SALEM, Ore. (March 16, 2017) – A bill introduced in the Oregon Senate would require state courts to fully inform jurors of their right to use discretion when rendering verdicts in felony trials.

Sen. Kim Thatcher (R – Keizer) introduced Senate Bill 924 (SB924) on March 2. The legislation would require the court to instruct the jury before the beginning of deliberations in all felony cases using the following language.

“As jurors, if you feel that a conviction would not be a fair or just result in this case, it is within your power to find the defendant not guilty even if you find that the state has proven the defendant’s guilt beyond a reasonable doubt.”

Failure to provide the instruction would result in a mistrial.

Passage of SB924 would ensure that jurors understand they have discretion in their decision making.

WHAT IS JURY DISCRETION?

Jury discretion is the ability to declare a defendant not guilty in a case, even when it’s clear he has violated the law in question. Juries can use this power when particular circumstances would make a guilty verdict unjust, or to defend people against laws that are themselves unjust, immoral, or unconstitutional.

Police and prosecutors can exercise discretion within their roles in the justice system. Juries should have the same opportunity. Jurors have rights courts generally don’t make them aware of. This is detrimental to the cause of justice. Jurors have the power to find 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 bills such as SB924 will help ensure that jurors understand their importance and power, all in an effort to ensure justice is served.

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.”

IN PRACTICE

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.

SB924 would change that in Oregon.

WHAT’S NEXT

SB924 was referred to the Senate Committee On Judiciary where it must pass by a majority vote before moving forward in the legislative process.


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