Zenger and the Jury

I was browsing my various news sources yesterday and came across this little tidbit. The situation is absolutely ridiculous. Apparently, a few years ago a 17 year old guy had oral sex with a 15 year old girl in the state of Georgia. The sex was completely consensual. The guy says so, witnesses say so, the girl says so... and the prosecuters agree. So why is this guy currently serving ten years in prison without a chance for parole? At the time, the girl was a minor, and so was the guy. At the time, the law in Georgia said that it was a misdemeanor for two teens to have intercourse, but it was a felony for them to have oral sex. It is undeniable that that their actions are in conflict with the law, but how does one fix this situation? This was obviously a place where jury nullification should have been applied.

In short, jury nullification is the power of a jury to acquit a person on trial if they do not agree with the law. If the people in a jury don't think a law is just (such as in the case above), they can decide to disregard the law and find a person not guilty. Why is it then, you may ask, do judges instruct juries to look only at facts and to base their decision on the letter of the law? Why are people in and around a courthouse not allowed to be informed of jury nullification? If juries have the power to nullify a law based on their conscience, why do judges instruct them to apply the law, not their conscience? To understand these questions, one must recall a bit about US history.

Our Founding Fathers, being afraid of a powerful government, made our country a federation and wrote the Bill of Rights to limit the power of government. As a result, every American today knows the three branches of government that give us separation of power: legislative, executive, and judicial. Before a law can become enacted and enforced, the law must pass through each of the branches for approval and follow a system of checks and balances. However, very often people forget that our constitution provides a fourth trial for laws to pass through: the jury.

Our constitution begins with the words "We the people", meaning that the constitution is given power "by the people" and that the government serves "for the people", to paraphrase Abraham Lincoln. After giving certain powers to the federal government, the ultimate decision on the justness of law is given to the people in the form of a trial by jury. According to our Founding Fathers, such as John Adams and John Jay, jury nullification is not just a power, but a right of the people. Look it up on Wikipedia if you don't believe me.

In that case, why has there not been more information about jury nullification in our country? Well, the power of a jury could be abused just like the power of any of the three branches of government, *cough* such as the executive. For example, nullification could be used to acquit white supremacists of murder charges, if the members of the jury were friendly to the defendant. As another example, nullification could also be used to excuse draft dodgers. The facts in the latter example are pretty clear: the law says one must serve in the military if drafted, but the person was drafted and did not serve, so he is in violation of the law. The only way to fight a draft dodging charge would be through jury nullification. Yes, nullification can be abused to acquit a guilty person, but at the same time, it can't be used to find a person guilty of a crime that they are not guilty of; a judge must overturn a guilty decision if the jury's verdict clearly contradicts the law.

Now, if jury nullification is a necessary power implied by the Constitution, but it is not endorsed by the legal system, how has it been preserved within our system? First of all, jurors cannot be punished for the decision they make on a case. Secondly, double jeopardy laws say that a person, once acquitted, cannot be tried for the same crime twice. These two points together preserve the power of a jury to nullify an unjust law.

Obviously, jury nullification isn't a power to be used lightly. Nowadays, jurors are not informed about it in the courtroom, and people aren't even allowed to pass out information about nullification near courthouses. However, this does not make any of this information less valid. Please, keep jury nullification in mind the next time you're called for jury duty, and be ready to act as a responsible citizen should.