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It is in the news that someone is being prosecuted for holding up a placard stating: “Jurors: you have an absolute right to acquit a defendant according to your conscience.” outside the crown court while it was hearing a trial relating to direct action by climate protesters.

Is this statement true? I have always believed it to be true, and it appears to be based on case law from Bushel's Case from 1670. However Mr Justice Cavanagh is quoted as denying this right:

It is not the case in any trial that jurors can acquit by their conscience if by that it is meant that they can disregard the evidence and directions given by the judge and decide on their own beliefs whether a defendant is guilty of a criminal offence.

Is this a decided legal question? Do we know for sure if juries have the right to give their verdict according to their convictions?

William Penn and William Mead plaque at the Old Bailey. William Penn and William Mead plaque at the Old Bailey

Transcription of the text of the above photo, from openplaques.org:

Near this site William Penn and William Mead were tried in 1670 for preaching to an unlawful assembly in Grace Church Street. This tablet commemorates the courage and endurance of the jury, Thos Vere, Edward Bushell and ten others who refused to give a verdict against them although locked up without food for two nights and were fined for their final verdict of not guilty. The case of these jurymen was reviewed on a Writ of Habeas Corpus and Chief Justice Vaughan delivered the opinion of the Court which established"The Right of Juries" to give their verdict according to their convictions.

Andrew Morton
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User65535
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    'someone is being prosecuted for holding up a placard stating: “Jurors: you have an absolute right to acquit a defendant according to your conscience.”': is it a jury trial? – phoog Aug 17 '23 at 08:15
  • https://en.wikipedia.org/wiki/James_Carnegie_of_Finhaven – Joshua Aug 17 '23 at 17:50
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    The issue seems to be one close to attempted jury tampering: the jurors swear "I will faithfully try the defendant and give a true verdict according to the evidence" and the signs seem designed to encourage the jurors to take other considerations into account. Other related issues include externally telling jurors things not raised in court. Those questions are not affected by the fact that jurors cannot be punished for their verdicts: jurors can still be punished for actions such as doing internet research about the case outside the courtroom. – Henry Aug 17 '23 at 19:39
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    This is a very old argument. The King wanted oppressive laws, so he told the people "I'll pick the judges now." And picked ones who would do what he wanted, regardless of public opinion. The people rebelled eventually and demanded juries of their peers, under the theory that they would refuse to enforce anything unreasonable. Those who inherited governance from the King have been trying to undo that ever since by making potential jury members promise to enforce the law "as written", even if they think it unjust. The better question is, "if it's not a right, then why bother with a jury?" – Perkins Aug 17 '23 at 22:10
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    But the use of juries was not because of a rebellion by "the people". While the barons at Runnymede may have wanted it for themselves; by and large jury trials obtained more convictions than ordeal or compurgation. The King hadn't been picking triers of fact in England at least. When juries were introduced, they could (for a long time) be told what to do by a sufficiently motivated Royal power. – Francis Davey Aug 18 '23 at 07:54
  • https://www.youtube.com/watch?v=uqH_Y1TupoQ – stickynotememo Aug 19 '23 at 01:34

4 Answers4

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It is a de facto power, not a right

In Hohfeldian terms, the jury's ability to nullify is a de facto power not a right (see Wesley Newcomb Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning" (1929) Yale L.J. 16, pp. 44–54).

The Supreme Court of Canada has recognized this distinction. While acknowledging that there can be a proper role for jury nullification, and that a jury has this de facto power, the Court rejected the proposition that this is a "right." See R. v. Latimer, 2001 SCC 1 (internal citations removed, emphasis from original):

58 This Court has referred to the jury’s power to nullify as “the citizen’s ultimate protection against oppressive laws and the oppressive enforcement of the law” and it has characterized the jury nullification power as a “safety valve” for exceptional cases. At the same time, however, Dickson C.J. warned that “recognizing this reality [that a jury may nullify] is a far cry from suggesting that counsel may encourage a jury to ignore a law they do not support or to tell a jury that it has a right to do so."

See also R. v. Morgentaler, [1998] 1 S.C.R. 30 (emphasis mine):

It is no doubt true that juries have a de facto power to disregard the law as stated to the jury by the judge. We cannot enter the jury room. The jury is never called upon to explain the reasons which lie behind a verdict. It may even be true that in some limited circumstances the private decision of a jury to refuse to apply the law will constitute, in the words of a Law Reform Commission of Canada working paper, "the citizen's ultimate protection against oppressive laws and the oppressive enforcement of the law". ...

...

