Every jury  in America  has the  right to reverse any law they
feel is  unjust or  unfair.   Strangely enough, they are never
informed of  this right.   Don't you think it's time they were
told?
                         JURY POWER
                    by Lynn & Judy Osburn

       reprinted from High Times magazine Sept. 1990

      The Fully Informed Jury Amendment/Initiative --FIJA/FIJI
is a grass roots movement intended to compel state governments
to require  that judges  tell juries of their power, right and
responsibility to judge whether a law is unjust or misapplied.
FIJA requires  jurors be  allowed to  hear evidence  about the
defendant's motives,  and would  reaffirm their  authority  to
acquit or convict according to the dictates of conscience.
       "Jury  nullification", as  it is sometimes called, is a
traditional American  right defended  by the Founding Fathers.
Those Patriots  intended the  jury serve as one of the tests a
law must pass before it assumes enough popular authority to be
enforced.    Thus  the  Constitution  provides  five  separate
tribunals  with   veto  power   --  representatives,   senate,
executive, judges  and jury -- that each enactment of law must
pass before  it gains the authority to punish those who choose
to violate  it.   Thomas Jefferson  said, "I consider trial by
jury as  the only  anchor yet  imagined by  man,  by  which  a
government can be held to the principles of its constitution."
     The power of the jury to judge the justice of the law and
to hold  laws invalid by a finding of "not guilty" for any law
a juror  felt was unjust or oppressive dates back to the Magna
Carta, in  1215.   At the  time of  the Magna  Carta King John
could pass any laws any time he pleased.  Judges and executive
officers, appointed and removed at his whim, were no more than
servants of the king.  The oppression became so great that the
nation rose  against the  ruler  and  the  barons  of  England
compelled their king to pledge that he would punish no freeman
for a violation of any laws without the consent of his peers.
       King  John violently protested when the Magna Carta was
shown to him, "and with a solemn oath protested, that he would
never grant  such liberties  as would  make himself  a slave."
Afterwards, fearing  seizure of his castle and the loss of his
throne, he  granted the Magna Carta to the people, placing the
liberties of  the people in their own safe-keeping.  (Echard's
History of England, p. 106-7 [Spooner])
     The Magna Carta was a gift, reluctantly bestowed upon his
subjects by  the king.   Its  sole means  of enforcement,  the
jury, often  met with  hostility from  the  Crown.    By  1664
English  juries   were  routinely   fined  for   acquitting  a
defendant.   Such was  the case in the 1670 political trial of
William Penn  for preaching  about the  Quaker religion  to an
unlawful assembly.   Four of the twelve jurors voted to acquit
and continued  to  acquit  even  after  being  imprisoned  and
starved for  four days.   The jurors were fined and imprisoned
until they paid the fines.  One juror, Edward Bushell, refused
to pay  the fine  and brought  his case  before the  Court  of
Common Pleas.   Chief  Justice Vaughan  held that jurors could
not be punished for their verdicts.  Bushell's Case (1670) was
one of  the most  important developments  in  the  common  law
history of the jury.
       Jurors  exercised their  power of nullification in 18th
century England  in trials of defendants charged with sedition
and in  mitigating death  penalty  cases.    In  the  American
Colonies jurors  refused  to  enforce  forfeitures  under  the
English Navigation  Acts.   The Colonial  jurors'  veto  power
prompted England  to extend  the jurisdiction  of the non-jury
admiralty courts  in America  beyond their  ancient limits  of
sea-going vessels.   Depriving  "the defendant of the right to
be tried by a jury which was almost certain not to convict him
[became]... the  most effective,  and therefore most disliked"
of all  the  methods  used  to  enforce  the  acts  of  trade.
(Holdsworth, A History of English Law (1938)XI, 110)
       John  Hancock, "the  wealthy Massachusetts  patriot and
smuggler who  as President of the Continental Congress affixed
the  familiar   bold  signature  which  adorns  the  parchment
Declaration of  Independence" (United States Court of Appeals,
1980, 618  F.2d 453),  was prosecuted  through this  admiralty
jurisdiction in  1768 for a fine of 9,000 pounds -- triple the
value of  the goods  aboard his sloop "Liberty" which had been
previously forfeited.  John Adams  eloquently argued  the case
chastising Parliament  for depriving  Americans of their right
to trial  by jury.   Adams later said of the juror, "it is not
only his  right, but his duty... to find the verdict according
to his  own best  understanding,  judgement,  and  conscience,
though in  direct opposition  to the  direction of  the court"
(Yale Law Journal, 1964:173).
