Bryan Hyde is a news commentator and cohost of the Perspectives with Bryan and Kate on Fox News 1450 AM. The opinions stated in this article are solely his and not those of St. George News.
Most folks tend to view a summons for jury duty with a sense of mild frustration that their already hectic schedule has just been further complicated. But a deeper understanding of the essential role that trial by jury plays in protecting liberty could change that perception.
Our right to trial by jury can be traced back to the Magna Carta, which was a key foundation of the concept of due process under the law.
The role of the jury is mentioned in the Fifth, Sixth and Seventh Amendments of the Bill of Rights and constitutes a key check on government power within our judicial system.
In the Declaration of Independence Jefferson noted that, “…governments are instituted among men, deriving their just powers from the consent of the governed.” This means that we the people are the ultimate source of any government power. In the courtroom it makes the jury members the direct representatives of the people.
It means that the jury’s authority to render a verdict ultimately outranks even the judge whose role is primarily that of a referee to ensure that the rules and procedures are followed within the courtroom.
Chief Justice John Jay said: “It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision…you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy”.
Please read that quote again.
The jury has the power to decide not just the facts of a given case, but also to judge the law itself to ascertain whether it is being applied correctly. This means that no one may be deprived of his or her liberty without the jury’s consent.
This concept has been affirmed as recently as 1972 in US vs. Dougherty when the U.S. Court of Appeals for the District of Columbia said that the jury has an “unreviewable and irreversible power…to acquit in disregard of the instructions on the law given by the trial judge…”.
Sadly, neither the judge nor the attorneys are required to inform jurors of the actual extent of the jury’s power. Judges will occasionally attempt to intimidate or outright mislead the jury into believing that failure to follow the judge’s instructions to the letter constitutes a breach of the juror’s oath. This could include threats of holding independent-thinking jurors in contempt of court.
But jurors who know their rights and their history can stand their ground with confidence.
When William Penn faced trial in 1670 for publically preaching Quakerism, four jurors refused to convict him of “unlawful assembly.” The judge responded by ordering the jurors held without “meat, drink, fire and tobacco” for failing to find Penn guilty. An appeal to a higher court upheld the absolute right of the jurors to judge both the facts and the law and to nullify unjust laws, if they chose.
Opponents of juror’s rights will point to the O.J. Simpson trial as an example of a jury acquitting someone in the face of overwhelming evidence. And they have a valid point.
But informed jurors have historically nullified laws that required fugitive slaves to be returned to their owners as well as various other laws that were being misapplied. This power serves as a check on governmental excesses that flourish under the cover of bad laws.
Many officers of the court react violently to the idea of a jury nullifying an unjust application of the law through acquittal. The mere mention of nullification prompts the same kind of revulsion a vampire would exhibit upon being offered a glass of garlic-flavored holy water.
Justice, at its core, should not be understood as seeking to make the letter of the law prevail at all costs. Rather, it should be seen as ensuring that fairness and due process are maintained in our legal proceedings.
Citizens who wish to be more fully informed of the remarkable powers and responsibilities of the jury will find a wealth of information at www.fija.org.
We needn’t wait for our servants to tell us what our rights are.