Common law precedent Jury nullification

even prior bushel s case, sir nicholas throckmorton, non-episcopalian english dissenter or nonconformist outside of established church of england, acquitted jury, despite hostility of judges.

the history of juries supports recognition of de facto power of nullification. 12th century, common law courts in england began using juries more administrative duties. juries composed of laymen local community. provided efficient means of dispute resolution benefit of supplying legitimacy.

the general power of juries decide on verdicts recognised in english magna carta of 1215, put words existing practices:

no free man shall captured, , or imprisoned, or disseised of freehold, , or of liberties, or of free customs, or outlawed, or exiled, or in way destroyed, nor proceed against him force or proceed against him arms, lawful judgment of peers, or law of land.

for trivial offence, free man shall fined in proportion degree of offence, , serious offence correspondingly, not heavily deprive him of livelihood. in same way, merchant shall spared merchandise, , husbandman implements of husbandry, if fall upon mercy of royal court. none of these fines shall imposed except assessment on oath of reputable men of neighbourhood.

largely, earliest juries returned verdicts in accordance judge or crown. achieved either packing jury or writ of attaint . juries packed hand-selecting or bribing jury return desired verdict. common tactic in cases involving treason or sedition. in addition, writ of attaint allowed judge retry case in front of second jury when judge believed first jury returned false verdict . if second jury returned different verdict, verdict imposed , first jury imprisoned or fined.

this history, however, marked number of notable exceptions. in 1554, jury acquitted sir nicholas throckmorton, severely punished court. century later in 1649, in first known attempt argue jury nullification, jury likewise acquitted john lilburne part in inciting rebellion against cromwell regime. theoretician , politician eduard bernstein wrote of lilburne s trial:

his contention constitution of court contrary fundamental laws of country unheeded, , claim jury legally entitled judge not matters of fact application of law itself, judges represented norman intruders , whom jury might here ignore in reaching verdict, described enraged judge damnable, blasphemous heresy . view not shared jury, which, after 3 days hearing, acquitted lilburne — had defended himself skilfully lawyer have done — great horror of judges , chagrin of majority of council of state. judges astonished @ verdict of jury had repeat question before believe ears, public crowded judgment hall, on announcement of verdict, broke out cheers loud , long as, according unanimous testimony of contemporary reporters, had never before been heard in guildhall. cheering , waving of caps continued on half hour, while judges sat, turning white , red in turns, , spread thence masses in london , suburbs. @ night bonfires lighted, , during following days event occasion of joyful demonstrations.

in 1653, lilburne on trial again , asked jury acquit him if found death penalty unconscionably severe in proportion crime had committed. jury found lilburne not guilty of crime worthy of death .

in 1670, grand jury refused convict william penn of unlawful assembly in bushel s case. judge attempted find jury in contempt of court; ruled inappropriate court of common pleas.

in 1681, grand jury refused indict earl of shaftesbury. in 1688, jury acquitted 7 bishops of church of england of seditious libel. juries continued, in non-criminal cases, act in defiance of crown. in 1763 , 1765, juries awarded £4,000 , £300 john wilkes , john entick respectively, in separate suits trespass against crown s messengers. in both cases, messengers sent lord halifax seize allegedly libelous papers.

in scotland, jury nullification had profound effect of introducing (or others believed, reviving) verdict of not proven . in 1728 1 carnegie of finhaven accidentally killed scottish earl of strathmore. defendant had undoubtedly killed earl, law (as stood) required jury merely @ facts , pass verdict of proven or not proven depending on whether believed facts proved defendant had killed earl. however, if jury brought in proven verdict in effect cause innocent man die. avert injustice, jury decided assert believed ancient right judge whole case , not facts, rendering verdict of not guilty , remains in scotland day. on time, however, juries have tended favour not guilty verdict on not proven , interpretation has changed. not guilty verdict has become normal verdict when jury convinced of innocence , not proven verdict used when jury not of innocence or guilt.

standard jury trial practice in united states during founding era , several decades afterward argue issues of law in presence of jury, jury heard same arguments bench did in reaching rulings on motions. evidenced such decisions 1839 case stettinius v. u.s., in held defense can argue law jury before court gives instructions. later, judges began demand parties submit motions in writing, before jury empaneled, argued , decided without jury being present. transition began motions in limine, exclude evidence on felt jury should not hear argument because informed of evidence excluded. later expanded include legal argument, today, earlier practice of arguing law before jury has been largely forgotten, , judges declare mistrials or overturn verdicts if legal argument made jury.