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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Jurors' Handbook: A Citizens Guide to Jury Duty

Post by transferedposts » Thu Feb 19, 2015 6:51 am

Even though a file may be very informative and thought provoking, thanks to all the embedded malicious code sometimes found in files downloaded from the net, I know a lot of people are uncomfortable downloading and opening documents of any type from the net.

The following text is from a PDF file that can be found at:



http://fija.org/

http://www.fija.org/docs/JG_Jurors_Handbook.pdf



Note: a lot of formatting is lost during during the cut and paste process.

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

Post by transferedposts » Thu Feb 19, 2015 6:52 am

Jurors' Handbook
A Citizens Guide to Jury Duty
Mr. Duane is an associate professor at Regent Law School in Virginia Beach, Virginia


Did you know that you qualify for another, much more
powerful vote than the one which you cast on election
day? This opportunity comes when you are selected for
jury duty, a position of honor for over 700 years.
The principle of a Common Law Jury or Trial by the
Country was first established on June 15, 1215 at
Runnymede, England when King John signed the
Magna Carta, or Great Charter of our Liberties. It
created the basis for our Constitutional, system of
Justice.

JURY POWER in the system of checks
and balances:

In a Constitutional system of justice, such as ours, there
is a judicial body with more power than Congress, the
President, or even the Supreme Court. Yes, the trial
jury protected under our Constitution has more power
than all these government officials. This is because it
has the final veto power over all "acts of the legislature"
that may come to be called "laws".

In fact, the power of jury nullification predates our
Constitution. In November of 1734, a printer named
John Peter Zenger was arrested for seditious libel
against his Majesty's government. At that time, a law of
the Colony of New York forbid any publication without
prior government approval. Freedom of the press was
not enjoyed by the early colonialists! Zenger, however,
defied this censorship and published articles strongly
critical of New York colonial rule.

When brought to trial in August of 1735, Zenger
admitted publishing the offending articles, but argued
that the truth of the facts stated justified their
publication. The judge instructed the jury that truth is
not justification for libel. Rather, truth makes the libel
more vicious, for public unrest is more likely to follow
true, rather than false claims of bad governance. And
since the defendant had admitted to the "fact" of
publication, only a question of "law" remained.

Then, as now, the judge said the "issue of law" was for
the court to determine, and he instructed the jury to find
the defendant guilty. It took only ten minutes for the
jury to disregard the judge's instructions on the law
and find Zenger NOT GUILTY.

That is the power of the jury at work; the power to
decide the issues of law under which the defendant is
charged, as well as the facts. In our system of checks
and balances, the jury is our final check, the people's
last safeguard against unjust law and tyranny.
A Jury's Rights, Powers, and Duties:

But does the jury's power to veto bad laws exist under
our Constitution?

It certainly does! At the time the Constitution was
written, the definition of the term "jury" referred to a
group of citizens empowered to judge both the law and
the evidence in the case before it. Then, in the February
term of 1794, the Supreme Court conducted a jury trial
in the case of the State of Georgia vs. Brailsford1. The
instructions to the jury in the first jury trial before the
Supreme Court of the United States illustrate the true
power of the jury. Chief Justice John Jay said: "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." (emphasis added) "...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".

So you see, in an American courtroom there are in a
sense twelve judges in attendance, not just one. And
they are there with the power to review the "law" as well
as the "facts"! Actually, the "judge" is there to conduct
the proceedings in an orderly fashion and maintain the
safety of all parties involved.

As recently as 1972, the U.S. Court of Appeals for the
District of Columbia said that the jury has an "
unreviewable and irreversible power... to acquit in
disregard of the instructions on the law given by the trial
judge....2

Or as this same truth was stated in a earlier decision by
the United States Court of Appeals for the District of
Maryland: "We recognize, as appellants urge, the
undisputed power of the jury to acquit, even if its verdict
is contrary to the law as given by the judge, and

- - - -
1 (3 Dall 1)
2 US vs Dougherty, 473 F 2d 1113, 1139 (1972)

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

Post by transferedposts » Thu Feb 19, 2015 6:53 am

contrary to the evidence. This is a power that must exist
as long as we adhere to the general verdict in criminal
cases, for the courts cannot search the minds of the
jurors to find the basis upon which they judge. If the jury
feels that the law under which the defendant is
accused, is unjust, or that exigent circumstances
justified the actions of the accused, or for any reason
which appeals to their logic of passion, the jury has the
power to acquit, and the courts must abide by that
decision."3

YOU, as a juror armed with the knowledge of the
purpose of a jury trial, and the knowledge of what your
Rights, powers, and duties really are, can with your
single vote of not guilty nullify or invalidate any law
involved in that case. Because a jury's guilty decision
must be unanimous, it takes only one vote to effectively
nullify a bad "act of the legislature". Your one vote can
"hang" a jury; and although it won't be an acquittal, at
least the defendant will not be convicted of violating an
unjust or unconstitutional law.
The government cannot deprive anyone of "Liberty",
without your consent!

