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FIJA'S SELECTED QUOTES
John Adams, who became the second U.S. President,in 1771
said of the juror: "it is not only his right, but his duty ...
to find the verdict according to his own best understanding,
judgment, and conscience, though in direct opposition to the
direction of the court." Quoted in Yale Law Journal,74
(1964):173.
Alexander Hamilton (1804): Jurors should acquit even against
the judge's instruction "... if exercising their judgment with
discretion and honesty they have a clear conviction that the
charge of the court is wrong." Quoted in Joseph Sax, Yale Review
57 (June 1968): 481-494.
John Jay, first Chief Justice, U.S. Supreme Court, in
Georgia v. Brailsford, 1794:4., said: "The jury has a right to
judge both the law as well as the fact in controversy."
Samuel Chase, Supreme Court Justice and signer of the
Declaration of Independence, 1804: "The jury has the right to
determine both the law and the facts."
Thomas Jefferson, in a letter to Thomas Paine, 1789: "I
consider trial by jury as the only anchor ever yet imagined by
man, by which a government can be held to the principles of its
constitution."
Theophilus Parsons,"a leading supporter of the Constitution
of the United States in the convention of 1788 by which
Massachusetts ratified the Constitution, appointed by President
Adams in 1801 Attorney General of the United States, but
declining that office, and becoming Chief Justice of
Massachusetts in 1806," said:
" The people themselves have it in their power effectually
to resist usurpation, without being driven to an appeal to arms.
An act of usurpation is not obligatory; it is not law; and any
man may be justified in his resistance. Let him be considered as
a criminal by the general government, yet only his fellow
citizens can convict him; they are his jury, and if they
pronounce him innocent, not all the powers of Congress can hurt
him; and innocent they certainly will pronounce him, if the
supposed law he resisted was an act of usurpation." 2 Elliot's
Debates, 94; 2 Bancroft's History of the Constitution, 267.
Quoted in Sparf and Hansen v. U.S., 156 U.S. 51 (1895),
Dissenting Opinion,: Gray, Shiras, JJ.,144.
"If a juror accepts as the law that which the judge states
then that juror has accepted the exercise of absolute authority
of a government employee and has surrendered a power and right
that once was the citizen's safeguard of liberty, -- For the
saddest epitaph which can be carved in memory of a vanished
liberty is that it was lost because its possessors failed to
stretch forth a saving hand while yet there was time." 2 Elliot's
Debates, 94, Bancroft, History of the Constitution, 267, 1788.
"...Unless the jury can exercise its community conscience
role, our judicial system will have become so inflexible that the
effect may well be a progressive radicalization of protest into
channels that will threaten the very continuance of the system
itself. To put it another way the jury is...the safety valve
that must exist if this society is to be able to accommodate
itself it its own internal stresses and strains... if the
community is to sit in the jury box, its decision cannot be
legally limited to a conscience-less application of fact to law."
William Kunstler, quoted in Franklin M. Nugent, Jury Power:
Secret Weapon Against Bad Law, revised from Youth Connection,
1988.
"Every jury in the land is tampered with and falsely
instructed by the judge when it is told it must take (or accept)
as the law that which has been given to them, or that they must
bring in a certain verdict, or that they can decide only the
facts of the case." Lord Denman, C.J. O'Connel v. R. (1884).
"For more than six hundred years--that is, since Magna
Carta, in 1215, there has been no clearer principle of English or
American constitutional law, than that, in criminal cases, it is
not only the right and duty of juries to judge what are the
facts, what is the law, and what was the moral intent of the
accused; but that it is also their right, and their primary and
paramount duty, to judge of the justice of the law, and to hold
all laws invalid, that are, in their opinion, unjust or
oppressive, and all persons guiltless in violating, or resisting
the execution of, such laws." Lysander Spooner, An Essay on the
Trial by Jury, 1852, p.11.
"In the trial of all criminal cases, the Jury shall be the
Judges of Law, as well as of fact, except that the Court may pass
upon the sufficiency of the evidence to sustain a conviction."
Article XV, section 5 of the Constitution of Maryland.