The difference between accepting the reality of de facto discretion in applying the law and elevating such discretion to the level of a right was stated clearly by the United States Court of Appeals, District of Columbia Circuit, in United States v. Dougherty, 473 F.2d 1113 (1972) ...

Likewise, the accused does not have a right to a jury that might nullify (Latimer):

68 The appellant’s second argument is a broad one, that the accused person has some right to jury nullification. How could there be any such “right”? As a matter of logic and principle, the law cannot encourage jury nullification. When it occurs, it may be appropriate to acknowledge that occurrence. But, to echo the words of Morgentaler (1988), saying that jury nullification may occur is distant from deliberately allowing the defence to argue it before a jury or letting a judge raise the possibility of nullification in his or her instructions to the jury.

69 The appellant concedes as much, but advances some right, on the part of the accused person, to a jury whose power to nullify is not undermined. He suggests the right to a fair trial under s. 7 of the Charter encompasses this entitlement. The appellant submits that there is a jury power to nullify, and it would be unconstitutional to undermine that power.

70 We reject that proposition. The appellant cannot legitimately rely on a broad right to jury nullification. In this case, the trial did not become unfair simply because the trial judge undermined the jury’s de facto power to nullify. ...

Jen
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  • If a jury found that a defendant had committed the overt acts alleged, but that the defendant had made a bona fide effort to follow vague and confusing rules, and had done so as well as could be reasonably expected of anyone, would an acquittal on that basis constitute "nullification" or something else? I would think jurors have not just a right but a duty to acquit in such cases, although I would not expect the State to inform them of that. – supercat Aug 18 '23 at 20:58
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    @supercat Not all offenses care about that sort of thing. There are strict liability offenses. You did the thing, you're guilty, end of story. Statutory rape is a common one in the US: does not matter if you thought they were of age, if you were told they were of age, if a (fake) id indicated they were of age, usually not even if you were coerced/raped matters, etc.; they were underage as a fact, you had sex with them as a fact, therefore you are guilty as a fact. For those that do, the attorneys would have already argued such defenses during the case, and the jury would decide it. – zibadawa timmy Aug 19 '23 at 18:29
  • @zibadawatimmy: Even with strict liability offenses, it would often be implausible that legislators would not have intended some exceptions in some rare cases, especially those which the legislature could not plausibly have foreseen. For example, if a plane carrying contraband happens to crash on someone's property throug now fault of the owner, a literal reading of a strict-liability possession statute might justify prosecuting the owner, but the legislature's failure to anticipate the possibility of such a plane crash hardly implies an intention to criminalize possession in such cases. – supercat Aug 21 '23 at 17:46
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yes, the jury can do this as a fact, if not as a right.

Jury Nullification / Jury Equity is a thing. The jury might see the most guilty person who even admits the deed, but they may still decide "They're not guilty." They might do so for any reason, but it is less a right they have to be informed about but a simple result of their power not to convict: once they put in a verdict of not guilty that's it.

The Cavanagh quote however says not that they can't do this. It says they can't disregard the evidence and judge's instruction in doing so. It's a call to follow the established procedures and not use the extraordinary means of jury nullification. It's not a right, it's just a power they have.

But informing people about it can be tampering with a Jury

Standing in front of a Courthouse with such a sign can give rise to jury tampering, and result in the jury being dismissed and replaced, or even a trial without a jury held instead.

Trish
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    I think the heading from the Canada answer applies here: its a de-facto power, not a right. – Paul Johnson Aug 17 '23 at 10:57
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    In the US; the prosecutors have found they must always bail out of prosecuting somebody holding up a sign for jury tampering, for one simple reason. They can't prevent the sign from being entered into evidence. – Joshua Aug 17 '23 at 17:46
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    Given that jury nullification basically is: "We, the jury, choose to disregard the evidence in favor of deciding by our conscience". Does this not imply that there also exists a reverse version, where the jury declares somebody guilty on the grounds that the defendant is morally contemptible even though they did not actually commit a crime? – Frodyne Aug 18 '23 at 09:47
  • @Frodyne that is just as much Jury nullification. – Trish Aug 18 '23 at 09:54
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    @Frodyne AIUI the difference is when a jury acquits someone that is final. Whereas when a jury convicts someone that can be appealed. – Peter Green Aug 18 '23 at 15:10
  • With regards the Cavanagh quote the jurors in the Bushell case disregarded the evidence and judge's instruction in finding William Penn and William Mead not guilty. It is described as '"The Right of Juries" to give their verdict according to their convictions' in the plaque. – User65535 Aug 19 '23 at 06:10
  • @PeterGreen Can't the prosecution appeal an acquittal? – Dai Aug 19 '23 at 14:32
  • @Dai No. Not guilty verdicts are final under double jeopardy - unless you can prove someone tampered with the jury, there is no way to redo the trial. – Trish Aug 19 '23 at 14:34
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    @Dai In the US, it's as Trish says. Double jeopardy protections prevent appeals of acquittals, except in cases of tampering with the judge and/or jury (if the outcome was rigged, you were never in jeopardy). Indeed, this is one of the constitutional powers/rights from which the power of jury nullification is derived in the US. – zibadawa timmy Aug 19 '23 at 18:35
  • @Trish Isn't that only for criminal cases prosecuted by the state/feds though? What about in civil trials? – Dai Aug 19 '23 at 18:56
  • @Dai No. It's the same. – Trish Aug 19 '23 at 18:58
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This is sort of like telling witnesses, “You have an absolute right to testify that you don’t remember something, and no one will ever be able to prove beyond a reasonable doubt that you were lying.” They are not supposed to. It’s just that you can’t get caught and punished for pretending not to remember something unless you’re completely stupid, or for voting the wrong way on a jury at all. Jurors and witnesses take an oath not to do those things, the judicial system can only function if they take that seriously, and telling them not to will be interpreted as an attempt to disrupt the trial.