If you feel the statute involved in any criminal case
being tried before you is unfair, or that it infringes upon
the defendant's God-given inalienable or Constitutional
rights, you can affirm that the offending statute is really
no law at all and that the violation of it is no crime; for
no man is bound to obey an unjust command. In other
words, if the defendant has disobeyed some man-made
criminal statute, and the statute is unjust, the defendant
has in substance, committed no crime. Jurors, having
ruled then on the justice of the law involved and finding
it opposed in whole or in part to their own natural
concept of what is basically right, are bound to hold for
the acquittal of said defendant.

It is your responsibility to insist that your vote of not
guilty be respected by all other members of the jury. For
you are not there as a fool, merely to agree with the
majority, but as a qualified judge in your right to see that
justice is done. Regardless of the pressures or abuse
that may be applied to you by any or all members of the
jury with whom you may in good conscience disagree,
you can await the reading of the verdict secure in the
knowledge you have voted your conscience and
convictions, not those of someone else.

So you see, as a juror, you are one of a panel of twelve
judges with the responsibility of protecting all innocent
Americans from unjust laws.

Jurors Must Know Their Rights:

3 US vs Moylan, 417 F 2d 1002, 1006 (1969)

You must know your rights! Because, once selected for
jury duty, nobody will inform you of your power to judge
both law and fact. In fact, the judge's instructions to the
jury may be to the contrary. Another quote from US vs
Dougherty4: "The fact that there is widespread
existence of the jury's prerogative, and approval of its
existence as a necessary counter to case-hardened
judges and arbitrary prosecutors, does not establish as
an imperative that the jury must be informed by the
judge of that power".

Look at that quote again. the court ruled jurors have the
right to decide the law, but they don't have to be told
about it. It may sound hypocritical, but the Dougherty
decision conforms to an 1895 Supreme Court decision
that held the same thing. In Sparf vs US5, the court
ruled that although juries have the right to ignore a
judge's instructions on the law, they don't have to be
made aware of the right to do so.
Is this Supreme Court ruling as unfair as it appears on
the surface? It may be, but the logic behind such a
decision is plain enough.

In our Constitutional Republic, note I did not say
democracy, the people have granted certain limited
powers to government, preserving and retaining their
God-given inalienable rights. So, if it is indeed the
juror's right to decide the law, then the citizens should
know what their rights are. They need not be told by the
courts. After all, the Constitution makes us the masters
of the public servants. Should a servant have to tell a
master what his rights are? Of course not, it's our
responsibility to know what our rights are!

The idea that juries are to judge only the "facts" is
absurd and contrary to historical fact and law. Are juries
present only as mere pawns to rubber stamp tyrannical
acts of the government? We The People wrote the
supreme law of the land, the Constitution, to "secure the
blessings of liberty to ourselves and our posterity." Who
better to decide the fairness of the laws, or whether the
laws conform to the Constitution?

Our Defense - Jury Power:

Sometime in the future, you may be called upon to sit in
judgment of a sincere individual being prosecuted
(persecuted?) for trying to exercise his or her Rights, or
trying to defend the Constitution. If so, remember that in
1804, Samuel Chase, Supreme Court Justice and
signer of the Declaration of Independence said: "The
jury has the Right to judge both the law and the facts".
And also keep in mind that "either we all hang together,
or we most assuredly will all hang separately".

4 (cited earlier)
5 (156 US 51)

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

Post by transferedposts » Thu Feb 19, 2015 6:54 am

You now understand how the average citizen can help
keep in check the power of government and bring to a
halt the enforcement of tyrannical laws. Unfortunately,
very few people know or understand this power which
they as Americans possess to nullify oppressive acts of
the legislature.

America, the Constitution and your individual rights are
under attack! Will you defend them? READ THE
CONSTITUTION, KNOW YOUR RIGHTS! Remember,
if you don't know what your Rights are, you haven't got
any!


= = = = = = = = = = = = = =


[Copyright © 1996 Litigation. Originally
published as 22:4 Litigation 6-60 (1996).]

Jury Nullification:
The Top Secret
Constitutional
Right

by James Joseph Duane

A bill now pending in the Missouri state legislature has
whipped up a firestorm of controversy. Judges and
prosecutors there call it "a gut-punch to democracy,"
"an invitation to anarchy," and a bill that "flies in the face
of everything this country stands for." One county
prosecutor has even called for the resignation of the 20
state representatives who introduced the bill.
What could have caused such calamity? This
supposedly radical legislation would merely require
judges to tell criminal juries the undisputed fact that
they have "the power to judge the law as well as the
evidence, and to vote on the verdict according to
conscience." It is hard to remember the last time there
was so much turmoil over a proposal to declassify a
government secret during peacetime.

Meanwhile, out in Nevada, a 50-year-old florist and
grandmother almost landed in prison for her efforts to
help spread the word to jurors. When her son went on
trial for drug charges in federal court, Yvonne Regas
and a friend papered the windshields of nearby parked
cars, hoping to let the jurors learn the completely
unexpected fact that her son faced 450 years in prison
for a single drug transaction nine years earlier. Federal
authorities charged her with jury tampering and
obstruction of justice, but eventually dropped the
charges. Presumably, they gave up hope of figuring out
how they could get jurors to convict her without showing
them the contents of the pamphlets she had been
distributing -- and then her jury would know the truth
about nullification.

