An old idea has resurfaced that may have major potential to slow or even reverse the terrifying erosion of the Bill of Rights. I refer to the revival of the ancient Saxon doctrine of Jury Nullification which has now become a projected Constitutional amendment under consideration in 22 states. Since Mr. Justice Brennan, the last plumb-line defender of civil liberties, has retired, and the Supreme Court seems fated to move even further toward the authoritarian right-wing, only Jury Nullification can preserve what still remains in this perishing Republic of Anglo-American libertarianism.
Jury Nullification rests upon an old Common Law principle (which Lysander Spooner in his scholarly "Essay on Trial by Jury" [1852] proved to underlie the Jury clause of Magna Carta) -- viz, that the only way to prevent the government from imposing unjust or nefarious laws is to grant juries the right to negate such laws. This right, as Spooner demonstrated, explains the tradition that a jury should consist of twelve citizens selected at random and thereby representing (as far as scientifically possible) the full range of common sense and common morality of the population in general (including the recalcitrants and cranks among us, upon whom liberty has always depended in bad times.)
In a once popular formulation, the doctrine of Jury Nullification holds that "a jury may judge the law as well as the facts in the case." Since Magna Carta this has been repeatedly upheld by courts in both England and America, only occasionally denied by lower, and currently remains the law of both countries, although judges have no legal obligations to inform juries that they possess this right.
In fact, in one infamous decision, in the 1890s, the U.S. Supreme Court upheld the right of Jury Nullification but simultaneously ruled that the judge not only doesn't have to tell the jury they have this right but can prevent the defense attorney from telling them. In other words, American juries have the right to nullify the law, but the judge, if so inclined, can do everything in her or his power to prevent them from knowing it.
In only one state out of the 50 -- Maryland -- does the State Constitution oblige the judge to inform the jury that they have the right to acquit where the facts prove the defendant technically guilty but the sensibility of the jury holds that he or she did no real wrong. In the other 49 states, the right exists nebulously, like a ghost, haunting old parchments; judges do not talk about it, and juries, not knowing that they hold in their hands the final checkmate against tyranny, do not exercise the authority they possess.
As Lord Denman wrote (in O'Connel vs. Rex, 1884): "Every jury in the land is tampered with and falsely instructed by the judge when it is told that it must accept as the law that which has been given to them, or that they must bring in a certain verdict, or that they can decide only the facts of the case." Outside Maryland, every jury in America is still tampered with and falsely instructed in this manner.
The Fully Informed Jury Amendment can change all this, since it would require judges to inform juries of their right to judge the law as well as the facts and to refuse to enforce any law they find repugnant, tyrannical, nefarious, or just plain idiotic.
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