Jurors' Handbook: A Citizens Guide to Jury Duty

In Recent years we have seen some gross misapplications of the law, by all levels of the legal system and the courts around the world. But what breaks our heart the most are the ones happening in the United States of America. There are a great many things most of us that are older were taught in civics class that are apparently is no longer taught in any schools today. Not because it is wrong or illegal but apparently because it gives to much power to the people to send a direct message to the government. Being Citizens that love our country and the world, we feel it is our civic duty to help remind all people of a right, nay, A DUTY that CAN NOT be revoked,
regardless of what judges, lawyers and government officials might tell us our duty should be AND regardless of what country we reside.

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Re: Jurors' Handbook: A Citizens Guide to Jury Duty

Post by transferedposts » Thu Feb 19, 2015 6:58 am

The standard objection to nullification instructions might
carry at least superficial plausibility in those jurisdictions
where the jury is sworn to render "a true verdict
according to the evidence and the charge of the
Court."88 If those same jurors are later instructed by the
court that they "must convict" where there is proof of
legal guilt beyond a reasonable doubt, it probably would
be a violation of such an oath to disregard the court's
charge and acquit the man because his conduct was
morally blameless.

But this objection to nullification instructions utterly begs
the question. It is clear that defendants can make at
least a plausible claim to a moral, (and perhaps
constitutional), right to appeal to the jurors to acquit out
of justice or mercy. That argument must either stand or
fall on its own merit, without any regard to the present
wording of the jurors' oath.

Constitutional Protection

It is a colossal red herring to dismiss such claims with
the rejoinder that nullification acquittals would "violate
the jurors' oath." No judge can brush aside a plausible
constitutional argument by saying "You might be right,
but we do not decide the question, because we have
already extracted a solemn vow from the jurors to abide
by a different procedure that arguably violates your
moral and constitutional rights." That "logic" could lead
to some remarkable results in jurisdictions determined
to defeat other constitutional provisions as well.

A jury's latitude to nullify is deliberately protected by the
Constitution. Neither the tradition nor the wording of the
oath administered to the jurors, on the other hand, is so
dictated. In federal court it is not even prescribed by
statute. It is simply an old tradition judges have made
up. If the wording of the oath poses some conflict with
the jury's constitutional prerogative to nullify, it is clear
which one must yield the right of way. Courts simply
have no business (much less lawful authority) asking
jurors to swear to anything that would violate the
Constitution or the jury's deeply held convictions about
justice.

Besides, while we are on the subject of oaths, it is well
to remember that there is always one party in the
courtroom who is required to take an oath prescribed by
federal law -- and it is not the jury. Before ascending to
the bench to try his first case, every federal judge is
required by law to swear or affirm to uphold the
Constitution (which includes the Sixth Amendment), and
"that I will administer justice without respect to
persons."89 That is a most peculiar-sounding oath for
anyone who intends to browbeat jurors into putting


88 United States v. Pinero, 948 F.2d 698, 699 n.3 (11th
Cir. 1991).
89 28 U.S.C. § 453.


aside any notions of "justice" that might stand in the
way of their willingness to condemn a morally
blameless man.

Beyond all this, perhaps the most blasphemous aspect
of the invocation of the oath is the simple fact that we
really do not expect jurors to refrain from nullifying in all
circumstances. That being the case, it ill-behooves us
to place jurors under an oath that they will not nullify
(much less lie to them about whether they have taken
such an oath).

At least for those jurors who take their oaths seriously, it
places them in an intolerable and totally unnecessary
conflict between deeply held moral scruples. It
demeans the seriousness of the oath, which stands at
the very bedrock of our system of justice.90

And when citizens and jurors gradually get wind of the
fact that we really don't expect them to always refrain
from nullifying, despite their alleged oaths to the
contrary, who can blame any of those people from
cutting corners with their future oaths as witnesses or
elected officials?

5. "We give them enough hints already." Perhaps the
most baffling excuse for refusing to tell jurors about
nullification is the excuse that we already give them a
few ambiguous (p.13)clues about their power to nullify.