Despite all the modern government resentment toward
"jury nullification," its roots run deep in both our history
and law. At least two provisions of the Constitution, and
arguably three, protect the jury's power to nullify. They
also explain why that power is limited to criminal cases,
and has no analogy in the civil context.

First, it is reflected in the Sixth Amendment, which
grants the accused an inviolable right to a jury
determination of his guilt or innocence in all criminal
prosecutions for serious offenses. Because of this right,
a trial judge absolutely cannot direct a verdict in favor of
the State or set aside a jury's verdict of not guilty, "no
matter how overwhelming the evidence."6 Any violation
of this rule is automatically reversible error without
regard to the evidence of guilt.7 Indeed, the point is so
well settled that it was announced without dissent in
Sullivan by a Court that has been unanimous on only a
few constitutional questions in the past ten years.

This rule is applied with a rigor that is without parallel in
any area of civil practice. For example, it is reversible
error to direct a verdict of guilty over the defendant's
objection, even if he takes the witness stand and admits
under oath that he committed every element of the
charged offense!8 (Although one might fairly describe
that particular defense strategy as a questionable use
of direct examination.)

Judicial Deference

Likewise, when a judge takes judicial notice of a fact in
a criminal case -- for example, that the defendant could
not have boarded a train in New York and exited in
Texas without somehow crossing state lines -- he will
tell the jury they "may" accept that fact as proven
without further evidence. But he may not tell them that
they are required to do so, or take the factual question
away from them, no matter how obvious the fact might
seem.9 Even where the defendant and his attorney
enter into a formal stipulation admitting an element of
the offense, the jury should be told merely that they
may regard the matter to be "proved," if they wish, but
the judge still cannot direct a verdict on that factual
issue or take it away from the jury over the defendant's



6 Sullivan v. Louisiana, 508 U.S. 275, 277 (1993).
7 Id.
8 Bryant v. Georgia, 163 Ga. App. 872, 296 S.E.2d 168
(Ga. Ct. App. 1982).
9 See Advisory Committee Notes to Fed. R. Evid.
201(g).

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

Post by transferedposts » Thu Feb 19, 2015 6:54 am

objection. 10All of these rules are designed, in part, to
protect the jury's inviolable power to nullify and to avoid
the reversible error always committed when "the wrong
entity judge[s] the defendant guilty."11

Second, the roots of nullification also run deep into the
12Double Jeopardy Clause. Even where the jury's
verdict of not guilty seems indefensible, that clause
prevents the State from pursuing even the limited
remedy of a new trial. This rule, by design, gives juries
the power to "err upon the side of mercy" by entering
"an unassailable but unreasonable verdict of not
guilty."13

Finally, the jury's power to nullify is protected by our
abiding "judicial distaste" for special verdicts or
interrogatories to the jury in criminal cases.14 Unlike in
civil cases, where such devices are routinely employed,
in criminal cases it has frequently been held to be error
to ask a jury to return anything but a general verdict of
guilty or not guilty. 15This rule is designed to safeguard
the jury's power "to arrive at a general verdict without
having to support it by reasons or by a report of its
deliberations," and to protect its historic power to nullify
or temper rules of law based on the jurors' sense of
justice as conscience of the community.16 The jury is
given "a general veto power, and this power should not
be attenuated by requiring the jury to answer in writing
a detailed list of questions or explain its reasons."
17Although the issue is far from settled, a powerful
argument can be made that this rule "is of constitutional
dimensions," and a direct corollary of the Sixth
Amendment's protection of the jury's power to nullify. 18

These constitutional rules, in combination, give a
criminal jury the inherent discretionary power to "decline
to convict," and insure that such "discretionary
exercises of leniency are final and unreviewable."19 This
state of affairs does not even have a rough parallel in
civil cases, where the Seventh Amendment right to a
"trial by jury" does not preclude judges from granting
summary judgment, directed verdicts, and new trials. (In
effect, although both amendments are written quite

10 United States v. Muse, 83 F.3d 672, 679-80 (4th Cir.
1996).
11 Rose v. Clark, 478 U.S. 570, 578 (1986).
12 (p.7)
13 Jackson v. Virginia, 443 U.S. 307, 317 n.10 (1979).
14 United States v. Oliver North, 910 F.2d 843, 910-11
(D.C. Cir. 1990).
15 United States v. McCracken, 488 F.2d 406, 418-419
(5th Cir. 1974) (collecting cases).
16 Id.; United States v. Spock, 416 F.2d 165, 181-82 (1st
Cir. 1969).
17 United States v. Wilson, 629 F.2d 439, 443 (6th Cir.
1980).
18 Wayne LaFave & Jerold Israel, Criminal Procedure §
24.7(a) (2d ed. 1992).
19 McCleskey v. Kemp, 481 U.S. 279, 311 (1987).


similarly, the Supreme Court has interpreted the Sixth
Amendment to give criminal defendants a right to a jury
and a trial; the Seventh Amendment, where it applies,
only gives civil litigants the right to a jury if there is a
trial.)

