Commentary

Trial by Jury

By Clay S. Conrad
December 19, 1998

Bill of Rights Day is a good time to take a step back from the controversies of the moment to ask ourselves why the Framers of the Constitution thought trial by jury was essential to preserving freedom. Although trial by jury is a fundamental American right, most of us have never made an effort to understand why that right was written into our Constitution — and why this trial procedure is so rarely found in other countries.

The jury was an essential safeguard of liberty long before the American Revolution. British courts guaranteed the independence of criminal trial juries in 1670, in a case concerning four jurors who had acquitted William Penn for illegally preaching about his Quaker beliefs. Those jurors were imprisoned for their “not guilty” verdict because they had ignored the trial judge’s instructions to vote for Penn’s conviction. An English appellate court released the jurors from prison, establishing the principle that juries cannot be punished for bringing in the “wrong” verdict. The freedom of American jurors to vote according to conscience can be traced to that landmark precedent.

Early American jurors frequently refused to enforce the acts of Parliament in order to protect the rights of individuals. In 1735 a New York jury acquitted John Peter Zenger of seditious libel for publishing criticisms of a colonial governor, believing that Zenger had a right to print the truth. That jury had to ignore the instructions of the trial judge because it had been instructed that truth was no defense to the charge of seditious libel. We can thank independent juries for helping to establish freedom of the press on American soil.

Jurors in early America knew that if a criminal law was unjust, they could — and should — refuse to enforce it. They could vote their conscience, and as free citizens they were expected to do so. Thomas Jefferson wrote, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” John Adams said, “It is not only [the juror’s] right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”


The purpose of trial by jury, as the Supreme Court itself has noted, is to prevent “oppression by the government.” To perform that role, jurors must act independently and conscientiously, and they must be prepared to “just say no” if they believe that a conviction would be unjust.


Non-cooperation with injustice was a social imperative that had led, in part, to the American Revolution. Jurors in early 19th-century America routinely refused to enforce the Alien and Sedition Act, just as jurors in mid-19th-century America widely rejected the Fugitive Slave Act and juries in early 20th-century America refused to enforce Prohibition. But toward the end of the 19th century, as the jury pool widened to include working-class men, blacks, and women, courts began to restrict the role of juries. That coincided with a change in attitudes about government in general. The idea emerged that juries had been an important check against King George III, but that their role must now adapt in light of our democratic law-making procedures. Our all-wise government could not allow citizen juries to retain a veto over laws that were enacted for the “public good.”

In 1895 the Supreme Court held that trial courts were not required to inform jurors of their power to refuse to convict, or to convict on lesser charges, if they believed a conviction on the facts proven at trial would be unjust. In the years since, American courts have misinterpreted that ruling as a blanket prohibition on informing jurors of their discretionary prerogative to “check” unjust laws.

The result has been that juries have been restrained from exercising their veto. Today, jurors sometimes leave courtrooms in tears after convicting people they believed were morally (if not legally) innocent — or after witnessing the harsh sentences handed down by judges at the sentencing phase of seemingly minor cases. That is exactly the sort of travesty trial by jury was intended to prevent. If the law were just and justly applied, jurors would have no reason to regret their verdicts, or the sentences that are meted out later by judges.

The purpose of trial by jury, as the Supreme Court itself has noted, is to prevent “oppression by the government.” To perform that role, jurors must act independently and conscientiously, and they must be prepared to “just say no” if they believe that a conviction would be unjust. Nothing else satisfies the purpose of trial by jury, or provides the protection to liberty that the Founders intended to provide in our Bill of Rights.

Clay S. Conrad is the author of Jury Nullification: The Evolution of a Doctrine, just published by Carolina Academic Press and the Cato Institute.