In the seminal Dougherty case, for example, which
remains the most influential opinion ever written on this
topic, the Court of Appeals reasoned that explicit
instructions would be superfluous, in part because
juries get the message in a variety of subtle ways. The
court based this holding, in part, on its axiomatic
assumption of "the fact that the judge tells the jury it
must acquit (in case of reasonable doubt) but never
tells the jury in so many words that it must convict."91
The first problem with this justification is that it proceeds
on a premise that is no longer generally true. Contrary
to the Dougherty court's assumption about what a
criminal trial judge would "never" do, the United States
Judicial Conference has instructed federal judges to tell
every criminal jury that "if you are firmly convinced that
the defendant is guilty of the crime charged, you must
find him guilty."92 Several courts have formally approved
similar instructions telling the jury they "must" convict.93
Indeed, one Circuit Court of Appeals recently went so
far as to state (in an unpublished decision) that
instructing jurors any other way -- for example, that they
"should" convict -- is at least "arguably" forbidden by the

90 United States v. Dunnigan, 507 U.S. 87, 97 (1993).
91 473 F.2d at 1135 (emphasis added)
92 Federal Judicial Center, Pattern Jury Instructions 21
(1987).
93 See People v. Bernhard Goetz, 73 N.Y. 2d 751, 752,
532 N.E.2d 1273 (N.Y. 1988).

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Re: Jurors' Handbook: A Citizens Guide to Jury Duty

Post by transferedposts » Thu Feb 19, 2015 6:59 am

supposed "rule" that a jury is not to be told that
nullification is a permissible course to take.94

The reasoning of these cases is indefensible. Telling a
jury they "must" convict where guilt has been proven
beyond a reasonable doubt is a serious misstatement of
the law and "an error of the most egregious nature."95

Under our Constitution, by design, a defendant is
entitled to have his fate decided by a jury even if the
evidence of his guilt is undisputed and decisive.96 This
is because criminal jurors are entitled to "refuse to
convict even though the evidence supported the
charge," and any legal system which would strip jurors
of that discretion would be "totally alien to our notions of
criminal justice."97

Besides, even if we gave jurors the instruction that they
"should" convict, it would hardly suffice to convey to the
jury the solemnity of their awesome responsibility to
acquit on the grounds of justice in exceptional cases.

The Dougherty court candidly conceded that the
pregnant implications of that ambiguity "would on their
face seem too weak to notice."98 And even if some
jurors could be fairly trusted to pick up on the subtle
ambiguity left open in the contrast between instructions
as to when they "should convict" and "must acquit,"
others will not. Far too much is at stake here to trust
such nuances to a haphazard system of instructing
jurors with hints. It violates both the Due Process and
Equal Protection Clauses to let the outcome of criminal
cases turn on "coded instructions" that we hope and
pray a few jurors will be clever enough to notice and
decipher on their own, all for the benefit of a select and
arbitrarily chosen group of lucky defendants. Such a
system of "justice" is no better than a judge who thinks
too many jurors are relying on the insanity defense, so
he sticks that portion of his instructions in one of eight
empty drawers under the table in the jury room.

We see a similar fallacy in another bizarre compromise
struck by several lower courts. Caught between the
conflicting commands of the Sixth Amendment, ("juries
exist to protect the accused from the Government") and
the appellate courts ("tell the jury they must ignore the
demands of justice"), several trial judges have adopted
the pathetic compromise of allowing the defense
attorney to talk about nullification in closing arguments,
but have refused to endorse such arguments in their
instructions, even after the jurors predictably ask for


94 United States v. Fuentes, 57 F.3d 1061, 1995 WL
352808 at **2 (1st Cir. 1995).
95 Proceedings of the 53rd Jud. Conf. of the D.C Circuit,
145 F.R.D. 149, 175 (1992) (Remarks of R. Kenneth
Mundy, Esq.).
96 Sullivan, 508 U.S. at 277.
97 Gregg v. Georgia, 428 U.S. 153, 199 n.50 (1976).
98 473 F.2d at 1135.


further guidance from the judge.99 This, too, is no
solution.

