OK! You have been summoned for jury duty ("petty jury") for a trial in federal court. Here are a few things you need to know:

1. Art. III, Sec. 2, cl. 1, U.S. Constitution, shows that the federal courts are granted permission to hear several categories of cases. You may be called to be a juror in either a "criminal" case or a "civil" case.

a) A criminal case would most likely involve an alleged violation of the U.S. (i.e., federal) criminal code.

b) A civil case would most likely involve a case between citizens residing in different States over some non-criminal issue as breach of contract, negligence, etc.

2. The issue of jury nullification arises in criminal cases where Defendant is charged with an unjust, unfair, or unconstitutional federal law. (E.g., the "crime" of failing to buy health insurance.). Here is the Issue: Even if the Prosecutor proves beyond a reasonable doubt that Defendant failed to buy health insurance, do you, as a Juror, have the Right - or the Duty - to refuse to convict?

a) The Prosecutor & the Judge insist that you do NOT have that Right! In fact, the Judge is most likely to instruct you that if you find - as a matter of FACT - that Defendant failed to buy health insurance, then you MUST find him guilty.

b) Defense counsel desperately wants to tell you that the Judge is lying to you, and wants to tell you about your Right - really, your "Duty" - of Jury Nullification. BUT JUDGES DO NOT ALLOW US TO SO INFORM YOU! They will jail us for contempt before we can tell you.

3. So I will show you here that Jurors have the Right of Nullification in criminal cases in federal courts. Art. III, Sec. 2, last clause, U.S. Constitution, says:

"The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury..."

Now note the entry for "Jury" in Webster's 1828 Dictionary:

"...Petty juries, consisting usually of twelve men, attend courts to try matters of fact in civil causes, and to decide both the law and the fact in criminal prosecutions..." [emphasis added]

So! When Our Constitution was ratified, our Framers understood that Jurors had the Right to decide the law in criminal trials! This means that the Jurors have the Right to judge the "law". And if you find the law unfair, unreasonable, unconstitutional, unfairly applied, that Defendant has been unfairly singled out , or whatever; then you have the right - the Duty, really - (in a criminal case) to find the Defendant NOT GUILTY.

Alexander Hamilton, a lawyer, was well aware of the problem of unjust criminal statutes. He says in Federalist No. 83 (12th para):

"... arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings...." [emphasis added]

4. Note well: The Judge will probably require you to take an Oath that you will follow the Law as s/he explains it to you and that if you find that Defendant violated the Statute, then you MUST find him guilty.

If you say anything about "judging the law" or "is the Statute under which Defendant is charged constitutional", then the Prosecutor will kick you off the Jury.   However, and this is important:  Both counsel have the right to ask you questions during "voir dire" to determine whether you will be a good Juror for their side.  You are under Oath to tell the Truth when you are being so questioned.  So, if the prosecutor asks you about "Jury Nullification", do you know about it, do you agree with it,  YOU MUST TELL THE TRUTH!  You don't want to be tried for perjury.   

But you have the right to assume that the Judge is fair & impartial and will obey the Constitution (since s/he took an Oath to do so - Art. VI, clauses 2 & 3). So, when you take the Juror's Oath, you have the right to assume that the Judge will obey the Constitution.

But once you are seated, and find out what Defendant is charged with, and hear the evidence, and then go into the Jury Room to deliberate; then you must do as your conscience dictates.

5. Here is a very good short article written by a law professor at Regent Law School in Virginia Beach, Virginia: "Jurors' Handbook A Citizens Guide to Jury Duty":

There is much on that web site. I had concerns about some of the stuff, and I didn't have time to read everything on the site since I want to get this to Bruce ASAP. But what the law professor says in the linked paper is Right On! PH

Tags: Judging the Law, Jury Nullification

Views: 44

Replies to This Discussion

I was informed last night that my service has been re-scheduled to next Tuesday.  I'm still hoping for the opportunity to get a criminal trial.  I'll keep you posted next week as to whether I serve and/or how it turns out.

Thanks for the update.  I feared you hadn't had time to read my essay.  Which I thought a shame, since I dropped what I was doing & changed my plans so I could give you a timely answer.

Here is a paper on Congress' power to make criminal laws: http://publiushuldah.wordpress.com/2009/06/29/us-criminal-code/

Re: "YOU MUST TELL THE TRUTH! You don't want to be tried for perjury."


In this age of spying, data base selling, and gathering of Intell...

What are the chances of a court officer (judge or prosecutor) having access to a list of former members of FIJA or people on their old mailing lists? .. or, for that matter, people in TPN?



