Rights and Obligations of American Jurors
By Wesley W. Hoyt
As citizens of this great nation, we need to have a regular review our rights
and responsibilities. As a citizen of America, I know that I have obligations to
my local community, the State of Idaho as well as the national government, which
obligations are legally binding on me. By the way, under the principles of a
“social contract,” such as the U.S. Constitution, there are reciprocal
obligations which the government has to its citizens, but, we shall cover those
in other articles.
This article has a single focus: the rights and obligations of citizens as jurors. For the record, there are two kinds of juries on which American citizens may serve. First, there is the petit jury, like the one convened to adjudge the guilt of a person charged with a crime and its parallel petit jury that determines damages when a civil wrong was committed.
The second type of jury is a grand jury, which sifts information from investigators to determine if a crime has been committed. Usually, a grand jury is reserved for allegation of a more serious nature and jurors must vote on a “true bill” or a decision favoring an indictment of someone believed responsible for the crime. Grand juries are typically used in the federal system, whereas, in the state system the individual is usually charged by an “information” or “verified complaint” filed with a court by a prosecutor alleging that a crime has been committed and names the person who it is believed committed it.
The person charged with a crime has the right to plead his case before a petit jury to consider all the specifics or “elements” of the crime, each of which must be proven “beyond a reasonable doubt.”
At the Constitutional foundation of all of these legal proceedings is the highly prized, uniquely American value of the “presumption of innocence.” What this means is that, no matter what charges the accused faces, he/she is to be considered innocent until the evidence in the case causes the jury to believe that the accused is guilty of the crime charged, beyond a reasonable doubt.
So, the first obligation of the American juror is to have the mind set that every person charged with a crime is an innocent person until proven guilty. That means, when the juror first sits down in a jury box and sees the accused, that person is to be considered by the juror as innocent of any crime. Even though the juror might not like the look of the accused, or has heard rumors of his or her guilt, a citizen who is doing their job as a juror under the Constitution will say, to themselves, “I am here to listen to evidence concerning an innocent person.” Once the evidence and arguments are closed and the jury instructions are read and the jury retires to the jury room for deliberation that is when the juror may exercise judgment.
What is judgment if not common sense applied to the special knowledge learned about a case during trial? We all take into the jury room our own background and life experiences that make us unique individuals. We are the conscience of the community. We are not asked to disregard the things that we know to be true or the value systems we have developed, but, we are asked to follow the law. Primarily, we must look to the rulings by the U.S. Supreme Court to tell us the law:
“All laws which are repugnant to the Constitution are null and void.” Marbury v. Madison, 5 US (2 Cranch) 137, 174, 176 (1803). “Where rights secured by the Constitution are involved, there can be no rule making or legislation [laws] which would abrogate them.” Miranda vs. Arizona, 384 US 436, 491. “An unconstitutional act is not a law; it confers no rights, it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as though it had never been passed.” Norton v. Shelby County, 118 US 425, 442 (1886). “An unconstitutional law is void, and is as no law. An offense created by it is not a crime.” Ex Parte Seibold, 100 U.S. 371, 376 (1880), quoted with approval in Fay v. Noia, 372 U.S. 391, 408 (1963).
The very first U.S. Supreme Court Chief Justice, John Jay, in 1789 said: “The jury has a right to judge both the law as well as the fact in controversy.” In 1972, the case entitled: U.S. v. Dougherty, 473 F.2d 1113, 1139, provided: “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge…”
This article is not so much about disregarding the instructions of the judge, as it is about reminding us that when it is your turn to serve on a jury, you need to see that justice is done. You have a right to ask questions if things have not been explained to your satisfaction. You have the right, power and duty to find that the accused is “Not Guilty” unless every single element of a crime has been proven beyond a reasonable doubt. It is neither fair nor legal to ask you as a juror to speculate about the existence of some fact, rather, it is the job of the prosecution to prove each fact while the accused remains silent and cannot be called as a witness against himself.
Even if your peers on the jury pressure you to convict the accused or threaten to hold you hostage overnight or on a weekend until you give in, if you do not see it their way and you know in your heart that there was insufficient evidence to prove one element of the crime beyond a reasonable doubt, then your single vote of “Not Guilty” can do more to re-establish “liberty and justice for all” than all the speeches of politicians put together. A hung jury, even if it is based on the vote of only one juror who holds out for acquittal, is a just and proper result, for in America we say: “It is better that ten guilty men should be set free than one innocent man sent to prison.”
Of course, after consideration of all the evidence, if you believe that the person on trial is guilty of the crime charged, that is, if their acts actually constitute a crime, then likewise, it is your duty to vote “Guilty.” T
he area of what actually constitutes a crime is where many jurors have questions. In the case of David Hinkson, the IRS who was offended by him, convinced a federal prosecutor that he should be charged with money structuring because he had taken cash money he had lawfully earned and lawfully deposited in his bank account and used it to pay wages to his employees. While there is a specific “payroll exception” under the IRS law that allowed employers to use cash to pay employees as Hinkson had done, nevertheless the trial judge refused to inform the jury about this exception. In spite of that, it simply did not seem right to the jurors to convict Hinkson of a crime for paying his employees with money that was lawfully earned, but because of way the court’s instructions were crafted, the jury felt they had no other choice and Hinkson received a 10 year prison sentence for this non-crime. The IRS got their way.
