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Jurors' Handbook …
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Jurors' Handbook
A Citizens Guide to Jury Duty
Mr. Duane is an associate professor at Regent Law School in Virginia Beach, Virginia
Did you know that you qualify for another, much more That is the power of the jury at work; the power to
powerful vote than the one which you cast on election decide the issues of law under which the defendant is
day? This opportunity comes when you are selected for charged, as well as the facts. In our system of checks
jury duty, a position of honor for over 700 years. and balances, the jury is our final check, the people's
last safeguard against unjust law and tyranny.
The principle of a Common Law Jury or Trial by the
Country was first established on June 15, 1215 at A Jury's Rights, Powers, and Duties:
Runnymede, England when King John signed the
Magna Carta, or Great Charter of our Liberties. It
created the basis for our Constitutional, system of But does the jury's power to veto bad laws exist under
Justice. our Constitution?
It certainly does! At the time the Constitution was
JURY POWER in the system of checks written, the definition of the term "jury" referred to a
and balances: group of citizens empowered to judge both the law and
the evidence in the case before it. Then, in the February
In a Constitutional system of justice, such as ours, there term of 1794, the Supreme Court conducted a jury trial
is a judicial body with more power than Congress, the in the case of the State of Georgia vs. Brailsford1. The
President, or even the Supreme Court. Yes, the trial instructions to the jury in the first jury trial before the
jury protected under our Constitution has more power Supreme Court of the United States illustrate the true
than all these government officials. This is because it power of the jury. Chief Justice John Jay said: "It is
has the final veto power over all "acts of the legislature" presumed, that juries are the best judges of facts; it is,
that may come to be called "laws". on the other hand, presumed that courts are the best
judges of law. But still both objects are within your
power of decision." (emphasis added) "...you have a
In fact, the power of jury nullification predates our
right to take it upon yourselves to judge of both,
Constitution. In November of 1734, a printer named
and to determine the law as well as the fact in
John Peter Zenger was arrested for seditious libel controversy".
against his Majesty's government. At that time, a law of
the Colony of New York forbid any publication without
prior government approval. Freedom of the press was So you see, in an American courtroom there are in a
not enjoyed by the early colonialists! Zenger, however, sense twelve judges in attendance, not just one. And
defied this censorship and published articles strongly they are there with the power to review the "law" as well
critical of New York colonial rule. as the "facts"! Actually, the "judge" is there to conduct
the proceedings in an orderly fashion and maintain the
safety of all parties involved.
When brought to trial in August of 1735, Zenger
admitted publishing the offending articles, but argued
that the truth of the facts stated justified their As recently as 1972, the U.S. Court of Appeals for the
publication. The judge instructed the jury that truth is District of Columbia said that the jury has an "
not justification for libel. Rather, truth makes the libel unreviewable and irreversible power... to acquit in
more vicious, for public unrest is more likely to follow disregard of the instructions on the law given by the trial
true, rather than false claims of bad governance. And judge....2
since the defendant had admitted to the "fact" of
publication, only a question of "law" remained. Or as this same truth was stated in a earlier decision by
the United States Court of Appeals for the District of
Then, as now, the judge said the "issue of law" was for Maryland: "We recognize, as appellants urge, the
the court to determine, and he instructed the jury to find undisputed power of the jury to acquit, even if its verdict
the defendant guilty. It took only ten minutes for the is contrary to the law as given by the judge, and
jury to disregard the judge's instructions on the law
and find Zenger NOT GUILTY. 1
(3 Dall 1)
2
US vs Dougherty, 473 F 2d 1113, 1139 (1972)
1 of 14
contrary to the evidence. This is a power that must exist You must know your rights! Because, once selected for
as long as we adhere to the general verdict in criminal jury duty, nobody will inform you of your power to judge
cases, for the courts cannot search the minds of the both law and fact. In fact, the judge's instructions to the
jurors to find the basis upon which they judge. If the jury jury may be to the contrary. Another quote from US vs
feels that the law under which the defendant is Dougherty4: "The fact that there is widespread
accused, is unjust, or that exigent circumstances existence of the jury's prerogative, and approval of its
justified the actions of the accused, or for any reason existence as a necessary counter to case-hardened
which appeals to their logic of passion, the jury has the judges and arbitrary prosecutors, does not establish as
power to acquit, and the courts must abide by that an imperative that the jury must be informed by the
decision."3 judge of that power".
