Posted by
dave in north park on Thursday, November 11, 2010 2:22:04 PM
What is the Duty of a Juror?
Last March I had opportunity to take on the task of jury duty, this time with King County (WA) Superior Court. When I arrived at the jury assembly room I picked up an information sheet with "Some Do's and Don'ts for Jurors". One of the points on the list was, "DO listen carefully to the instructions read by the judge. Remember, it is your duty to accept what the judge says about the law to be applied to the case." However, a year or so ago I was reading about the trial of John Peter Zenger in colonial New York in 1735. In this trial, the jury unanimously decided
not to accept what the judge said about the law to be applied to the case. This was an example of
jury nullification, where the jury effectively nullified a law that it believed to be wrong or immoral. Should a jury do such a thing?
Here is what happened in 1735: John Peter Zenger was a printer publishing a newspaper with articles critical of the corrupt practices of the Governor of New York, William Cosby. Zenger was charged with seditious libel. Zenger's admitted that he printed the information in question. His defense was that the information he printed about Governor Cosby was true. However, the judge instructed the jury that truth of what was no defense to the charge of seditious libel. After a very short deliberation, the jury found Zenger "not guilty" anyway.
According to Gouverneur Morris, a drafter of the U.S. Constitution, "the trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America." Specifically, it advanced the concepts of freedom of the press and freedom of speech, both major aspects of the First Amendment to the Constitution. (Gouverneur Morris was also the great-grandson of Lewis Morris, who had been Chief Justice of New York until Cosby contrived to remove him from office. The above hyperlink points to the details.)
Zenger's jury did not accept what the judge instructed concerning the law to be applied to the case. Was that a good thing or a bad thing? That is the question that came to mind when I received the summons for jury duty a year ago this past August. The court accomodated work scheduling problems connected with an earlier date, so I reported to the King County Courthouse on March 29.
I had gone along with court instructions regarding the possibility of nullification during my previous two turns at jury duty, but this time around I decided that first I would settle the question within my own mind. Now would be the time for me either to be in favor of jury nullification or against it, keeping my "mug" and my "wump" on the same side of the fence. I went online and did some research. I will discuss what I found, then I will get back to discussing my personal jury duty experience, both past and recent.
Checking the History
I found was that the Zenger case was not the only historical support to be found for the concept of jury nullification. In England in1670, Quakers
William Penn and William Mead (go to page 1) were charged with violating the Conventicles Act by preaching an unlawful religion to an unlawful assembly. The jury found the defendants not guilty even though the actions opposing Church of England doctrine were clearly in violation of the law. The judge angrily fined the jurors and jailed them until they paid the fines. Four jurors refused to pay the fines. The Court of Common Pleas later overturned the penalties, thereby ending the practice of punishing juries in this manner. This case profoundly influenced religious freedom as it is practiced in several English-speaking countries, including the United States. (William Penn would later emigrate to America, leading a group that settled in and founded Pennsylvania.)
About 35 years after the Zenger trial, but before American independence, John Adams viewed a jury's check on the power of a court as resembling a legislature's check on executive power. Writing in his diary on Feb. 12 1771,
he commented, (Ctrl-F; Type: As the constitution requires; Enter) "As the constitution requires that the popular branch of the legislature should have an absolute check, so as to put a peremptory negative upon every act of the government, it requires that the common people should have as complete a control, as decisive a negative, in every judgment of a court of judicature."
He proceded to consider which powers belong to the court, and which to the jury. He agreed that questions of law do come up which are best left to judges and lawyers who have the technical knowledge. On those points jurors will gladly defer to the court. However, he said, there are also points of law that juries are perfectly well able to understand and evaluate. When they thus have no doubt as to the fundamental principles of law that are involved, jurors are under no obligation to decide facts only and not law.
Adams continued, "Now, should the melancholy case arise that the judges should give their opinions to the jury against one of those fundamental principles, is a juror obliged to give his verdict generally, or even find the fact specially, and submit to the law of the court? Every man of any feeling or conscience will answer, no. It is not only his right but also his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court." Of course John Adams later signed the Declaration of Independence and went on to become the second President of the United States.