Well, David, you put your finger on the problem:  When both lawyers are questioning the prospective Jurors, if a prospective Juror says that he agrees with Jury Nullification in criminal cases, the prosecutor will challenge him for cause and the Juror will be removed from the panel and sent home. 

If the prosecutor asks a prospective Juror directly if he agrees with Jury Nullification, the Prospective Juror needs to tell the Truth (otherwise, he might be prosecuted for perjury).  However, the Prospective Juror can answer the question in such a way that he influences everyone else in the Jury pool.  I should work up a short script [needs to be short b/c the judge will cut it short]

If the prosecutor doesn't ask, you don't have to tell.

Yes, in this internet age, both lawyers will be doing internet searches of the names on the prospective Jury Panel as soon as they get the list.

And when the Judge makes you promise that you will apply the law as he explains it to you, I think you have the right to assume that the judge knows the difference between a constitutional & unconstitutional law, that he knows the Constitution, etc.   So you have the right to assume that he will correctly explain the law to you.

But if (to your shock & horror) you later learn that the law is unconstitutional (as outside the scope of Congress' legislative powers, etc.) or is just stupid or unfair, or is being unfairly applied, etc., you may find the Defendant, "Not Guilty".  Just be very careful about what you say to the other Jurors.  You don't want to go in there and babble about "Jury Nullification", b/c counsel in many jurisdictions may question the jurors after the trial is over.  (Lawyers like to do this b/c it helps them understand why they won or lost.)   So you would say things to the other Jurors like, "Well, I can't in good conscience find Defendant Guilty"; "If we find him Guilty", I won't be able to look in the mirror".

I catch the drift.
But by adding f jury nullification, to the many other verboten items (religious conviction, racial bigotry, age prejudice, economic and class bias, etc.) aren't prosecuting attorneys and courts reducing the pool of potential jurors even more by excluding people with knowledge of and interest in the US Constitution?

I have heard and seen the phrase "jury of one's peers" derided many times because of the large spectrum of criteria used to eliminate jurors. The opinion is often expressed that nobody of any substance or intellect would allow themselves to be inconvenienced by having to serve on a jury. All they have to do is feign having "extreme" political, social, religious, or just plain crazy views about almost anything, be dismissed, and go back to work (or whatever interests them more than serving on a jury). The opinion then follows that only idle dummies serve on juries.

The prosecutors want stupid people on the Jury b/c they are more easily manipulated.   Yes, the idea is to exclude Jurors with brains. But I think defense counsel wants Jurors who are intelligent.  I sure did.

Re avoiding Jury duty:  Serving on a criminal jury is one's highest civic duty.  Properly understood, the Juror sits as judge over the Law made by the Legislative Branch, and judge over the Judicial Branch. 

Mark Twain made a comment about the exclusion from Juries of people who are intelligent and informed, so this is an old problem!

If any of you are ever called, do NOT try to get out of it!

I have been called up for jury duty 3 three times, I showed and when questioned about jury nullification, I state that I believe that both the law and the defendant are on trial the defendant for breaking the law, and was the law properly applied.


Do this often enough and you get to go home and not have to deal with the state sponsored slavery called jury duty.

NO!   Consider your hands whacked by my virtual ruler.

Jurors are there FOR THE CITIZENS (or other parties) in the litigation, be they defendants in a criminal case or parties to a civil suit.  The idea is that citizens are to judge citizens; and in criminal cases, citizens are also to judge the law.  When one shirks jury duty - which is his civic obligation to judge his fellows and the law when called upon to do so - he is in effect relinquishing his POWER to the government:  "I don't want to be bothered with judging my fellow citizens and the law (in criminal cases) - let the government do it.  Or let people who are less worthy than I do it."

If YOU ever have the misfortune to be a party to litigation, whether criminal or civil, you may understand that what you have said is destructive of the very foundation of civil liberty.  Jury duty is the exact opposite of "state sponsored slavery" - it is the sine qua non of Liberty.

It might interest you to know that in every trial I have been in or seen, counsel STAND UP every time the Jury enters or leaves the Courtroom.  Why?  Because we understand that THEY are the ones holding the real power in the proceedings.  Not the Judge.

In other words, Joseph...

If you love Liberty, you have shot yourself in the foot 3 times by talking you way out of jury duty. 

It may be an inconvenient and annoying process, but it is one of the few times in your life you will ever have and use real POWER to preserve the Freedom you (hopefully) value. 

Jury duty is not slavery.  It is your Freedom and POWER. 

Ducking out of jury duty is free-loading on Liberty and giving your power away to the STATE.




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