“All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary.” - Constitution of the State of Idaho, Article I, Section 2Similar wording is found in most other state constitutions, in the Ninth and Tenth Amendments to the U.S. Constitution and in the Declaration of Independence. However, similar wording is not found in most school “social studies” textbooks.
American jurisprudence is built on the foundation of common law and natural rights which are firmly established in our founding documents. Any acts of government which defy common law and violate natural rights are null and void.
Jury nullification is one of the important legal and peaceful processes by which the people can resist and nullify unjust laws. It is a de facto and traditional power of juries, even though modern textbooks and judges rarely, if ever, inform people of the jury's nullification power.
The power of jury nullification derives from an inherent quality of common law - a general unwillingness to inquire into jurors' motivations during or after deliberations. A jury's ability to nullify the law is further protected by two other common law precedents: the prohibition on punishing jury members for their verdict and the prohibition on retrying defendants after an acquittal.
If the people have all power, and have at all times a right to alter, reform or abolish their government in such manner as they may think proper, then they certainly have the right of jury nullification, which is tantamount to altering or reforming their government when they come together on juries to decide cases.
A single nullification verdict against a particular law may or may not alter or reform the government, but thousands of such verdicts certainly do. Witness the decisive role of jury nullification in establishing freedom of speech and press in the American Colonies, defeating the Fugitive Slave Act and ending alcohol prohibition.
There is no doubt that jury nullification was one of the rights and powers that the people commonly exercised in 1791 when the Bill of Rights of the United States Constitution was adopted. As legal historian Lawrence Friedman has written:
In American legal theory, jury-power was enormous, and subject to few controls. There was a maxim of law that the jury was judge both of law and of fact in criminal cases. This idea was particularly strong in the first Revolutionary generation when memories of royal justice were fresh. Jury nullification is therefore one of the “rights . . . retained by the people” in the Ninth Amendment. And it is one of the “powers . . . reserved . . . to the people” in the Tenth Amendment.Jury nullification is decentralization of political power. It is the people’s most important veto in our constitutional system. The jury vote is the only time the people ever vote on the application of a real law in real life.
The vast majority (probably over 99%) of jurors are unaware of their lawful right and power to judge the justness of the law and disregard it if they felt enforcing that law would bring an unjust guilty verdict.
Wiley Drake, Pastor of First Southern Baptist Church in Buena Park, CA, was charged with violating city zoning laws because he had exercised his duty to house and care for the poor and the homeless on Church grounds. The trial judge had misinformed the jury that they cannot consider Pastor Drake’s motives or intent, nor could they judge the law. In short, the judge told the jurors that if they find that Pastor Drakes had violated the bad and unjust law, that they must convict Pastor Drake.
Well, the jurors followed the judge’s instructions and convicted Pastor Drake of the "crime" of housing and caring for the poor on his church grounds in "violation" of city zoning codes. A few days after the trial, these jurors found out that they had the right and power to judge this bad and unjust law and could have acquitted Pastor Drake.
These jurors came to Pastor Drake’s church and apologized to Pastor Drake for their misguided conviction of him. These jurors were mad at the judge for deliberately misleading the jurors into believing that they could not judge the law as well as the facts of the case.
But no apology could reverse the wrongful conviction of Pastor Drake. The Judge could have jailed Pastor Drake for up to 2 years!!! He didn’t do so only because of the huge publicity that Pastor Drake was getting in the press. Similarly, thousands of people are wrongfully charged and convicted every month for violating bad, unjust and unconscionable laws. Some day a bad law can be used against YOU!
So what is the solution for bringing justice back to our courts?
An Idaho Fully Informed Jury Act would require the judge in every trial to inform the jury of its inherent power to judge the law as well as the facts of the case before them so that no innocent man like Pastor Drake would be wrongfully convicted by a misinformed jury.
Judges would be required to add something like the following to their instructions to the jury:
"It is the duty of the court to advise you of the law, and it is your duty to consider the instructions of the court; if you find that the law or the application which the court instructs you upon is unjust, you may vote to acquit the defendant or find him not liable for damages."Would you like the legislature to pass an Idaho Fully Informed Jury Act? Forward this to candidates for state legislature and ask them to sponsor it. Do you think more Americans should know about this? Forward it to your email list.
Learn more about jury nullification:
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