The existence of a criminal jury's power to nullify is
currently as well settled as any other rule of
constitutional law. It is a cornerstone of American
criminal procedure. The far more controversial issue --
and much more frequently litigated -- is that perennial
dilemma: What should we tell the kids? Should (or
must) the judge tell the jurors anything about their
power (or right) to nullify? Should the judge at least
allow the defense to tell them? If so, how much should
we tell them, and how should we do it? These issues lie
at the very core of our criminal justice system, and have
been debated by lawyers, journalists, philosophers, and
patriots for two centuries. It is therefore ironic that these
questions have, at least in recent decades, generated
one of the most remarkable displays of unanimity ever
orchestrated by state and federal courts on any issue of
law in American history.

It would take at most four words to fairly summarize the
unanimous consensus of state and federal judges on
the idea of telling jurors about their power to nullify:
"Forget it. No way." Even while extolling the beauty and
majesty of our commitment to the jury's constitutional
role as a guardian against tyranny, no state or federal
appellate court in decades has held that a trial judge is
even permitted -- much less required to explicitly
instruct the jurors on their undisputed power to return a
verdict of not guilty in the interests of justice. The
federal courts are unanimous and have been for years,
for example,20 ("a district judge may not instruct the jury
as to its power to nullify"). So are the state appellate
courts, for example,21

State Law

There is a pervasive myth that three states supposedly
allow jury nullification instructions: Georgia, Maryland,
and Indiana.22 Some lists also include Oregon. This is
presumably because those states have laws or
constitutional provisions suggesting that criminal jurors
are judges of the law and the facts. But the myth is
false. Despite their differing constitutions, all four states



20 United States v. Manning, 79 F.3d 212, 219 (1st Cir.
1996)
21 Mouton v. Texas, 923 S.W.2d 219 (Tex. Ct. App.
1996); Michigan v. Demers, 195 Mich. App. 205, 489
N.W.2d 173 (Mich. Ct. App. 1992).
22 See State v. Morgan Stanley & Co., 194 W.V. 163,
175, 459 S.E.2d 906, 918 n.27 (W.V. 1995); Paul
Butler, Racially Based Jury Nullification: Black Power in
the Criminal Justice System, 105 Yale L.J. 677, 704
n.147 (1995).

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

Post by transferedposts » Thu Feb 19, 2015 6:55 am

have held that a jury has, at most, the power to acquit a
guilty man, not the right, and should not be told that it
may ignore or nullify the law.23

Resourceful defendants and their attorneys have tried
every conceivable route around this immovable
roadblock. All have been thwarted. Without exception,
the appellate courts will not allow a defense attorney to
use her closing argument to tell the jurors about their
power to nullify, or to urge them to use it.24

Nor can the defense offer evidence that is relevant to
nothing25 but the justness of a conviction or acquittal, or
is otherwise designed to induce the jury to nullify.26 This
includes, most notably, any information about the
sentence faced by the defendant, even if it is a
minimum mandated by law. 27

Judicial disapproval also extends to any evidence or
argument designed solely to persuade the jury that the
government was guilty of misconduct in its investigation
or prosecution.28

Predictably, the battle is moving to the earliest stages of
the trial, but the results are the same. Requests to ask
jurors about nullification on voir dire have been
denied.29

One pro se defendant tried to persuade the Supreme
Court that her trial judge improperly refused to let her
challenge for cause those prospective jurors who did
know or understand the term "jury nullification."30 The
Court decided it might tackle that one later, and denied
review.31

Defendants will go to any lengths to get this forbidden
topic of discussion before the jury. In one recent case
involving minor charges in traffic court, a pro se
defendant offered the State of Pennsylvania a bargain
of almost Faustian proportions. He asserted a right to
execute a release of his property rights under state law
and all of his privileges and immunities secured by the


23 See, e.g., Miller v. Georgia, 260 Ga. 191, 196, 391
S.E.2d 642, 647 (Ga. 1990).
24 See, e.g., United States v. Muse, 83 F.3d 672, 677
(4th Cir. 1996).
25 (p.8)
26 United States v. Griggs, 50 F.3d 17, 1995 WL 7669
(9th Cir. 1994).
27 United States v. Johnson, 62 F.3d 849, 850-51 (6th
Cir. 1995).
28 United States v. Rosado, 728 F.2d 89, 93-95 (2d Cir.
1984).
29 United States v. Datche,. 830 F. Supp. 411, 418
(M.D. Tenn. 1993).
30 Mendonca v. Oregon, 55 U.S.L.W. 3362 (1986)
(petition for certiorari).
31 479 U.S. 979 (1986).


Fourteenth Amendment, subject to the condition that he
would revert to the status of an "American Freeman"
with all of the "common law rights thereof, including the
right to a jury possessing the power of jury
nullification."32 The Supreme Court passed up this
chance to decide the issue, perhaps preferring to wait
until it percolates a bit more in the lower courts.33
Judicial hostility to jury nullification goes well beyond
the stone wall of silence erected around the jury box.

