Hornberger's Blog

Hornberger's Blog is a daily libertarian blog written by Jacob G. Hornberger, founder and president of FFF.
Here's the RSS feed or subscribe to our FFF Email Update to receive Hornberger’s Blog daily.

Trial by Jury Protects Us from Tyranny


In my blog entry yesterday, I pointed out one of the crucial differences between the judicial system that our ancestors brought into existence with the Constitution and the model “judicial’ system that President Bush and the Pentagon have established at Guantanamo Bay. In the U.S. constitutional system, the accused has the right to have his guilt determined by ordinary citizens in the community. In the Pentagon system, the U.S. military, which brings the charges, also determines the guilt or innocence of the accused.

Why was trial by jury so important to our American ancestors? Because they knew that this right is one of the ultimate barriers to tyranny (in addition, for example, to the right to keep and bear arms).

Suppose Congress began enacting tyrannical measures against the citizenry, enforced by the president, FBI, CIA, and the Pentagon, and upheld by the Supreme Court. If the measures involved criminal prosecutions for violating such laws, juries could serve as the means by which the tyranny could be avoided peacefully.

Let’s consider a good example of tyranny: Nazi Germany. In the midst of World War II, there was a criminal case brought by German prosecutors against Hans and Sophie Scholl, two college students at the University of Munich and several of their friends in the White Rose organization.

Hans and Sophie had violated German laws by secretly publishing and distributing anti-government pamphlets in the midst of World War II. Hitler’s SS henchmen arrested them and prosecutors brought them to trial within a few days. A tribunal consisting of loyal government officials were responsible for deciding the guilt or innocence of the accused.

At the trial, which was conducted in secret, the Scholl siblings admitted having published the pamphlets. Since the law prohibited them from criticizing the government during time of war, there was no question but that they had broken the law. Since the members of the tribunal was good, rule-following, faithful, and loyal officers of the court, the defendants were quickly found guilty. They were sentenced to death and were executed within 3 days of the verdict.

If this type of thing were to happen in the United States, would the result be any different? Not if the trial were before a panel of judges or a panel of U.S. military officials, especially during a wartime “crisis.” They would simply take the position that a law, which had been duly enacted by Congress, enforced by the president, and upheld by the Supreme Court, had been violated and, therefore, the accused would have to be convicted and duly punished.

But if the trial were before a jury of ordinary citizens, the result might well be entirely different. For if the citizenry come to the conclusion that the law they were being called to enforce through their verdict wa unjust, immoral, and tyrannical, they would have another option: Acquit the defendants even though the evidence conclusively established that the defendants had violated the law.

What makes the right of trial by jury so powerful is that the jury’s verdict in a criminal case is final. If the jury finds the accused not guilty, there is nothing the judge or the prosecutor can do about it. The defendant must be — and is — immediately released from custody. He walks out of the courtroom a free person a few minutes after the jury reads its verdict of acquittal. (This is another big difference from the Pentagon’s system at Gitmo; if the accused is found not guilty, the Pentagon can continue to keep him in prison indefinitely).

So, the idea behind the right of trial by jury is that a jury of ordinary citizens from the community effectively serves as a conscience for the community. If the citizenry believes that a particular law is a bad law, that sentiment can be expressed through the acquittals of people who are prosecuted for violating it.

A good example of this process of “jury nullification” once occurred in a drug prosecution in my hometown of Laredo, Texas. The defendant took the witness stand and admitted that he had committed the drug offense, explaining that he had done it because his family was in such desperate financial straits. The jury felt sorry for the defendant and knew that the judge would impose a very high sentence on him. So, the jury acquitted him.

The federal judge flew into a rage, told the jury that they were the dumbest group of people ever serving on a jury in his court, and banned them from ever serving as jurors in his court again. But after delivering his tirade, he knew he had no choice: He discharged the defendant, who walked out of the courtroom a free man.

Of course, judges never tell juries that they have the power to judge the law as well as the facts. But the truth is that they do have that power — the power to acquit an accused no matter the facts and no matter the law. It is a power that serves as a check against the tyranny of our very own government. That’s why our ancestors expressly enshrined it within our U.S. judicial system with the Bill of Rights.

For an excellent analysis of the right of trial by jury, see Trial by Jury by Lysander Spooner.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.