Glenn E. Meyer said:
They have to state that they will follow the law as presented to them.
That's correct. It's technically not the legal requirement, but judges and lawyers like to pretend it is. This is what jury nullification is all about.
Several years ago I was called for jury duty. I had been called twice before. Both previous times, voir dire was conducted individually and I wasn't selected for an actual trial. My state's jury system is "one day or one trial," so both times I went home at the end of the one day and my duty was done for the next 'X' years.
The last time, voir dire was initially conducted as a group. One of the questions asked of the group was, "If anyone would have a problem applying the law
as explained to you by the judge, raise your hand." We were under oath, so I raised my hand.
Boy Howdy! What a circus! After one or two follow-up questions, they shooed all the other prospective jurors out of the courtroom and the attorneys for both sides of the case (it was a civil case, not criminal) ganged up on me about how I HAD to follow the judge's instructions on the law. I know that's not correct, and I told them so.
So they stuck me in a little anteroom for about half an hour. I periodically heard voices from the courtroom. Finally, they brought me back in to face a woman judge they had dredged up from somewhere, and she proceeded to harangue me about how I had to follow a judge's explanation of the law. And I explained to her that John Jay, the first Chief Justice of the Supreme Court, had said just the opposite, and that what he said had never been reversed. The judge told me that my understanding of history was flawed and that I should go home and do some research. With that, I was discharged.
So I went home, and I looked up John Jay's very well-known instruction to the jury in the case of
Georgia v. Brailsford. What he said was:
John Jay said:
It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.
This was in 1794. I haven't looked it up recently, but there was a subsequent case before the Supreme Court in which (as I understand it) the SCOTUS affirmed the principle that juries may, in fact, judge the law as well as the facts of the case, but that judges aren't required to
tell jurors that they have that right. As my incident demonstrated clearly, neither attorneys nor judges really want people on juries who can think. I knew this going in -- if I hadn't been under oath, I would not have raised my hand.
I should perhaps note that I wrote to the judge who sent me home to "do my homework," citing
Georgia v. Brailsford as the basis for my belief that jurors are empowered to judge the law as well as the facts. She didn't have the courtesy to even acknowledge my letter.
