The Office of Montana Secretary of State has issued approval of a ballot initiative which, if approved by the voters in the November 2010 general election, would amend Article II, Section 26 of the Montana Constitution.

CI-104 would allow the jury in a criminal case to be informed of their right to determine the justice of a law as well as the facts.

The history of the modern jury can be traced back to the Magna Carta of 1215. Although it was not called a jury then, a number of citizens would be assembled to “judge” the guilt of a fellow citizen who was accused of committing a crime. The “jury” was actually the “judge,” and it was their responsibility not only to determine whether or not the accused had actually committed the crime, but to judge whether the law was just. If the “jury” did not believe in the particular law, if they felt the law was unjust, they would find the defendant not guilty. It was established that in criminal cases, the king could not deprive a citizen of his life, liberty or property; only a jury could do that. If the “jury” knew the law to be unfair or unjust, they would, in fact, nullify the law by finding the defendant not guilty.

This concept carried forth to the time of the founding of our republic. Our founders understood and wholly embraced the concept that juries in criminal cases were a vital safeguard against the government enacting laws which were unconstitutional, overreaching or oppressive. In such cases, it was expected that the jury would “nullify” the law in deciding not to enforce the law where a conviction would result in an injustice. Jury nullification is a powerful tool of the jury, and throughout history there are notable examples where unjust laws were rescinded as the result of a jury refusing to convict someone of an unjust law.

In modern times, as a result of the judges’ and prosecutors ‘efforts, the concept of jury nullification has all but disappeared from the criminal court. Through the judge’s instructions and court “procedures,” judges and prosecutors have made every effort to insure that the jury determines the facts only. The judge instructs the jury to comply with his interpretation of the law. Attempts by defense counsel to inform the jury of their right to judge the law as well as the facts are usually met with a contempt citation by the judge. There are instances where the defense counsel was found in contempt and jailed for attempting to inform the jury of their rights.