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Trial by Jury


After a nine-month trial, the jury found O.J. Simpson not guilty of the murders of Nicole Brown Simpson and Ronald Goldman. There was anger and outrage among most white Americans. The evidence clearly seemed to point to the defendant’s guilt. The feeling was that a jury composed largely of black Americans acquitted Simpson simply due to his race.

Amidst all the cries for “jury reform” in the aftermath of the Simpson case, it is important to examine the nature and purpose of trial by jury in criminal cases.

The Constitution called our national government into existence in 1787. That document clearly stated that, unlike all other governments in history, this government would be one of specific, enumerated powers. If the power was not enumerated, the government was prohibited from exercising it.

But the citizenry was not satisfied with that safeguard. They knew that it was the natural tendency of government officials — even elected ones — to exercise ever-expanding control over people’s lives and fortunes. And they knew what government officials had done throughout history to those who resisted or opposed their power: imprisonment, fines, torture, and even death.

Thus, the American people demanded a safeguard, which essentially said this: Even though the Constitution specifies the limited powers that the national government may exercise, to be safe, we are adding ten amendments to the Constitution that make the limited powers of U.S. government officials even clearer.

Americans recognized that it was to be a vital function of government to protect people from the violence of others — that is, to punish people who murdered, raped, stole, etc. But they also recognized that government officials would be tempted to use these powers against their enemies who had committed no crime. Thus, Americans ensured the passage of the Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution. The principles protected by these amendments stretched back to ancient England: trial by jury; protection from unreasonable searches and seizures; reasonable bail; the confrontation of witnesses; protection from self-incrimination; protection from double jeopardy, and so forth.

Relatively few Americans understand the true purpose of trial by jury and the real power of juries in criminal cases. And part of the reason for this lack of understanding lies in the following fact: Judges across America lie to the juries about the true nature of their power .

Juries in criminal cases, of course, have the power to judge the facts of the case. They decide whether the accused is guilty or not guilty of the offense charged. This is the standard instruction given to them by the judge.

But juries have much more power than that. They also have the power to judge the law in every single criminal case. That is, if the jury believes that a law is unconscionable or unconstitutional or immoral or evil, the jury has the right to acquit the accused — even if the evidence establishes beyond any doubt that he committed the act.

Why is this power so important? Because the whole purpose behind trial by jury was that ordinary citizens would be one of the last bastions against governmental tyranny.

For example, assume that Congress passes an evil and oppressive law — i.e., that all Orientals are now required to secure a license before operating any business. The president decides that the law is unconstitutional and vetoes it. The Congress, deciding that the law is constitutional, votes to override the veto. The Supreme Court, in a close decision, holds that the Congress has the power to regulate economic activity — it upholds the constitutionality of the law.

Is this the end of the matter? No. Because the government must now bring criminal proceedings against Orientals who, having been deprived of a license, are continuing to try to sustain their lives by unlawfully operating their businesses. And the jury in each particular case has the power to decide the constitutionality and the morality of the law. The jury can vote to acquit the accused even though he admittedly has violated the law. And under principles of double jeopardy, the accused cannot be tried again for the same offense.

In other words, the jury is the conscience of the community, standing as one of the final safeguards in the system.

Many lawyers and judges respond: “But this power would result in anarchy.” There are two fallacies with their reasoning. First, the power already exists — it has existed for two hundred years — it clearly has not resulted in anarchy. Second, a jury verdict of not guilty does not serve as precedent for future cases. Only judicial decisions on matters of law (mostly from appellate courts — after an accused has been convicted) serve as precedents. So, if a jury in one case acquits an Oriental because the jury finds the law abhorrent, a jury in another case involving identical facts must make its own determination as to the rightness and morality of the law.

Imagine what trial by jury could have accomplished in Nazi Germany, for example. If every person who had been accused of a crime had been entitled to a jury trial, the jury could have nullified the Nazi edicts and laws by simply voting to acquit the defendants.

But central to this entire idea is this: the jury is ultimately in charge — it has the power to acquit regardless of the wishes or demands of the judge or anyone else. That is, the jury has the power to render a verdict for which the jurors cannot be punished. Their verdict is final.

For example, jury trials in Nazi Germany would have done little good if the jury could be sent to jail or otherwise punished for rendering the wrong verdict. If the jury must do what the judge orders it to do, then the jury simply becomes an instrument of the tyranny — a rubber stamp for it — rather than a barrier against it. This was pointed out by the great 19th-century lawyer Lysander Spooner in his brilliant work, An Essay on the Trial by Jury (1852):

The only principle upon which these questions are asked [by a judge], is this — that no man shall be allowed to serve as a juror, unless he be ready to enforce any enactment of the government, however cruel or tyrannical it may be. What is such a jury good for, as a protection against the tyranny of the government? A jury like that is palpably nothing but a mere tool of oppression in the hands of the government. A trial by such a jury is really a trial by the government itself — and not a trial by the country — because it is a trial only by men specially selected by the government for their readiness to enforce its own tyrannical measures. If that be the true principle of trial by jury, the trial is utterly worthless as a security to liberty. The Czar might, with perfect safety to his authority, introduce the trial by jury into Russia, if he could but be permitted to select his jurors from those who were ready to maintain his laws, without regard to their injustice.

