The Original Criminal Jury

47 Pages Posted: 22 Dec 2021

Date Written: November 1, 2021


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.

Suggested Citation

Hetzel, Jeff, The Original Criminal Jury (November 1, 2021). Available at SSRN: or

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