YOU, as a juror armed with the knowledge of the Look at that quote again. the court ruled jurors have the
purpose of a jury trial, and the knowledge of what your right to decide the law, but they don't have to be told
Rights, powers, and duties really are, can with your about it. It may sound hypocritical, but the Dougherty
single vote of not guilty nullify or invalidate any law decision conforms to an 1895 Supreme Court decision
involved in that case. Because a jury's guilty decision that held the same thing. In Sparf vs US5, the court
must be unanimous, it takes only one vote to effectively ruled that although juries have the right to ignore a
nullify a bad "act of the legislature". Your one vote can judge's instructions on the law, they don't have to be
"hang" a jury; and although it won't be an acquittal, at made aware of the right to do so.
least the defendant will not be convicted of violating an
unjust or unconstitutional law. Is this Supreme Court ruling as unfair as it appears on
the surface? It may be, but the logic behind such a
The government cannot deprive anyone of "Liberty", decision is plain enough.
without your consent!
In our Constitutional Republic, note I did not say
If you feel the statute involved in any criminal case democracy, the people have granted certain limited
being tried before you is unfair, or that it infringes upon powers to government, preserving and retaining their
the defendant's God-given inalienable or Constitutional God-given inalienable rights. So, if it is indeed the
rights, you can affirm that the offending statute is really juror's right to decide the law, then the citizens should
no law at all and that the violation of it is no crime; for know what their rights are. They need not be told by the
no man is bound to obey an unjust command. In other courts. After all, the Constitution makes us the masters
words, if the defendant has disobeyed some man-made of the public servants. Should a servant have to tell a
criminal statute, and the statute is unjust, the defendant master what his rights are? Of course not, it's our
has in substance, committed no crime. Jurors, having responsibility to know what our rights are!
ruled then on the justice of the law involved and finding
it opposed in whole or in part to their own natural The idea that juries are to judge only the "facts" is
concept of what is basically right, are bound to hold for absurd and contrary to historical fact and law. Are juries
the acquittal of said defendant. present only as mere pawns to rubber stamp tyrannical
acts of the government? We The People wrote the
It is your responsibility to insist that your vote of not supreme law of the land, the Constitution, to "secure the
guilty be respected by all other members of the jury. For blessings of liberty to ourselves and our posterity." Who
you are not there as a fool, merely to agree with the better to decide the fairness of the laws, or whether the
majority, but as a qualified judge in your right to see that laws conform to the Constitution?
justice is done. Regardless of the pressures or abuse
that may be applied to you by any or all members of the
jury with whom you may in good conscience disagree,
Our Defense - Jury Power:
you can await the reading of the verdict secure in the
knowledge you have voted your conscience and Sometime in the future, you may be called upon to sit in
convictions, not those of someone else. judgment of a sincere individual being prosecuted
(persecuted?) for trying to exercise his or her Rights, or
So you see, as a juror, you are one of a panel of twelve trying to defend the Constitution. If so, remember that in
judges with the responsibility of protecting all innocent 1804, Samuel Chase, Supreme Court Justice and
Americans from unjust laws. signer of the Declaration of Independence said: "The
jury has the Right to judge both the law and the facts".
And also keep in mind that "either we all hang together,
Jurors Must Know Their Rights: or we most assuredly will all hang separately".
4
(cited earlier)
3 5
US vs Moylan, 417 F 2d 1002, 1006 (1969) (156 US 51)
2 of 14
You now understand how the average citizen can help obstruction of justice, but eventually dropped the
keep in check the power of government and bring to a charges. Presumably, they gave up hope of figuring out
halt the enforcement of tyrannical laws. Unfortunately, how they could get jurors to convict her without showing
very few people know or understand this power which them the contents of the pamphlets she had been
they as Americans possess to nullify oppressive acts of distributing -- and then her jury would know the truth
the legislature. about nullification.
