By: Mike Maharrey
NASHVILLE, Tenn. (Feb. 22, 2021) – Bills filed in the Tennessee legislature would require state courts to fully inform jurors of their right to use discretion in rendering verdicts.
Sen. Frank Nicely (R-Strawberry Plains) filed Senate Bill 833 (SB833) on Feb. 9. Rep. Todd Warner (R -Chapel Hill) filed a companion, House Bill 1375 (HB1375) in the House on Feb 22. Under the proposed law, courts would be required to fully inform jurors of their rights at the request of a defendant’s attorney using the following language.
“If you have a reasonable doubt as to whether the state has proven any one (1) or more of the elements of the crime charged, you must find the defendant not guilty. However, if you find that the state has proven all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty. Even if you find that the state has proven all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case, a guilty verdict will yield an unjust result, and you may find the defendant not guilty.”
Police and prosecutors already have the ability to exercise discretion as they fulfill their duties in the American justice system. For instance, police officers can let a person go and prosecutors can decline to press charges if specific circumstances warrant it. Juries have the same discretion, but often don’t know it. In simple terms. Jurors have rights of which they are not made aware—and this is detrimental to the cause of justice.
Passage of SB833/HB1375 would ensure there is a process in place to fully inform jurors of their rights and responsibilities.
WHAT IS JURY DISCRETION?
Jury discretion is the ability to declare someone not guilty in a case, even when it is clear the defendant has violated the letter of the law in question. Juries use this power to defend people against laws that are unjust, immoral, or unconstitutional. The practice has sometimes been referred to as jury nullification.
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. More recently, Louisiana prosecutors had to reduce charges in a felony marijuana case after nearly 2-dozen potential jurors balked at criminal charges for illegal possession and none were left in the pool for the day.
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.
SB833/HB1375 would change that in Tennessee.
SB833 was referred to the Senate Judiciary Committee where it must pass by a majority vote before moving forward in the legislative process. HB1375 had not been referred to a committee at the time of this report.