Case after case has approved jury instructions actually
designed to imply that jurors do not have such power at
all, or to "instruct the jury on the dimensions of their
duty to the exclusion of jury nullification."34 For example,
criminal jurors are routinely ordered: "You must follow
my instructions on the law, even if you thought the law
was different or should be different,"35 and "even if you
disagree or don't understand the reasons for some of
the rules."36

In extreme cases, this judicial hostility even extends to
dishonesty. As Chief Judge Bazelon correctly observed,
current law on this topic is tantamount to a "deliberate
lack of candor."37 In one especially outrageous case,
the jury deliberated for hours in a criminal tax case
before sending the judge a note asking: "What is jury
nullification?" The defendant was convicted shortly after
the judge falsely told the jury that "there is no such thing
as valid jury nullification," and that they would violate
their oath and the law if they did such a thing.38 Over a
vigorous dissent, the Court of Appeals deemed the
instruction proper and affirmed the conviction39, even
after the defendant furnished the court with an affidavit
from a juror who swore he would have acquitted if "we
were told the truth about jury nullification."40

This widespread judicial pattern is highly ironic. The
courts have unanimously (and erroneously) refused to
let defense attorneys argue for nullification, typically by
insisting that the jury has no power to consider what the
law should be, and that juries have no lawful task but to
decide whether the defendant broke the law. Yet, in a fit
of sheer inconsistency, the same federal courts of


32 Phelps v. Pennsylvania, 59 U.S.L.W. 3522 (1991)
(petition for certiorari).
33 498 U.S. 1088 (1991).
34 United States v. Sepulveda, 15 F.3d 1161, 1190 (1st
Cir. 1993).
35 Eighth Circuit Pattern Criminal Jury Instruction 3.02
(1991),
36 Federal Judicial Center, Pattern Criminal Jury
Instruction 9 (1987).
37 United States v. Dougherty, 473 F.2d 1113, 1139
(D.C. Cir. 1972) (dissenting opinion).
38 United States v. Krzyske, 836 F.2d 1013,1021 (6th
Cir. 1988).
39 , id.
40 United States v. Krzyske, 857 F.2d 1089,1095 (6th
Cir. 1988).

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

Post by transferedposts » Thu Feb 19, 2015 6:56 am

appeals are also unanimous that it is permissible for
prosecutors to urge juries to act as the "conscience of
the community" and use their verdict to "send a
message" about whether society should be willing to
tolerate the defendant's alleged conduct.41

The Sixth Amendment creates a right for the defendant
to insist on a jury to act as a community conscience and
protect him from government oppression, and yet only
the State is allowed, when it chooses, to ask the jury to
consider matters of morality and conscience.42 Thus
have we witnessed a complete perversion of the
constitutional priorities and structure.

One might fairly summarize the case law this way: "You
may hope that the jury will refuse to apply a harsh,
unfair, or inequitable law, but you may not urge them to
do so."43 But why not? Why can't we tell the jury a little
bit more than we do about the truth? Not since the
storming of the Bastille have the forces of government
been so tightly united in their opposition to a popular
uprising. Numerous arguments have been advanced by
judges around the country for this refusal, but not one
stands up to serious analysis.

1. "Jury nullification is an embarrassing glitch in our
law." What should we tell jurors about their power to
nullify? The answer depends largely on one's attitude
toward a closely related issue: Just what is nullification
anyway, and why is it protected by the Constitution?

One of the most frequent justifications for refusing to tell
juries about their power to nullify is the pernicious
suggestion that this power is the product of some
accidental or regrettable flaw in our system of justice.

Jury nullification has been described in many ways,
some of which cannot be repeated in respectable
society. At one extreme, a federal judge recently hailed
it as "one of the peaceful barricades of freedom.44 Even
courts declining to instruct juries about the doctrine
have conceded that "the pages of history shine on
instances of the jury's exercise of its prerogative to
disregard uncontradicted evidence and instructions of
the judge."45 Notable examples include the courageous


41 James J. Duane, "What Message Are We Sending to
Criminal Jurors When We Ask Them to 'Send a
Message' With Their Verdict?," 22 Am. J. Crim. Law
565, 576-79 (1995).
42 Id. at 590-602.
43 Steven Lubet, Modern Trial Advocacy 436 (1993)
(emphasis added).
44 ." Jack B. Weinstein, "Considering Jury 'Nullification':
When May and Should a Jury (p.9)Reject the Law to Do
Justice," 30 Am. Crim. L. Rev. 239, 254 (1993).
45 United States v. Dougherty, 473 F.2d 1113, 1130
(D.C. Cir. 1972).


refusal of northern jurors to convict "guilty" men who
violated the fugitive slave laws.46

On the other hand, some courts have suggested that
the power to nullify is merely "a tolerated anomaly in the
rule of law.'"47 They call it a void in the law, giving jurors
"the power to do what they want in a given case
because neither the prosecution nor the court has the
authority to compel them to do what they should."48
Others assert that the power exists only because "there
is nothing to prevent" it, but that it "is not a legally
sanctioned function of the jury and should not be
encouraged by the court."49 The sensational-sounding
charges have been made that a nullification instruction
would "encourage the jury to abdicate its primary
function," id., or that it would "in essence direct juries
that they could run amuck"50 Scores of other cases
have tried to capture this same point by insisting that
juries always have the power to nullify, but never the
right to do so.

So who is correct? Is the institution of nullification
deliberately enshrined and protected in the Constitution
as a valuable political end in itself, as some have
suggested? Or is it merely a regrettable byproduct of
careless drafting, or an anomalous but necessary evil
we "tolerate" because of our commitment to some
greater good? And how could the courts be so very far
apart in their responses? The answer to this confusion
depends on how one defines "jury nullification," a term
with various shades of meaning.