America, the Constitution and your individual rights are Despite all the modern government resentment toward
under attack! Will you defend them? READ THE "jury nullification," its roots run deep in both our history
CONSTITUTION, KNOW YOUR RIGHTS! Remember, and law. At least two provisions of the Constitution, and
if you don't know what your Rights are, you haven't got arguably three, protect the jury's power to nullify. They
any! also explain why that power is limited to criminal cases,
and has no analogy in the civil context.
First, it is reflected in the Sixth Amendment, which
grants the accused an inviolable right to a jury
[Copyright © 1996 Litigation. Originally determination of his guilt or innocence in all criminal
published as 22:4 Litigation 6-60 (1996).] prosecutions for serious offenses. Because of this right,
a trial judge absolutely cannot direct a verdict in favor of
Jury Nullification:
the State or set aside a jury's verdict of not guilty, "no
matter how overwhelming the evidence."6 Any violation
of this rule is automatically reversible error without
The Top Secret
regard to the evidence of guilt.7 Indeed, the point is so
well settled that it was announced without dissent in
Sullivan by a Court that has been unanimous on only a
Constitutional
few constitutional questions in the past ten years.
This rule is applied with a rigor that is without parallel in
Right
any area of civil practice. For example, it is reversible
error to direct a verdict of guilty over the defendant's
objection, even if he takes the witness stand and admits
under oath that he committed every element of the
by James Joseph Duane charged offense!8 (Although one might fairly describe
that particular defense strategy as a questionable use
A bill now pending in the Missouri state legislature has of direct examination.)
whipped up a firestorm of controversy. Judges and
prosecutors there call it "a gut-punch to democracy,"
Judicial Deference
"an invitation to anarchy," and a bill that "flies in the face
of everything this country stands for." One county
prosecutor has even called for the resignation of the 20 Likewise, when a judge takes judicial notice of a fact in
state representatives who introduced the bill. a criminal case -- for example, that the defendant could
not have boarded a train in New York and exited in
What could have caused such calamity? This Texas without somehow crossing state lines -- he will
supposedly radical legislation would merely require tell the jury they "may" accept that fact as proven
judges to tell criminal juries the undisputed fact that without further evidence. But he may not tell them that
they have "the power to judge the law as well as the they are required to do so, or take the factual question
evidence, and to vote on the verdict according to away from them, no matter how obvious the fact might
conscience." It is hard to remember the last time there seem.9 Even where the defendant and his attorney
was so much turmoil over a proposal to declassify a enter into a formal stipulation admitting an element of
government secret during peacetime. the offense, the jury should be told merely that they
may regard the matter to be "proved," if they wish, but
Meanwhile, out in Nevada, a 50-year-old florist and the judge still cannot direct a verdict on that factual
grandmother almost landed in prison for her efforts to issue or take it away from the jury over the defendant's
help spread the word to jurors. When her son went on
6
trial for drug charges in federal court, Yvonne Regas Sullivan v. Louisiana, 508 U.S. 275, 277 (1993).
7
and a friend papered the windshields of nearby parked Id.
8
cars, hoping to let the jurors learn the completely Bryant v. Georgia, 163 Ga. App. 872, 296 S.E.2d 168
unexpected fact that her son faced 450 years in prison (Ga. Ct. App. 1982).
9
for a single drug transaction nine years earlier. Federal See Advisory Committee Notes to Fed. R. Evid.
authorities charged her with jury tampering and 201(g).
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objection. 10All of these rules are designed, in part, to similarly, the Supreme Court has interpreted the Sixth
protect the jury's inviolable power to nullify and to avoid Amendment to give criminal defendants a right to a jury
the reversible error always committed when "the wrong and a trial; the Seventh Amendment, where it applies,
entity judge[s] the defendant guilty."11 only gives civil litigants the right to a jury if there is a
trial.)