That is what Adams wrote before independence and before the U.S. Constitution was drawn up. Since the ratification of the Constitution in 1787 and the ratification of the Bill of Rights in 1791, there is no question that juries do have the power to nullify laws. Judges are unwilling to investigate jurors' motivations during or after deliberations. The Sixth Amendment, part of the Bill of Rights, provides a right to a jury trial in criminal cases and prohibits a trial judge from directing a verdict or setting aside a jury's verdict of "not guilty". Moreover, the Double Jeopardy Clause of the Constitution prohibits the state from using a new trial to overrule a jury's verdict. These provisions have the combined effect of giving juries the power to nullify laws. The question is whether juries have a legal and moral right to do so.
The consensus of this country's founding fathers was that juries do have that right.
John Jay, first Chief Justice of the U.S. Supreme Court, took that position. He instructed a jury: "It is presumed that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision . . . You have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy."
In a1789 letter, Thomas Jefferson wrote, "
Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative. The execution of the laws is more important than the making of them." (The Papers of Thomas Jefferson, Vol. 15, p. 283, Princeton University Press, 1958, cited in Goodloe's essay, p. viii.)
Alexander Hamilton stated in 1804, "That in criminal cases, the law and fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, is intrusted with the power of deciding both law and fact." (As reprinted in Sparf v. U. S., 156 U.S. at 147-148, dissenting opinion, (1895), cited in Goodloe's essay, p. 6.)
After the time of the founders, the trend in the courts shifted away from allowing jury nullification. This trend included a case in 1840, Games v. Stiles ex dem Dunn, (39 U.S. 322), which held a judge could override a jury on a point of law. There was also a case in 1895, Sparf v. U.S., (156 U.S. 51), which, in an opinion written by Justice John Marshall Harlan, held that a trial judge has no obligation to inform a jury of its power to nullify laws. Harlan was fearful of juries becoming "a law unto themselves". He argued that, "Under such a system, the principle function of the judge would be to preside and keep order while jurymen, untrained in the law, would determine questions affecting life, liberty or property according to such legal principles as in their judgment were applicable to the particular case being tried."
In dissent, Justices Horace Gray and George Shiras countered that there are dangers in not allowing jury nullification: ". . .
as the experience of history shows, it cannot be assumed that judges will always be just and impartial, and free from the inclination, to which even the most upright and learned magistrates have been known to yield, -from the most patriotic motives, and with the most honest intent to promote symmetry and accuracy in the law, - of amplifiing their own jurisdiction and powers at the expense of those entrusted by the constitution to other bodies." The dissenters also pointed to the precedent of Jay's instructions to a jury, quoted above. (Goodloe's essay, pp. 14, 15.)
Since Sparf, judges have come to the conclusion that not only do they not have to inform juries of their power to nullify laws. They see themselves as having a duty not to do so. The effect has been for courts to amplify their own jurisdiction and powers at the expense of those entrusted to jurors, to paraphrase the Sparf dissent.
This takes us away from the vision of Adams, Jay, Jefferson, Hamilton and the other founders. Being told as a juror that it is my duty not just to consider but also to accept what the judge says about the law to be applied to the case is not what the founders envisioned. Whatever Harlan's concerns about the dangers of letting jurors decide the law, he was nevertheless departing from the original intent of the founders.
The late
Justice William C. Goodloe (p. 27), of the Washington State Supreme Court suggested the following instructions for a judge to give a jury:
You are instructed that this being a criminal case you are the exclusive judges of the evidence, the credibility of the witnesses and the weight to be given to their testimony, and you have a right also to determine the law in the case. The court does not intend to express any opinion concerning the weight of the evidence, but it is the duty of the court to advise you as to the law, and it is your duty to consider the instructions of the court; yet in your decision upon the merits of the case you have a right to determine for yourselves the law as well as the facts by which your verdict shall be governed.
This instruction would allow for Adams' point that jurors should pay attention to what the judge says about the law, particularly about technical points. It also allows for Justice Harlan's point that jurors are "untrained in the law". For most jurors, the law is not their day job, but for a judge it is. It makes sense that jurors have the duty to consider the instructions of the court. It also makes sense that a jury may come to a considered decision not to go along with those instructions, if its members make the judgment that that is what justice and equity require.
