SALT LAKE CITY, Utah (March 15, 2017) – A Utah bill that would have required state courts to fully inform jurors of their right to use discretion in rendering verdicts died in the state House earlier this month.
Rep. Mark Roberts (R-67) introduced House Bill 332 (HB332) on Feb. 9. The legislation would have required that a jury be fully informed of the potential sentence for a guilty verdict and its power to find a defendant not guilty when a guilty verdict would be manifestly unjust.
The legislation was supported by the Libertas Institute, a Utah think-tank advancing the cause of liberty. Founder and director Connor Boyack said the bill would have ensured jurors understand that they have discretion in their decision making.
“Discretion is available for police and prosecutors, we argue it should be for juries as well.” Boyack said. “Jurors have rights of which they are not made aware—and this is detrimental to the cause of justice. Specifically, jurors can determine a person not guilty of a crime they may have actually committed, if the particular circumstances of the case create a manifest injustice.”
Passage of HB332 would have enabled attorneys or judges to ensure that jurors understand their importance and power, all in an effort to ensure justice is served.
The House rejected the measure by a 45-29 vote.
WHAT IS JURY DISCRETION?
Jury discretion is the ability to declare someone not guilty in a case, even when it is clear he has violated the law in question. Juries use this power to defend people against laws that are unjust, immoral, or unconstitutional.
This power is one of the most untapped, unknown, and powerful of any at the disposal of ordinary people to stand up to tyranny. In New Hampshire, it is known as the “Wentworth instruction, stemming from a case known as State v. Wentworth in which the defendant challenged the jury instructions on what constituted reasonable doubt.
The first Chief Justice, John Jay, stated the following to the first jury in Georgia v. Brailsford, the first Supreme Court trial held in the United States:
It may not be amiss, here, gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact controversy. On this, and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for, as on the one hand, it is presumed that juries are the best judges of facts; it is, on the other hand, presumable that the courts are the best judges of law. But still, both objects are lawfully within your power of decision.
Thomas Jefferson also defended jury discretion, writing that “if the question relates to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact. If they be mistaken, a decision against right, which is casual only, is less dangerous to the State, and less afflicting to the loser, than one which makes part of a regular and uniform system.”
In the 1969 case of United States v. Moylan, the Supreme Court yet again acknowledged the “undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence.”
Jury discretion played a noble role in combating federal slavery laws prior to the Civil War, as northern juries regularly refused to convict individuals for violations of the 1850 Fugitive Slave Act. In one instance, a large crowd broke into a Boston courtroom and rescued a runaway slave. When the government indicted three of those involved, an acquittal and a series of hung juries forced the government to drop the charges.
A recent example of juror discretion occurred in New Hampshire when Doug Darrell was arrested and charged with felonies for cultivating marijuana for religious and medical purposes. If convicted, he would have likely faced many years in prison. He was guilty by the letter of the law, but the jury decided to acquit him anyway.
While the Supreme Court admitted in Sparf v. U.S. that juries have the right to ignore a judge’s instructions in regard to law, they also held that the court is not legally bound to inform them about it.
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