Second, the roots of nullification also run deep into the
12
Double Jeopardy Clause. Even where the jury's The existence of a criminal jury's power to nullify is
verdict of not guilty seems indefensible, that clause currently as well settled as any other rule of
prevents the State from pursuing even the limited constitutional law. It is a cornerstone of American
remedy of a new trial. This rule, by design, gives juries criminal procedure. The far more controversial issue --
the power to "err upon the side of mercy" by entering and much more frequently litigated -- is that perennial
"an unassailable but unreasonable verdict of not dilemma: What should we tell the kids? Should (or
guilty."13 must) the judge tell the jurors anything about their
power (or right) to nullify? Should the judge at least
Finally, the jury's power to nullify is protected by our allow the defense to tell them? If so, how much should
abiding "judicial distaste" for special verdicts or we tell them, and how should we do it? These issues lie
interrogatories to the jury in criminal cases.14 Unlike in at the very core of our criminal justice system, and have
civil cases, where such devices are routinely employed, been debated by lawyers, journalists, philosophers, and
in criminal cases it has frequently been held to be error patriots for two centuries. It is therefore ironic that these
to ask a jury to return anything but a general verdict of questions have, at least in recent decades, generated
guilty or not guilty. This rule is designed to safeguard one of the most remarkable displays of unanimity ever
15
the jury's power "to arrive at a general verdict without orchestrated by state and federal courts on any issue of
having to support it by reasons or by a report of its law in American history.
deliberations," and to protect its historic power to nullify
or temper rules of law based on the jurors' sense of It would take at most four words to fairly summarize the
justice as conscience of the community.16 The jury is unanimous consensus of state and federal judges on
given "a general veto power, and this power should not the idea of telling jurors about their power to nullify:
be attenuated by requiring the jury to answer in writing "Forget it. No way." Even while extolling the beauty and
a detailed list of questions or explain its reasons." majesty of our commitment to the jury's constitutional
17
Although the issue is far from settled, a powerful role as a guardian against tyranny, no state or federal
argument can be made that this rule "is of constitutional appellate court in decades has held that a trial judge is
dimensions," and a direct corollary of the Sixth even permitted -- much less required to explicitly
Amendment's protection of the jury's power to nullify. 18 instruct the jurors on their undisputed power to return a
verdict of not guilty in the interests of justice. The
These constitutional rules, in combination, give a federal courts are unanimous and have been for years,
20
criminal jury the inherent discretionary power to "decline for example, ("a district judge may not instruct the jury
to convict," and insure that such "discretionary as to its power to nullify"). So are the state appellate
21
exercises of leniency are final and unreviewable."19 This courts, for example,
state of affairs does not even have a rough parallel in
civil cases, where the Seventh Amendment right to a
"trial by jury" does not preclude judges from granting State Law
summary judgment, directed verdicts, and new trials. (In
effect, although both amendments are written quite There is a pervasive myth that three states supposedly
allow jury nullification instructions: Georgia, Maryland,
10
and Indiana.22 Some lists also include Oregon. This is
United States v. Muse, 83 F.3d 672, 679-80 (4th Cir. presumably because those states have laws or
1996). constitutional provisions suggesting that criminal jurors
11
Rose v. Clark, 478 U.S. 570, 578 (1986). are judges of the law and the facts. But the myth is
12
(p.7) false. Despite their differing constitutions, all four states
13
Jackson v. Virginia, 443 U.S. 307, 317 n.10 (1979).
14
United States v. Oliver North, 910 F.2d 843, 910-11
20
(D.C. Cir. 1990). United States v. Manning, 79 F.3d 212, 219 (1st Cir.
15
United States v. McCracken, 488 F.2d 406, 418-419 1996)
21
(5th Cir. 1974) (collecting cases). Mouton v. Texas, 923 S.W.2d 219 (Tex. Ct. App.
16
Id.; United States v. Spock, 416 F.2d 165, 181-82 (1st 1996); Michigan v. Demers, 195 Mich. App. 205, 489
Cir. 1969). N.W.2d 173 (Mich. Ct. App. 1992).
17 22
United States v. Wilson, 629 F.2d 439, 443 (6th Cir. See State v. Morgan Stanley & Co., 194 W.V. 163,
1980). 175, 459 S.E.2d 906, 918 n.27 (W.V. 1995); Paul
18
Wayne LaFave & Jerold Israel, Criminal Procedure § Butler, Racially Based Jury Nullification: Black Power in
24.7(a) (2d ed. 1992). the Criminal Justice System, 105 Yale L.J. 677, 704
19
McCleskey v. Kemp, 481 U.S. 279, 311 (1987). n.147 (1995).
