Gregory describes jury nullification in a criminal trial as what happens when a jury effectively nullifies the law in that specific case by acquitting the defendant, regardless of the weight of evidence against them.
“As a juror, it is your duty to protect our citizens by sending criminals to jail; however, if you believe the defendant is being prosecuted under an unjust law, you have the right, and the constitutional and moral obligation to protect the defendant from tyrannical government and acquit,” Gregory said.
The freshman lawmaker described the procedure as a powerful, under-utilized final check-and-balance measure that citizens have against the arbitrary exercise of power “from an out-of-control government.”
He traces jury nullification back to British law, citing the earliest case he’s aware of pertaining to when William Penn (1644–1718) was on trial for preaching in the streets. The jury found Penn innocent even though he was guilty. In response, the judge sentenced the jurors to jail for not following his instructions.
During the first century of the U.S., Gregory said it was common practice for judges to inform jurors of this right as part of their instructions. Prior to the Civil War and thanks to jury nullification, Gregory said, many were safeguarded and set free by juries when prosecuted for participating in the Underground Railroad in violation of the Fugitive Slave Act.
Gregory said the practice was also exercised in defense of many during alcohol prohibition and was instrumental in its eventual repeal.
“A juror’s right to nullification, to be judge of both the facts and the application of the law, is enumerated in our own State Constitution’s Bill of Rights,” Gregory said, quoting: “Article I, Section I, Paragraph XI. Right to trial by jury; number of jurors; selection and compensation of jurors. (a) In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts.”
Gregory said jurors can and often are excluded during “the voir dire process” simply for knowing their rights or informing others. Similarly, he said judges have been known to prevent defense attorneys from informing jurors of this right or making the case for nullification.
“This bill simply seeks to ensure that jurors are fully informed of their constitutional right to judge both the facts and the application of the law and not excluded from serving on a jury for the simple reason of being aware of this fundamental right,” he said.
Gregory’s bill, House Bill 25, is called the Fully Informed Jury Act of 2013.
Yet Marietta attorney Tom Cauthorn says jury nullification is dangerous. Cauthorn, who has practiced law for 40 years, served in the Georgia House, as a state court judge and as a Cobb Superior Court judge, describes jury nullification as the freedom of a jury to ignore a clear provision of law.
Cauthorn said the practice is not supposed to occur.
“It’s not supposed to because a Georgia jury is told in a Georgia case that they are the judges of the law and the facts, and the facts they take from the witnesses who have testified, and they judge their credibility, and the law they take from the court,” Cauthorn said. “It’s dangerous (jury nullification) because it makes results unpredictable because there’s not a standard that’s uniform.”
Cauthorn said the common law in the U.S. has been that while a jury may be the judges of the law as well as the facts, the jury takes the law from the court.
“The jury is required to evaluate the credibility of witnesses on taking the facts, but it does not evaluate the credibility of the law that it takes from the court because the law in terms of statutory law is a product of the legislature and the executive branch of government, and the law as it relates to common law principles is a product of the highest appellate court and majority opinions under the concept of ‘Stare decisis’ and binding precedent, so juries in the United States have never been permitted to disregard the legislature’s acts or to disregard the case law, the common law in applying the facts to the law,” Cauthorn said.
Cauthorn said the reason it’s not a good idea for juries to disregard the law is that it would create a subjective standard of justice.
“The way the law would be applied would vary from jury to jury,” Cauthorn said. “It wouldn’t vary from jurisdiction to jurisdiction. It would vary from jury to jury. And what would be a legal principle that would be binding on one set of parties and one jury matter would not be binding on another set of parties in another jury matter, so it would damage the predictability that we all want from an ordered form of justice.”
Cauthorn said it’s human nature that the facts are different for each criminal and civil case which therefore produces different outcomes when facts may be similar but not identical. But it’s an entirely different matter to have the standard in which the facts are applied differing with each case.
“And that’s the problem with jury nullification is because you’re taking an act of the General Assembly approved by the governor and you’re ignoring it,” Cauthorn said. “Or you’re taking a principle of law like ‘assumption of the risk,’ which is a common law principle, and you’re ignoring it because you don’t want to apply it to the facts of that case.”
Cauthorn said he knows what Gregory is contemplating with the proposed legislation.
“He’s contemplating applying it to people who are being sued or to defendants who are being charged with crimes, and he thinks that it will benefit defendants because it will give them more opportunity to be free and independent people, but the truth is it will damage the standards of behavior and conduct because nobody is going to be able to tell whether or not what they’ve done is a crime because the standard to be applied can be ignored by the jury as it nullifies the law,” Cauthorn said. “It undermines the predictability. That’s one of the beauties of the British and Anglo-American criminal justice system is that each of us has to be adequately informed in advance by the law as to conduct that’s prohibited. That’s the essence of due process. We’re put on notice. You and I both know what’s legal and illegal in Georgia. We know conduct that is prohibitive. If we are permitted to engage in that conduct and then to argue to the jury that they should ignore the statute that prohibits the conduct then there isn’t any standard expected of people from day to day and person to person and case to case and instance to instance. It depends on what jury is going to be in that jury box. If you look at it in the criminal context, it’s real dangerous.”
As for applying the concept of jury nullification to the civil cases, Cauthorn said it would make the conduct of business almost impossible.
“If you’re in a regulated industry, and you are devoting resources and time to strategies for conducting business over the coming year, and you can’t predict what conduct is permitted and isn’t permitted, and because you can’t predict which statute or regulation is going to be ignored and which is going to be enforced, then it makes the conduct of business chaotic,” he said.