Can a regular jury turn itself into a grand jury?

Ok, lets say you have a case where a legislature passes a totally illegal, unconstitutional law. For example if they passed a law saying one must obtain a licence from the State to attend church on Sundays.

Now lets suppose that someone goes on trial for breaking that law, attending church without the manditory licence. The jury would, I hope, find the defendant not guilty on account that the law was illegal.

But could the jury also recommend indictments of the legislature for passing the illegal law?

The petit jury is impaneled to determine the facts of the case. In other words, they are to declare whether the prosecution has proved that the defendant has violated a particular law.

It not the purview of either the grand or petit jury to determine the constitutionality of a particular law. That duty falls to the courts and, ultimately, to the Supreme Court.

No, and it would be futile even if they did. Passing an unconstitutional law isn’t a crime.

The petit jury can’t change the law, but they can nullify it, a al OJ Simpson, by refusing to convict. But the judge can set aside their decision and issue a bench ruling, if he feels the jury did not follow his instructions.

Why “petit” and “grand”?

Petit means “little” and grand means “big”; grand juries traditionally have more members than petit juries.

Of course, if the trial jury (as petit juries may also be known) simply nullifies the law, then the law won’t be appealed–typically the prosecution can’t appeal an acquittal, right?–so the law stays on the books, and people can continue to be hauled up for worshipping without a license. Even if all the juries nullify, being arrested all the time, having to post bail or possibly even sit in jail until trial (potentially a lengthy period), and having to pay for their defense, are still going to be a burden on those who are running afoul of the unjust law. And you can’t necessarily just “take it to the Supreme Court”–you have to have “standing”. Obviously, someone who has been convicted of violating a statute (by a jury ruling on the facts of the case, not the law) will have standing to take it all the way to the SCOTUS, where it can be struck down once and for all.

Technically, a credible threat of prosecution can give a person standing to sue on issues of constitutionality. You don’t even have to be arrested, IIRC.

I was under the impression that no judge could ever reverse a “not guilty” verdict in a criminal trial; only that they could overturn “guilty” verdicts.

The idea behind “jury nullification,” IIRC, is that a defendant may attempt to pursuade the jury not to convict based on the morality of the law itself rather than the whether or not the law was broken.

Only in the case of a jury that voted to convict.

A judge may find that, as a matter of law, no reasonable jury could have reached a verdict of guilty, and set aside the verdict. He may also rule, at the close of the prosecution case, that the prosecution failed to meet its burden, and direct a verdict of not guilty. Indeed, it’s pro forma for the defense to move for such at action at the close of the prosecution’s case, and failure to so move may waive a later appeal for insufficient evidence.

However, Fear Itself, no judge may set aside a verdict of not guilty and find an accused guilty.

  • Rick

Passing an unconstitutional law isn’t a crime.

Of course, perhaps we should ask whether it SHOULD be a crime.

This case probably wouldn’t reach a jury. The trial judge can rule on the statute’s constitutionality, and would ordinarily do so in response to a pretrial motion by the defense. If the judge rules that the statute is unconstitutional, then the defendant can’t be prosecuted under it and the ruling effectively ends the case (although the prosecution can appeal the ruling). The trial judge could also deny the defense’s pretrial motion, but still let the issue go up on appeal before sending the case to a jury trial.

Dewey Cheatem is correct that “a credible threat of prosecution can give a person standing to sue on issues of constitutionality.” Most states allow an action seeking a judicial declaration about whether a statute is constitutional, so that a prospective defendant need not commit a crime in order to test the law.

How would a “credible threat of prosecution” be established in the absence of any violation?

Just my guess, but based on the OP, how about if:

  • the cops regularly check churchgoers for “worship licences” at the church-door every Sunday;

  • the DA has announced a zero-tolerance policy on worshippers without licences;

  • the DA has actually instituted proceedings against people going to church without “worship licences”; and,

  • you want to worship, believe that the licence requirement violates your constitutional rights, but respect the rule of law too much to consciously break the law, even a law you believe to be unconsitutional?

Let’s take the original example: “a law saying one must obtain a licence from the State to attend church on Sundays.” The petition seeking a declaratory judgment would state that the petitioner attends church on Sundays, that he or she will be doing so without a license, and that requiring a license infringes his or her constitutional right to the free exercise of religion. If there have already been prosecutions under the statute, then the petition can state that fact too, which by itself establishes a “credible threat of prosecution.” But the fact of a prior prosecution is unnecessary, since the whole point of the declaratory-judgment procedure is allowing test cases: it is enough that the law is on the books and subject to criminal enforcement.

OK, I found a cite regarding the Campaign Reform Act. The Republican Nat’l Committe and several state and county Republican organizations are asking for a declaratory judgement and injunctive relief from certain provisions of the act. By the way, on my link it takes a long time for the site to load.

In this case the final authority as to whether or not the act is constitutional is the Supreme Court and I have always been under the impression that the Court doesn’t hear moot cases. It only takes those in which an actual act resulting in a case involving harm to someone has happened.

Those asking for the judgement haven’t actually been harmed yet so if they lose and appeal up the line will the final Court take the case? Have I been wrong in my supposition about the Court?

