Future Jury Nullification For Bitcoin Users

Plaque commemorating an act of jury nullification in the Old Bailey, London.

Introduction

With everything going on in the world today, it seems likely that state-level attacks on Bitcoiners will continue to increase. Furthermore, as Bitcoin puts pressure on traditional power structures, the authorities will almost certainly extend or enact unconscionable laws to restrict, tax or otherwise frustrate the free flow of bitcoin capital.

Eventually, a Bitcoiner is likely to find themselves on a jury and asked to sit in judgment of another Bitcoiner charged with violating one of these unjust laws. It is my contention that all Bitcoiners need to at least have heard about jury nullification in advance as part of their toolkit to help resist, at the last possible moment, laws and state actions which most Bitcoiners would believe to be unethical.

What Exactly Is Jury Nullification?

Jury nullification is a consequence of a fair and impartial jury system. Put most simply, it is the power of a criminal jury to return a not guilty verdict, even though the prosecution meets the legal burden for a guilty verdict. It often stems from changes in the societal moral compass, for instance, when an act is no longer deemed to be criminal by that day’s standards. It is not, what one might call, an explicit right of a jury, but rather it is a necessary logical consequence of any system that purports to maintain a fair and impartial jury.

The United States Supreme Court held that, “Although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence.” In other words, if the jury returns a guilty verdict that the judge deems unfair and unwarranted, the judge can vacate the verdict and let the defendant go. But no matter what, the judge cannot overrule a not guilty verdict and declare a defendant guilty. As soon as a judge has the power to find guilt in favor of the State in a criminal trial, the purpose of juries ceases to exist except as mere window dressing — a status that the Constitution will not allow. It is true that, “[T]he judge cannot direct a verdict,” and that “the jury has the power to bring in a verdict in the teeth of both law and facts … the technical right, if it can be called so, to decide against the law and the facts.”

Historically, one of the most important instances of jury nullification was the trial of William Penn and William Mead. Taking place in 1670s England, the two were brought up on charges of preaching to an unlawful assembly. When the jurors tried to find them not guilty by jury nullification, they were thrown in jail, threatened, starved for two days and then, when they did not comply with the judge’s wishes, fined and jailed until they could pay the fines (for some of them, this meant months in jail). This instance is so important in history, in fact, that it is commemorated in a plaque hanging in the Old Bailey. This case, and others like it in the 17th and 18th centuries, played a pivotal role in the jury trial rights built into the U.S. Constitution.

In the United States, jury nullification has similarly left a long and important mark on our country. The framers of the Constitution were well aware of the power of the jury, and the inevitability of the power of nullification, when they enshrined the right to a jury trial in the Bill of Rights. Indeed, Thomas Jefferson believed that it remained the last check on unwarranted State power. It was used in the pre–Civil War period by Northern juries to refuse to convict abolitionists of violating the Fugitive Slave Act, and later during Prohibition, it was used to frustrate alcohol control laws. Of course, it was also used in the same way by racist juries to refuse conviction for crimes such as lynchings. But by and large, nullification has been used in ways which would be understandable and still considered positive today.

Today, the courts and judicial system strongly discourage jury nullification at every turn. The belief is that the ability of a jury to nullify a law by returning a not guilty verdict even in the face of incontrovertible facts is a decidedly negative side effect of the Constitution’s guarantee of a trial by jury. The system takes extreme measures to ensure that a jury is as far in the dark about this power as possible, even falsely telling a jury, “There is no such thing as valid jury nullification,” and that they would “violate [their] oath and the law if you willfully brought in a verdict contrary to the law[,]” when the jury explicitly asked the judge about nullification. Lawyers for the defense cannot directly advocate for the jury to nullify. Even passing out pamphlets about jury nullification on courthouse grounds has resulted in people being arrested for jury tampering.

Why Jury Nullification Is Important For Bitcoiners Now

As was mentioned in the introduction, this is a power of juries that you not only won’t be told about if you ever serve on a jury, but which the system will actively resist allowing you to exercise. Therefore, it is imperative for all Bitcoiners to at least know that it exists, and that they cannot be punished by the court for exercising it. The court, and the judge, is likely to even lie to you about the power of the jury to nullify.

In addition, if you want to survive selection onto a jury, and do so honestly, you must give some thought as to how to answer questions which will be asked, under oath, of you during voir dire (the technical name for the jury selection process). If you come out and say, “I believe in jury nullification,” you will almost certainly be excluded from the jury. Alternatively, if you lie, you would be committing perjury. However, with thoughtful consideration, many of the questions which are asked of you could be answered honestly in a way that doesn’t make clear that you understand that jury nullification is a power that you would possess as a juror.

I feel in the near future the necessity of jury nullification will once again come to the forefront as our federal and state governments attempt to attack, restrict and control the transactional freedom that Bitcoin provides. It may be oppressive KYC laws, insane applications of the Travel Rule, punishing taxation, simply outright banning and/or confiscation like Executive Order 6102, or some fresh hell not yet conceived. While we don’t yet know what avenues they will take to attempt to reassert their unethical and immoral surveillance state upon Bitcoin, it is imperative that all Bitcoiners understand that they are each, and individually, not just protecting the sanctity of the time chain, but also they are the last line of defense for transactional freedom.

This is a guest post by Colin Crossman. Opinions expressed are entirely their own and do not necessarily reflect those of BTC Inc. or Bitcoin Magazine.