“To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”
– Thomas Jefferson
It is interesting, the history of jury nullification in the United States, especially considering the strong feelings most of our founding fathers had about it. John Adams, Thomas Jefferson, John Jay, and Alexander Hamilton (amoungst others) were vocal advocates of jury nullification. They spread the gospel of nullification with almost evangelical fervor. It has been called everything from a right to a responsibility. It is a mechanism by which the public can hold a government accountable to its constitution. Jury nullification has been utilized combat slavery, free speech and civil rights. Jury nullification has a rich robust history in our country; it is a uniquely American judicial tool. Well suited to our revolutionary roots.
This is in stark contrast to contemporary attitudes concerning jury nullification. Most Americans even informed and educated ones, do not even realize that jury nullification is a legitimate and legal tool that they can utilize. Most judges will not tell potential jurors about it, and in fact frequently tell jurors in no uncertain terms that they are not to pass judgments concerning the law, that is what the judge’s role is. In fact, the American government appears to be downright hostile toward jury nullification. At one point federal prosecutors indicted a man for jury tampering, and all he did was pass out brochures informing people of jury nullification!!! Prosecutors went further and claimed that this peaceful act wasn’t even protected speech under the first amendment.
Fortunately, this was resolved:
For those of you who kinda like a restrained government, and dig jury nullification, there is hope! There is a very vocal resurgence in support for jury nullification in the United States. Most seem to think it is fueled by our ever-growing dissatisfaction with the judicial/legislative establishment. We have seen an increasing acceptance of recreational drug use, namely marijuana, and a proportional rise in the rejection of applicable laws. And this is mirrored in other ‘ victim-less’ areas of the law, but it is truly personified in the terrible failure, and perpetual egg on the government’s face that is the “drug war”. A well informed jury can choose not to convict a non-violent drug offender based only on the belief that the law itself is unjust. Last summer, New Hampshire passed H.B. 146, which explicitly allows the defense in any trial to inform the jury of their right to nullify. Score one for the good guys! This may seem like it has relatively small impact, but it has far reaching implications. It will change the dynamic of the entire legislative process, adjusting prosecutorial behavior. In 2010, a Montana marijuana case never made it to trial because they could not find a jury who would convict. The potential jurors literally took the law into their own hands … which is awesome, because it is our law anyway! Beyond that, far more cases may be taken to trial instead of plead out, if defendants believe there is a chance of nullification. Eventually, the law literally has to react to the jury’s behavior.
A professor at Regent Law School even wrote a “Juror’s Handbook”, which I thought would be prudent to provide a link to:http://fija.org/docs/JG_Jurors_Handbook.pdf