"Because of this constitutional mandate, this instruction is
given to criminal jurors in Maryland:
'Members of the Jury, this is a criminal case and under the
Constitution and the laws of the State of Maryland in a criminal
case the jury are the judges of the law as well as of the facts
in the case. So that whatever I tell you about the law while it
is intended to be helpful to you in reaching a just and proper
verdict in the case, it is not binding upon you as members of the
jury and you may accept or reject it. And you may apply the law
as you apprehend it to be in the case. '" Alan Scheflin and
Jon Van Dyke, Jury Nullification: The Contours of a Controversy,
Law and Contemporary Problems, 43, 83. (1980)
"If the jury feels the law is unjust, we recognize the
undisputed power of the jury to acquit, even if its verdict is
contrary to the law as given by a judge, and contrary to the
evidence...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 or passion, the jury has the power to
acquit, and the courts must abide by that decision." United
States v. Moylan, 4th Circuit Court of Appeals, 1969, 417 F.2d at
1006.
The jury has an "unreviewable and irreversible power... to
acquit in disregard of the instructions on the law given by the
trial judge..." "The pages of history shine on instances of the
jury's exercise of its prerogative to disregard uncontradicted
evidence and instructions of the judge," specifically citing the
Zenger case and the refusal of jurors to convict defendants under
the fugitive slave law.U.S. v. Dougherty, D.C. Circuit Court of
Appeals, 1972, 473 F.2d at 1130 and 1132. (Nevertheless, the
majority opinion held that jurors need not be told this. The
dissenting judge, Chief Judge Bazelon, thought that they ought to
be so told.)
"The arguments for opposing the nullification instruction
are, in our view, deficient because they fail to weigh the
political advantages gained by not lying to the jury." ... "What
impact will this deception have on jurors who felt coerced into
their verdict by the judge's instructions and who learn, after
trail, that they could have voted their consciences and
acquitted? Such a juror is less apt to respect the legal system."
Alan Scheflin and Jon Van Dyke, "Jury Nullification: the Contours
of a Controversy," Law and Contemporary Problems, 43, No.4,105-
106.
"In a representative government ... there is no absurdity or
contradiction, nor any arraying of the people against themselves,
in requiring that the statutes or enactments of the government
shall pass the ordeal of any number of separate tribunals, before
it shall be determined that they are to have the force of laws.
Our American constitutions have provided five of these separate
tribunals, to wit, representatives, senate, executive, ... jury,
and judges; and have made it necessary that each enactment shall
pass the ordeal of all these separate tribunals, before its
authority can be established by the punishment of those who
choose to transgress it... there is no more absurdity in giving a
jury a veto upon the laws than there is in giving a veto to each
of these other tribunals." Lysander Spooner, An Essay on the
Trial by Jury, 1852.
"In all criminal cases whatesoever, the jury shall have the
right to determine the law and the facts." Article 1, section 19
of the Indiana Constitution. Upheld, Holliday v. State 257 N.E.
579 (1970).
"It is useful to distinguish between the jury's right to
decide questions of law and its power to do so. The jury's power
to decide the law in returning a general verdict is indisputable.
The debate of the nineteenth century revolved around the question
of whether the jury had a legal and moral right to decide
questions of law." Note (anon.), The Changing Role of the Jury
in the Nineteenth Century, Yale Law Journal, 74,170 (1964).
"Underlying the conception of the jury as a bulwark against
the unjust use of governmental power were the distrust of 'legal
experts' and a faith in the ability of the common people. Upon
this faith rested the prevailing political philosophy of the
constitution-framing era: that popular control over, and
participation in, government should be maximized. Thus John
Adams stated that 'the common people...should have as complete a
control, as decisive a negative, in every judgment of a court of
judicature' as they have, through the legislature, in other
decisions of government." Note (anon.) The Changing Role of the
Jury in the Nineteenth Century, Yale Law Journal, 74, 172,(1964).
"Since natural law was thought to be accessible to the
ordinary man, the theory invited each juror to inquire for
himself whether a particular rule of law was consonant with
principles of higher law. This view is reflected in John Adams'
statement that it would be an 'absurdity' for jurors to be
required to accept the judge's view of the law, 'against their
own opinion, judgment, and conscience.'" Note (anon.) The
Changing Role of the Jury in the Nineteenth Century, Yale Law
Journal, 74, 172, (1964).
