Jury Nullification and The Hacker
by Also Sprach Zarathustra
As you start reading this article, the first thought in many of your minds will be "Jury What?"
If this is the case, don't feel bad. Likely a good 95 percent of the population has never heard of it either, and of the five percent who have, about half are busy trying to keep anyone else from finding out about it. Which leaves me as part of the roughly two percent trying to get the word out. So here it is, and shouts to the Fully Informed Jury Association for this data. I couldn't have done it without you.
What is Jury Nullification/Jury Veto?
Jury Nullification, also sometimes called Jury Veto, is the little known "third option" for a jury in a criminal case.
In addition to convicting or acquitting on basis of evidence, the jury may choose to acquit a defendant on basis of their conscience. That's right, boys and girls, a jury can choose to acquit a defendant because they feel the law is wrong. This right is a fundamental part of the Constitution and the Bill of Rights, which states in three places (once in the Constitution proper and twice in the Bill of Rights), the jury's right to try both the evidence and the law.
This right has also been supported in numerous Supreme Court rulings, as well as in lower courts.
History of Jury Nullification
The concept of a jury's ability to override the law goes back to the Magna Carta of 1215 in Britain, which was used by the nobles of the time to check King John's excesses.
This power was reaffirmed in British common law in the case of William Penn in 1670. Penn was accused of preaching Quaker religious doctrine, at that time a criminal offense. His jurors voted to acquit, and four of them continued to do so even after being jailed and fined - held until the fines were paid. One of the jurors, Edward Bushel, took his case to court, and the English high court found for him, denying the state the right to harass or fine jurors for acquitting on basis of conscience.
In the New World, this subject was pivotal in bringing about the Revolutionary War. A journalist, John Peter Zenger, was put on trial for publishing disparaging articles about the Governor of New York Colony; further, the judge informed the jurors that "The truth was no defense" in cases of libel!
Defense Attorney Alexander Hamilton, however, informed the jury otherwise, citing the Bushel and Penn cases, and the jury acquitted in just over fifteen minutes. In retaliation, the British revoked the right to trial by jury in the colonies, starting a chain of events that culminated in the American Revolution.
This power of the jury was exercised fairly often through the late 18th and 19th century and, in fact, judges were required to inform juries of it until nearly the end of the 1800s. It began to fall into decline, however, shortly before the Civil War.
Northern juries often chose to acquit in cases involving the Fugitive Slave law, and enraged Southerners started looking for a way to stem the tide. However, it took the weight of (((massive corporations))) (sound familiar?) to muzzle the courts and deny the knowledge of this right to juries.
To help stop acquittal of labor leaders (going on strike being against the law at that time), a group of large corporate employers pressured the Supreme Court in Sparf and Hansen v. United States (1895) to a bitterly split decision. It was no longer grounds for a mistrial if judges failed to inform the jury of their right to nullify.
Naturally, judges took this as free rein to go mum on the subject and, in recent years, the courts have gone further, falsely declaring to the jurors that they were to decide based solely on the facts, not on the justness of the law. Today, outside of a few states where it is still required by law to inform the jury of these rights, no judge or prosecutor will tell them and, more often than not, any defense attorney who mentions the subject will be stifled with threats of contempt of court.
Jury nullification of law was quite common during Prohibition, with or without the court's permission. Many people simply refused to convict of crimes that were not criminal. More recently, similar situations occur in Kentucky regarding marijuana law.
However, outside of a couple of states (Maryland and one or two others - surf around, I'm sure you can find out which), there is no requirement to inform jurors of their true degree of power, and thus, it is rarely exercised.
But What Does It Mean To Me?
What this means is simple.
Should you ever be put on trial for violating one of the extremely ill-considered laws on the books regarding computer offenses, try to educate your lawyer on this subject or find one knowledgeable about it.
Most juries, given a chance, will not convict if they feel, deep down, that what you did wasn't wrong. And what's wrong with taking apart something just to see how it works? People do it to stereos, cars, bicycles, and everything else, so why not software? And if you're ever called for jury duty, remember this, and if the law is wrong, vote to acquit.
During deliberations, inform your fellow jurors of their power. And while you're at it, visit www.fija.org, the homepage of the Fully Informed Juror Association, for further information, and free fliers.