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Inquiry Into the Right of Criminal Juries to Determine the Law in Colonial America

NCJ Number
Journal of Criminal Law and Criminology Volume: 89 Issue: 1 Dated: Fall 1998 Pages: 111-214
Stanton D. Krauss
Date Published
104 pages
Given the current debate about jury nullification, in which historical claims are prominent, this study examined the historical evidence for the right of criminal juries to determine the law in colonial America.
The author found no evidence that in colonial times anyone claimed that criminal juries had the right to ignore what they deemed the applicable law. Even in radical Rhode Island, criminal juries took an oath to decide cases “according to Law and Evidence.” Apparently English courts have always held that juries are obligated to follow their instruction on the law in criminal as well as civil cases. There is no historical evidence regarding when, where, or why British North Americans first decided otherwise. The conventional wisdom is the colonial juries acquired the right to determine the law as well as the facts in a case. A literature review on historical analyses of this issue shows that modern scholars tend to reference Quincy, Gray, and Howe as authorities who settled the issue on the presence of jury nullification in the colonies. They fail to note that Howe warned that his evidence of colonial criminal jury practice was “spotty.” He recognized that he knew little about the criminal jury’s law finding authority in most States in the early Republic, emphasizing that his conclusions were only suggestions as to the authority of juries to render judgments about the law. The current article concludes that the published records reviewed do not support the conventional wisdom of jury nullification as a common practice in colonial times. The data only proved that the criminal jury’s right to determine the law was firmly established in only one colony, i.e. Rhode Island. For the most part, there was not sufficient evidence to say conclusively what law-finding authority colonial criminal juries had. 399 notes


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