Counter-Arguments Considered
Patterico argues that, "The jury room is not the place to change the law. Juries are not freestanding Legislatures of 12, and to allow them to act as such is to undermine the Rule of Law." This view is contrary to that of Adams and Jefferson. As we have seen, Adams argued that a jury's lawmaking power is comparable to that of a legislature, and Jefferson considered lawmaking by a jury to be more necessary than lawmaking by a legislature. Jury nullification does not undermine the rule of law because a basic concept of American law is that government derives its just powers from the consent of the governed. One way for that consent to express itself is through legislative bodies. Another is through juries. We need courts to once again recognize that principle as it applies to juries and jury nullification.
Patterico opposes jury nullification in principle, but does allow that there are rare valid reasons to depart from general principle. Referring to Germany in the 1930's and the United States in the 1850's, he says he would allow it when the defendant's "crime" is to be Jewish or to aid escaping slaves. In the same way, he says, a soldier should obey orders, but if he or she was ordered to murder a child in revenge for another soldier's death, it would be the right thing to disregard the order.
This analogy of the soldier under orders breaks down however. The general principle is that regular soldiers should not act as a check on the power of a commanding officers. The usual check needed on the power of military officers is provided by the civilian authorities to which they report. Juries however, are intended to act as a check on the power of the courts.
Instead of using the analogy of the soldier obeying orders, I would use the analogy of an insurance policy. It is good not to need to use it. It is good to have it if it is needed. That concept applies to an insurance policy and to a jury nullification.
Another way to put it is that, it is a departure from valid general principles for a soldier to disobey an order. It is not a departure from valid general principles for a jury to decide the law differently than a judge.
Past Jury Duty Experience
The reader of this posting may by wanting advice on what he or she should do if summoned to jury duty. The closest I can get to offering advice myself is just to relate my own experience. My first awareness of questions of jury nullification was during the 1980's. I heard a lecture by
William C. Goodloe, then a justice on the Washington State Supreme Court. He was a presenter for a seminar hosted by the
National Center for Constitutional Studies, although the views he expressed were his own and not necessarily those of NCCS. Among other things, he mentioned his previous experience as a trial judge with King County Superior Court, and that he was beginning to think again about the instructions he had given to juries at the time. He was considering whether it would be better to give juries latitude to decide law as well as facts.
A few years later I was summoned for jury duty with Seattle Municipal Court. I did get through voir dire to be picked to serve on a jury, but the case was settled very soon thereafter, so I never had any chance to help decide anything.
Then, about twelve years ago, this time with King County District Court meeting in the city of Shoreline, I actually did get picked to serve as a juror during a trial. The judge made it clear he would not allow any nullification by the jury. We would decide only the facts and leave the law and its application to him. He used ironic humor to reinforce his point. He asked us rhetorically, "Do any of you think you understand the law better than the judge does?" If we had any reservations about that instruction we should bring it up right then. I decided that a passing point I remembered from a lecture more than ten years earlier was not a strong enough reason to have any such reservation. I implicitly accepted the judge's instruction. Of course I later remembered the judge's remark when I read the above-cited comments by Adams that juries will defer to the court on technical points of law and by Justice Harlan that jurors are untrained in the law.
As it happened, nullification was not a significant issue to the resolution of that case. In this DUI case, the defendant benefitted from equipment malfunctions. What I no longer remember for sure is: Were three different breathalyzer machines that didn't work, or just two? In a post-trial jury assembly room conversations, one of the other jurors commented, "That was the defendant's lucky day!" The prosecution did offer evidence other than breathalyzer date, but we in the jury felt we had to acquit because, with the evidence we had, there was just too much room for reasonable doubt as to the guilt of the defendant. I didn't even particularly like the defense attorney. I thought he was too overbearing and disrespectful toward the prosecution witnesses. Notwithstanding that, the evidence was such that all of us had to vote "not guilty".
Then a year ago last August I received a summons for jury duty for King County Superior Court. Because of work scheduling difficulties, I received permission to delay my jury service until late March. Thinking of my reading about John Peter Zenger, I decided this time I had the benefit of past experience. I needed to settle in my own mind whether I favored jury nullification or was against it, so that if any question came up I would have an idea of where I stood.