Despite this, there are several celebrated trials where the jurors refused to convict because they considered the law unjust. The most famous was the trial of John Peter Zenger in 1735. There are also, however, some famous trials where a jury refused to convict someone for a lynching solely because the victim was Black, such as in the cases of Emmitt TIll and Medgar Evers.

Davislor
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  • Your last paragraph is key to understanding why this is not only a de facto power, as determined by the courts, but a duty of citizen jurors as a check on potentially unjust laws, prosecutors or law enforcement in a free society. – Wyrmwood Aug 18 '23 at 15:07
  • @Wyrmwood but it is not a right - more of a power – Trish Aug 18 '23 at 15:26
  • @Trish With respect to the courts, yes, it is not a right, rather is recognized as a power, but freedom minded citizens recognize it as a duty. – Wyrmwood Aug 18 '23 at 15:27
  • @Wyrmwood: Indeed, many issues regarding the "reasonableness" of police conduct would be quickly resolved if jurors were informed that while a judge would seek to prevent prosecutors from presenting evidence that was gathered in patently unreasonable fashion, jurors also had a duty to exercise their own judgment as to whether an officer conducting a a search made a good faith effort to perform it in "reasonable" fashion, and refrain from applying against the defendant any evidence that was gathered in unreasonable fashion. – supercat Aug 18 '23 at 21:08
  • @Wyrmwood: When evaluating searches that have already taken place, there might be some close judgment calls, but cops who know that jurors may be scrutinizing their conduct would have a strong incentive to refrain from borderline conduct. – supercat Aug 18 '23 at 21:11
  • Sometimes homicides are ruled justified in self-defense. Someone might therefore say, based on that, that freedom-loving people have an absolute right, nay, a duty, to kill people who deserve it. – Davislor Aug 19 '23 at 12:51
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    Condoleezza Rice, bachelor's degree from the University of Denver. Master's degree from the University of Notre Dame. PhD from the School of International Studies at the University of Denver. Academic fellowship at Stanford University, where she later served as provost from 1993 to 1999. *"I cannot recall."* – Mazura Aug 19 '23 at 18:07
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    unless you’re completely stupid is how she got away with that, because she is OBVIOUSLY not. – Mazura Aug 19 '23 at 18:15
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    @supercat The defense would have already argued those and the judge would have ruled on them, as the validity of the search is an issue of law, not fact. The judge decides the law, the jury decides the facts (and then applies them to the law as given by the judge). Errors by the judge on this matter would be issues for appeals. But all evidence will require testimony during the trial, as well, and juries are free to decide if a given witness is credible or not. – zibadawa timmy Aug 19 '23 at 18:43
  • If a cop claims to have seen something, but the defendant claims the cop is lying, and if the search would be valid if and only if the cop is telling the truth, how is the truthfulness of the cop's claims not a matter of fact? – supercat Aug 21 '23 at 05:19
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It’s not so much a right, as inherit in the position — you can’t have someone making a decision that you then punish them for making and then truthfully say they were free to make the decision.

“Ladies and Gentlemen of the jury, here’s the defendant, we will show he is guilty of the crime of X. If not convicted, all of you will spend the next 99 years in jail. What is your verdict?”

Absent criminal conduct (bribery, conspiracy), neither the prosecution nor the jury can be punished for “failure to prosecute or convict”, without turning the idea of innocence and trial into a joke.

jmoreno
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