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“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.” ~ Thomas Jefferson to Thomas Paine (1789)
“The purpose of a jury is to guard against the exercise of arbitrary power — to make available the common sense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge.” ~ Associate Justice Byron White, U.S. Supreme Court (1975)
By Pete Kennedy
Jury nullification means the right of the jury to refuse to convict if the jury believes the conviction would be unjust, even if the law and the facts of the case point towards the defendant’s guilt. Jury nullification, also known as jury independence, serves as a crucial check against government oppression and abuse of power. Nullification occurs when the jury believes either the law itself is unjust, the law is unjust as applied to the facts of the case, or the punishment is too severe for the crime.
A look at the historical backgrounds of both the 6th Amendment (guaranteeing right to jury trial in criminal cases) and the 7th Amendment (right to jury trial in civil cases) show the Founding Fathers implicitly recognized the right of jury nullification when they adopted the bill of rights. John Adams said, “It is not only his [the juror’s] right, but his duty to find the verdict according to his best understanding, judgment and conscience.” The jury is the conscience of the community. Jury nullification can serve as notice to the bureaucracy not to enforce a particular law; it can be a message to the legislature that it is time to change the law. Historical examples of jury nullification are fugitive slave laws, prohibition and, more recently, marijuana cases.
Unfortunately, because of the U.S. Supreme Court ruling in the 1895 case Sparf v. U.S., judges are under no legal obligation to either inform jurors of the right to nullify or allow defense attorneys to do the same. As a result, few judges have informed jurors of the right to nullify or have allowed defense counsel to do so; the right is something jurors have to either find out about or figure out on their own. Only a handful of states mention jury nullification in their statutes or constitution.
With the rapid decline of the rule of law, it is crucial that states pass laws requiring judges to inform jurors about the right of jury nullification. Serving on a jury is one of the most important duties of citizenship we have, especially at a time when another critical check on government power, the right to vote, is being diluted.
Juries informed about their jury nullification rights can protect against the enforcement of legally questionable lockdown orders and other COVID-related mandates.
Veteran Wisconsin litigator Elizabeth Rich, an attorney with over 30 years experience in the courts, joins the audiocast to discuss the reasons for jury nullification and its background. Then we explore how jury nullification worked in the criminal case, Wisconsin v. Hershberger, in which she represented a member of the Farm-to-Consumer Legal Defense Fund (FTCLDF).
Elizabeth Rich has a law practise in Plymouth, Wisconsin. She also is the president of the Food Freedom Foundation a 501(c)(3) nonprofit that supports the work of the Farm to Consumer Legal Defense Fund and other like minded organisations. In addition she serves as president of Andrew’s VOICE, a nonprofit dedicated to reforming the involuntary civil commitment system in the U.S..
In Let’s Go to the Movies, I recommend a short video about the 2013 case of farmer Vernon Hershberger in Sauk County, Wisconsin, which resulted in acquittal on three of four misdemeanor charges.
Book: Clay S. Conrad, Jury Nullification: The Evolution of a Doctrine. Washington, D.C.: Cato Institute, 2013
Fully Informed Jury Association (fija.org)
Andrew’s VOICE.org (andrewsvoice.org)
Victory Over Involuntary Commitment Excesses
Food Freedom Foundation (foodfreedomfoundation.org)
Farm-to-Consumer Legal Defense Fund