The Supreme Court has repeatedly declared that
"arguments of counsel cannot substitute for instructions
by the court."100 "The former are usually billed in
advance to the jury as matters of argument, not
evidence, and are likely viewed as the statements of
advocates; the latter, we have often recognized, are
viewed as definitive and binding statements of the
law."101

No matter how infrequently we hope to see juries
exercise their constitutionally protected power to nullify
the operation of unjust laws, there is simply far too
much at stake to entrust that important possibility to the
implications of "cryptographic instructions," or to closing
arguments that seem to conflict with the charge of the
court. In the final analysis, the best answer to all this
nonsense was written long ago by Judge Cardozo. He
observed in a related context that he had no objection
to giving a jury greater latitude with their verdicts in a
case that "seems to call irresistibly for the exercise of
mercy, but it should be given to them directly and not in
a mystifying cloud of words."102

6. "If the case is important enough, they will figure out
we're not too serious about all this anyhow." There have
been many silly excuses for refusing to tell juries the
truth about their lawful authority to nullify. But the most
frightening of all teaches that jurors are most likely to
nullify only on rare and special cases just as we secretly
hope they will -- if we falsely suggest to them that they
have no such power or moral authority.

The reasoning here is that the lawful power to nullify is
least likely to be abused, and most likely to be reserved
for the rare cases when it is truly appropriate, if we
structure our rules to make nullification "an act in
contravention of the established instructions."103 After
all, the argument goes, jurors always draw their
understanding about the operation of the system from a
variety of104 sources in the popular culture, even apart
from the judge's instructions.105 This will, in theory,
allow nullification to rear its ugly head only when the
inequities of the case are sufficiently compelling to
persuade the jurors to cook up the idea and violate the
judge's instructions on their own initiative.106


99 E.g., Krzyske, 836 F.2d at 1021.
100 Carter v. Kentucky, 450 U.S. 288, 304 (1981).
101 Boyde v. California, 494 U.S. 370, 384 (1990).
102 "What Medicine Can Do for Law," in Law and
Literature 70, 100 (1931) (quoted in McGautha v.
California, 402 U.S. 183, 199 (1971)).
103 Dougherty, 473 F.2d at 1136-37.
104 (p.14)
105 Id. at 1135.
106 Id. at 1136.

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Re: Jurors' Handbook: A Citizens Guide to Jury Duty

Post by transferedposts » Thu Feb 19, 2015 7:00 am

This "reasoning" was never persuasive even when it
was first handed down to the lower courts more than 20
years ago, as Chief Judge Bazelon noted in his
dissenting opinion in Dougherty. But it is indefensible
today. Even if one could possibly hope that
"nullification" might be a secret to most jurors two
decades ago, those days are now gone. Everyone who
followed the key events in O.J. Simpson's criminal trial -
- which means everyone -- understands by now at least
this much: jurors in a criminal trial can listen to ten
months of evidence that the government has publicly
proclaimed to be overwhelming and conclusive, and still
acquit after three hours of deliberating without being
stopped on their way to the parking lot. That is, in the
main, a pretty fair description of the rough contours of
the jury's power to nullify.

At about the same time, a law professor has quickly
risen to fame with his remarkable plea that black
political and spiritual leaders join his quest to inform
their constituencies of their undisputed power to acquit
black defendants solely because of their race.107 That
dirty little secret about our criminal justice system was
subsequently featured in countless newspapers,
articles, and television shows. Professor Butler has
appeared to discuss this fact on 60 Minutes and
Geraldo Rivera. If there was anyone who hadn't heard
before this summer, the lid was blown off the story once
and for all when it ran in the June 1996 issue of
Reader's Digest.

Joining in the fray with gusto, of course, is the Fully
Informed Jury Association108, a tax-exempt educational
group with thousands of members devoted to informing
future jurors about their power to nullify. They even
have an impressive and thoughtful site on the Internet
with hundreds of visitors each day. (Although I am
naturally loath to admit having visited it in a journal the
FBI may be reading.) Members have passed out
pamphlets about nullification by the thousands outside
of key trials. Legislation to require judges to issue such
instructions has been introduced in dozens of state
legislatures, as yet unsuccessfully, generating even
more public attention to the topic. The group complains
-- with some justification -- that they desire only to see
to it that judges, like everyone else in the courtroom,
are required to tell the truth and the whole truth.