4 of 14
have held that a jury has, at most, the power to acquit a Fourteenth Amendment, subject to the condition that he
guilty man, not the right, and should not be told that it would revert to the status of an "American Freeman"
may ignore or nullify the law.23 with all of the "common law rights thereof, including the
right to a jury possessing the power of jury
Resourceful defendants and their attorneys have tried nullification."32 The Supreme Court passed up this
every conceivable route around this immovable chance to decide the issue, perhaps preferring to wait
roadblock. All have been thwarted. Without exception, until it percolates a bit more in the lower courts.33
the appellate courts will not allow a defense attorney to
use her closing argument to tell the jurors about their Judicial hostility to jury nullification goes well beyond
power to nullify, or to urge them to use it.24 the stone wall of silence erected around the jury box.
Case after case has approved jury instructions actually
Nor can the defense offer evidence that is relevant to designed to imply that jurors do not have such power at
nothing but the justness of a conviction or acquittal, or all, or to "instruct the jury on the dimensions of their
25
34
is otherwise designed to induce the jury to nullify.26 This duty to the exclusion of jury nullification." For example,
includes, most notably, any information about the criminal jurors are routinely ordered: "You must follow
sentence faced by the defendant, even if it is a my instructions on the law, even if you thought the law
minimum mandated by law. 27 was different or should be different,"35 and "even if you
disagree or don't understand the reasons for some of
the rules."36
Judicial disapproval also extends to any evidence or
argument designed solely to persuade the jury that the
government was guilty of misconduct in its investigation In extreme cases, this judicial hostility even extends to
or prosecution.28 dishonesty. As Chief Judge Bazelon correctly observed,
current law on this topic is tantamount to a "deliberate
lack of candor."37 In one especially outrageous case,
Predictably, the battle is moving to the earliest stages of
the trial, but the results are the same. Requests to ask the jury deliberated for hours in a criminal tax case
jurors about nullification on voir dire have been before sending the judge a note asking: "What is jury
29 nullification?" The defendant was convicted shortly after
denied.
the judge falsely told the jury that "there is no such thing
as valid jury nullification," and that they would violate
One pro se defendant tried to persuade the Supreme their oath and the law if they did such a thing.38 Over a
Court that her trial judge improperly refused to let her vigorous dissent, the Court of Appeals deemed the
challenge for cause those prospective jurors who did instruction proper and affirmed the conviction39, even
know or understand the term "jury nullification."30 The after the defendant furnished the court with an affidavit
Court decided it might tackle that one later, and denied from a juror who swore he would have acquitted if "we
review.31 were told the truth about jury nullification."40
Defendants will go to any lengths to get this forbidden This widespread judicial pattern is highly ironic. The
topic of discussion before the jury. In one recent case courts have unanimously (and erroneously) refused to
involving minor charges in traffic court, a pro se let defense attorneys argue for nullification, typically by
defendant offered the State of Pennsylvania a bargain insisting that the jury has no power to consider what the
of almost Faustian proportions. He asserted a right to law should be, and that juries have no lawful task but to
execute a release of his property rights under state law decide whether the defendant broke the law. Yet, in a fit
and all of his privileges and immunities secured by the of sheer inconsistency, the same federal courts of
23 32
See, e.g., Miller v. Georgia, 260 Ga. 191, 196, 391 Phelps v. Pennsylvania, 59 U.S.L.W. 3522 (1991)
S.E.2d 642, 647 (Ga. 1990). (petition for certiorari).
24 33
See, e.g., United States v. Muse, 83 F.3d 672, 677 498 U.S. 1088 (1991).
34
(4th Cir. 1996). United States v. Sepulveda, 15 F.3d 1161, 1190 (1st
25
(p.8) Cir. 1993).
26 35
United States v. Griggs, 50 F.3d 17, 1995 WL 7669 Eighth Circuit Pattern Criminal Jury Instruction 3.02
(9th Cir. 1994). (1991),
27 36
United States v. Johnson, 62 F.3d 849, 850-51 (6th Federal Judicial Center, Pattern Criminal Jury
Cir. 1995). Instruction 9 (1987).
