There is no denying that trial by jury from its enlightened origins up until the present day has enjoyed a long and rich history. Since their introduction juries have provided the dose of human emotion and peer responsibility necessary in American courts. More importantly juries, as outlined in the Constitution’s Sixth and Seventh amendments, play a fundamental role in upholding and interpreting the laws the founders of American government outlined in that most sacred of documents. Yet, today we find it imperative to question to what extent a jury may take these laws and make them their own.
That a jury may so easily subject laws created through intense discussion and great hindsight to so capricious a dismissal leads us to question whether jury nullification in fact undermines the rule of law imbedded in the American Constitution. Seen in this light it is not strange that courts in the past and the present have discouraged it. At no time were juries conferred with lawmaking authority, yet the repeated use of jury nullification results in the altercation of laws made by the proper government bodies.
My arguments against Jury nullification revolve around two very real possibilities. First and foremost, the over-use of jury nullification would result in the weakening of the American democratic system. Secondly, jury nullification, has, can and will open the possibility of personal prejudice against the defendant by members of the jury. II. Jury Nullification and the Separation of Powers The legitimization of jury nullification could have notable consequences on the democratic and constitutional norms our country was built upon.
The founders of this country designed our government in such a way that laws came into being through a system of constant checks and balances. Elected representatives would present policy initiatives based on the opinions, needs and desires of those they represent. From there these initiatives are thoroughly taken apart and examined in a variety of committees made up of experts on the initiative being discussed. The bill is then voted on by these committees, in addition to both houses of Congress. It is through this long exhaustive process that a law finally comes into being.
Yet there are some who believe a jury made up of “everyday people from a variety of job specializations, some of which are unconnected with the science of law” (The Positives of Jury Nullification, p. 2) should be able to overturn this long process at their whim. As St. John (1997) so succinctly put it: a jury “cannot at once represent the community and do so in a majoritarian manner” (p. 2564). And as Thomas Jefferson (1801) once wrote, “The knowledge of character possessed by a single individual is of necessity limited. ”
The Unaccountable Nature of Juries Probably the most glaring error in this way of thinking is that juries are totally unaccountable for their decisions. There is no check on the jury and its integrants. Nor is there transparency in their decision making process as in government bodies responsible for law making. Haynie (1997) claims that “Since jury acquittals are never subject to appellate review, a ``not guilty?? verdict will always be final regardless of the jury's reasoning or its interpretation of the facts” (p. 350).
This is the de facto nature of jury nullification. The stopper put on this extraordinary power up until now has been the tendency of courts to forbid the knowledge of jury nullification to be made known to members of a jury. In fact, “The prevailing view among jurisdictions is that affirmative instruction on the ability to nullify would lead to lawlessness in the jury decision-making process” (Haynie, 1997, p. 350). In addition, the whole nature of secrecy and privacy surrounding jury deliberations is a red light against jury nullification.
Leipold claims that “In an effort to protect the jury's right to acquit for any reason it wants, courts have created an elaborate series of rules that prevent the public from looking behind a verdict to the jury's reasoning” (Leipold, 1997, p. 31). The unaccountable and hidden nature of jury decisions should automatically place jury nullification out of their hands. It goes against the very principles of law making in this country. As St. John claims, “Juries, by their nature, are not politically accountable”. This was clearly decided in the English Court in 1670 on the Bushell Case as outlined by the opposing party.