Jury Nullification is Consistent with the Concept of Limited Government

The Sixth Amendment to the United States Constitution provides that citizens accused of crimes have an absolute right to a speedy, public, trial by an impartial jury. But this right to trial by an independant jury trial was not invented in the United States. In an article in the British Library, Author Geoffrey Robertson remarked that the modern independent jury, and their right to jury nullification, arises out of the rights and limitations originally set forth in the Magna Carta.

Notice the difference in what Robertson indicates and what the U.S. Constitution indicates. Robertson refers to an independent jury whereas our Constitution refers in Article III, Sec. 2, simply to trial by jury, and the Sixth Amendment to an impartial jury. Is this a distinction without a difference? Does the Sixth Amendment, in using the word impartial also connote independence?

In the modern age, this concept of impartiality is most often thought of in the context of the jury’s fact-finding role, in which jurors must be “free of prejudice.” But from a historical perspective, might the word “impartial” as used in the Sixth Amendment also reference impartiality to, and independence from, the law itself?

We know that our Founders thought this right to a trial by jury as among the most important of all the enumerated rights. We know this to be true because of all of the limitations placed by our Constitution on our Government, only one appears in both the original Constitution and the Bill of Rights: the right to a jury trial in criminal cases.[i] Additionally, three of the amendments in the Bill of Rights guarantee trial by jury.  As another scholar remarked, “juries were at the heart of the Bill of Rights.”[ii]

We can assume that most high school government classes teach about this right to trial, but few U.S. Citizens really know or understand exactly why the Founders put such emphasis and priority on this right to trial. Fewer still have been taught the precise role that a jury plays in a criminal case or have any understanding of the rules the jury must follow. Unless deeply imbued in trial practice, few lawyers have thought deeply about, much less, really understand, the Constitutional role the jury is fulfilling in a criminal trial, or furthermore, why our Founders considered the right to a jury trial to be essential to limited government?

To answer these questions, it is helpful to remember that our system of government is made up of three branches which share power.  A system of checks and balances ensures that the branches do not abuse their power.  The jury system is one of those checks and balances. Because the government exists to serve the people, there has always been a question of what part citizens may play in their governance. On this topic, Jefferson wrote: “Were I called upon to decide, whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave them out of the legislative. The execution of the laws is more important than the making of them.”[iii]

The final act in the execution of the criminal law happens when the jury returns its verdict.  Thus, as Jefferson suggested, jury service is a way for citizens to directly participate in the execution, rather than the making, of our laws.  If Jefferson’s premise is accepted, it seems that criminal juries are not just a part of the executive branch, but they act as a final check and balance on its power, as well as that of the Legislative branch of government. Which then begs the question; if serving on a criminal jury is akin to serving in the executive branch of government, then in discharging this duty, just how much independence should the jury have. Must a juror execute a law they believe to be unjust, or must a juror simply “follow the law” regardless of his or her opinion of that law? Or may they act independently and “nullify” the law as a “check” on the Legislative power?

While there has never been any real debate over the jury’s role as fact finders, there has been considerable debate over the jury’s role as finders, let alone “deciders,” of the law. As indicated in the previous article in this series entitled What is Jury Nullification, in a criminal case the judge will tell the jury that they must “take the law as I give it to you.” When a jury fails to follow this instruction, this act of defiance is call “jury nullification.”  Jury nullification is the refusal of jurors to convict a defendant despite their belief in the defendant’s guilt.  The jury is thus said to “judge the law,” though more accurately the jury is judging the law’s specific application, not its general validity[iv].

Exactly why an “independent” jury would engage in this act of defiance is the subject of the next article Why Would a Jury Choose to Nullify the Law?


[i] Rubenstein, Verdicts of Conscience: Nullification and the Modern Jury Trial, 106 Colum. L. Rev. 959 (2006).

[ii] Id.

[iii] Howe, Juries as Judges of Criminal Law, 52 Harv. L. Rev. 582 (1939).

[iv] O’malley, Grenig &Lee, Federal Jury Practice and Instructions vol 1 §5:16 (6th ed., West 2006)

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