My impression - from a ten-year-old constitutional law class, mind you - is that in first-amendment cases, courts tend to be willing to hear cases before there’s actual enforcement action because of the “prior restraint” doctrine. In other words, the mere possibility of enforcement is enough to result in de facto censorship. Prior restraint cases have a history of getting quick court attention, especially when they concern “political speech,” and that’s what the CRA pretty much by definition targets.

There are two issues intermingled here. The first is justiciability, which is what this thread has been about so far. The second is jurisdiction, which David has introduced by bringing up the Supreme Court.

So far, this thread has been about justiciability–whether a question is a proper subject for judicial resolution. David’s statement that “that the Court doesn’t hear moot cases” is true, but off point. What we are talking about here is not mootness, but unripeness. Mootness means that the case is not a proper subject for judicial resolution because it is too late for judicial relief–that is, the question in controversy has become moot, or academic (for example, the defendant has been convicted of a crime, but has been pardoned). Unripeness means that the case is not a proper subject for judicial resolution because the controversy has not materialized yet–as David puts it, there has not been “an actual act resulting in a case involving harm to someone.”

The actual law is that a dispute is justiciable if there is a “case” or a “controversy.” (Those words appear in the U.S. Constitution, art. III, sec. 2, which defines the judicial power of the United States. A parallel concept, usually but not always using the same terminology, appears in every state constitution.) There is no “case” or “controversy” if the dispute is unripe (or moot). There is no “case” or “controversy” if the dispute does not legally affect the person seeking the judicial relief, who is then said to lack “standing.” But there can still be a “case” or “controversy” even though “those asking for the judgment haven’t actually been harmed yet.”

Which brings me to declaratory judgments. The common law actually did require some overt act changing the parties’ relationship–such as a breach in order to test a contract, or a conviction in order to test an arguably unconstitutional statute-- before a court would get involved in an otherwise theoretical dispute. But many jurists realized that it would be more efficient if a court could resolve a simmering dispute before someone was forced into breaching a contract, or committing a crime, in order to test their rights. The concept of “declaratory” judicial relief was the result. The federal declaratory-judgment statute (28 U.S.C. § 2201) says that “in a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.” The National Conference of Commissioners on Uniform State Laws has drafted a uniform Declaratory Judgments Act, which contains a similar provision, which most states have adopted. The courts have universally held that a dispute involving only declaratory relief does satisfy the requirement of a “case” or “controversy.”

Finally, let’s dispose of jurisdiction, which is a little bit of a red herring. The principles that have come up in this thread (constitutionality and declaratory relief, for example) apply to any court, not just the Supreme Court. They apply to state courts and to federal courts. They apply to trial courts and to appellate courts. They apply to the local justice of the peace, and they apply to the Supreme Court of the United States. David asks, “Those asking for the judgment haven’t actually been harmed yet so if they lose and appeal up the line will the final Court take the case?” The answer is that, if the case is not justiciable in the Supreme Court, then it would not have been justiciable in the state trial court either. But a case that prospectively tests a criminal statute’s constitutionality is justiciable all along the line. (The number of cases filed nationwide runs into the millions annually. The latest statistics that I have seen show that 95 to 99 percent get resolved before trial, either because the parties settle their dispute or because the trial court decides the case as a matter of law, without a trial, based on undisputed facts. Out of these millions of cases, only about 100 to 150 cases reach the Supreme Court.)

OK, I think I’m beginning to see the light. Yes, all of the posts about “what happens if a legislature passes a clearly unconstitutional law” are off the point of the OP. However, I thought that one was so easy to answer that it was disposed of in short order.

Excellent post, brian, and welcome to the SDMB. I will take issue with one (relatively minor) point. You said:

The issues of justicability (standing, ripeness, and mootness) do not necessarily have to apply in state court.

As brian noted, these issues arise from interpretation of the “case or controvery” language in Article III of the federal Constitution. A state constitution might allow the courts of that state to address questions that do not arise from a case or controversy and therefore issue what are known as “advisory opinions.” (The Supreme Court of New Hampshire, for instance, issues advisory “Opinions of the Justices” on legislation before it goes into effect.) If a state court gives an advisiory opinion which implicates a question of federal law, that decision can be appealed to the U.S. Supreme Court, even though the case could not have been brought in the federal court system originally due to a lack of justiciability; the loss in the state court system is recognized as a sufficient enough injury to create standing for the purposes of the federal appeal.


As others have noted, the availability of a declaratory judgment action can help in this regard. But it is possible that a law may be perfectly constitutional while still be abhorrent. In this case, you’re right, nullification by individual juries in particular cases is not a particularly good system of justice. However, what can happen is the frequent nullification can become a cause of public concern, drawing attention to the injustices of the law. Eventually, enough political will may be generated to change the law. Something like this probably did happen to the “Bloody Code,” the English penal code of the 18th and early 19th century. During the late 18th c., the crimes subject to the death penalty were greatly expanded (including the theft of 40 pounds). Many juries refused to convict due to their belief that the death penalty was overused and arbitrary; although it took decades, this and associated social pressures eventually led to the Code’s replacement with a much less bloody-minded penal system.