The issue becomes prominent in the legal blogosphere today with a note from Randy Barnett at Volokh Conspiracy about the recently-concluded case of United States v. Luisi, a re-trial of a Cosa Nostra cocaine dealer in Boston. Professor Barnett, normally a sensible and persuasive writer, seems to be part of the jury nullification crowd, writing:
There is little question that, at the Founding, jurors were triers of both the law and the facts. In essence, this provided a popular check on an overreaching legislature and a supine judiciary, although a check that would only operate on a case-by-case basis. A jury could find that a statute was unjust generally, or only as applied in the particular case.
In fact, I do question this. Maybe it's a "little question" but it's one I pose nevertheless. The claim that something is so obvious it lacks any need for citation is often a dangerous one to make and can indeed be one that is the result of overreaching. The burden is on Professor Barnett and others to support this claim because just saying "It has been proven that..." is not the same thing as actually providing that proof.
So for the record, I dispute the claim that juries held this historical right in the 1780's.
I dispute this because the weight of my legal education and practice has been that the English common law legacy upon which American judicial procedure is based assigns the jury's role to be that of the finder of fact, not the interpreter of law. I dispute this because were English common law juries able to "nullify" edicts of the King, the jury would in effect possess a veto power over the King, and no veto power over Royal authority has ever been known at any phase of the English legal system. I dispute this because the very real possibility of an erroneous legal instruction given by a judge, or the very real possibility of a truly unjust law that should not be applied, is addressed by way of the concept of judicial review and the appellate process, which has the added advantage of promoting the uniformity of the law -- an important policy goal that case-by-case jury nullification of the law would seem to obstruct rather than advance.
Jury nullification advocates who believe I am incorrect are invited -- with as much sincere respect and courtesy as I can convey here -- to provide legal citations supporting their contrary position in the comments.
I further suggest that, at least in California and probably in other jurisdictions, a juror attempting nullification would be in breach of the juror's oath:
Do you, and each of you, understand and agree that you will well and truly try the cause now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?
Basing a verdict on the jury's own interpretation, application, and in the case of nullification, intentional disregard of the law, would be to render the verdict based on something other than the evidence and instructions given by the court to the jury. The juror in the Luisi case insists that he did not violate his oath and asks that one take a "careful" look at the oath to vindicate his actions, but despite having done exactly that I cannot see how the juror did anything but apply his own understanding of the Constitution and the law, and instead ignore the instructions about the law given to him by the judge.
You can read the Luisi judge's 43-page opinion about the removal of this juror here, and you can read the juror's rebuttal to that opinion on his blog. After doing all that, I'm siding with the judge -- this juror, however well-intentioned he may have been, was making a legal and Constitutional argument against the validity of the drug laws, not applying the evidence according to the law as it was read to him.
I happen to think he's correct about the validity of the drug laws, but that's too bad -- the Supreme Court has ruled to the contrary and that is the law of the land as decided by our highest Constitutional Court, as enacted by a majoritarian legislature, and as enforced by a democratically-elected President. As individuals, we don't get to pick and choose which laws we will obey and which ones we can disregard, and as lawyers, judges, and jurors, we don't get to pick which laws we will enforce and which ones we will ignore. The law has to be the same for everyone, and jury nullification is, as the judge argued, only a step away from anarchy.
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3 US 1, 4 (1794)jury instructions by john Jay on behalf of the Supreme Court.
“It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay the respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.”
For pleant of State cases see the dissent from Sparf,
Interested readers can read the entire report of the case here. I will not call it an "opinion" because it is not an opinion in the modern understanding of the word. Rather, it appears to be what we would call a declaratory relief claim on the part of the state of Georgia against the enforceability of debts held by the defendants, who were British creditors of someone. There was a question in the case about whether the state of Georgia assumed those debts, but otherwise the facts of the case simply do not appear to have been in dispute at all; it was simply a question of whether these creditors could bring an enforcement action to get their money.
It seems important to note that at the time (this was before the Judiciary Act of 1797) cases to which States and foreign nationals were parties had original jurisdiction in the Supreme Court, so this is a report of a trial charge to a jury, not an opinion of law.
After reading this report, I wonder what Jay meant by "determine the law ... in controversy". In this case, it appears that the Treaty of Paris (settling peace between the U.S. and Britain) was in question, one article of which addressed the question of the enforceability of debts owed by Americans to British creditors. There was a question about whether a South Carolina law or a Georgia law applied to the collection action. I cannot figure out this theory from reading the report. I also have great difficulty believing that nullification theorists would actually contend that a trial jury could have legally nullified the Treaty of Paris which recongized the independence of the United States by Britain.
So it looks to me like the jury was not being told that it had the power to nullify some law (unclear whether that would have been the South Carolina law, the Georgia law, or the Treaty of Paris) but rather that it was being asked the question of whether Georgia's statute had assumed these private debts. The jury found that it had, and the debt collection could proceed.
Note also that Jay, serving as the head of a trial court, felt perfectly free to offer his opinions to the jury about what he thought the right result was and how they should vote. Regardless of the customs of the day, today that would be considered reversible error by any trial court in the U.S.
Also to complete readers' understanding, adams' reference to Sparf & Hansen v. United States (1895) 156 U.S. 51. That case involved a murder on a U.S. vessel on the high seas, and the issue had to do with the admissibility of a confession by one of the murderers against another, while the confessing criminal was held in captivity by the ship's authorities.
The Sparf Court addressed the dicta of Chief Justice Jay in the Brailsford report, which Adams cited, beginning on page 64, and indicates that Brailsford was an "anomaly," (quoting U. S. v. Morris, 1 Curt. 23, 58, Fed. Cas. No. 15, 815) and noted from In re Fries (1800) Fed. Cas. No. 5, 126, (a treason trial): this assessment of the understanding of law applicable at the end of the eighteenth century:
'It was never pretended,' he continued, 'as I ever heard, before this time, that a petit jury in England (from whence our common law is derived), or in any part of the United States, ever exercised such power. If a petit jury can rightfully exercise this power over one statute of congress, they must have an equal right and power over any other statute, and indeed over all the statutes; for no line can be drawn, no restriction imposed, on the exercise of such power; it must rest in discretion only. If this power be once admitted, petit jurors will be superior to the national legislature, and its laws will be subject to their control. The power to abrogate or to make laws nugatory is equal to the authority of making them.
Justice Chase's argument in Fries is ultimately the one that has to win -- if a jury can nullify a law, then it is usurping to the judiciary powers of the legislature or the executive. Chief Justice Jay's opinion in Georgia v. Blaisdell appears to me to have been, at best, an inopportune phrasing of the jury's actual instructions and may even have been an inept manner of handling a case that had been allowed to proceed to trial on essentially uncontested facts. Today, Georgia v. Blaisdell would have been decided on a motion for summary judgment under Federal Rule of Civil Procedure 56, and there never would have been a jury in the first place.
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