Upon occasion, the topic of jury nullification arises. In post-modern thought it is typically believed to not exist and is presented as radicalized bane to our present judicial system. One can only speculate as to why that might be as it is certainly not supported by any legal history. In fact, the precise opposite may be found:
“Gentlemen, to remind you 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. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable (sic), that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.” [Georgia v. Brailsford (1794)] (1)
So, in very simple language, there you have it. It was originally understood that there were three mechanisms available to overturn an unjust law: Both Legislative and Executive authority exercised under State Sovereignty or by Jury Nullification.
Marbury vs Madison (1803) (2) created a fourth method (previously unheard of and NOT expressly authorized by the Constitution) called “Judicial Review.” (3)
And then, it gets a bit more complicated: “[I]n 1895 in Sparf v. United States, the Court said that courts need not inform jurors of their de facto right of juror nullification although jurors’ inherent right to judge the law remains unchallenged.” (4)
“In the courts of the United States, it is the duty of the jury, in criminal cases, to receive the law from the court, and to apply it as given by the court, subject to the condition that, by a general verdict, a jury of necessity determines both law and fact as compounded in the issue submitted to them in the particular case.
“In criminal cases, it is competent for the court to instruct the jury as to the legal presumptions arising from a given state of facts, but it may not, by a peremptory instruction, require the jury to find the accused guilty of the offense charged, nor of any offense less than that charged.” (5)
Some will argue that Sparf v. United States established that there is no jury nullification in federal Article 3 Courts; however, is that really what SCOTUS said? Let’s deconstruct,
“. . . [S]ubject to the condition that, by a general verdict, a jury of necessity determines both law and fact as compounded in the issue submitted to them in the particular case.” SCOTUS is very clearly saying “by a general verdict,” meaning by the established precedence, “jury . . . determines both law and fact as compounded (meaning intermixed) in the issue submitted to them . . . .” So, it is valid to presume, based on their own language, that SCOTUS said if the “law” element within the admixture of the “compound” were viewed as flawed, then the entire “compound” was flawed. I cannot see where anyone could properly assert otherwise.
After adding this to your “data base,” in the future, when anyone elects to challenge the existence of jury nullification, you might have a word in your mouth. Please comment as you like.