"The Original Criminal Jury"

The title of this post is the title of this notable new paper authored by Jeff Hetzel recently posted to SSRN.  Here is its abstract:

In early America, the criminal jury decided matters of law.  The prosecutor and defense counsel read aloud to the jury from statutes, precedent, and treatises.  The presiding judge instructed the jury that it had the power to decide matters of law.  Then, the jury deliberated and rendered a verdict based on, among other things, its independent judgment about matters of law, whether that meant the common law, statutes, or the Constitution.

The legal world has for generations failed to recognize the power of the original criminal jury.  Those who have not ignored the evidence of the jury’s power over matters of law have tended to interpret it as an early form of jury nullification, by which the jury could review the morality of the prosecution.  But a careful examination of early practice reveals that the jury held no more power to nullify than it does today.  Rather, the early American jury held the power to do what judges today are expected do — to decide what the law means without deciding its morality.

This Article reintroduces this forgotten — yet still constitutionally binding — model of the criminal jury.