28 37
United States v. Rosado, 728 F.2d 89, 93-95 (2d Cir. United States v. Dougherty, 473 F.2d 1113, 1139
1984). (D.C. Cir. 1972) (dissenting opinion).
29 38
United States v. Datche,. 830 F. Supp. 411, 418 United States v. Krzyske, 836 F.2d 1013,1021 (6th
(M.D. Tenn. 1993). Cir. 1988).
30 39
Mendonca v. Oregon, 55 U.S.L.W. 3362 (1986) , id.
40
(petition for certiorari). United States v. Krzyske, 857 F.2d 1089,1095 (6th
31
479 U.S. 979 (1986). Cir. 1988).
5 of 14
appeals are also unanimous that it is permissible for refusal of northern jurors to convict "guilty" men who
prosecutors to urge juries to act as the "conscience of violated the fugitive slave laws.46
the community" and use their verdict to "send a
message" about whether society should be willing to On the other hand, some courts have suggested that
tolerate the defendant's alleged conduct.41 the power to nullify is merely "a tolerated anomaly in the
rule of law.'"47 They call it a void in the law, giving jurors
The Sixth Amendment creates a right for the defendant "the power to do what they want in a given case
to insist on a jury to act as a community conscience and because neither the prosecution nor the court has the
protect him from government oppression, and yet only authority to compel them to do what they should."48
the State is allowed, when it chooses, to ask the jury to Others assert that the power exists only because "there
consider matters of morality and conscience.42 Thus is nothing to prevent" it, but that it "is not a legally
have we witnessed a complete perversion of the sanctioned function of the jury and should not be
constitutional priorities and structure. encouraged by the court."49 The sensational-sounding
charges have been made that a nullification instruction
One might fairly summarize the case law this way: "You would "encourage the jury to abdicate its primary
may hope that the jury will refuse to apply a harsh, function," id., or that it would "in essence direct juries
50
unfair, or inequitable law, but you may not urge them to that they could run amuck" Scores of other cases
do so."43 But why not? Why can't we tell the jury a little have tried to capture this same point by insisting that
bit more than we do about the truth? Not since the juries always have the power to nullify, but never the
storming of the Bastille have the forces of government right to do so.
been so tightly united in their opposition to a popular
uprising. Numerous arguments have been advanced by So who is correct? Is the institution of nullification
judges around the country for this refusal, but not one deliberately enshrined and protected in the Constitution
stands up to serious analysis. as a valuable political end in itself, as some have
suggested? Or is it merely a regrettable byproduct of
1. "Jury nullification is an embarrassing glitch in our careless drafting, or an anomalous but necessary evil
law." What should we tell jurors about their power to we "tolerate" because of our commitment to some
nullify? The answer depends largely on one's attitude greater good? And how could the courts be so very far
toward a closely related issue: Just what is nullification apart in their responses? The answer to this confusion
anyway, and why is it protected by the Constitution? depends on how one defines "jury nullification," a term
One of the most frequent justifications for refusing to tell with various shades of meaning.
juries about their power to nullify is the pernicious
suggestion that this power is the product of some In its broadest form, "nullification" has often been used
accidental or regrettable flaw in our system of justice. to describe the jury's "raw power to set an accused free
for any reason or for no reason,"51 even for reasons
Jury nullification has been described in many ways, having nothing to do with justice or guilt.
some of which cannot be repeated in respectable
society. At one extreme, a federal judge recently hailed
it as "one of the peaceful barricades of freedom.44 Even The Jury's Rights
courts declining to instruct juries about the doctrine
have conceded that "the pages of history shine on An acquittal may come because the jurors found the
instances of the jury's exercise of its prerogative to defendant attractive, or were members of the same
disregard uncontradicted evidence and instructions of race, or harbored hatred toward the victim's race, or
the judge."45 Notable examples include the courageous merely because they were tired of being sequestered
for months. This possibility, which might fairly be called
"lawless nullification," is protected by our Constitution
not for its own sake, but because of our commitment to
the secrecy of jury deliberations and the finality and
41 unreviewability of their verdicts. (This is true in much
James J. Duane, "What Message Are We Sending to
the same way that the First Amendment protects the
Criminal Jurors When We Ask Them to 'Send a
Message' With Their Verdict?," 22 Am. J. Crim. Law
565, 576-79 (1995).
