by Dr. Julian Heicklen jph13@psu.edu

Juries originally were introduced into England to protect the individual from the tyranny of government. The first case in which juries nullified a law was that of William Penn and William Mead in England in 1670 The jurors refused to convict the two Quaker activists charged with unlawful assembly. The judge refused to accept a verdict other than guilty, and ordered the jurors to resume their deliberations without food or drink. When the jurors persisted in their refusal to convict, the court fined them and committed them to prison until the fines were paid. On appeal, the Court of Common Pleas ordered the jurors released, holding that they could not be punished for their verdict.

Jury nullification was introduced into America in 1735 in the trial of John Peter Zenger, Printer of The New York Weekly Journal. Zenger repeatedly attacked Governor William Cosby of New York in his journal. This was a violation of the seditious libel law, which prohibited criticism of the King or his appointed officers. The attacks became sufficient to bring Zenger to trial. He clearly was guilty of breaking the law, which held that true statements could be libelous. However Zenger's lawyer, Andrew Hamilton, addressed himself to the jury, arguing that the court's law was outmoded. Hamilton contended that falsehood was the principal thing that makes a libel. It took the jury only a few minutes to nullify the law and declare Zenger not guilty. Ever since, the truth has been a defense in libel cases.

Several state constitutions, including the Georgia Constitution of 1777 and the Pennsylvania Constitution of 1790 specifically provided that "the jury shall be judges of law, as well as fact." In Pennsylvania, Supreme Court Justice James Wilson noted, in his Philadelphia law lectures of 1790, that when "a difference in sentiment takes place between the judges and jury, with regard to a point of law,...The jury must do their duty, and their whole duty; They must decide the law as well as the fact." In 1879, the Pennsylvania Supreme Court noted that "the power of the jury to be judge of the law in criminal cases is one of the most valuable securities guaranteed by the Bill of Rights."

John Jay, the first Chief Justice of the U. S. Supreme Court stated in 1789: "The jury has the right to judge both the law as well as the fact in controversy." Samuel Chase, U. S. Supreme Court Justice and signer of the Declaration of Independence, said in 1796: "The jury has the right to determine both the law and the facts. " U. S. Supreme Court Justice Oliver Wendell Holmes said in 1902: "The jury has the power to bring a verdict in the teeth of both law and fact." Harlan F. Stone, the 12th Chief Justice of the U. S. Supreme Court, stated in 1941: "The law itself is on trial quite as much as the cause which is to be decided."

In a 1952 decision (Morissette v United States), the U. S. Supreme Court recognized the powers of juries to engage in nullification. The court stated:

"Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges....They might have refused to brand Morissette as a thief. Had they done so, that too would have been the end of the matter."

In a 1972 decision (U. S. v Dougherty, 473 F 2nd 1113, 1139), the Court said: "The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge."

Likewise, the U. S. Supreme Court in Duncan v Louisiana implicitly endorsed the policies behind nullification when it stated: "If the defendant preferred the common-sense judgment of the jury to the more tutored but less sympathetic reaction of the single judge, he was to have it."

In recent times, the courts have tried to erode the nullification powers of juries. Particular impetus for this was given by the fact that all-white juries in the southern states refused to convict whites of crimes against blacks. As a result there is a practice of judges to incorrectly instruct the jury that the judge determines the law, and that the jury is limited to determining the facts. Such an instruction defeats the purpose of the jury, which is to protect the defendant from the tyranny of the state. Judges or expert witnesses can determine the facts better than juries can. The purpose of the jury is to protect the defendant from the tyranny of the law.

The problem with the all-white juries that refused to convict whites that committed crimes against blacks was not in jury nullification, but in jury selection. The jury was not representative of the community and would not provide a fair and impartial trial.

In recent years, jury nullification has played a role in the trials of Mayor Marion Barry of Washington, DC for drug use, Oliver North for his role in the Iran-Contra Affair, and Bernhard Goetz for his assault in a New York City subway.

In Les Miserables, Victor Hugo highlighted the difference between justice and law. The jury's responsibility is to deliver justice, not to uphold the law. Judges in Maryland and Indiana are required by law to inform the jury of its right to nullification. Article 23 of the Maryland Bill of Rights states:

"In the trial of all criminal cases, the Jury shall be the judge of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction."

Nullification applies just as much in other states, including Pennsylvania. Article I of the Constitution of the Commonwealth of Pennsylvania states in Section 6: "Trial by jury shall be as heretofore (emphasis mine), and the right thereof remain inviolate." Section 25 states: "To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate." Taken together, these two sections mean that juries shall have the powers that they had "Heretofore." i. e. when the Constitution was adopted.

Judges usually do not inform the jury of this right. Even worse, some judges instruct the jury that it does not have the right to interpret or nullify the law, but only to determine the facts. Near the end of alcohol prohibition, juries refused to convict for alcohol violations. Has the time arrived for juries to do the same for marijuana violations?

Dr. Heicklen's web pages are at http://www.personal.psu.edu/faculty/j/p/jph13/index.html