Where does trial by jury come from? It actually goes back much further than the Constitution. It stretches all the way back to the year 1215 — to Magna Carta. The king of England had claimed total power over the lives and fortunes of his subjects. With Magna Carta, the great barons of England — at the point of the sword — exacted an admission from King John that his powers were, in fact, limited. The language of the Great Charter states in part:

No freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or outlawed, or exiled, or in any manner destroyed, nor will we [the king] pass upon him, nor condemn him, unless by the judgment of his peers, or the law of the land.

No one — lawyers, non-lawyers, and judges alike — disputes that American juries do, indeed, have the power to nullify unconscionable laws through acquittal of the accused — and that they cannot be punished for doing so. Therefore, what is the problem?

The problem is that 20th-century judges — state and federal alike — lie to the jurors by instructing them that they must accept the law as given to them by the judge. The judge tells jurors that their sole power is to judge the facts and that they lack the power to judge the law. Most jurors enter the jury room not realizing that the judge has lied to them. They do not know that they are one of the final barriers to governmental tyranny. They do not know that their power over the accused — not the judge’s power — is ultimate. They do not know that they have the power to acquit the accused if they believe that the law that he is charged with violating is evil and oppressive. They do not know that the judge cannot punish them for voting their conscience.

Was this always the case? No. Throughout the 19th century, American judges told juries the truth — that they did, in fact, have the power to decide not simply the facts of the case but the justness of the law, as well. But beginning in the late 1800s and continuing throughout the 20th century, judges began lying to the juries. And the citizenry, having lost the spirit and knowledge of liberty that guided their ancestors, did not know any better.

Why are knowledge and awareness of this power so important today? Because if jurors knew the truth about their power, many people who are prosecuted for economic or political crimes would be acquitted. Jurors, serving as a palladium of liberty, could vote to acquit people accused of violating drug laws, gun controls, licensing restrictions, environmental edicts, and other laws that proscribe peaceful behavior.

What does this power have to do with the Simpson case? It is difficult to say. Possibly nothing. O.J. Simpson was charged with murder. By finding Simpson not guilty, the jury was clearly not saying that laws against murder are evil and oppressive. Instead, the verdict turned on two different possibilities: one, after hearing all the evidence, the jury had a reasonable doubt as to the defendant’s guilt; or, two, even though the evidence established the defendant’s guilt beyond a reasonable doubt, the jury voted to acquit because the defendant was black.

It is important to remember that under the presumption of innocence, Simpson walked into the courtroom an innocent man — as innocent as you and I. It was the duty of the state to prove its case beyond a reasonable doubt. If it failed to do so, in the eyes of the jury, the jury had no choice but to acquit. It was not sufficient that the jury believe that Simpson probably committed the murders. It was not sufficient that Simpson failed to find the “real” killers. Unless the state proved his guilt to a moral certainty, the jury had to acquit him.

One big problem is that police officers, over the years, have become accustomed to lying in criminal cases. Any defense attorney can point to any number of instances where cops have lied, especially in hearings on motions to suppress evidence, to make sure that a “guilty” person does not go free. In fact, when the police failed to secure a warrant to search Simpson’s house (something that every first-year law student knows is a virtual necessity), their story was that they were trying to protect Simpson from the real killer. Their story did not ring true — it had an air of falsehood about it. Then later, policeman Mark Fuhrman, a principle witness for the state, was caught red-handed lying about never having referred to blacks as “niggers.” Moreover, after decades of police abuse, blacks in the ghettos have as serious a distrust of local police as many middle-class whites have of the BATF, the DEA, and the FBI.

Having permitted and even encouraged cops to lie over the years in order “to get their man,” prosecutors and judges now must face the consequences. When a person who very well may have committed a crime is brought to trial, many of the police witnesses against him are admittedly dishonest individuals — people who have implicitly been taught that it is okay to commit perjury and to manufacture evidence against the accused. Thus, if the jury has this knowledge, the burden on the state is even larger than ordinary — the state must convince the jury that in this case the cops really are telling the truth. The burden is comparable to a U.S. Attorney’s telling a white, middle-class jury that FBI and BATF agents, despite governmental perjury in the Randy Weaver case, are not lying in this case.

Is it possible that the Simpson jury voted to acquit solely on the basis of race? Of course. We should remember, however, that there were three non-blacks on the jury; they could have “hung” the jury by steadfastly voting to convict. But even if the verdict was perverted, it serves as no precedent in future cases.

Trial by jury is certainly not perfect. But as someone long ago put it, it is better that ten guilty people go free than one innocent person be found guilty. Properly understood, trial by jury is one of our most cherished safeguards of liberty.

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    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.