The general consensus among Supreme Court historians seems to be that nothing much interesting happened in our nation’s highest court prior to Marbury v. Madison, when Chief Justice Marshall first asserted the doctrine of judicial review. It’s true that not many important opinions were written prior to 1800. In fact, the Supreme Court didn’t seem to be doing much of anything back then. One notable exception was Chief Justice John Jay’s majority opinion in Georgia v. Brailsford (1794). This case asserts for the first time in U.S. history a jury’s right to nullify a verdict. Jay wrote that “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 [juries] have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy”.
Jury nullification can best be defined as a jury’s right to ignore a law it doesn’t like. There was a long tradition of juror nullification in English Common Law that continued in Colonial America. The best known case is that of John Peter Zenger, who was accused of seditious libel for publishing a newspaper critical of New York’s English Colonial Governor. The jury refused to convict him, though the facts and the law were not much in doubt.
The Founding Fathers believed in juror nullification. Here is what John Adams had to say about a juror:
“It is not only his right but also his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
Things have changed. Courts don’t like to tell juries that they can do what they want. This was especially true in the late 2oth century. In U.S. v. Moylan, decided by the Fourth Circuit Court of Appeals in 1969, the court asserted a jury’s right to nullification, but said a trial judge couldn’t tell them that they had the right! Confusing, to say the least.
The Supreme Court hasn’t addressed this issue for a while. So, the law of the land when it comes to jury nullification seems to be “Don’t ask, don’t tell”.