Well, the jury in the Hinkson case most certainly had a choice because convicting Hinkson of structuring money transactions was the equivalent of convicting him of running a green light; i.e., convicting him of a crime when no crime had been committed. Ask yourself, what was criminal about using his own property to pay his employees? In such situations, where the jury acts as the conscience of the community, no matter how badly a judge and/or prosecutor may want to convict him for political reasons, each individual juror has the absolute right to vote “Not Guilty” if the charges or criminal case violates common sense.
As a former prosecutor, I have observed more and more situations where citizens have been charged with crimes for conduct that is not criminal; but, in such cases, it was expedient to charge him with a crime to please some other person. Take the man who on February 16, 2010 was lawfully addressing a City Council, but what he was saying was unpopular with the council members. He was arrested and charged with criminal trespass after the first minute of his allotted three minutes speech, and no crime was ever committed. Or, what about a case when there has been a verbal argument between two people, but no one was physically harmed or even touched by the other person and no threat was directed by either party.
These two instances involve what is sometimes known as “criminal speech.” All of us are allowed freedom of speech, unless what is said actually harms another person, such as yelling “fire” in a crowed theater when there is no fire; because people could be trampled in the rush to exit, the act of speaking words that incite an immediate panic reaction constitute a crime. Unfortunately, we live in an age driven by politics instead of reason. Where someone with political clout, such as the IRS can get an innocent person who lives by the law, such as David Hinkson or the speaker at the City Council meeting or the person in the argument, charged with a crime just because of political clout; we are living under the shadow of tyrants.
I have seen too many situations where innocent people were charged with crimes because someone was offended by an encounter with them and where the only harm was to the pride of the accuser. In such cases, the accuser is simply trying to “get even” by demanding a criminal prosecution. Surprisingly, there are prosecutors who will file a criminal complaint in cases where no one has been harmed by the encounter and even more surprisingly, there are judges who will allow such cases to proceed to jury consideration. In those situations, it is up to the jury to decide if a crime was committed.
Let us be clear, it is a form of tyranny for an innocent person to be charged with a crime when no crime was committed. In those situations, only well informed jurors who understand their rights and obligations can stop such tyranny in these perilous times.
Wes Hoyt, a former prosecuting attorney in Idaho County, Idaho and now has a multi-state law practice engaging in protection of individual rights. He participated in the defense of David Hinkson. He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or call him at 1-800-220-4698.
This article has a single focus: the rights and obligations of citizens as jurors. For the record, there are two kinds of juries on which American citizens may serve. First, there is the petit jury, like the one convened to adjudge the guilt of a person charged with a crime and its parallel petit jury that determines damages when a civil wrong was committed.
The second type of jury is a grand jury, which sifts information from investigators to determine if a crime has been committed. Usually, a grand jury is reserved for allegation of a more serious nature and jurors must vote on a “true bill” or a decision favoring an indictment of someone believed responsible for the crime. Grand juries are typically used in the federal system, whereas, in the state system the individual is usually charged by an “information” or “verified complaint” filed with a court by a prosecutor alleging that a crime has been committed and names the person who it is believed committed it.
The person charged with a crime has the right to plead his case before a petit jury to consider all the specifics or “elements” of the crime, each of which must be proven “beyond a reasonable doubt.”
At the Constitutional foundation of all of these legal proceedings is the highly prized, uniquely American value of the “presumption of innocence.” What this means is that, no matter what charges the accused faces, he/she is to be considered innocent until the evidence in the case causes the jury to believe that the accused is guilty of the crime charged, beyond a reasonable doubt.
So, the first obligation of the American juror is to have the mind set that every person charged with a crime is an innocent person until proven guilty. That means, when the juror first sits down in a jury box and sees the accused, that person is to be considered by the juror as innocent of any crime. Even though the juror might not like the look of the accused, or has heard rumors of his or her guilt, a citizen who is doing their job as a juror under the Constitution will say, to themselves, “I am here to listen to evidence concerning an innocent person.” Once the evidence and arguments are closed and the jury instructions are read and the jury retires to the jury room for deliberation that is when the juror may exercise judgment.
What is judgment if not common sense applied to the special knowledge learned about a case during trial? We all take into the jury room our own background and life experiences that make us unique individuals. We are the conscience of the community. We are not asked to disregard the things that we know to be true or the value systems we have developed, but, we are asked to follow the law. Primarily, we must look to the rulings by the U.S. Supreme Court to tell us the law:
“All laws which are repugnant to the Constitution are null and void.” Marbury v. Madison, 5 US (2 Cranch) 137, 174, 176 (1803). “Where rights secured by the Constitution are involved, there can be no rule making or legislation [laws] which would abrogate them.” Miranda vs. Arizona, 384 US 436, 491. “An unconstitutional act is not a law; it confers no rights, it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as though it had never been passed.” Norton v. Shelby County, 118 US 425, 442 (1886). “An unconstitutional law is void, and is as no law. An offense created by it is not a crime.” Ex Parte Seibold, 100 U.S. 371, 376 (1880), quoted with approval in Fay v. Noia, 372 U.S. 391, 408 (1963).