       Earlier  in America  jury nullification had decided the
celebrated  seditious   libel  trial   of  John  Peter  Zenger
(Zenger's Case, 1735).  His newspaper had criticized the royal
governor of  New York.  The law made it a crime to publish any
statement, true  or false,  criticizing public officials, laws
or government.  The jury was only to decide if the material in
question had  been published;  the judge  was to decide if the
material was  in violation  of the statute.  The defense asked
the jury to make use of their own consciences and although the
judge ruled  that the truth was no defense, the jury acquitted
Zenger.   The jury's  nullification in this case is praised in
history textbooks as a hallmark of freedom of the press in the
United States.
       At  the time  of the  American revolution, the jury was
considered the  judge of  both  law  and  fact.    In  a  case
involving the  civil forfeiture  of private  property  by  the
state of  Georgia, first Supreme Court Chief Justice John Jay,
instructed jurors  that the  jury has  "a right...to determine
the law  as well  as the  fact in  controversy." (Georgia  vs.
Brailsford, 1794:4)
      The role of the jury in preventing government oppression
in America was recognized throughout the 1700's -- "If a juror
accepts as the law that which the judge states then that juror
has  accepted   the  exercise   of  absolute  authority  of  a
government employee and has surrendered a power and right that
once was the citizen's safeguard of liberty." (1788)(2 Elliots
Debates, 94, Bancroft, History of the Constitution, 267)
       Until the middle of the 1800's federal and state judges
often instructed  juries they  had the  right to disregard the
court's view  of the  law.   (Barkan, citing  52  Harvard  Law
Review, 582-616)   Then  northern jurors  refused  to  convict
abolitionists who  had violated  the 1850  Fugitive Slave Law.
In response  judges began  questioning jurors  to find  out if
they were  prejudiced against  the government,  dismissing any
who were.   In  1852 Lysander  Spooner, a Massachusetts lawyer
and champion of individual liberties, complained, "that courts
have repeatedly  questioned jurors  to ascertain  whether they
were prejudiced  against the  government...    The  reason  of
this...  was, that 'the Fugitive Slave Law, so called,' was so
obnoxious to  a large  portion of  the people,  as to render a
conviction  under  it  hopeless,  if  the  jurors  were  taken
indiscriminately from among the people."  Modern treatments of
abolitionism praise  these  jury  nullification  verdicts  for
helping the  antislavery cause  --  not  condemning  them  for
undermining the rule of law and the uniformity of justice.
       In  1895, the  Supreme Court, under pressure from large
corporations, ruled  in a bitter split decision that courts no
longer had to inform juries they could veto an unjust law, nor
would any  officer of the court be allowed to tell the jury of
their veto  power.   The giant  corporations had lost numerous
trials  pressed  against  labor  leaders  trying  to  organize
unions. Striking  was against  the law  at that time.  "Juries
also ruled  against corporations  in damage  suits  and  other
cases, prompting  influential  members  of  the  American  Bar
Association to  fear that  jurors were becoming too hostile to
their clients  and too  sympathetic  to  the  poor.    As  the
American Law  Review wrote  in  1892,  jurors  had  'developed
agrarian tendencies  of an  alarming character'...."  (Barkan,
Jury Nullification in Political Trials, 1983)[emphasis added]
       Despite  the courts'  refusal to inform jurors of their
historical veto power, jury nullification in liquor law trials
was a major contributing factor in ending alcohol prohibition.
(Today in  Kentucky jurors  often refuse  to convict under the
marijuana prohibition laws.)
       Fewer  incidences of jury veto actions occurred as time
increased after  the courts  began concealing  jurors'  rights
from American  citizens and falsely instructing them that they
may  consider  only  the  facts  as  admitted  by  the  court.