With all this amateur mass legal education going on in
earnest, "barber shops and beauty parlors everywhere
are all abuzz with talk of 'jury nullification,' whether they
call it by its proper name or not."109 Our judicial system
needs to take stock of this reality, and fast. The integrity



107 Paul Butler, Racially Based Jury Nullification: Black
Power in the Criminal Justice System, 105 Yale L.J.
677, 723-25 (1995).
108 (FIJA)
109 Clarence Page, "Jury Nullification Can Create
Justice," Dayton Daily News, A10 (Nov. 27, 1995).



and credibility of the system will be stretched to the
breaking point as more and more jurors bring to their
secret deliberations "inside knowledge" about the way
the system really works, and about the reasons for the
judge's refusal to share or confirm those details.

To make matters worse, imagine what will happen
when even a few people bring into the jury room the
secret knowledge that our system conceals the facts
about nullification in the explicit (but unshared) hope
that the jurors will see through our standard instructions
and ignore them when that is called for! At that point,
we will have no reliable protection against the danger
that some jurors will reason, perhaps privately, that
maybe some of our other hard and fast "rules of law"
are also there for public relations purposes, designed to
be ignored in special cases by jurors sophisticated
enough to know how the system really works -- or can
be worked. The integrity of our court system will then be
shattered beyond repair.

But for the fragile good faith of jurors, for example, we
have no logical or moral basis for our otherwise rash
assumption that a juror can be trusted to acquit, rather
than convict, a defendant who has not quite been
proven guilty beyond a reasonable doubt, "even if he is
convinced the defendant is highly dangerous and
should be incarcerated."110 When jurors get wind of the
appearance that at least some of our most fundamental
rules are really just window dressing, what protection
will we have against "nullification convictions" by jurors
who refuse to release dangerous or despicable villains
entitled to acquittals on the basis of seemingly unjust
legal technicalities?

More and more legal essays are starting to surface with
the rather casual assertion that "nullification
convictions" can never be a real danger, in part
because the judge and the Court of Appeals
supposedly have the power to overturn a guilty verdict
that is not supported by the evidence.111 Those
assurances, if repeated often enough, will make the
problem even worse.

This supposed "fact" about our system of justice is the
most nefarious of all, and will do irreparable damage if it
falls into the wrong hands in the jury room. It is hard to
imagine a clearer illustration of the maxim that a little
knowledge can be a dangerous thing. Any jurors will be
far more inclined to convict in close cases if they have
picked up the mistaken impression that a judge is both
empowered and likely to correct any mistakes in their
assessment of the evidence. (That is especially true if
one of the jurors advises the others that a mistaken
verdict of acquittal, on the other hand, is final and


110 Shannon, 114 S. Ct. at 2427.
111 E.g., Gail Cox, "Feeling the Pressure: Jurors Rise Up
Over Principle and Their Perks," Nat'l law J., A1 (May
29, 1995).

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Re: Jurors' Handbook: A Citizens Guide to Jury Duty

Post by transferedposts » Thu Feb 19, 2015 7:00 am

unreviewable, which is now fairly common knowledge
after the Simpson trial.) That would only enhance the
already great temptation for them to abdicate their
solemn responsibility by passing the buck to the judge.