"...[T]he right of the jury to decide questions of law was
widely recognized in the colonies. In 1771, John Adams stated
unequivocally that a juror should ignore a judge's instruction on
the law if it violates fundamental principles:
'It is not only...[the juror's] right, but his duty, in
that case, to find the verdict according to his own best
understanding, judgment, and conscience, though in direct
opposition to the direction of the court.'
There is much evidence of the general acceptance of this
principle in the period immediately after the Constitution was
adopted." Note (anon.), The Changing Role of the Jury in the
Nineteenth Century, Yale Law Journal, 74, 173 (1964).
"During the first third of the nineteenth century,...judges
frequently charged juries that they were the judges of law as
well as the fact and were not bound by the judge's instructions.
A charge that the jury had the right to consider the law had a
corollary at the level of trial procedure: counsel had the right
to argue the law--its interpretation and its validity--to the
jury." Note (anon.), The Changing Role of the Jury in the
Nineteenth Century,
Yale Law Journal,74, 174,(1964).
Alexander Hamilton, acting as defense counsel in a seditious
libel case, said: "That in criminal cases, nevertheless, the
court are the constitutional advisors of the jury in matter of
law; who may compromise their conscience by lightly or rashly
disregarding that advice, but may still more compromise their
consciences by following it, if exercising their judgments with
discretion and honesty they have a clear conviction that the
charge of the court is wrong." 7 Hamilton's Works, (ed. 1886),
336-373.
New York Supreme Court Justice Kent (1803): "The true
criterion of a legal power is its capacity to produce a
definitive effect, liable neither to censure nor review. And the
verdict of not guilty in a criminal case, is, in every respect,
absolutely final. The jury are not liable to punishment, nor the
verdict to control. No attaint lies, nor can a new trial be
awarded. The exercise of this power in the jury has been
sanctioned, and upheld in constant activity, from the earliest
ages." 3 Johns Cas. 366-368. Quoted in Sparf and Hansen v. U.S.,
156 U.S.51,148-149. (1894) (Gray, Shiras, JJ, dissenting).
"Within six years after the Constitution was established,
the right of the jury, upon the general issue, to determine the
law as well as the fact in controversy, was unhesitatingly and
unqualifiedly affirmed by this court, in the first of the very
few trials by jury ever had at its bar, under the original
jurisdiction conferred upon it by the Constitution."...
"The report shows that, in a case in which there was no
controversy about the facts, the court, while stating to the jury
its unanimous opinion upon the law of the case, and reminding
them of 'the good old rule, that on questions of fact it is the
province of the jury, on questions of law it is the province of
the court to decide,' expressly informed them that 'by the same
law, which recognizes this reasonable distribution of
jurisdiction', the jury 'have nevertheless a right to take upon
themselves to judge of both, and to determine the law as well as
the fact in controversy.'" Supreme Court, Sparf and Hansen v.
U.S., 156 U.S. 51, 154-155.(1894), From the dissent by Gray and
Shiras.
"It is universally conceded that a verdict of acquittal,
although rendered against the instructions of the judge, is
final, and cannot be set aside; and consequently that the jury
have the legal power to decide for themselves the law involved in
the general issue of guilty or not guilty." From the dissent by
Gray and Shiras, Supreme Court, Sparf and Hansen v. U.S., 156
U.S. 51, 172 (1894).
" ... it is a matter of common observation, that judges and
lawyers, even the most upright, able and learned, are sometimes
too much influenced by technical rules; and that those judges who
are ... occupied in the administration of criminal justice are
apt, not only to grow severe in their sentences, but to decide
quesions of law too unfavorably to the accused.
"The jury having the undoubted and uncontrollable power to
determine for themselves the law as well as the fact by a general
verdict of acquittal, a denial by the court of their right to
exercise this power will be apt to excite in them a spirit of
jealosy and contradiction... ."
"... But a person accused of crime has a twofold protection,
in the court and the jury, against being unlawfully convicted.
If the evidence appears to the court to be insufficient in law to
warrant a conviction, the court may direct an acquittal.... But
the court can never order the jury to convict; for no one can be
found guilty, but by the judgment of his peers." From the dissent
by Gray and Shiras, Supreme Court, Sparf and Hansen v. U.S., 156
U.S. 51, 174 (1894).