The very first U.S. Supreme Court Chief Justice, John Jay, in 1789 said: “The jury has a right to judge both the law as well as the fact in controversy.” In 1972, the case entitled: U.S. v. Dougherty, 473 F.2d 1113, 1139, provided: “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge…”
This article is not so much about disregarding the instructions of the judge, as it is about reminding us that when it is your turn to serve on a jury, you need to see that justice is done. You have a right to ask questions if things have not been explained to your satisfaction. You have the right, power and duty to find that the accused is “Not Guilty” unless every single element of a crime has been proven beyond a reasonable doubt. It is neither fair nor legal to ask you as a juror to speculate about the existence of some fact, rather, it is the job of the prosecution to prove each fact while the accused remains silent and cannot be called as a witness against himself.
Even if your peers on the jury pressure you to convict the accused or threaten to hold you hostage overnight or on a weekend until you give in, if you do not see it their way and you know in your heart that there was insufficient evidence to prove one element of the crime beyond a reasonable doubt, then your single vote of “Not Guilty” can do more to re-establish “liberty and justice for all” than all the speeches of politicians put together. A hung jury, even if it is based on the vote of only one juror who holds out for acquittal, is a just and proper result, for in America we say: “It is better that ten guilty men should be set free than one innocent man sent to prison.”
Of course, after consideration of all the evidence, if you believe that the person on trial is guilty of the crime charged, that is, if their acts actually constitute a crime, then likewise, it is your duty to vote “Guilty.” T
he area of what actually constitutes a crime is where many jurors have questions. In the case of David Hinkson, the IRS who was offended by him, convinced a federal prosecutor that he should be charged with money structuring because he had taken cash money he had lawfully earned and lawfully deposited in his bank account and used it to pay wages to his employees. While there is a specific “payroll exception” under the IRS law that allowed employers to use cash to pay employees as Hinkson had done, nevertheless the trial judge refused to inform the jury about this exception. In spite of that, it simply did not seem right to the jurors to convict Hinkson of a crime for paying his employees with money that was lawfully earned, but because of way the court’s instructions were crafted, the jury felt they had no other choice and Hinkson received a 10 year prison sentence for this non-crime. The IRS got their way.
Well, the jury in the Hinkson case most certainly had a choice because convicting Hinkson of structuring money transactions was the equivalent of convicting him of running a green light; i.e., convicting him of a crime when no crime had been committed. Ask yourself, what was criminal about using his own property to pay his employees? In such situations, where the jury acts as the conscience of the community, no matter how badly a judge and/or prosecutor may want to convict him for political reasons, each individual juror has the absolute right to vote “Not Guilty” if the charges or criminal case violates common sense.
As a former prosecutor, I have observed more and more situations where citizens have been charged with crimes for conduct that is not criminal; but, in such cases, it was expedient to charge him with a crime to please some other person. Take the man who on February 16, 2010 was lawfully addressing a City Council, but what he was saying was unpopular with the council members. He was arrested and charged with criminal trespass after the first minute of his allotted three minutes speech, and no crime was ever committed. Or, what about a case when there has been a verbal argument between two people, but no one was physically harmed or even touched by the other person and no threat was directed by either party.
These two instances involve what is sometimes known as “criminal speech.” All of us are allowed freedom of speech, unless what is said actually harms another person, such as yelling “fire” in a crowed theater when there is no fire; because people could be trampled in the rush to exit, the act of speaking words that incite an immediate panic reaction constitute a crime. Unfortunately, we live in an age driven by politics instead of reason. Where someone with political clout, such as the IRS can get an innocent person who lives by the law, such as David Hinkson or the speaker at the City Council meeting or the person in the argument, charged with a crime just because of political clout; we are living under the shadow of tyrants.
I have seen too many situations where innocent people were charged with crimes because someone was offended by an encounter with them and where the only harm was to the pride of the accuser. In such cases, the accuser is simply trying to “get even” by demanding a criminal prosecution. Surprisingly, there are prosecutors who will file a criminal complaint in cases where no one has been harmed by the encounter and even more surprisingly, there are judges who will allow such cases to proceed to jury consideration. In those situations, it is up to the jury to decide if a crime was committed.
Let us be clear, it is a form of tyranny for an innocent person to be charged with a crime when no crime was committed. In those situations, only well informed jurors who understand their rights and obligations can stop such tyranny in these perilous times.
Wes Hoyt, a former prosecuting attorney in Idaho County, Idaho and now has a multi-state law practice engaging in protection of individual rights. He participated in the defense of David Hinkson. He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or call him at 1-800-220-4698.