A Constitutional Jury Power Kept Secret

By James Donahue

We were astounded when we recently discovered an organization called The Fully Informed Jury Association, a group of people pressing for laws to force judges and criminal lawyers to reveal the full power of juries to all people who gather to decide a criminal trial.

In addition to determining if a defendant is guilty or innocent, and deciding the degree of guilt involved, juries also have the right, if its members feel necessary, to excuse a criminal case by going so far as nullifying the law under which that person has been charged.

Jury nullification of law, as it is sometimes called, is a traditional right established by our founding fathers who believed that all branches of government, including juries, must test a law before it can be enforced.

A jury also has the power to determine that a defendant in a criminal case has been improperly charged by the wrong law.

A well-written review of the history of American law that appeared in the Mendocino College Eagle, 1995, noted that "it was normal procedure in the early days of our country to inform juries of their rights to judge and law and the defendant. . . The nation's founders understood that trials by juries of ordinary citizens, fully informed of their powers as jurors, would confine the government to its proper role as the servant, not the master, of the people."

Like all good and balanced portions of what was once a brilliant creation of government by brilliant men who carefully drafted it, the rights of jurors also have been selectively and carefully eroded by people who would be in a position for financial gain if jurors could be stopped from nullification of law.

In the late 1800s a number of "special interest groups" pressed for some judicial decisions that attempted to limit jury rights. While the courts never granted total denial of the nullification right, they have held that jurors don't need to be told about these rights.

Some states have since passed laws prohibiting courts from telling jurors about the right of nullification. And it is now believed that thousands of harmless citizens are in prison because the jurors who heard their cases were not fully informed. For example, because of its tough anti-marijuana laws, the U.S. now leads the world in the number of citizens, per-capita, either being incarcerated in jails or prisons, or serving probationary time under control of the courts.

The hiding of the nullification clause goes even deeper than jurors merely not being told.

In contemporary trials, during the jury selection, judges and prosecutors will strike "for cause" anyone that states a disagreement with the law. Judges tell juries that even if they disagree with the law, if the defendant is found to have broken it, the juries must convict. Judges also have been known to hold anyone who attempts to inform juries of their right to judge the law "in contempt of court" and charge them with jury tampering.

The mission of the Fully Informed Jury Association (FIJA) is to reveal this long hidden and forgotten tool jurors were given by their Founding Fathers designed to keep government from overstepping its legitimate role in our society. It has been an uphill battle, and has been waged now for more than a decade.

The lawyers operating the courts and the judges should not be allowed to strike potential jurors because they declare disagreement with the law. It is their job to judge not only the defendant, but the law itself. All jurors should be informed about these duties.