Bad Rules Coming? Juror, You Have Authority To Judge Facts — But Also The Law

Saturday, January 19, 2013 - by David Tulis

The jury system for finding criminals guilty arises from a biblical framework of justice. Since juries also find men not guilty, it is a calling that can be honorably obeyed. God’s law establishes the concept of finders of fact, and its provision for multitudinous testimony make justice easier to attain. We get our legal system through English common law and its principles of equity. 

Christianity envisions eye-for-eye, tooth-for-tooth penalties for those who abuse the courts with false testimony, such as that from the “scoundrels” King Ahab used to steal Naboth’s vineyard (1 Kings 21) and that against Christ, who suffered conflicting fools’ witnessing against him before crucifixion. (See Deut. 19:16-21, which makes perjury a capital offense in capital case. ) 

Every year in Hamilton County 3,000 people are called to jury duty, “and each one has family, friends, employers and co-workers who are affected by their jury service,” declares a county webpage on the subject. Their duty is to unanimously find guilt in a criminal case, as facts warrant, or to find justice between disputants in a civil matter. 

A juror is paid F$13 a day for sitting. As you come to realize how jury duty is part of a covenant between a free people and their state, you would be happy to serve — even if you are paid nothing.

Finders of fact, yes; but judges of law, too?

The juror is supposed to be unbiased and serve without prejudice. This point is one that both sides in the “jury rights” dispute agree on. “Jurors must be as free as humanly possible from bias, prejudice, or sympathy and must not be influenced by preconceived ideas about the facts or the law,” according to a book giving judges scripts for jury directives. “The parties are entitled to jurors who approach this case with open minds until a verdict is reached.”

Judges insist they control the law, while granting the jurors sole determiners of fact. Let’s look briefly at this duty to find facts in a criminal or civil case. Here’s what Judge Neil Thomas or Judge Barry Steelman might say from the bench: 

"Unless you are otherwise instructed, statements made by the attorneys are not evidence. Those statements are made only to help you understand the evidence and apply the law to the evidence in the case. You should ignore any statement that is not supported by the evidence. After the arguments are made, I will instruct you on the rules of law that apply to the case. It is your function as jurors to determine what the facts are and to apply the rules of law that I give you to the facts that you have found. You will determine the facts from all the evidence. You are the sole and exclusive judges of the facts. On the other hand, you are required to accept the rules of law that I give you whether you agree with them or not." 

Notice how the judge tells you that you must accept the law as he gives it. But the jury instructions leave wiggle room for the good conscious judgment of the juror. If he believes a defendant is being prosecuted maliciously and in bad faith, he can disbelieve witnesses, doubt sworn testimony, and decide the weight he gives to evidence. It is with this space he can in good conscience determine that a law is evil and should be rejected by a “not guilty” verdict. 

But I speak too soon. Let Kevin Snider, a Memphis attorney and author, suggest how the judge should direct you, the juror: 

"As the sole judges of the facts, you must determine which of the witnesses’ testimony you accept, what weight you attach to it, and what inferences you will draw from it. The law does not, however, require you to accept all of the evidence. In deciding what evidence you will accept, you must make your own evaluation of the testimony given by each of the witnesses and determine the weight you will give to that testimony." (Snider, p 19) 

The juror has a duty to weigh the credibility of witnesses. While government witnesses are often nice people and speak good English, and they may be dressed in well-ironed dress suits and sports jackets, you should not consider them a priori as truthful, believable.  A little help on this point from Mr. Snider: “You must decide which witnesses you believe and how important you think their testimony is. You are not required to accept or reject everything a witness says. You are free to believe all, none, or part of any person’s testimony,” the judge is telling you (Snider, p. 25). 

Let me amplify later your sense of this space and your potential use of it to clear an innocent man hounded by a good-faith prosecution under a lousy law. For now, let’s look how jury power might operate in favor of good government and law in a civil case.

Thwarting eminent domain with jury power

Since government is a commercial actor, you will often find it as the moving party in property and business disputes. 

The power of eminent domain belongs to Hamilton County. If the county corporation wants to take your neighbor’s land for some ostensibly public purpose,‡ it moves against the widowed homeowner civilly. In a condemnation proceeding to seize your peer’s land, you and other jury members are called to a limited task: Determine the amount of fair compensation in the “taking.” 

