Jury nullification, or the ability of a jury to find a defendant not guilty because they disagree with law has been an important part of American history, and was successfully used by both William Penn and John Peter Zenger against British laws in the pre-Revolution period.  The most influential instance of jury nullification was in the 1735 trial of John Peter Zenger, who was charged with printing seditious libels against the British government of New York.  Under the law in the colonies, truth was not a defense to libel (the same law that Hamilton argued against in the Croswell case).  Zenger’s lawyer, Andrew Hamilton (no relation to Alexander) urged the jury to reach their own conclusions about the legal issue, notwithstanding the judge’s firm instruction.  The jury did so and acquitted Zenger completely, much to the chagrin of the British government.

In the Croswell case, Hamilton argued the case on behalf of a publisher who was charged with libel for publishing information about Thomas Jefferson.  Under the laws of New York at the time, libel was a crime regardless of the truth of the statement.  However, Hamilton argued that this interpretation of the law was incorrect and unethical.  Hamilton’s outline is interesting, both because of the points about libel and because of its focus on the jury’s responsibility to follow their conscience rather than the letter of the law.

Hamilton’s entire brief outline is below, with the passages about the power of the jury bolded :

I.—The liberty of the press consists in the right to publish with impunity truth, with good motives, for justifiable ends, though reflecting on government, magistracy, or individuals.
II.—That the allowance of this right is essential to the preservation of free government—the disallowance of it, fatal.
III.—That its abuse is to be guarded against by subjecting the exercise of it to the animadversion and control of the tribunals of justice; but that this control cannot safely be intrusted to a permanent body of magistracy, and requires the effectual co-operation of court and jury.
IV.—That to confine the jury to the mere question of publication and the application of terms, without the right of inquiry into the intent or tendency, referring to the court the exclusive right of pronouncing upon the construction, tendency, and intent of the alleged libel, is calculated to render nugatory the function of the jury; enabling the court to make a libel of any writing whatsoever, the most innocent or commendable.
V.—That it is the general rule of criminal law, that the intent constitutes the crime, and that it is equally a general rule that the intent, mind, or quo animo, is an inference of fact to be drawn by the jury.
VI.—That if there are exceptions to this rule, they are confined to cases in which not only the principal fact, but its circumstances can be and are specifically defined by statute or judicial precedent.
VII—That in respect to libel there is no such specific and precise definition of facts and circumstances to be found, that consequently it is difficult, if not impossible, to pronounce that any writing is per se and exclusive of all circumstances libellous; that its libellous character must depend on intent and tendency, the one and the other being matter of fact.
VIII.—That the definitions or descriptions of libels to be found in the books predicate them upon some malicious or mischievous intent or tendency, to expose individuals to hatred or contempt, or to occasion a disturbance or breach of the peace.
IX—That in determining the character of a libel, the truth or falsehood is in the nature of things a material ingredient, though the truth may not always be decisive, but being abused, may still admit of a malicious and mischievous intent which may constitute a libel.
X—That in the Roman law, one source of the doctrine of libel, the truth in cases interesting to the public, may be given in evidence. That the ancient statutes probably declaratory of the common law, make the falsehood an ingredient of the crime. That ancient precedents in the courts of justice correspond, and that these precedents to this day charge a malicious intent.
XI.—That the doctrine of excluding the truth as immaterial originated in a tyrannical and polluted source, the court of Star Chamber, and that though it prevailed a considerable length of time, yet there are leading precedents down to the Revolution, and even since, in which a contrary practice prevailed.
XII.—That this doctrine being against reason and natural justice, and contrary to the original principles of the common law enforced by statutory provisions, precedents which support it deserve to be considered in no better light than as malus usus which ought to be abolished.
XIII.—That in the general distribution of powers in our system of jurisprudence, the cognizance of law belongs to the court, of fact to the jury; that as often as they are not blended, the power of the court is absolute and exclusive. That in civil cases it is always so, and may rightfully be so exerted. That in criminal cases the law and fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, is intrusted with the power of deciding both law and fact.
XIV.—That this distinction results: 1, from the ancient forms of pleading in civil cases, none but special pleas being allowed in matter of law; in criminal, none but the general issue; 2, from the liability of the jury to attaint in civil cases, and the general power of the court as its substitute in granting new trials, and from the exemption of the jury from attaint in criminal cases, and the defect of power to control their verdicts by new trials, the test of every legal power being its capacity to produce a definitive effect liable neither to punishment nor control.
XV.—That in criminal cases, nevertheless, the court are the constitutional advisers of the jury in matter of law; who may compromit their conscience by lightly or rashly disregarding that advice, but may still more compromit their consciences by following it, if exercising their judgments with discretion and honesty they have a clear conviction that the charge of the court is wrong.

Jury nullification, and the influence of the jury as an institution has been on the decline.  Currently, less than 1% of criminal and civil cases actually go before a jury.  Courts routinely tell juries that they have no power to disregard or interpret the law.  This discouragement makes sense in most cases: after all, allowing juries to decide cases purely on their emotions can lead to irrational appeals and decisions made from bias.  While jury nullification may help protect defendants from unfair laws, it may also have the unwanted effect of empowering community biases and racism.

However, despite these concerns, Hamilton’s vision of the jury and their power of conscience is a powerful one.

The Economist Blog  ran a story last year about the continuing right of nullification:

Juries do not only decide guilt or innocence; they can also serve as checks on unjust laws. Judges will not tell you about your right to nullify—to vote not guilty regardless of whether the prosecution has proven its case if you believe the law at issue is unjust. They may tell you that you may only judge the facts of the case put to you and not the law. They may strike you from a jury if you do not agree under oath to do so, but the right to nullify exists. There is reason to be concerned about this power: nobody wants courtroom anarchy. But there is also reason to wield it, especially today: if you believe that nonviolent drug offenders should not go to prison, vote not guilty.

New Hampshire passed a law last June that went into effect on January 1, 2013.  This law states:

“[A] Right of Accused. In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.”

Notwithstanding the New Hampshire legislation, the overwhelming trend of cases across the country is to limit jury nullification and discharge jurors who openly state they disagree with the law.  While this may maintain uniformity and a sense of law and order, I wonder if there should still be a place for Hamilton’s vision, in instances where jurors fundamentally feel that the law creates unjust results.