"But, as the experience of history shows, it cannot be
assumed that judges will always be just and impartial, and free
from the inclination, to which even the most upright and learned
magistrates have been known to yield--from the most patriotic
motives, and with the most honest intent to promote symmetry and
accuracy in the law--of amplifying their own juristiction and
powers at the expense of those entrusted by the Constitution to
other bodies. And there is surely no reason why the chief
security of the liberty of the citizen, the judgment of his
peers, should be held less sacred in a republic than in a
monarchy." From the dissent by Gray and Shiras, Supreme Court,
Sparf and Hansen v. U.S., 156 U.S. 51, 176 (1894).
"The jury has the power to bring a verdict in the teeth of
both the law and facts." Oliver Wendell Holmes, U.S. Supreme
Court Justice, Horning v. District of Columbia, 138 (1920).
"If juries were restricted to finding facts, cases with no
disputed factual issues would be withheld from the jury. But
such cases are presented to the jury. By its general verdict of
innocence, the jury may free a person without its verdict being
subject to challenge. The judge cannot ask jurors to explain
their verdict, nor may the judge punish the jurors for it.
Although judges now generally tell jurors they must obey the
judge's instructions on the law, the jurors may not be compelled
to do so. If the jury convicts, however, the defendant is
entitled to a broad range of procedural protections to ensure
that the jury was fair and honest.
"When a jury acquits a defendant even though he or she
clearly appears to be guilty, the acquittal conveys significant
information about community attitudes and provides a guideline
for future prosecutorial discretion in the enforcement of the
laws. Because of the high acquittal rate in prohibition cases
during the 1920s and early 1930s, prohibition laws could not be
enforced. The repeal of these laws is traceable to the refusal
of juries to convict those accused of alcohol traffic." Alan
Scheflin and Jon Van Dyke, Jury Nullification: The Contours of a
Controversy, Law and Contemporary Problems, 43, No.4, 71.(1980).
"Jury acquittals in the colonial, abolitionist, and post-
bellum eras of the United States helped advance insurgent aims
and hamper government efforts at social control. Widespread jury
acquittals or hung juries during the Vietnam War might have had
the same effect. But the refusal of judges in trials of anitwar
protesters to inform juries of their power to disregard the law
helped ensure convictions, which in turn frustrated antiwar goals
and protected the government from the many repercussions that
acquittals or hung juries would have brought." Steven E. Barkan,
Jury Nullification in Political Trials, Social Problems, 31,
No.1,38, October, 1983.
"...The institution of trial by jury--especially in criminal
cases--has its hold upon public favor chiefly for two reasons.
The individual can forfeit his liberty--to say nothing of his
life--only at the hands of those who, unlike any official, are in
no wise accountable, directly or indirectly, for what they do,
and who at once separate and melt anonymously in the community
from which they came. Moreover, since if they acquit their
verdict is final, no one is likely to suffer of whose conduct
they do not morally disapprove; and this introduces a slack into
the enforcement of law, tempering its rigor by the mollifying
influence of current ethical conventions. A trial by any jury,
judge preserves neither...." Judge Learned Hand, U.S. ex rel
McCann v. Adams, 126 F.2d 774, 775-76 (2nd Circuit, 1942).
"It's easy for the public to ignore an unjust law, if the
law operates behind closed doors and out of sight. But when
jurors have to use a law to send a man to prison, they are forced
to think long and hard about the justice of the law. And when the
public reads newspaper accounts of criminal trials and
convictions, they too may think about whether the convictions are
just. As a result, jurors and spectators alike may bring to
public debate more informed interest in improving the criminal
law. Any law which makes many people uncomfortable is likely to
attract the attention of the legislature. The laws on narcotics
and abortion come to mind--and there must be others. The public
adversary trial thus provides an important mechanism for keeping
the substantive criminal law in tune with contemporary community
values." D.C. Circuit Court Judge D. Bazelon, "The Adversary
Process--Who Needs It? 12th Annual James Madison Lecture, New
York University School of Law (April, 1971), reprinted in 117
Cong. Rec. 5852, 5855 (daily ed. April 29, 1971).