Fully Informed Jury Association

Are you fully informed about jury nullification?

Function of Juries & Jury Nullification & Missive of the Month | 08 Mar 2013

-Jurors Don’t Need to Check Their Consciences at the Door


FIJA Logo with URLIn this letter to the editor, published in the Montana Standard in Butte, MT, Kirsten Tynan corrects the author of another recent letter who claimed that “The notion [of jury nullification] undermines the foundation of our judicial system.”

Jurors Don’t Need to Check Their Consciences at the Door

In his 5 March letter regarding the Fully Informed Jury Act, Travis McAdams had little to say about jury nullification. Nonetheless, what he did say on the subject was incorrect. Jury nullification does not undermine the foundation of our judicial system; rather, it was purposely built into the foundation of our judicial system to protect human rights from abuse by government.

American jurors’ legal authority to veto unjust laws is grounded in English common law, upon which our legal system was based. Jurors’ veto power was designed into the American legal system through such provisions as prohibitions against defendants being put at risk of double jeopardy and against punishing jurors for their verdicts. It has been recognized repeatedly by the Supreme Court, as early as the 1794 case of Georgia v. Brailsford in which Chief Justice John Jay wrote in charging the jury that, “You have a right to take it upon yourselves to judge both, and to determine the law as well as the fact in controversy.” No Supreme Court ruling has overturned this power of the jury. In its 1906 ruling in the case of State v. Koch, our Montana State Supreme Court ruled that “the jury has power to disregard the law as declared and acquit the defendant, however convincing the evidence may be, and that the court or judge has no power to punish them for such conduct.”

This ruling also still stands today.

Jurors have overwhelmingly exercised nullification throughout history to protect defendants’ human rights. They frequently nullified fugitive slave laws to protect defendants accused of aiding runaway slaves. In the Shadrach Rescue Cases, for example, government failed in five consecutive trials to convict any defendant—black or white—of aiding in the escape of Shadrach Minkins. Before the Supreme Court’s 2003 Lawrence v. Texas decision decriminalizing consensual same-sex intimate conduct, juries frequently refused to convict defendants under anti-sodomy laws, even when presented with clear evidence that they had technically violated the law. Georgetown University law professor Paul Butler encourages jurors to refuse to enforce victimless drug laws that have disproportionately been used against and disproportionately harm people of color. And so on.

These are simple facts of the American legal system: Jurors cannot be required to check their consciences at the courthouse door, nor can they be punished for their verdicts.