 | NORML News: Informed juries can acquit cannabis defendants on principle |
 NORML News Autumn 2003
Captain Jawa of the MLF has urged toking jurors to be “trojan horses” and find all cannabis defendants not guilty despite the law and regardless of the evidence; but can you really do that? Jonathan Rennie investigates...
The simple answer is yes. The right to trial by jury is enshrined in clause 39 of the Magna Carter (1215 AD), the original constitutional document of Britain and the commonwealth. Scholarly opinion favours the position that juries were always intended to judge the voracity of the law itself, as well as the evidence 1 but the mediaeval courts often attempted to crush this 2.
The right of juries to override the law was finally entrenched in Commonwealth jurisprudence by the famous case of Penn and Mead, 1670. The two Quaker pioneers were charged with “preaching to an unlawful assembly” but four of their jury refused to return a guilty verdict, even though the evidence plainly showed they had done it. The jury was protesting against what they saw as an unjust law. The furious judge had them imprisoned until they reached an “acceptable” verdict. But their supporters won them an appeal and Chief Justice Vaughan had them released and their verdict upheld.
In his landmark finding, Vaughan said, “[the jury] resolve both law and fact, and not the fact by itself,” meaning that juries are expected to judge the law as well as the evidence. He also went on to say that jurors must ultimately fall back on their own consciences, and that this cannot be interfered with by judges because, “a man cannot see by another’s eye, nor hear by another’s ear; no more can a man conclude... by another’s understanding or reasoning.”
A jury overriding the law is called jury nullification. Nullification (an American term) peaked in Commonwealth jurisprudence in the 1800s when British juries rolled back capitol punishment by persistently finding their peers not guilty of minor crimes that carried the death penalty. In America (where nullification is now under attack from judges) juries repeatedly acquitted escaped slaves (charged with escaping) and later, alcohol dealers, helping to end that prohibition.
Could New Zealand jurors stand up against cannabis laws in this time honoured fashion?
The two main law elements that make jury nullification feasible are the requirement for unanimous decisions (a single person can hang a jury, which forces the Crown to retrial if it wants to pursue the prosecution) and the inscrutability of juries - that is - the fact that juries do not have to explain their verdicts.
Unfortunately, as part of the anti-terrorism rubbish, New Zealand Justice Minister Phil Goff is proposing to buck 800 years of legal history and make it no longer necessary for our juries to reach unanimous decisions - an ominous sign for kiwi justice. The proposal allows for one dissenting voice, which means a jury would need at least two informed tokers in order to nullify. The inscrutability of juries still remains unchallenged, at least.
Another factor is the attitude of judges. It is common now for judges to tell juries that they must interpret the evidence only and not let their conscience intervene - the virtual antithesis of Chief Justice Vaughan’s ruling. This reflects increasingly stiff resistance from US judges to jury nullification in America, where juries are indeed starting to fight cannabis prohibition, especially with medical cases (see Ed Rosenthal article p14). US Judges have declared mistrials when defence lawyers brought up nullification and one man was found in contempt of court for handing out leaflets on it. This is despite nullification being enshrined in the American Constitution.
Nullification has not yet been openly tested in New Zealand courts and we can only guess how a judge might react if it were.
NORML News asked Scott Optican, University of Auckland senior lecturer in criminal proceedings, if nullification could be used openly as a defence in a NZ court.
“It’s a very good question,” says Optican. “A strong argument can be made that nullification is a proper defence because juries represent the conscience of the community. Would a judge be able to shut down a defence that openly appealed for jury nullification? Theoretically I would say no, but we don’t know until somebody tries it. Usually defence lawyers angle for nullification within the perimeters of a legal argument, they don’t mention it openly but the appeal is there for the jury to pick up on.” Optican also cautions that in very rare cases a judge can overturn a jury verdict if he believes it is manifestly wrong.
So our best bet may be for jurors to be informed and nullify cannabis prosecutions through their own initiative, without blatant prompting from defence lawyers. This can be easier said than done. The judge will put pressure on the jury to reach a verdict and the informed jury member(s) can then become very unpopular with their fellow jurors. It takes courage to hang a jury for the sake of justice and a clear conscience. It would be even harder to convince a jury to acquit altogether, when some members may be ignorant prohibitionists. The more canna-folk who become informed of their rights as jurors, the more juries will be able to exercises their power to nullify these unjust laws.
1. RD Rucker, The Right to Ignor the Law... Valparaiso University Law Review, Spring 1999]
2. J Ostrowski, The Rise and Fall of Jury Nullification, Journal of Libertarian Studies, V 15, no. 2 (Spring 2001): 89-115
NB: You must be on the electoral roll to serve on a Jury.
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