NULLIFICATION: A HIDDEN RIGHT OF AMERICAN CITIZENSHIP
The best evidence for me of the extent to which America's founders trusted its common citizens resides in the most profoundly suppressed right in the Bill of Rights: The Sixth Amendment, which promises ordinary folk a right to trial by jury. As that right has been interpreted by judicial scholars since the Zenger trial in 1735 for seditious libel, it includes a massive transfer of authority from government (in the form of trial judges and legislatures) to ordinary men and women on juries. The nature of this transfer has been carefully hidden from the public by schools, judges, journalists… yet it has been divined, practiced, and upheld by court decisions and academic debate for over 200 years. It is known as “jury nullification.”
American juries have the extraordinary power to disregard a judge’s instructions in reference to the law's meaning, and even to disregard the law itself as transmitted from the legislature. American jruies can try the law itself, and find it invalid to establish guilt of criminal behavior. In ruling on a particular case, a jury in America has a right to determine an accused person to be innocent - not guilty - even where evidence clearly establishes the person did what they are in court for doing.
This is an amazing privilege, unmatched elsewhere in the world. In effect it means that the wisdom of ordinary citizens is superior to that of professional jurists and elected politicians.
As striking as this right is, equally astonishing are the radical steps that American authorities in courts and schools have taken to hide this power of nullification from juries and students. At times they even jail those with the temerity to broadcast its existence as “jury tampering” felons, and regularly forbid defense attorneys to raise the notion in court arguments. Schoolteachers who dare to mention this constitutional right are threatened with suspension and harassed by local bar associations for provoking anarchy.
Jury nullification is a way to recognize that law and morality frequently disagree. That law can come about from pressure by special interest groups, and can violate community moral standards. A clear examples is the Fugitive Slave Acts of the 19th century or the Alien and Sedition Acts of the 18th century. In the 20th century, juries sometimes practiced nullification in cases against liquor-law violators prosecuted in certain jurisdictions. The “double jeopardy” clause of the Constitution protects those acquitted by nullification from being re-tried.
I once personally nullified a Manhattan jury in a murder trial where police testimony to convict an alleged murderer was obviously fabricated because it violated laws of physics, and all other convicting testimony was from criminals with prior records, who testified under cross-examination to having been promised leniency for their testimony. When the trial judge learned it was me who hung her jury, she followed me from the jury room to the elevator bank shrieking at me and calling me names; dramatic evidence to me (and to the freed man, falsely accused) of the value of nullification to a “justice” system.
As a schoolteacher, my teenage students had no difficulty understanding the nuances of the concept and seemed to enjoy discussing it, but my school teacher principal warned me that if one of the students had a relative who complained, there was nothing he could do to help me. Makes you wonder, if starting from the principle of nullification, how far the noble American experiment of dignifying ordinary lives with trust has decayed. I am horrified.
For me the most inspiring example of jury nullification’s capacity to exalt morality over law occurred in northern Idaho on August 22, 1992. Randy Weaver was a survivalist, out with his wife and children. They were surrounded by snipers from the Federal Government, who shot his wife, son, and dog dead. There was no pressing legal reason. He retaliated and killed a federal marshal.
Mr Weaver was charged with murder, and there was ample evidence that he was indeed the person who had killed the marshal. Yet a jury failed to convict him, and then later a civil suit against the government forced it to pay his friend damages of over $300,000. This court trial is often cited in the origins of the American militia movement as a principal motivation, and I encourage you to learn the full details by searching for websites about “Ruby Ridge.” To the jury, government tampering in family life was a more serious matter than the death of a government sniper. You are at liberty to disagree, but whichever side of the argument you find yourself on, you must admit that conferring such momentous power on a rural jury of Weaver's peers bespeaks an attitude of profound respect for ordinary people and their perspectives.
This attitude is one of the exceptional differences between American society—as it was intended to be—and every other nation on earth.
NULLIFICATION: A HIDDEN RIGHT OF AMERICAN CITIZENSHIP
The best evidence for me of the extent to which America's founders trusted its common citizens resides in the most profoundly suppressed right in the Bill of Rights: The Sixth Amendment, which promises ordinary folk a right to trial by jury. As that right has been interpreted by judicial scholars since the Zenger trial in 1735 for seditious libel, it includes a massive transfer of authority from government (in the form of trial judges and legislatures) to ordinary men and women on juries. The nature of this transfer has been carefully hidden from the public by schools, judges, journalists… yet it has been divined, practiced, and upheld by court decisions and academic debate for over 200 years. It is known as “jury nullification.”
American juries have the extraordinary power to disregard a judge’s instructions in reference to the law's meaning, and even to disregard the law itself as transmitted from the legislature. American jruies can try the law itself, and find it invalid to establish guilt of criminal behavior. In ruling on a particular case, a jury in America has a right to determine an accused person to be innocent - not guilty - even where evidence clearly establishes the person did what they are in court for doing.
This is an amazing privilege, unmatched elsewhere in the world. In effect it means that the wisdom of ordinary citizens is superior to that of professional jurists and elected politicians.
As striking as this right is, equally astonishing are the radical steps that American authorities in courts and schools have taken to hide this power of nullification from juries and students. At times they even jail those with the temerity to broadcast its existence as “jury tampering” felons, and regularly forbid defense attorneys to raise the notion in court arguments. Schoolteachers who dare to mention this constitutional right are threatened with suspension and harassed by local bar associations for provoking anarchy.
Jury nullification is a way to recognize that law and morality frequently disagree. That law can come about from pressure by special interest groups, and can violate community moral standards. A clear examples is the Fugitive Slave Acts of the 19th century or the Alien and Sedition Acts of the 18th century. In the 20th century, juries sometimes practiced nullification in cases against liquor-law violators prosecuted in certain jurisdictions. The “double jeopardy” clause of the Constitution protects those acquitted by nullification from being re-tried.
I once personally nullified a Manhattan jury in a murder trial where police testimony to convict an alleged murderer was obviously fabricated because it violated laws of physics, and all other convicting testimony was from criminals with prior records, who testified under cross-examination to having been promised leniency for their testimony. When the trial judge learned it was me who hung her jury, she followed me from the jury room to the elevator bank shrieking at me and calling me names; dramatic evidence to me (and to the freed man, falsely accused) of the value of nullification to a “justice” system.
As a schoolteacher, my teenage students had no difficulty understanding the nuances of the concept and seemed to enjoy discussing it, but my school teacher principal warned me that if one of the students had a relative who complained, there was nothing he could do to help me. Makes you wonder, if starting from the principle of nullification, how far the noble American experiment of dignifying ordinary lives with trust has decayed. I am horrified.
For me the most inspiring example of jury nullification’s capacity to exalt morality over law occurred in northern Idaho on August 22, 1992. Randy Weaver was a survivalist, out with his wife and children. They were surrounded by snipers from the Federal Government, who shot his wife, son, and dog dead. There was no pressing legal reason. He retaliated and killed a federal marshal.
Mr Weaver was charged with murder, and there was ample evidence that he was indeed the person who had killed the marshal. Yet a jury failed to convict him, and then later a civil suit against the government forced it to pay his friend damages of over $300,000. This court trial is often cited in the origins of the American militia movement as a principal motivation, and I encourage you to learn the full details by searching for websites about “Ruby Ridge.” To the jury, government tampering in family life was a more serious matter than the death of a government sniper. You are at liberty to disagree, but whichever side of the argument you find yourself on, you must admit that conferring such momentous power on a rural jury of Weaver's peers bespeaks an attitude of profound respect for ordinary people and their perspectives.
This attitude is one of the exceptional differences between American society—as it was intended to be—and every other nation on earth.