Researchers in  1966 found  that jury  nullification  occurred
only 8.8  percent of  the time  between  1954  and  1958,  and
suggested that  "one reason  why the  jury exercises  its very
real  power  [to  nullify]  so  sparingly  is  because  it  is
officially told it has none." (California's charge to the jury
in criminal  cases is typical: "It becomes my duty as judge to
instruct you  concerning the  law applicable to this case, and
it is  your duty  as jurors to follow the law as I shall state
it to  you.... You  are to  be governed solely by the evidence
introduced in this trial and the law as stated to you by me.")
       Counsels  for Vietnam  war protest  defendants tried to
introduce moral  and political  arguments on  the war  to gain
jury sympathy.   Most  often the  jury was  given instructions
such as  "You must apply the law that I lay down." (Conspiracy
trial of  Benjamin Spock  et al., 1969)  Jurors receiving such
instructions usually  convicted  while  feeling  the  pang  of
conscience expressed by the typical responses from Spock trial
jurors: "I had great difficulty sleeping that night...I detest
the Vietnam  war.... But  it was so clearly put by the judge."
And "I'm  convinced the Vietnam war is no good.  But we've got
a Constitution  to uphold....  Technically speaking, they were
guilty according to the judge's charge."  But in the few anti-
Vietnam war  trials where juries were allowed to hear of their
power they acquitted.
       Jury acquittals in the colonial, abolitionist and post-
bellum eras  helped  advance  political  activist  causes  and
restrained government  efforts  at  social  control.    Steven
Barkan suggests  that the refusal of judges during the Vietnam
war to  inform juries  of their  power to  disregard  the  law
frustrated the antiwar goals.  As Lysander Spooner pointed out
regarding the  questioning of  jurors to  eliminate those  who
would bring  in a  verdict according to conscience (a practice
effectively accomplished  today through  the  jurors'  oaths),
"The only  principal upon  which these questions are asked, is
this --  that no man shall be allowed to serve as juror unless
he be  ready to  enforce  any  enactment  of  the  government,
however cruel or tyrannical it may be....  A jury like that is
palpably nothing but a mere tool of oppression in the hands of
the government."
       Those  whose interests  lie in  maintaining  government
control of  social behavior  may argue  that the  Constitution
provides  the   necessary  protection   of  liberties.     But
legislatures will  always  confirm  the  constitutionality  of
their  own   acts.     And  the  oaths  sworn  to  uphold  the
Constitution by  judges and  public servants have historically
been only  as good as the power to enforce such oaths. Nor are
free elections  adequate to  prevent tyranny without jury veto
power, because  elections come  only periodically  and give no
guarantee of  repealing the  damage done.   Additionally,  the
second body  of legislators  are likely  to be  as bad  as the
first since  they are  exposed to the same temptations and use
the same tactics to gain office.
       Further, the jury's veto power protects minorities from
"the body of the people, operating by the majority against the
minority." (James  Madison, June  8, 1789)   Twelve  men taken
randomly from  the population  will represent both friends and
opponents of  the party  in power.  With fully informed juries
the government  can exercise no powers over the people without
the consent  of the  people.   Trial by  jury is  trial by the
people. When  juries are  not allowed  to judge law it becomes
trial by the government.  "In short, if the jury have no right
to judge  of the  justice of  a law  of the  government,  they
plainly can  do nothing  to protect  the  people  against  the
oppressions of  government; for there are no oppressions which
the government may not authorize by law." (Lysander Spooner)
       Ninety-five  years have  passed since the Supreme Court
ruled to  disinform the  Jury.   Zero tolerance and the War on
Drugs have  fulfilled Lysander Spooner's 1852 warning -- there
is no end to oppressions the government will legalize --unless
the "country"  (synonymous with  "jury" in  the  Middle  Ages)
vetoes them with bonafide jury power.
     Many States permit passage of laws or amendments to their
constitutions by  direct votes  of the  people (the initiative
process).   In these  States,  FIJA  will  be  a  ballot-issue
campaign.
     Elsewhere, FIJA will sponsor educational media campaigns,
encourage lobbying  to get  State legislatures to reform court
procedure, and  provide assistance  at  the  local  level  for
grassroots campaigns.   Jurors  everywhere need to be informed
of their  right and  responsibility to  judge law  as well  as
facts in court trials.
     You can help every potential juror in America to know the
truth.   Just contact  FIJA National Headquarters at: P.O. Box
59, Helmville, MT 59843.  (406)793-5550
