[3/18/17] The Oregon legislature is considering a bill that could re-enshrine juries to the their former place as the last line of defense against legalized despotism.
Senate Bill 924, introduced by state Senator Kim Thatcher, mandates that judges must provide very particular instructions to juries in felony cases. Prior to giving a case to a jury for their consideration, judges must issue them the following instruction:
“As jurors, if you feel that a conviction would not be a fair or just result in this case, it is within your power to find the defendant not guilty even if you find that the state has proven the defendant’s guilt beyond a reasonable doubt.”
Should a judge fail to provide the requisite instruction, the bill provides that such failure “constitutes a mistrial….”
Before one is able to understand why jury nullification is a good idea, one must understand the importance of a trial by jury. Our Founding Fathers universally considered it to be a powerful weapon in the war against tyranny.
Thomas Jefferson wrote, “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.”
In The Federalist Papers, Alexander Hamilton wrote that trial by jury was the “very palladium of free government” and a “valuable check upon corruption.”
Hamilton’s fellow Federalist author and Supreme Court Chief Justice John Jay informed a jury in a 1794 case that:
It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.
Given the strength of these opinions, then, it is no surprise that the denial of trials by jury was one of the foremost acts of despotism listed by Thomas Jefferson in the Declaration of Independence.
As for the concept that juries have not only the power but the obligation to nullify unjust rulings of a judge, John Adams wrote, “It is not only [the juror’s] 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.”
And Hamilton, again from The Federalist Papers, described the jury’s check on the judge as a “double security” that “tends to preserve the purity” of both judge and jury.
Obviously, the idea that juries may act contrary to the will of a judge is nothing new in American law, and in fact it is an act of resistance to government oppression that our Founders believed to be fundamental in a Republic that was to remain free under the rule of law, rather than enslaved according to the rule of men.
As indicated by the statements provided above, our Founding Fathers zealously defended this right and recognized that only an informed and empowered jury could effectively protect a defendant from the potentially harmful effects of autocratic judges.
Such staunch opposition to official overreach is to be expected from our Founding Fathers, but even during the hedonistic days of “Summer of Love” the U.S. Supreme Court held that “undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence.” (U.S. v. Moylan, 1969).