When I reported for jury duty this past March 29, I kept in mind advice given on the website of the
Fully Informed Jury Association (FIJA). The advice in a section titled, "
If You Are Called For Jury Duty", opened with "Don't worry! Be happy! Look at jury service as an opportunity to 'do good' for yourself and others." No problem with that. A good consensus position!
They also advised, ". . . from voir dire to verdict, let your conscience be your guide." Good general advice, but what about specifics? The advice continued, "Keep in mind that no juror's oath is enforceable and that you may regard all 'instructions' as advice." It did seem to me that if I was going to take any oath, it would be enforceable by my own conscience, even though not by the court. It did seem to me that I would need to pay attention to the wording of any oath I was going to take. FIJA gave sensible advice to answer all the questions asked in voir dire, but not to "talk too much". Volunteering too much information gives one attorney or the other reason to dismiss you from the jury. That was my downfall. After raising my hand to indicate I had previous jury experience, the prosecutor asked me how I enjoyed the experience. I answered with enthusiasm, probably revealing enough information so that she later used one of her peremptory challenges to dismiss me. My mistake, but I admired her ability to draw information out of prospective jurors.
I probably would not have made it onto the jury anyway. It happened that the alleged crime took place at the corner of 12th Ave. S. and S. Jackson St. in Seattle. We were asked as a group if any of us was familiar with that place. I was one of those who raised a hand to indicate I was. They never followed up on my affirmative answer because I was already off the jury by the time they would have. However, as a school bus driver, I had driven at least two or three routes that took me right past that scene and on one of those routes I had a stop right at that corner. There were other routes for which I passed by while driving deadhead. The court would not have wanted me on that jury.
During voir dire the judge made the usual comment that juries decide the facts and leave it to the court to decide the law. However, I do not remember hearing any specific questions to any juror regarding nullification. One peculiar question that was asked was whether anyone was a member of any organization working to make changes in the law. Several jurors mentioned that they are members of environmental organizations. I mentioned that I am a member of one of the two major political parties.
Concluding Thoughts
I wasn't that disappointed not to be picked onto a jury this time around. I did have the full jury duty experience the previous time around. Also, I did appreciate King County Superior Court's approach to scheduling, which was hang around only if you do get picked. Those who got picked onto a jury stayed until their trial was over. The rest of us were released if not picked on Monday or Tuesday. Nobody's time was wasted this way. Maybe I was a bit relieved that I never needed to express any unorthodox views during voir dire, or consider the ramifications of being sworn in for anything. Countering any such relief was irritation at what more and more struck me as erroneous instructions on the rights and powers of a jury in relationship to the court. But if a jury's right to nullify is not as widely recognized as it should be, at least the right to complain about it is. I wrote this blog as a way to take advantage of my First Amendment rights to make such a complaint.
I am not sure whether to characterize this right I am exercising as free speech or free press. Online technology seems to have blurred that distinction. Whatever the case, let's enjoy and make good use of our First Amendment rights. We can keep in mind that, in the cases of William Penn, William Mead, and John Peter Zenger, jury nullification had a lot to do with bringing about those rights. John Adams, Thomas Jefferson, John Jay, and Alexander Hamilton were well aware of those cases and understood that jury nullification is a means by which the "consent of the governed (per the Declaration of Independence) can express itself. Judges and attorneys are the experts in the law and juries should respect that. Still, when Abraham Lincoln spoke at Gettysburg, he spoke of "government of the people, by the people, and for the people." He did not speak of "government of the experts, by the experts, and for the experts."
What, then, should King County Superior Court's list of "Do's and Don'ts for Jurors" say about listening to the judge? It should take a cue from what has been proposed by their former judge, William C. Goodloe, quoted here earlier. It would say: "DO listen carefully to the instructions read by the judge. Remember, it is your duty to consider the instructions of the court; yet in your decision upon the merits of the case you have a right to determine for yourselves the law as well as the facts by which your verdict shall be governed." This approach would best to conform to common law tradition and to what our nation's founders intended.
Shameless Plug: The views expressed here were also expressed in a speech given on July 13 at a meeting of
Chamber Club 540 Toastmasters, meeting at
Romio's Pizza & Pasta, 8523 Greenwood Ave N, in Seattle. Guests are always welcome. Romio's has an excellent BBQ Chicken Sub Sandwich, among other things. (The views here are my own, not necessarily those of Chamber Club or Romio's.)