In its broadest form, "nullification" has often been used
to describe the jury's "raw power to set an accused free
for any reason or for no reason,"51 even for reasons
having nothing to do with justice or guilt.

The Jury's Rights

An acquittal may come because the jurors found the
defendant attractive, or were members of the same
race, or harbored hatred toward the victim's race, or
merely because they were tired of being sequestered
for months. This possibility, which might fairly be called
"lawless nullification," is protected by our Constitution
not for its own sake, but because of our commitment to
the secrecy of jury deliberations and the finality and
unreviewability of their verdicts. (This is true in much
the same way that the First Amendment protects the



46 Id.
47 Mayfield v. United States, 659 A.2d 1249, 1254 (D.C.
1995).
48 State v. Bjerkaas, 472 N.W.2d 615, 619 (Wis. App.
1991). (emphasis added).
49 State v. Weinberg, 631 N.E.2d 97, 100 (N.Y. 1994).
50 Davis v. State, 520 So. 2d 493, 494-95 (Miss. 1988).
51 Sepulveda, 15 F.3d at 1190,

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

Post by transferedposts » Thu Feb 19, 2015 6:56 am

right to say many things that nobody would publicly hold
up as a model of good civic behavior.)

There is no compelling reason why a jury should learn
every dirty little secret of our system of justice,
especially if that knowledge would undermine the
purpose of the proceeding or the jurors' perception of
the seriousness of their role.52 It is an error to give jury
misleading view of the extent of appellate review of their
sentencing recommendation. Thus, the courts are
correct to hold that the law should not require or
encourage a judge to remind jurors of the regrettable
fact that they have the raw power to acquit for any
arbitrary or spiteful reason, or indeed for no reason at
all. But in no reported case, to my knowledge, has any
defendant or his attorney requested an instruction that
would go even half that far.

In the real world, outside the pages of appellate judicial
opinions, defendants almost invariably make the far
more modest request that the jury be told merely of its
authority to acquit an accused if a conviction would
conflict with their deeply seated sense of morality and
justice. In this, its purest form, the possibility of
"nullification" is not some accidental byproduct of
careless drafting in the Constitution, nor of our
commitment to some greater good. It is one of the very
reasons for the existence of the Sixth Amendment's
inflexible insistence that the accused has the right to a
jury of his peers.

The jury is there, by design, "to prevent oppression by
the Government" and to "protect against unfounded
criminal charges brought to eliminate enemies and
against judges too responsive to the voice of higher
authority."53 The jury's role "as a check on official
power" is in fact "its intended function."54 The jury
injects "a slack into the enforcement of law, tempering
its rigor by the mollifying influence of current ethical
conventions.”55 That is why a directed verdict for the
state would be not merely unconstitutional -- it "would
be totally alien to our notions of criminal justice," since
"the discretionary act of jury nullification would not be
permitted."56

This is also the defect in the long line of cases that
disparage57 nullification by claiming that the jury has
only the "power," but not the "right," to do it. That may
be a fair description of the jury's latitude to acquit for
any lawless reason that pleases them -- its "power to



52 See Caldwell v. Mississippi, 472 U.S. 320, 323 (1985)
53 Duncan v. Louisiana, 391 U.S. 145, 155-56 (1968).
54 Batson v. Kentucky, 476 U.S. 79, 86-87 n.8 (1986).
55 ." United States ex rel. McCann v. Adams, 126 F.2d
774, 775-76 (2d Cir. 1942) (Learned Hand, J.).
56 Gregg v. Georgia, 428 U.S. 153, 199 n.50 (1976)
(plurality opinion).
57 (p.10)


bring in a verdict in the teeth of both law and facts."58
But the jury's power to acquit out of justice or mercy is a
constitutionally protected right. If not their right, it is at
least the defendant's firmly settled right that he insist on
a jury with such power, regardless of whether the proof
of his technical legal guilt is literally overwhelming and
uncontradicted.59 Any judicial instructions that would
prevent the exercise of this right are unconstitutional.
These considerations about the historical roots of the
right to a jury trial, by themselves, do not dispose of the
question whether the jury should be instructed about
nullification. But they easily suffice to dispatch the
absurd suggestion that the latitude allowed for an
acquittal based on the jury's sense of justice should be
kept from the jury because it is only a flaw in the
system's design, or that it is not a legally sanctioned
function of the jury.

2. "Nullification instructions encourage the jury to violate
the law." Some courts have reasoned that a nullification
instruction would permit, if not encourage, the jurors to
disregard or break the law. One court even held that it
is proper to affirmatively instruct the jurors that they
would "violate the law" if they engaged in nullification or
if they violated any of the judge's instructions on the
law.60 Another has reasoned that "anarchy would result
from instructing the jury that it may ignore the
requirements of the law."61 Such assertions are
baseless.

