The struggle between those who love liberty and those who love government boils down to a difference in commitment to the principle of equality. For centuries there were a few individuals who by virtue of their bloodline held enormous power over their fellowmen. They were called kings, princes, lords, emperors, czars, sultans, and so on. In many cases the power which these men held was virtually unchecked. They held the power to take anything from their subjects which force can take. Some countries even formally recognized this power as a divine right conferred by God for some inscrutable reason. Most kings considered themselves the masters and caretakers of their inferior subjects, much in the same way that a man is the master and caretaker of a pet dog.

A few brave men and women rose up and defied those tyrants. It wasn’t just the kings themselves that had to be dealt with; there was a host of supporters who had embraced loyalty to king as a moral duty, who fought tooth and claw to keep their position as human pets. Happily for our generation, the principle of equality gained a strong foothold and most of the kings were cast down. But the struggle over equality didn’t end there. Even here in the United States, the struggle continued. As democracy became fashionable and republics were established to take the place of kingdoms and empires, aspiring men and women saw new opportunities to seize power.

They didn’t try to call themselves kings, of course, that title had become too unpopular. Instead, they disguised themselves as the people’s representatives and then worked to convince people to give them the same powers that the kings had held. They worked to inculcate a blind acceptance of taxation as a moral duty, a right of government. They worked to seize control of the economy and “manage” the monetary supply. They expanded the power to make war, and, to our once humble republic, they grafted tentacles of empire. They worked to nationalize the education system, taxing the people to excess and then offering to give the money to the state school systems if they would adopt federal programs. Steadily they centralized power, taking it from the local governments and usurping it for themselves. It was a relatively gradual process. Every time there was a calamity of any kind, it was twisted and spun to support an ever increasing consolidation of power. War, sickness, economic troubles, crime, poverty, pollution, drug abuse, terrorism, and any other cause for alarm was used to consolidate more and more power to the federal government.

What does this have to do with equality? Each of the new powers they seized is predicated on the principle that all men are NOT created equal. These are not powers that an individual acting alone could rightfully exercise. No man has the right, for example, to insist that his neighbor fund his child’s education. No man has a right to force his neighbor to buy health insurance or give money to the poor. These powers, and others like them, are not derived from the people because the people never had them. They are powers usurped by government. Obviously the usurpation was not done by blatant appeal to force. Instead these grasping, aspiring men and women persuaded a portion of the people that they had power over their neighbors, that they somehow had the moral right to force them to support policies and programs that they liked or believed were economically expedient. They attacked the principle of equality by teaching the principle of tyranny by majority: that if they simply amassed enough votes, they could impose whatever regulation they thought best. This was a direct attack on human equality.

So here we are in the twenty-first century, and with the exception of a few figureheads and third world countries, the time of kings has nominally ended. But would our ancestors who fought so hard to throw off the yoke of kings be satisfied with our progress? We may not have kings in name, but we have men and women who claim powers typical of kings and who have far more effective methods of enforcing their commands than those ancient kings could ever have hoped for. It is high time for us to return to the principle of human equality and vote out these sneaky modern kings.

Founding-era Americans valued the right to a trial by jury as a key safeguard against tyranny. The Declaration of Independence listed denial of trial by jury as one of the “injuries and usurpations” that made it necessary to dissolve political ties with England. Later, it became a point of contention when the original draft of the constitution didn’t explicitly state the right to a jury trial. In a letter to James Madison on the subject, Thomas Jefferson wrote, “I will now add what I do not like. First the omission of a bill of rights providing clearly and without the aid of sophisms for … trials by jury in all matters of fact triable by the laws of the land.” Letter from Jefferson to Madison dated 20 Dec 1787. Jefferson’s concerns were later answered with Amendments VI and VII of the Bill of Rights: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury … In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved …”

Juries undoubtedly serve an important role in the legal system, but some people, both then and now, insist that a jury should do much more than impartially decide the facts of the case. They argue that a jury should have the power to nullify, or refuse to enforce, laws that it decides are unjust. This is called jury nullification. The basic idea is that since juries deliberate privately, and are not accountable in any way for their decision, judges have difficulty making them follow instructions and apply the written law. The practical outcome is that even if the government presents evidence proving every fact necessary under the law to establish guilt, the jury could still return a verdict of not guilty.

An organization called the Fully Informed Jury Association (FIJA) is among the most vocal supporters of jury nullification today. Its purpose statement includes the following: “The primary function of the independent juror is not, as many think, to dispense punishment to fellow citizens accused of breaking various laws, but rather to protect fellow citizens from tyrannical abuses of power by government.” And further,

When every American juror is aware of and permitted to exercise all of his and her rights, the final judgment of law will return to where it was always intended to be located…in the hands of the people. Once again our jury system will function as our country’s founders intended it to function as people’s final check against the government’s tendency to encroach upon the rights of its people.

Not surprisingly, however, jury nullification has many critics, especially among judges, and they have designed several tools to counter its use:

 Shhhhhh – No Open Argument for Nullification in Court

First and foremost is a rule in many jurisdictions that a lawyer who argues for jury nullification has committed an ethical violation—and may be subject to disbarment. Washington D.C., for example, has such a rule:

A lawyer defending a criminal case may zealously advocate for the acquittal of his client using any evidentiary argument for which he has a reasonable good faith basis. Current legal standards strongly disfavor jury nullification and prohibit express exhortations that a jury nullify the law. Accordingly, a lawyer may not, consistent with the rules of professional conduct, expressly urge a jury to disregard the law.

