Normally, during the heated (and not so heated) moments of a trial it is the attorneys who get to yell, “I object!” even if they are comfortable using it in everyday life. While it may be the attorneys who get to have all the fun in the court room, the jury is not without their own power to object. Granted, no juror is going to stand up and object in the classic sense. Rather, the jury as a group can object by deciding the outcome of the case against the weight of the evidence, or even against what the court thinks may be the “correct” outcome. This practice, known as jury nullification, is not necessarily a specific right set out to the jury, but the rare practice is seeing a resurgence in the present day.
In most cases, juries will return a verdict that is in line with what the evidence presented. Whether the decision is the same that a judge or another group of individuals would make is irrelevant. That jury, hearing that evidence, from those attorneys made a decision that they are charged with making under the Constitution. This principle is the basis of jury nullification—even if a jury thinks that a particular party is guilty, they can still choose to acquit. But, you may rightly ask, what would make a jury want to let a guilty party walk free? The main answer seems to be that jurors will allow a guilty party to walk free when they deem that the law is worse for society than the crime committed. Today, there are protections in place that ensure jurors and their decision are protected once the verdict is handed down in court. Of course, verdicts are subject to appellate review, but the jurors themselves will not be held in contempt, or face other similar charges. While these protections are in place today, juries have not always been so lucky.
While it may not have been the first instance of jury nullification, the facts leading to Bushell’s Case certainly make it one of the most well documented instances. In fact, there is a plaque commemorating the case in the Old Bailey in London, which ensures that its legacy is known and felt even today. Bushell was a juror in the case of William Penn (yes, Pennsylvania William Penn) and William Mead. Both Williams were arrested and tried for preaching a Quaker sermon, which was illegal as the Church of England was the official national church. The judge instructed the jury to return a guilty verdict for the Williams, but Bushell along with four other jurors refused to find the two guilty. The infuriated judge sent the jury back to deliberations and again instructed the jury to find the Williams guilty, but this time the jury returned a unanimous verdict, finding the Williams had merely spoken to an assembly in Gracechurch street. Now irate, the judge held the jury for two nights without “meat, drink, fire, and tobacco” to try to force them to return a guilty verdict. After this imprisonment, the jurors returned a unanimous not guilty verdict.
Now incensed by the not guilty verdict, the judge held the jury in contempt and imprisoned them until their fines for contempt were paid. William Penn noted that this was against the values of the Magna Carta, but the judge would not be deterred. Bushell and three others refused to pay the fine, and were imprisoned for nine weeks. Bushell eventually filed for a writ of habeas corpus, and Chief Justice Vaughan of the Court of Common Pleas wrote the decision of the court. Justice Vaughn set out the first protections for a jury’s verdict by holding that it is “the right of juries” to give their verdict according to their convictions. This opinion had the effect of abolishing the practice of courts that would punish juries for verdicts that the court found unacceptable. Chief Justice Vaughan while recognizing the importance of protecting jury decisions, did still note that individual jurors could be punished for any inappropriate conduct. (Of tangential interest, Chief Justice Vaughan denied the writ of habeas corpus because he thought the granting of the writ should come from the King’s Bench, but the other justices on the court granted the writ over the Chief Justice’s denial.)
Chief Justice Vaughan’s decision in the Bushell Case not only lead to the protections that exist for jurors in England, it also had an impact throughout the world since many of the British Colonies adopted the English Common Law in their jurisdictions. In the next part we will explore the impact this decision has had on court systems around the world, and will also talk about efforts in the US by groups hoping to make the practice of jury nullification more widely known.
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