In fact, a judge's power to enter a judgment of acquittal
despite a contrary jury verdict is merely a token
safeguard against the unjust conviction of the innocent
(and anyone112 else not proven guilty beyond a
reasonable doubt). It serves to overturn unjust
convictions only after the extremely rare trial where
there is no evidence that could satisfy any rational jury
beyond a reasonable doubt. In all other cases, one
seeking to overturn a guilty verdict based on the
sufficiency or quality of the evidence against him
"follows in the footsteps of countless criminal
defendants who have made113 similar arguments," and
"faces a nearly insurmountable hurdle."114 The judge
cannot reweigh the evidence, and challenges to a
witness's lack of credibility are "wasted on an appellate
court."115 Once the jury chooses to convict, regardless
of the reason, its verdict will stand as long as it is based
on any evidence in the record they might have chosen
to believe, even testimony that "is totally uncorroborated
and comes from an admitted liar, convicted felon, largescale,
drug-dealing, paid government informant."116

Heaven help us all if the jurors of the nation get word of
these exaggerated suggestions that federal judges
stand guard against "nullification convictions"!


Inadequate Solution


Besides, even if we radically restructured federal law to
give a judge plenary authority to reverse a conviction
she thought was not proven beyond a reasonable
doubt, it still would not solve the problem. Even that
arrangement would not be adequate to protect the
constitutional rights of the accused. "It would not satisfy
the Sixth Amendment to have a jury determine that the
defendant is probably guilty, and then leave it up to the
judge to determine whether he is guilty beyond a
reasonable doubt."117

Meanwhile, as more Americans get the justifiable
impression that the courts are not being perfectly
candid with jurors, they are naturally and gradually
losing their normal inhibitions about lying to judges.
Prior to sensational trials, jurors' rights activists now
give everyone entering the courthouse pamphlets
advising of them of their power to nullify, warning them


112 (p.59)
113 (p.60)
114 United States v. Hickok, 77 F.3d 992, 1002 (7th Cir.
1996).
115 United States v. Pulido, 69 F.3d 192, 206 (7th Cir.
1995).
116 Pulido, 69 F.3d at 206.
117 Sullivan, 508 U.S. at 278.


that the judge will deny it, and pleading with them to
deny any "knowledge of this material" during jury
selection.118 An outspoken law professor has publicly
declared his willingness to lie under oath during jury
selection, if necessary, to conceal his true attitudes
toward nullification and get the chance to nullify death
penalty cases.119 That same law teacher has also
invited Americans by the thousands to decide for
themselves whether perjury during jury selection might
be "morally justifiable" for some greater good such as
racial justice.120

If our criminal justice system is to retain some
semblance of integrity in the long run, it is vital that we
treat jurors with greater candor about the moral and
legal contours of their power to nullify. Fortunately, it
wouldn't take long. A clear and adequate instruction
could be conveyed in a single sentence, explaining that
the jury should, (not "must"), convict anyone proven
guilty beyond a reasonable doubt, unless the jurors
have a firm belief that a conviction would be
fundamentally unjust. Such an instruction would give
defendants all the protection they deserve against
wrongful prosecution. It would preserve the jury's
constitutionally protected veto power over unjust
prosecutions. It would minimize the terrible danger of
jurors persuading each other that the judge is
withholding (or concealing) crucial facts about the way
the system is designed to work. And it would, at long
last, permit us in good conscience and good faith to ask
jurors to take a solemn oath to abide by the court's
charge.

Proper instructions on nullification are now quite like
sex education to youth in many different ways. There
may well have been a time, several decades ago, when
it was feasible to avoid both subjects altogether, hoping
that our young wards would never even hear much
about them until a truly pressing need might arise for
them to divine a few things on their own initiative. But
now there are precious few secrets about either subject
that cannot be found on the Internet and in every major
magazine -- along with many dangerous falsehoods
and half-truths. If we persist in our refusal to confront
these delicate topics head-on, jurors and children will
continue making terrible choices as they learn for
themselves what a dangerous thing a little knowledge
can be. And in the process, judges and parents alike
will continue to lose much of their credibility in the eyes
of those who correctly perceive their right to honest
guidance from us.


118 Joe Lambe, "Bill Would Let Juries Decide Law in
Cases; Legal Establishment Reacts to Measure with
Shock, Dread," Kansas City Star, at A1 (April 8, 1996).
119 Paul Butler, Racially Based Jury Nullification: Black
Power in the Criminal Justice System, 105 Yale L.J.
677, 724-25 n.236 (1995).
120 Id.

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