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You Have More Power Than You Think

A judge probably won't inform you of this power you have as a juror.

If I were to ask you who the most powerful people in the United States are, how would you answer? The president? Congress? The Supreme Court? The real answer is jurors. I am not an attorney and I don't know if I have ever stayed at a Holiday Inn, but there are some things about the American system of justice that many in the legal profession would just prefer you not know.

Article 1, Section 1, of Georgia’s Constitution says: The right to trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party. In criminal cases, the defendant shall have a public and speedy trial by an impartial jury, and the jury shall be judges of the law and the facts.

Reread the last 11 words: "...the jury shall be judges of the law and the facts." Judges, prosecutors and defense attorneys are quick to drum into the heads of jurors that they are to base their decisions solely on the facts and evidence presented. However have you ever heard a judge instruct a jury to also judge the law? It is very doubtful, and if a defense attorney during a trial tried to inform a jury of their right to judge the law, the judge would probably slam down the gavel and possibly rule the attorney in contempt of court.

However, there is a time-honored legal concept known as "jury nullification." Despite the fact you as a juror may have been sworn in using some oath, once you are on the jury you are free to reach any verdict you choose for any reason you want without fear of repercussion. Even if the evidence overwhelmingly without a doubt proves the defendant committed the crimes he is charged with, if you as a juror feel the law itself is unjust you can vote to acquit. You, while serving as a juror, are one of the most powerful people in America.

Let's say a man is being prosecuted for possession of marijuana and the testimony and evidence presented leaves no doubt the guy had the drug. You, however, believe pot should be legal for personal consumption. You are within your rights as a juror to judge the law and vote not guilty. Maybe someone is charged with tax evasion, but you feel the tax code as written is too complicated and a burden on citizens. Once again, you can vote not guilty by refusing to apply an unfair law.

Sometimes prosecutors like to load up or multiply charges against a defendant to make their case look stronger. Perhaps a woman buys a stolen TV from a friend and is charged with receiving stolen property at her home. Prosecutors decide to also charge her with commission of a crime with a firearm just because she kept a handgun in her bedroom closet. She never retrieved the gun or used it in any way in relation to this crime, but because it was legally "within reach" (inside the home), they tacked on the charge. You as a juror might find her guilty of the stolen property charge if the evidence warrants, but let her off on the firearms charge regardless of the evidence presented or how the judge instructed you on the law.

In reality, our jury system is an important part of the checks and balances built into our form of government. Juries have veto power over what they perceive as unjust or misapplied laws, and United States history is filled with examples of juries that did just that. U.S. Supreme Court Justice and signer of the Declaration of Independence, Samuel Chase, said in 1804, "The jury has the right to judge both the law and the facts."

Under our governmental system there are times when we as citizens must be aware of our constitutional rights in order to benefit from the protections afforded us by those rights. We cannot depend on government to inform us. In 1895, the Supreme Court ruled in Sparf vs. United States that juries have a right to ignore instructions from the bench, but have no right to be informed of this right to do so. I imagine you may be scratching your head on that one.

As a juror it is easy to be led or intimidated by judges, prosecutors and attorneys into believing you must act or rule in a certain way. Just remember that any instructions presented to you as a juror by a judge are in reality only advice and that no juror's oath is enforceable. I am not advocating disobeying a judge's orders, just making you're aware that once you are chosen as a juror and are in the deliberation phase of the trial, you and your fellow jurors are the most powerful people in America. Use that power wisely.

If you would like more on this topic, there is some excellent information available at the website of the Fully Informed Jury Association.

Follow me on Twitter @chuckshiflett and also check out my statewide columns at: The Backroom Report.

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