Opinion 320, Jury Nullification Arguments by Criminal Defense Counsel. Not only do state bar licensing organizations prohibit lawyers from openly arguing for nullification, judges explicitly instruct jurors that they must obey the judge when it comes to questions of law. For example judges in the 5^th Federal Circuit give the following instruction to jurors at the outset of criminal trials:

I will decide which rules of law apply to this case, in response to questions or objections raised by the attorneys as we go along, and also in the final instructions given to you after the evidence and arguments are completed. You must follow the law as I explain it to you whether you agree with it or not.

 5^th Circuit 2001 Jury Instructions, pg 5. (pdf)

Controlling the Evidence – The Relevance Rule

The restriction against openly asking the jury for nullification is made even more effective by restricting evidence and subsequent argument to issues deemed relevant by the judge. This means that if a lawyer attempts to present evidence that does not relate to an element of the law that the defendant is accused of violating, the opposing side can object to having that evidence presented to the jury. So, for example, if a lawyer defending a marijuana user attempted to introduce evidence that marijuana is mostly harmless to the user or that no one was directly hurt by the use, the prosecution could object and have that evidence excluded as irrelevant because it does not bear on the simple question of whether or not the defendant knowingly and voluntarily used marijuana.

Bifurcation – Dividing the Trial Into Two Parts

Another method used to combat jury nullification is to split the guilt phase and the sentencing phase of the trial into two different proceedings. The jury is first asked to determine whether the defendant did the acts of which he is accused. Only if the jury answers that question affirmatively is there any discussion of an appropriate sentence. Separating the phases of the trial helps to prevent the jurors from getting distracted from the issue of guilt or innocence by the pity and sympathy evoked by discussion of sentence severity. This tool is called bifurcation, and it is made more effective by the creation of statutory minimum sentences.

Voir Dire – Picking the Jury

Finally, judges and lawyers will almost always ask prospective jurors during the jury selection phase of the trial, called voir dire, whether or not they are willing to follow the instructions of the judge and apply the law as it is explained to them by the judge. If a juror hesitates or refuses, then the judge will strike the prospective juror and substitute a more compliant one in his or her place.

I have mixed feelings about jury nullification. Maybe, on this subject, my usual enthusiasm for libertarian ideas is dampened a little by my legal training and experience. On the one hand, I recognize that jury nullification could ideally prevent the enforcement of laws which are unconstitutional or simply unjust. But the tradeoff’s are costly. Jury nullification introduces inconsistency and inequality into a system which requires consistency and equality to function properly. In essence, it makes written law pointless. I’m not the only one who has misgivings. Judge Robert Bork called jury nullification a pernicious practice, and wrote,

To be ruled by each individual’s moral beliefs is to invite, indeed to guarantee, social tumult and disorder. The law alone is uniform, a composite or compromise of varying moral assessments, to be applied to all alike, regardless of personal attitudes … If an acceptable mix of freedom and order are to be maintained, obedience to law must be accepted as a primary moral duty.

Robert Bork, Thomas More for Our Season, 94 First Things 17-21 (June/July 1999). Judge Bork’s argument, as I understand it, is that when jurors are free to nullify the written law, the individual on trial is found guilty or not depending upon the moral and emotional reactions of the jury to the defense attorney’s presentation. This allows all of the prejudices and preconceptions of the jurors to taint the verdict, and introduces a great deal of unnecessary uncertainty into the legal system. One of the primary advantages of written law, uniformly applied, is that it helps avoid consideration of irrelevant facts, such as race, religion, gender, political affiliation, occupation, education, wealth, etc. when deciding guilt or innocence. Jury nullification, by making written law irrelevant, eliminates that advantage.

Judge James Wilson, an important member of the Constitutional Convention, also opposed jury nullification. He wrote,

In the cases and on the principles, which we have mentioned, jurors possess the power of determining legal questions. But they must determine those questions, as judges must determine them, according to law. The discretionary powers of jurors find no place for exertion here. Those powers they possess as triers of facts; because, as we have already observed, the trial of facts depends on evidence; and because the force of evidence cannot be ascertained by any general system of rules. But law, particularly the common law, is governed by precedents, and customs, and authorities, and maxims: those precedents, and customs, and authorities, and maxims are alike obligatory upon jurors as upon judges, in deciding questions of law.

James Wilson, Collected Works of James Wilson, vol. 2 The Subject Continued. Of Juries. Chapter VI (Kermit L. Hall & Mark David Hall eds. 2007). In other words, when a jury decides factual questions, we expect it to use discretion. We expect it to rely upon common sense and its members’ collective life experience to determine who is telling the truth and what really happened. But when it decides legal questions, it must apply the same “precedents, customs, authorities, and maxims” that bind judges.

The concept of obedience to precedent grows out of the belief, perhaps fanciful, perhaps not, that previous generations had some measure of wisdom to pass down to us. That the way they resolved legal issues then may be useful to us in deciding those same issues today. Obedience to precedent also grows out of the principle that the law should be consistent. That it should give fair warning to people of its expectations and requirements before penalizing them. Jury nullification necessarily disregards precedent; it gives no weight to the wisdom of past generations; it creates a situation in which no one can really predict from one case to the next whether the law will penalize behavior or not. All outcomes depend entirely upon the whim of the particular jury.

Ultimately, I guess my feelings about jury nullification are similar to my feelings about judicial activism. If jurors could be trusted to do justice rather than be ruled by emotion, prejudice, and popular feeling, then I would be happy to have them nullify unjust laws. But the simple truth is that that doesn’t happen. A good enough defense attorney can make almost any murderer to look like a Lennie Small and any thief to look like a Jean Valjean. With as many flaws as our legislative process has, I still think it is superior to a system where the law is created on an ad hoc basis by individuals or small groups. An essential part of an impartial legal system is that judges and jurors cannot be held accountable for their decisions, so the law must be made by someone else. The law must be made by individuals who are—at least in some measure—accountable to the people.