pass before gaining sufficient popular authority for enforcement. Thus the Constitution provides five separate tribunals with veto power – representatives, senate, executive, judges – and finally juries. Each enactment of law must pass all these hurdles before it gains the authority to punish those who may choose to violate it.
IF YOU’RE CALLED ON FOR JURY DUTY
Don’t worry! Be happy! Look at jury service as an opportunity to “do good” for yourself and others. It’s your chance to help the justice system deliver justice, which is absolutely essential to a free society.
Also, you can do more “political good” as a juror than in practically any other way as a citizen: your vote on the verdict is also a measure of public opinion on the law itself–an opinion which our lawmakers are likely to take seriously. Short of being elected to office yourself, you may never otherwise have a more powerful impact on the rules we live by than you will as a trial juror.
However, unless you are fully informed of your powers as a juror, you may be manipulated by the less powerful players in the courtroom into delivering the verdict they want, instead of what justice would require. That is why this “kit” was written–to give you information that you’re not likely to receive from the attorneys, or even from the judge.
Nothing in the U.S. Constitution or in any Supreme Court decision requires jurors to take an oath to follow the law as the judge explains it or, for that matter, authorizes the judge to “instruct” the jury at all. Judges provide their interpretation of the law, but you may also do your own thinking. Keep in mind that no juror’s oath is enforceable, and that you may regard all “instructions” as advice.
Justice may depend upon your being chosen to serve, so here are some “words to the wise” about how to make it through voir dire, the jury selection process: You may feel that answering some of the questions asked of you would compromise your right to privacy. If you refuse to answer them, it will probably cost you your chance to serve. Likewise, if you “talk too much”–especially if you admit to knowing your rights and powers as a juror, as explained below, or that you have qualms about the law itself in the case at hand, or reveal that you’re bright, educated, or are interested in serving! So, from voir dire to verdict, let your conscience be your guide.
Understanding the full context in which an illegal act was committed is essential to deciding whether the defendant acted rightly or wrongly. Strict application of the law may produce a guilty verdict, but what about justice? If the jurors agree that, beyond a reasonable doubt, the accused did act as charged, then “context becomes everything” in reaching a verdict you can live with. Credit or blame for the verdict will go to you, so be sure to ask the judge how you can pose questions to witnesses, so that you can learn the complete context, should the lawyers fail to bring it out.
When they believe justice requires it, jurors can refuse to apply the law. Jurors have the power to consider whether the law itself is wrong (including whether it is “unconstitutional”), or is being applied for political reasons. Is the defendant being singled out as “an example” in order to demonstrate government muscle? Were the defendant’s constitutional rights violated during the arrest? Much of today’s “crime wave” consists of victimless crimes–crimes against the state, or “political crimes”, so if you feel that a verdict of guilty would give the government too much power, or help keep a bad law alive, just remember that you can refuse to apply any law that violates your conscience.
Prosecutors often “multiply charges” so the jury will assume the defendant “must be guilty of something”. But one of the great mistakes a jury can make is to betray both truth and conscience by compromising. If you believe the defendant is not guilty of anything, then vote “not guilty” on all counts.
You can’t be punished for voting according to your conscience. Judges (and other jurors) often pressure hold-out jurors into abandoning their true feelings and voting with the majority “…to avoid the expense of a hung jury and mistrial”. But you don’t have to give in. Why? Because…
Hung juries are “OKAY”. If voting your conscience should lead to a hung jury, not to worry, you’re doing the responsible thing. There is no requirement that you must reach a verdict. And the jury you hang may be significant as one of a series of hung juries sending messages to the legislature that the law you’re working with has problems, and it’s time for a change. If you want to reach consensus, however, one possible way is to remind your fellow jurors that…
Jurors have the power to reduce charges against the defendant, provided that “lesser included offenses” exist in law (ask the judge to list and explain them, and the range of potential punishments that go with each). Finding guilt at a lower level than charged can be appropriate in cases where the defendant has indeed victimized someone, but not so seriously as the original charges would indicate. And, if it will be up to the judge to decide the sentence, it’s within the power of the jury to find the defendant guilty of a reduced charge which will, at most, entail the amount of punishment it thinks is appropriate.
The Fully Informed Jury Association (FIJA) hopes the above information helps you to find a verdict that you believe is conscientious and just, a verdict which you can therefore be proud to discuss with friends, family, legal professionals, the community or the media, should any of them want to know what happened, how, and why. If you have further questions, or want a hard copy of this article and others contained in FIJA’s “Jury Power Information Kit”, phone 1-800-TEL-JURY, and leave your name and address on tape. The office phone number for FIJA National HQ is 406-793-5550.
Alfred the Great of Saxony, King of England had a way of handling judges who tampered with juries. In the year 889 he hanged forty-four judges because they were interfering with jury trials by removing and replacing jurors in order to gain convictions.