Contrary to the widespread myth popular among
judges, there is no "law" that requires juries to convict
every man shown to be technically guilty beyond a
reasonable doubt. "The power of the courts to punish
jurors for corrupt and incorrect verdicts,"62 that darling of
the Star Chamber's nursery, was banished from the
pages of Anglo-American law centuries ago. Today, at
its very core, our system of justice is unflinchingly
committed to the liberty of criminal juries to "err upon
the side of mercy,"63 or to "refuse to convict even
though the evidence supported the charge."64 Any
system that restricted such liberty "would be totally alien
to our notions of criminal justice."65 In this respect,
nullification is every bit as lawful as leniency extended
by the prosecutor, or the judge, or the governor.66


58 Horning v. District of Columbia, 254 U.S. 135, 138
(1920).
59 Sullivan v. Louisiana, 508 U.S. 275, 277-82 (1993).
60 United States v. Krzyske, 836 F.2d 1013, 1021 (6th
Cir. 1988).
61 Powell, 955 F.2d at 1213.
62 Dougherty, 473 F.2d at 1130,
63 Jackson, 443 U.S. at 317,
64 Gregg, 428 US. at 199 n.50.
65 Id.
66 Id.

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

Post by transferedposts » Thu Feb 19, 2015 6:57 am

Nor does any "law" forbid a jury from pardoning a man
who violated an unjust statute, even if an acquittal
requires them to ignore the court's instructions on the
law. The Constitution does no such thing; it actually
protects the jury's right to acquit based on their sense of
justice. The penal code does not criminalize such
conduct, and would be clearly unconstitutional if it did.
Not even the Bible imposes any such rule.67 "Follow
justice and justice alone". If there is any such "law," it is
true only in the narrow sense of illegitimate case law
made up by judges acting well beyond the scope of
their lawful authority.

Judges who tell each other that "nullification is illegal"
are more than vaguely reminiscent of the judge who
once told a criminal defendant: "Rule Forty-Two. All
persons more than a mile high to leave the court! It's
the oldest rule in the book."68 As the defendant adroitly
responded: "Then it ought to be Number One" -- or it
ought to be, at the very least, written down in the
Constitution, or the penal code, or somewhere besides
judicial opinions.

3. "The Supreme Court said not to tell the jury about it."
A surprising number of courts have tried to blame the
Supreme Court for their refusal to tell juries about the
power to acquit on moral grounds. That myth is also
false. The Supreme Court has never said such a thing.
In the two cases widely cited for this proposition, the
Court merely declared that a jury is not entitled to
decide what the law is or should be, and that "a judge
always has the right and duty to tell them what the law
is upon this or that state of facts that may be found."69
This language has been widely cited by lower courts as
authority for their refusal to permit any argument or
instructions on nullification.70

In fact, however, Horning and Sparf have nothing to do
with this matter. It would indeed be improper to tell a
jury that "they are to determine the rules of law."71 In
Sparf, for example, the Supreme Court properly refused
a murder defendant's request that his jury be told they
could convict him of manslaughter out of leniency, even
though he conceded that there was no evidence to
support a finding of guilt on such a lesser charge!72 If
that were the law, of course, we ought to read the jury
the entire penal code, just in case manslaughter seems
too harsh, so they could perhaps convict him of driving

67 See Deuteronomy 16:20
68 Lewis Carroll, Alice's Adventures in Wonderland 256
(Bramhall House 1960).
69 Horning v. District of Columbia, 254 U.S. 135, 138
(1920) (Holmes, J.); accord Sparf and Hansen v. United
States, 156 U.S. 51 (1895).
70 E.g., Krzyske. 836 F.2d at 1021.
71 Dougherty, 473 F.2d at 1136.
72 156 U.S. at 99.

with a bad muffler instead, or maybe acquit him on the
grounds of intoxication.73

Our entire system of justice would be undermined if
jurors had the liberty to return a false verdict -- even for
benign motives of mercy -- convicting a defendant of a
lesser offense she simply could not have committed, or
acquitting her because of some legal defense with
absolutely no basis in the evidence.

But that straw man has nothing to do with the typical
case of a defendant seeking an instruction on
nullification. Such instructions need not suggest that
jurors be told they can decide for themselves what the
law is or should be, or that they can convict the
defendant of some lesser offense (or acquit on the
basis of some affirmative defense) with no basis in the
facts. Our law does not countenance such contrivances
and should not encourage them. But a proper
nullification instruction or argument would merely tell
the jury the fact -- or at least confirm their intuitive
suspicion that our law intentionally allows them the
latitude to "refuse to enforce the law's harshness when
justice so requires."74 Whether that information should
be given to the jury has never been considered or
decided by the Supreme Court. Id. But it is the height of
hypocrisy to refuse to report that truthful information
about our constitutional law to the jury on the pretense
that the judge "has the right and duty to tell them what
the law is."75 That language, taken literally, would
require the judge to tell the jury much more than we do
about nullification.

There is one variant of nullification, however, that
appears to have been recently foreclosed by the
Supreme Court. Without specifically addressing the
topic of nullification, the Court recently held that jurors
should not be given distracting information about the
sentencing consequences of their verdict, even when
that evidence might serve to correct inconsistent and
erroneous beliefs the jury is likely to harbor about the
effect of their verdict.76 That reasoning would also
appear to apply where the defendant seeks to tell the
jury about sentencing information solely to persuade
them to acquit out of compassion and mercy, as the
lower courts have already acknowledged.77

Limiting the Jury's
Discretion

73 (p.11)
74 LaFave and Israel, Criminal Procedure § 22.1, at 960.
75 Horning, 254 U.S. at 138 (emphasis added).
76 Shannon v. United States, 114 S. Ct. 2419, 2427
(1994).
77 See United States v. Johnson, 62 F.3d at 850.

