In August of 1735, New York printer John Peter Zenger found himself on trial for the charge of “seditious libel against his Majesty’s government” for publishing stories critical of New York colonial rule. Despite the judge’s instruction to the contrary Zenger’s jury took only 10 minutes to find him not guilty of the crime, this despite the fact that he had fully admitted to the crime and claimed TRUTH as his only defense. This concept—that a jury of ones peers could be the final arbiter in the matter of what is lawful and what is not—dates back to the inception of our modern legal system at the signing of the Magna Carta by King John in 1215.
In February of 1794, during the first jury trial ever before the United States Supreme Court, Chief Justice John Jay issued these instructions to the jury in the case of the State of Georgia vs. Brailsford:
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…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.
This is a powerful notion indeed—that ordinary citizens, not politicians or police or judges or prosecutors—get to have the final say in what is right and what is wrong when it comes to matters of the law. And it’s something that juries in Georgia have done for centuries. Sometimes for good reasons, sometimes not. For instance, many states around the south, Georgia included, have in their past a sorrowful history of white juries acquitting white defendants who were clearly guilty of crimes against black people by way of jury nullification. It is this same process that is increasingly being used around the country as a means of pushing back against the flood of marijuana-related prosecutions, and it is a right guaranteed to us in our own state’s constitution.
Georgia’s constitution contains a provision that gives jurors the power to acquit a defendant accused of violating an unjust law. Article I, Section I Paragraph XI of Georgia’s constitution states:
Right to trial by jury; number of jurors; selection and compensation of jurors. (a) The right to trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party. In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts.
In 1982 the Georgia Court of Appeals, in Bryant v. State, ruled that a lower court judge’s dismissal of the jury and issuance of summary judgment against a defendant who admitted his crime on the witness stand was improper due in large part to the fact that the jury could have still acquitted the defendant if they had chosen to do so, despite his confession, and cited Georgia’s jury nullification clause as the reason.
The purpose of the above analysis of the meaning of the mandate that “the jury in all criminal cases, shall be the judges of the law and the facts” (Code Ann. § 2-108) is to illustrate that it can never be said ? in the instant case or in any case ? that the jury could not acquit the defendant if it so desired.
The concept of a jury being the judge of the law is very simple to understand: It is simply the act of a juror (or jurors) voting “not guilty” during deliberations, notwithstanding the fact that the defendant may actually be guilty of the crime he has been accused of. In other words, the juror willfully chooses to disregard both the evidence presented in the case as well as, in many cases, the instructions of the presiding judge in order to prevent an injustice due to the prosecution of a person under an unjust law.
In practicality, however, jury nullification is harder to pull off than it sounds. The first challenge is making it onto a criminal jury, and even then there is no guarantee that you will be hearing a marijuana case (though if I were the betting type I would side with marijuana arrest statistics and take my shot).
Before being allowed on a jury you will likely be asked about your ability to render an impartial verdict, and if you have aspirations of subversively disrupting what you believe to be an injustice-in-progress then you will have to decide how to reply to that question in a way that you can live with. Voir dire is the process whereby both the prosecutor and the defendant get to ask questions of potential jurors in an effort to impanel those people they believe will be the most advantageous for their side, and a prosecutor would most definitely choose to strike a potential juror whom he believed was planning to vote “not guilty” no matter what.
As we have clearly demonstrated, the idea of allowing the jury to be the final arbiter of both the facts and the law is ingrained in the very foundation of our judicial system and jury nullification is a valid demonstration that has been used for many reasons for hundreds of years in this country. That said, a person who shares their thoughts on nullification with other jurors may soon find themselves replaced by an alternate. Since many judges wrongfully believe that everything they say is to be taken as the law, one might find it more beneficial to keep their reasoning to themselves when holding to their “not guilty” vote.
A jury deliberation room can be a stressful place where emotions can sometimes get the best of people. If you plan to use your vote to thwart what you believe to be a miscarriage of justice (such as at a marijuana trial) you should know that, at some point, your fellow jurors may try very hard to compel you to give them a reason for not convicting. This is, again, a place where only you will be able to decide what (or how much) you will say. But most criminal cases, when examined objectively, leave plenty of doubt for a reasonable person to hang their hat on and it shouldn’t be too hard to name a thing or two about the case you didn’t like. Maybe you don’t put as much faith in the prosecution witnesses as the others do, or perhaps the chain of custody for the physical evidence used in the trial wasn’t complete.
Whatever bothers you about the case, you are the one that gets to decide if your doubt is reasonable or not, and by sticking to the facts of the case you stand a better chance of producing a hung jury (or maybe even an acquittal if you can articulate the facts) than if you also include your feelings on nullification which, as we said before, might get you replaced. The bottom line is that you don’t have to lie, but you are also not compelled to tell your fellow jurors anything.
This video from CGP Grey does a fantastic job of describing the concept of jury nullification. Thanks to reddit user DJr9515 for sharing it.
One of the reasons jury nullification is news to so many people is because most judges refuse to include this as an option to the jury during the charging session, leaving jurors to believe that their only option is what has been presented to them. But to ask a thinking, reasoning human being to disregard what he or she knows to be truth is not just unreasonable, it attempts to exert a level of control over the judicial process that our Founders were smart enough to see coming.
In fact, over the last few years there have been several notable jury nullification cases across the country, including this case in Wisconsin where the defendant was acquitted on charges of selling raw milk, this New Jersey case where a medical marijuana patient with bone cancer was acquitted by a jury and this landmark federal case where a retired college professor who was charged with jury tampering for handing out jury nullification pamphlets outside a federal courthouse had his charges dismissed by a federal judge.
In order to put an end to the costly trillion-dollar war on drugs it is imperative that we begin using every tool at our disposal, and none of them are more powerful on a personal level than the vote of the juror. If you have been charged with a marijuana crime or may be called on to serve on a jury for a marijuana-related trial (or know someone who has) it is vitally important that you familiarize yourself with how the judicial process works by visiting the Fully Informed Jury Association (FIJA). We have also included several helpful FIJA documents below for more information.