Friday, April 17, 2020

The right of trial by jury

  One of the best things that our American ancestors did was to include the right of trial by jury in the Bill of Rights. The Fifth Amendment states in part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial an impartial jury of the state and district wherein the crime shall have been committed.”

  Notice something important about this particular provision: It reflects that our American ancestors were convinced that the federal government would deprive them of this right if they didn’t expressly protect it in the Bill of Rights. In other words, in the absence of an express provision guaranteeing this important procedural right, the federal government would run criminal trials like it does in Cuba—by kangaroo military tribunal—or where federal judges, many of whom today are former federal prosecutors, would be determining the guilt of the accused.

  Thus, it is clear that while our American ancestors approved the Constitution, which brought the federal government into existence, they still did not trust the U.S. government. They obviously viewed federal officials with extreme suspicion and concern, which is reflected by their demand that people who would be targeted by federal officials with criminal prosecution would be guaranteed the right to have their guilt or innocence determined by their fellow citizens in the community rather than by some jaded and cynical pro-prosecution judge or by some kangaroo military tribunal.

  In a federal criminal trial that is being tried by jury, the federal judge instructs the jury that its job is to determine the facts in assessing whether to find the defendant guilty. He also instructs them that they do not have the authority to judge the law that the defendant is being charged with violating. They do not have the authority, he tells them, to judge the law itself.

  It’s a lie. In fact, the jury has the authority to judge both the facts and the law in determining the guilt or innocence of the accused. The jury has the authority to acquit a defendant for any reason it wants, including a determination that the law that the accused is charged with violating is a bad law.

  In 1973, in my hometown of Laredo, Texas, there was a jury trial in federal court involving a Laredo man who was charged with possession of marijuana. The defendant took the witness stand and confessed his guilt. He said that he did it because he needed the money to support his wife and children.

  The federal judge, who was from Houston, was a hard-nosed, law-and-order judge who had a reputation for meting out high jail sentences in drug cases. Thus, the jury knew that if they convicted the guy, he would end up serving a long term in a federal penitentiary.

  Even though the man had openly confessed his guilt, the judge was prohibited from simply issuing an instructed verdict as judges are authorized to do in civil cases. Under the Constitution, the case had to be given to the jury, notwithstanding the fact that the facts were not in dispute. That is how powerful the right of trial by jury is.

  The jury returned to the courtroom and announced its verdict: Not guilty. The federal judge was outraged. He berated the jury, telling them, “You have destroyed the effect of the law and the result that the law is designed to achieve.” He instructed the court clerk to remove their names from the jury pool list and told them that they would never serve as jurors in his court again.

  But notice something important: There was nothing the judge could do to alter the verdict, notwithstanding the fact that the defendant had openly confessed his crime. Once the jury returned with its verdict of acquittal, that was the end of the case. No matter how angry and outraged the judge was, he had to let the defendant walk out of the courtroom a free man. Moreover, he could not punish the jury with fine or imprisonment. They were free to go home too.

  Our American ancestors understood the importance of giving a jury in a criminal case full and complete authority to determine the guilt or innocence of the accused. They viewed the jury box as one of the bastions against tyranny.

  Suppose, for example, the government began rounding up Muslims or Jews and made it a criminal offense to hide them. A person is caught violating the law. When the case comes to trial, the jury, which can reflect the conscience of the community, concludes that the law itself is tyrannical and returns with a not guilty verdict. The verdict cannot be used as a precedent in other criminal prosecutions, but it sends a powerful message to the government: Get rid of this tyrannical law.

  Some people say that the Constitution has failed to constrain the federal government. They are right with respect to the welfare-warfare state under which Americans now live. They are also right with respect to the Pentagon’s and CIA’s prison, torture, and “judicial” center in Cuba. But when it comes to protecting the right of trial by jury here within the United States, the Constitution has worked remarkably well.

  About the author: Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.

  This article was published by The Future of Freedom Foundation.

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