COURT OPINIONS ON JURY NULLIFICATION


1. OPINIONS SUPPORTING JURY NULLIFICATION
    a.  Georgia v. Brailsford 3 U.S. 1 (Dall.) (1794)  jury nullification by John Jay

    b. Constitutions of 24 states
    c. Morisette v. United States 342 US 246 (1952)
    d. State v. Butler 153 S.E.2D 70 (NC 1967)
    e. Duncan v. Louisiana 391 US 145 (1968)
    f. United States v. Moylan 417 F.2D 1002 (1969)
    g. U. S. v. Dougherty 473 F 2nd 1113, 1139 (1972)
    h. U. S. v. Dellinger 472 F.2D 240 (7th Cir. 1972)
    i. U. S. v. Wiley 503 F.2D 106 (8th Cir. 1974)
    j. United States v. Boardman 419 F.2D 1346 (5th Cir. 1981)
    k. United states v. Trujillo 714 F.2D 102 (11th Cir. 1983)
    l. Washington v. Watkins, 655 F.2D 1346 (6th Cir. 1988)
    m. United States v. Kzyske, 836 F.2D 1013 (6th Cir (1988)

2. OPINIONS SUPPORTING COURT SIDEWALKS AND PLAZAS AS PUBLIC FORUMS FOR FREE SPEECH
    a. U. S. Constitution Amendment I
    b. U. S. v. Grace 461 U. S. 171, 177–178 (198
   c. U. S. v. Julian Heicklen, U. S. District Court, Southern District of NY, 10 CR 1154 (KMW) dismissed April 19, 2012.Judge Kimba       Wood declared courthouse plazas as free speech zones.
   d. Department of Justice does not enforce regulation against pamphlet distribution: Unlawful Distribution of Fliers on Federal Property       410 CFR, sub C Section 102–74.415(c).  Heicklen was arrested 13 times at 3 federal courthouses for doing this, but all the citations        were dismissed by the courts.
   e. Dictionary defines sidewalks as public forums. In Orlando at the Orange County Courthouse Defendants were distributing pamphlets
on the intersection of two sidewalks; one was the sidewalk connecting the court parking lot to the front of the courthouse, the other one was the sidewalk connecting the street to the rear of the courthouse.

3. Sparf & Hansen v. U. S. 156 U.S. 51 (1895)
    The case of Sparf & Hansen v. United States is quoted as the Supreme Court declaring that jurors must not be informed of their right of jury nullification. After a long and detailed discussion of the history of jury nullification, the court stated:

“The reasons to be derived from these authorities for maintaining the contested right of the jury in this regard may be summed up as follows:”

“By the Great Charter of England, and by the American constitutions, it is not by a decision of the ablest or most learned judges that the citizen can be deprived of his life or liberty, but it is only by 'the judgment of his peers,' or, in the ancient phrase, 'by his country,' — a jury taken from the body of the people.”

“The ancient forms, used before and since the adoption of the constitution, and hardly altered at the present day, in which the general issue is pleaded by the accused, and submitted to the jury, are significant. When the defendant, being arraigned upon the indictment, pleads not guilty, he is asked by the clerk of the court, 'How will you be tried?' and answers, 'By God and my country.' The oath administered to each juror as he is called and accepted is: 'You shall well and truly try and true deliverance make between our sovereign lord the king [or the state or people, or the United States, as the case may be] and the prisoner at the bar, whom you shall have in charge, according to your evidence. So help you God.' And, after the jury have been impaneled, the clerk reads the indictment to the jury, and then says to them: 'To this indictment the prisoner at the bar has pleaded not guilty, and for trial has put himself upon the country, which country you are. You are now sworn to try the issue. If he is guilty, you will say so; if not guilty, you will say so; and no more.'”

“In the maxim, 'Ad quaestionem juris respondent judices, ad quaestionem facti respondent juratores,' the word 'quaestion' denotes an issue joined by the pleadings of the parties, or otherwise stated on the record, for decision by the appropriate tribunal. Issues of law, so joined or stated, are to be decided by the judge; issues of fact, by the jury. If the accused demurs to the indictment, an issue of law only is presented, which must be decided and judgment rendered thereon by the court, and by the court alone. But, if the accused pleads generally not guilty, the only issue joined is an issue of fact, to be decided by the jury, and by the jury only, unless the jury choose to return a special verdict, so that the record may present an issue of mere law, to be decided by the court. After a verdict of guilty, again, any defense in matter of law, apparent on the record, is to be considered and decided by the court on motion in arrest of judgment.”

The above statement instructs the jury to accept the law as the judge gives it.  But it does not require the jury to uphold the law, only not to interpret it.

    In the lengthy opinion of the court pertinent paragraphs appear to be:

    “The general question as to the duty of the jury to receive the law from the court is not concluded by any direct decision of this court. But it has been often considered by other courts and by judges of high authority; and, where its determination has not been controlled by specific constitutional or statutory provisions expressly empowering the jury to determine both law and facts, the principle by which courts and juries are to be guided in the exercise of their respective functions has become firmly established. If this be true, this court should not announce a different rule, unless impelled to do so by reasons so cogent and controlling that they cannot properly be overlooked or disregarded. Some of the members of this court, after much consideration, and upon an extended review of the authorities, are of opinion that the conclusion reached by this court is erroneous, both upon principle and authority. For this reason, and because the question is of great importance in the administration of justice, and also involves human life, we deem it appropriate to state with more fullness than under other circumstances would be necessary the grounds upon which our judgment will rest, looking first to cases determined in the courts of the United States.”

    “In State v. Brailsford, 3 Dall. 1, 4, a case for the court, to decide. But it must be amicable issue, Chief Justice Jay is reported to have said: '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 in 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 best judges of facts, it is, on the other hand, presumable that the courts are the best judges of the law. But still both objects are lawfully within your power of decision.' Of the correctness of this report, Mr. Justice Curtis in U. S. v. Morris, 1 Curt. 23, 58, Fed. Cas. No. 15, 815, expressed much doubt, for the reason that the chief justice is reported as saying that, in civil cases, — and that was a civil case, — the jury had the right to decide the law, and because, also, the different parts of the charge conflict with each other; the chief justice, according to the report, saying at the outset that it is the province of the jury to decide questions of fact, and of the court to decide questions of law, and in the succeeding sentence informing the jury that they had the right to take upon themselves the determination of both law and fact. If the chief justice said that it was the province of the court to decide questions of law, and the province of the jury to decide questions of fact, he could not have said that the jury had the right, in a civil case, to judge of and determine both law and fact. 'The whole case,' Mr. Justice Curtis said,'was an anomaly. It purports to be a trial by jury in the supreme court of the United States of certain issues out of chancery; and the chief justice begins by telling the jury that the facts are all agreed, and the only question is a matter of law, and upon that the whole court were agreed. If it be correctly reported, I can only say it is not in accordance with the views of any other court, so far as I know, in this country or in England, and is certainly not in accordance with the course of the supreme court for many years.'”