One juror has the right and the responsibility to declare, "This law is unjust, and I declare the defendant not guilty." The judge can yell like a stuck pig, gnash his teeth and seethe, without recourse. He is powerless to do anything about it, and that is what most of them don't like. It erodes their power (control). Though the defendant is guilty of breaking a law, he is innocent of committing a crime! That is jury nullification. It is hated by totalitarians and loved by patriots.

Most judges get testy when discussing jury nullification and suggest or affirm that it is really "jury lawlessness," but they are wrong. Jury nullification is firmly established in historical and legal precedents.

An early case of jury nullification in America happened in 1670 when William Penn and William Mead preached, contrary to the Church of England, to illegal assemblies (non-approved churches) and were arrested. The jury heard the case and decided for the preachers, not the crown even though the preachers had, in fact, preached to non-approved assemblies.

However, the judge was angry, agitated and aghast at the jury. He fined them and jailed them without food or water for two days. Four of the jurors were jailed for nine weeks for daring to disobey the aggrieved judge! Often the prisoners were soaked with urine and smeared with feces, but one of the four, Edward Bushell, said, "My liberty is not for sale." The courageous men were released on appeal to the Court of High Pleas and established the principle that a jury can not be punished by a vindictive judge for their decision. Since that time a jury can look a judge in the eye and say, "That law is a bad law. The defendant is not guilty, and our word is final." That will result in a hung jury, and often the defendant goes free.

In another landmark case in 1735, John Peter Zenger of New York was tried for printing the truth about colonial governor, William Cosby and his administration; however, truth was not a defense for libel in those days. The Chief Justice disbarred Zenger's attorney and appointed a lawyer who was loyal to the governor to "defend" Zenger. (Legal hanky-panky went on even in those very early days in our history.) The jury was told to disregard whether or not the printed information was truthful; they were to decide whether Zenger printed the charges (which he had).

Zenger hired another lawyer, Andrew Hamilton, who argued that juries have the right to decide on the law as well as the facts of evidence so they can arrive at a just decision. Hamilton, whose advice is still relevant today, said, "Jurors should acquit, even against the judge's instruction...if exercising their judgment with discretion and honesty they have a clear conviction that the charge of the court is wrong."

John Adams said about the same thing in 1771, "It is not only his (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." So, an American can disregard a judge and vote "not guilty" even though the defendant did, in fact, break a law.

Our first Chief Justice of the U.S. Supreme Court, John Jay gave jury nullification a more solid legal foundation when he said in 1794, "The jury has the right to judge both the law as well as the fact in controversy." Such action by a jury tells an arrogant legislature and activist judges that the American people are still in control.

But doesn't jury nullification strike at the very heart of our judicial system? Not at all. It is a guarantee of our way of life, our mores, and our traditions. Remember that a "trial by jury" is a trial by our country, by our people, not by our government. The judge and prosecuting attorney work for the government. The jury works for justice, not whether or not a paper law (that could change tomorrow) was broken.

Lysander Spooner, an American attorney about 140 years ago said, "If a jury have not the right to judge between the government and those who disobey its laws, the government is absolute, and the people, legally speaking, are slaves." He was right.

When a citizen is in a jury room, he has the right and the duty to decide whether the defendant should go free or not. It matters not about the judge's instructions nor what the other jurors decide. Is the law a good or bad law? Will enforcing that law result in justice or injustice? If possible, the defendant's motives should be ascertained, although the judge may tell the jury that the motives are not relevant.

A juror must use his authority carefully, and he must stand alone, if necessary to produce justice. He must not be intimidated by anyone, realizing that he will not answer to anyone except to his conscience and his God. He, the juror, has more authority than the judge or the governor and stands between an oppressive government and slavery.

Copyright 1997 by Don Boys, Ph.D.