The Criminal Defense Lawyer's Dream Juror

Anne Reed of Deliberations writes about the Fully Informed Jury Association and their core belief that:

The highest and best function of the jury is not, as many think, to dispense punishment to fellow citizens guilty of breaking the law, but rather to protect fellow citizens from tyrannical prosecutions and bad laws imposed by a power-hungry government.

Absolutely it is. In 1735 the Governor of New York jailed John Peter Zenger for daring to publicly criticize him. Seditious Libel was a crime, not a civil tort, and truth was not yet an available defense. 

The defendant was slam-dunk guilty. He had printed his complaints against the Governor. And all that had to be proven for a conviction was that he had criticized the government; not even that his argument lacked merit. So the original Philadelphia lawyer Andrew Hamilton argued – in essence – jury nullification:

 

Men who injure and oppress the people under their administration provoke them to cry out and complain, and then make that very complaint the foundation for new oppressions and prosecutions…

 

The question before the court, and you, gentlemen of the jury, is not of small nor private concern; it is not the cause of a poor printer, nor of New York alone, which you are now trying. No! It may, in its consequence, affect every free man that lives under a British government on the main continent of America.

 

It is the best cause; it is the cause of liberty; and I make no doubt but your upright conduct, this day, will not only entitle you to the love and esteem of your fellow citizen, but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny, and, by an impartial and uncorrupt verdict, have laid a noble foundation for securing to ourselves, our posterity, and our neighbors that to which nature and the laws of our country have given us a right … the liberty of both exposing and opposing arbitrary power (in these parts of the world at least) by speaking and writing truth.

 

Not Guilty.

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Anne Reed - November 12, 2008 2:59 PM

Jamie, what a great quote.

To the extent I'm concerned, it's the "speaking and writing truth" part that concerns me. A juror who works to conceal his interest in jury nullification in order to get on the jury isn't off to a very good start on that score. Any thoughts on that part of it?

Jamie - November 13, 2008 12:22 AM

I think the "speaking and writing truth" part of the quote is the lawyer arguing that the jury should take into consideration that what his client said was true, and therefore should acquit, even though the law itself did not allow for that as a defense.

Therefore, it was a jury nullification argument.

Personally I don't think anyone should be jailed for simply saying or printing anything, whether it's true or not, but then again this is decades before the First Amendment.

But are you're asking whether I would want a venireperson to openly admit, say, his personal bias against the War on Drug Users and automatically get himself kicked off my POCS jury?

Can't say that I would.

But I think in context of the quote it's apples and oranges. Or am I missing something? (I'm prone to that.)

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