Government officials around the country are very hostile to independent verdicts from juries and so employ several methods to exercise more control. First, plea bargaining powers are used to get persons accused of crimes to “waive” their right to a jury trial. Second, defense attorneys are typically instructed not to mention ‘jury nullification’ in the courtoom–lest the trial judge hold him/her in contempt and declare a mistrial. Third, the court will tell the jurors that “their job” is to find the facts (for example, which witnesses do you believe?), but it is the “job of the court” to decide the law and the jury must accept the law as explained to them by the judge, whatever their own view of that law might be. Prosecutors are so determined to drill this state-of-affairs into people’s heads that they actually arrested an elderly man who was distributing pamphlets outside a courthouse in New York City. Needless to say, Jefferson and Adams would be utterly astounded by all this.
I encountered this when on jury duty a few years ago. I was one of a group of prospective jurors being interviewed for a civil injury case. Everything was proceeding smoothly until one of the attorneys (and I don't remember if it was the attorney for the plaintiff or for the defendant) asked if anyone would have a problem accepting a judge's instruction on what the law said.
Having long been familiar with the work of the Fully Informed Jurors Association and the concept of jury nullification, and since I was at the time under oath, I raised me hand and acknowledged that, yes, as a matter of fact I WOULD have a problem following a judge's instructions if I didn't agree with the judge's interpretation. This resulted in a considerable flurry of activity. First, BOTH attorneys joined forces in trying to tell me that I was wrong, that I HAD to follow a judge's instructions. When I mentioned to them that the first Chief Justice of the U.S. Supreme Court had ruled otherwise a couple of hundred years ago, they removed me to a separate room while they huddled.
Eventually, they brought in a judge and called me back into the courtroom (from which the other prospective jurors had been removed), and the judge repeated the same questions the attorneys had thrown at me. When I informed the judge that I knew of a case in which John Jay had specifically ruled that the jury is to act as the trier of both the facts and of the law, she told me I was wrong. The judge dismissed me from jury duty and told me I should study my legal history more.
So I went home and looked up the case, and then wrote to the judge with the citation and the exact quote. Unsurprisingly, after several years I still have not received an answer from her honor. However, I very much suspect that I will never again have to worry about being called for jury duty.
For those interested, the case was
Georgia v. Brailsford, 1794. John Jay was at the time the Chief Justice. He ruled in that case that, "The jury has the right to judge both the law as well as the fact in controversy."
One hundred years later (1895), although they did NOT overrule or revoke Jay's position, the SCOTUS issued a decision that effectively neutered the right of jury nullification by ruling that, although the right existed, judges did not have to inform juries that the right existed. (
http://www.isil.org/resources/lit/history-jury-null.html )
So, kudos to New Hampshire for bringing us part way back to where we were more than 100 years ago ...