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

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

The reasoning of Shannon, consistently applied, would
take a big bite out of the jury's power to nullify. An
oppressive political regime could achieve some
surprising results by persuading a jury to convict an
accused of some seemingly minor offense that carries a
surprisingly draconian penalty. Without accurate
sentencing information, jurors would be unable to nullify
such a monstrous law -- or worse yet, might even end
up playing right into the government's hands by
guessing incorrectly.

Heidi Fleiss, for example, was convicted of consensual
sex offenses by jurors who were "outraged" to later
learn she faced a minimum three-year prison sentence.
Despite several jurors' belief that she was innocent, the
jurors had struck a deal after four days of deliberating
and acquitted her of drug charges -- where the
evidence was stronger -- because they were "under the
mistaken impression that the narcotics charge carried a
stiffer penalty."78 (Of course, trials like this one -- and
many others -- undermine the Supreme Court's crucial
assumption that jurors can be trusted to heed our
standard instruction to disregard possible punishment
when reaching their verdict.)

Shannon did not close the door to most forms of
nullification, however. As the Court properly reasoned, it
would be difficult to decide where to draw the line once
we open the jury room door to even truthful information
about the long-run sentencing consequences of their
verdicts.79 But that logic does not apply to the normal
case of nullification, where the accused desires an
acquittal based only on the moral implications of the
evidence already properly before the jury concerning
the details of his conduct, and does not seek to
smuggle into the record any facts they did not already
learn from the prosecutor.

4. "We can't encourage the jurors to violate their oath."
Perhaps the most threadbare judicial objection to
nullification arguments is that "neither the court nor
counsel should encourage jurors to violate their oath."80
These cases routinely assume that a jury's oath forbids
them from nullifying for any reason, even if based on
their firm belief that a conviction would be a terrible
miscarriage of justice. One prosecutor recently
reiterated the age-old complaint that "jury nullification
gives status and dignity to what is basically violating
your oath as a juror to follow the law." 81

Moreover, it has been recommended that federal
judges go one step further and routinely tell jurors, "You


78 Shawn Hubler, "Court Overturns Fleiss' Conviction,
Orders New Trial," L.A. Times, at A1 (May 30, 1996).
79 Shannon, 114 S. Ct. at 2427-28 & n.11.
80 United States v. Trujillo, 714 F.2d 102, 106 (11th Cir.
1983).
81 Tony Perry, "The Simpson Verdicts," LA. Times, at 5
(Oct. 5, 1995).



are bound by the oath that you took at the beginning of
the trial to follow the instructions that I give you, even if
you personally disagree with them."82 If the jurors
explicitly ask about nullification, we are told that the
judge should warn them of the supposed "fact" that
acquittal of a guilty man for any reason would be a
breach of their solemn oaths as jurors.83

This ominous-sounding charge has no logical
substance, although it naturally carries much emotional
appeal. Jurors know that oaths are serious business,84
and the law never permits or encourages anyone to do
anything contrary to his oath. But despite its
tremendous popularity among judges, this argument is
by far the most misshapen stone in the barricade
judges have been erecting around the jury box.

To begin with, it is usually false. The typical oath taken
by jurors today does not forbid them from refusing to
convict based on their sense of justice. In fact, many
oaths administered today are barely even intelligible. At
the beginning of (p.12)the trial, jurors are typically
asked to swear that they "will well and truly try and a
true deliverance make between the United States and
the defendant at the bar, and a true verdict render
according to the evidence, so help [me] God."85

Nobody still alive today knows for sure what it means to
"make a true deliverance." But nothing in this oath
would forbid jurors from acquitting if they are convinced
-- based solely on "the evidence" -- that the accused's
actions were morally blameless and that a conviction
would be unjust. In such rare cases, no jurors could be
said to have decided a case "well and truly" if they had
to disregard their sense of justice to convict. And an
acquittal in that case would certainly sound like a "true
deliverance."86 ("Rescue those being led away to
death"), and also87 ("He has sent me to proclaim
freedom for the captives and release from darkness for
the prisoners").

If a jury refuses to convict a man because of
overwhelming feelings of mercy or justice, they are not
returning a "false" verdict. A verdict of "not guilty" based
on a jury's notions of justice is not affirmatively
declaring that he is innocent. (The same is true of an
acquittal based on their conclusion that he has only
been shown to be probably guilty, but not beyond a
reasonable doubt.) The general "not guilty" verdict is
merely a shorthand way of allowing the jury to express,
for reasons they need not explain, "we do not choose to
condemn the accused by pronouncing him guilty."

82 Sixth Circuit Pattern Jury Instruction 1.02.
83 Krzyske, 836 F.2d at 1021.
84 see Exodus 20:7, 16,
85 United States v. Green, 556 F.2d 71 n.1 (D.C. Cir.
1977).
86 See Proverbs 24:11
87 Isaiah 61:1

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