The modern jury evolved out of the ancient custom of many ancient Germanic tribes whereby a group of men of good character was used to investigate crimes and/or judge the accused. The Anglo-Saxons, immigrants to England from Germany, created juries during the reign of Alfred the Great (849 – 899), king of Wessex, in the belief that the king and the people should share power and responsibility for justice. Anglo-Saxon juries investigated crimes, and after the Norman Conquest (1066), some parts of the country preserved juries as the means of investigation.
The jury of this period was “self-informing,” meaning it heard very little evidence or testimony in court. Instead, jurors were recruited from the locality of the dispute and were expected to know the facts before coming to court. The source of juror knowledge could include first-hand knowledge, investigation, and less reliable sources such as rumor and hearsay.
Up until this time, guilt or innocence was determined in trials by ordeal. Suspects were tested as to guilt (for example, in the ordeal of hot metal, molten metal was sometimes poured into a suspected thief’s hand. If the wound healed rapidly and well, it was believed God found the suspect innocent, and if not then the suspect was found guilty).
The modern jury trial evolved into something more like we would recognize today in the mid-12th century during the reign of Henry II (1133 – 1189) when English law was transformed from such ordeal-based systems for deciding the prevailing party in a case, especially felonies, to an evidentiary model. Juries, usually 6 or 12 men, were an “ancient institution” even then in some parts of England.
The new juries looked at evidence of fact. Called juries of presentment, laymen, knights, and ordinary freemen were sworn in under oath, and they inspected the evidence and made inquiry. These juries were adopted systematically throughout the country, and fostered methods that would eventually be known in common law countries as trial by jury.
What became apparent in the early days of juries, is that the outcome of a jury trial could be “rigged” by the jury selection process and outright fraud. What became apparent in the intervening hundreds of years is that those in power, whether a king or a legislature, could pass laws that make lawful the most egregious acts against justice (for example, the anti-Jewish laws of the Third Reich and the Jim Crow laws of the American South). What is a jury to do when it is asked to uphold a law that is just plain wrong?
One of the earliest antecedents of modern jury systems is the jury in ancient Greece, including the city-state of Athens, where records of jury courts date back to 500 BCE. These juries voted by secret ballot and were eventually granted the power to annul unconstitutional laws, thus introducing the practice of judicial review.
Jury nullification means deciding not to apply the law to the facts in a particular case by jury decision. In other words, it is “the process whereby a jury in a criminal case effectively nullifies a law by acquitting a defendant regardless of the weight of evidence against him or her.”
In the 17th and 18th centuries there was a series of such cases, starting in 1670 with the trial of the Quaker William Penn which asserted the right, or at least power, of a jury to render a verdict contrary to the facts or law. Occasionally, juries have asserted what they believed to be their “ancient right” to judge the whole case and not just the facts, and have brought in the verdict of “not guilty”.
Today in the United States, juries are instructed by the judge to follow the judge’s instructions concerning what is the law, and to render a verdict solely on the evidence presented in court. Important past exercises of nullification include cases involving slavery (Fugitive Slave Act of 1850), freedom of the press (John Peter Zenger), and freedom of religion (William Penn).
In United States v. Moylan in 1969, the Fourth Circuit Court of Appeal unanimously ruled: “If the jury feels that the law under which the defendant is accused is unjust, or exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the right to acquit, and the courts must abide that decision.” The Fully Informed Jury Association is a non-profit educational organization dedicated to informing jurors of their rights and seeking the passage of laws to require judges to inform jurors that they can and should judge the law.
In Sparf v. United States in 1895, the Supreme Court, in a 5-4 decision, held that a trial judge has no responsibility to inform the jury of the right to nullify laws.
Modern American jurisprudence is generally intolerant of the practice, and a juror can be removed from a case if the judge believes that the juror is aware of the power of nullification.
It seems to me, however, that jury nullification offers an effective strategy for forcing the courts to see most acts of juvenile parricide as something other than a common, violent adult crime. Jury nullification is a faster way around the fact that fifty separate states deal with juvenile parricide differently, even though standards of morality should be universal. Jury nullification is backed by centuries of tradition, even if the judges don’t like it.
The day must come when the complexity of parricide must be recognized by the courts and not dealt with as common crime.
Thanks to Wikipedia for the content of this post.
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