But what if the seizure is not really for a public good? ‡ Suppose it’s for “economic development” to benefit a Target or a shopping mall developer, whose tax revenue-producing facility will wipe away a blighted neighborhood in which your neighbor is the last holdout. How to resist as a juror? How might you exercise the power of the jury box? 

Turning to the plain-folks standard — the constitution

If the seizure of land under public authority is to benefit a Target or a shopping mall developer, how to resist as a juror? How, if your only charge is to determine the price of the sale? At trial you will have heard two prices from witnesses, a high and a low. Your ruling decides the number of dollars to be paid the old lady so Target can build after her house is demolished. 

You could resist by hearing the dollar amounts bandied about by the witnesses as real money, as specie, versus paper dollars. You as members of the jury could declare a verdict that the payment is understood to be in lawful dollars, silver coin as defined in the 1792 constitutional standard. 

While the testimony was evidently intended to be understood as being given in paper greenbacks, the hard-headed, old-fashioned jury members might be bold and a little saucy in dealing with the data. They might insist they heard the dollar amounts to be in lawful money of account — i.e., silver. 

So if witnesses offered the high-end value of the property to be seized at F$180,000 and the low end at F$120,000, the jury could be kind to the developer and value the property at the low end. It could declare that its members unanimously find the property worth one hundred and twenty thousand dollars in lawful coin pursuant to Article 1, Section 10, of the federal constitution that forbids any state or agent thereof (Hamilton County) to “make any thing but gold and silver coin a tender in payment of debts.” 

If the jury rules in favor of the plaintiff (who wants to grab the land) by low-balling the dollar value of the property, it would declare the land worth $120,000 (real dollars). To buy one hundred and twenty thousand real dollars, you’d have to obtain 120 $1,000 bags of money from a moneychanger such as Chattanooga Coin or Kennedy Coin. A single bag of constitutional money is trading at about F$23,000 (the fussy F means dollars denominated in Federal Reserve notes or electronic credit equivalents). 

Lesson in national economy: $120,000 = F$2.76 million

So the total valuation of the property would be F$2.76 million. 

If government and developer have to pay F$2.76 million for a lot witnesses said is worth F$120,000, the deal is off. Lawful money becomes a deal killer. Target and its pals down at the economic development coffee pot will have to shop elsewhere for retail turf. 

A jury’s proceedings are secret and generally beyond investigation. If jury members act in good faith and are convinced they can avert an evil by understanding dollar amounts as constitutional dollar amounts, they establish the power of the jury and the ability of the jury to honestly and in good conscience see lawful dollars as facts. 

We live in an economic fact world that includes two monetary systems — paper money overseen by the Fed, and silver coin envisioned by the founders. The currency that circulates is a private issue banknote. The coins hidden away by property owners waiting for a better day are public money minted by the U.S. for the public good and as a public service. 

Jury service is appealing because it gives ordinary people like you a chance to provide reason and intelligent judgment in conflict.‡‡ You represent the common folk. Juries are a gauge of public sentiment and the prevailing religion of the people. Such a case as I describe would be appealed, but you would not need concern yourself further with it because you have unanimously voted and agreed on a price, doing your duty. 


David Tulis writes for Nooganomics.com, which covers local economy and free markets in Chattanooga and beyond.

Sources and notes:

Kevin A. Snider, “Tennessee Pattern Jury Instructions,” 2006, 5th edition, 145 pp. Mr. Snider practices law in Germantown, Tenn.
“Understanding your court system: A Guide to the Judicial Branch,” Tennessee Supreme Court Administrative Office of the Courts (downloaded 2012). I use the glossary of legal terms to teach vocabulary in our homeschool.
Rousas Rushdoony, Institutes of Biblical Law, “The Ninth Commandment” (The Presbyterian and Reformed Publishing Co., 1973), pp. 569-580
‡‡ UTC master’s degree student Brandy L. Hemmer in 2010 wrote a thesis that finds juries in Hamilton County are not representative of the population because they contain a “higher percentage of whites, males, and citizens with higher levels of education and income” than the population at large. She’s not happy you’re smart, but I have read only her abstract. A more literate juror is less likely to be swayed by lawyer rhetoric and more likely to be a better judge of facts and law. In colonial days, only people who owned land shared in public franchises such as voting because they are the most capable and responsible.
‡ The seizure of Parkway Towers downtown for the stadium was overturned on appeal because the claimants could not prove a public use.

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