42 46
Id. at 590-602. Id.
43 47
Steven Lubet, Modern Trial Advocacy 436 (1993) Mayfield v. United States, 659 A.2d 1249, 1254 (D.C.
(emphasis added). 1995).
44
." Jack B. Weinstein, "Considering Jury 'Nullification': 48 State v. Bjerkaas, 472 N.W.2d 615, 619 (Wis. App.
When May and Should a Jury (p.9)Reject the Law to Do 1991). (emphasis added).
49
Justice," 30 Am. Crim. L. Rev. 239, 254 (1993). State v. Weinberg, 631 N.E.2d 97, 100 (N.Y. 1994).
45 50
United States v. Dougherty, 473 F.2d 1113, 1130 Davis v. State, 520 So. 2d 493, 494-95 (Miss. 1988).
51
(D.C. Cir. 1972). Sepulveda, 15 F.3d at 1190,
6 of 14
right to say many things that nobody would publicly hold bring in a verdict in the teeth of both law and facts."58
up as a model of good civic behavior.) But the jury's power to acquit out of justice or mercy is a
constitutionally protected right. If not their right, it is at
There is no compelling reason why a jury should learn least the defendant's firmly settled right that he insist on
every dirty little secret of our system of justice, a jury with such power, regardless of whether the proof
especially if that knowledge would undermine the of his technical legal guilt is literally overwhelming and
purpose of the proceeding or the jurors' perception of uncontradicted.59 Any judicial instructions that would
52
the seriousness of their role. It is an error to give jury prevent the exercise of this right are unconstitutional.
misleading view of the extent of appellate review of their
sentencing recommendation. Thus, the courts are These considerations about the historical roots of the
correct to hold that the law should not require or right to a jury trial, by themselves, do not dispose of the
encourage a judge to remind jurors of the regrettable question whether the jury should be instructed about
fact that they have the raw power to acquit for any nullification. But they easily suffice to dispatch the
arbitrary or spiteful reason, or indeed for no reason at absurd suggestion that the latitude allowed for an
all. But in no reported case, to my knowledge, has any acquittal based on the jury's sense of justice should be
defendant or his attorney requested an instruction that kept from the jury because it is only a flaw in the
would go even half that far. system's design, or that it is not a legally sanctioned
function of the jury.
In the real world, outside the pages of appellate judicial
opinions, defendants almost invariably make the far 2. "Nullification instructions encourage the jury to violate
more modest request that the jury be told merely of its the law." Some courts have reasoned that a nullification
authority to acquit an accused if a conviction would instruction would permit, if not encourage, the jurors to
conflict with their deeply seated sense of morality and disregard or break the law. One court even held that it
justice. In this, its purest form, the possibility of is proper to affirmatively instruct the jurors that they
"nullification" is not some accidental byproduct of would "violate the law" if they engaged in nullification or
careless drafting in the Constitution, nor of our if they violated any of the judge's instructions on the
commitment to some greater good. It is one of the very law.60 Another has reasoned that "anarchy would result
reasons for the existence of the Sixth Amendment's from instructing the jury that it may ignore the
inflexible insistence that the accused has the right to a requirements of the law."61 Such assertions are
jury of his peers. baseless.
The jury is there, by design, "to prevent oppression by Contrary to the widespread myth popular among
the Government" and to "protect against unfounded judges, there is no "law" that requires juries to convict
criminal charges brought to eliminate enemies and every man shown to be technically guilty beyond a
against judges too responsive to the voice of higher reasonable doubt. "The power of the courts to punish
authority."53 The jury's role "as a check on official jurors for corrupt and incorrect verdicts,"62 that darling of
power" is in fact "its intended function."54 The jury the Star Chamber's nursery, was banished from the
injects "a slack into the enforcement of law, tempering pages of Anglo-American law centuries ago. Today, at
its rigor by the mollifying influence of current ethical its very core, our system of justice is unflinchingly
conventions."55 That is why a directed verdict for the committed to the liberty of criminal juries to "err upon
state would be not merely unconstitutional -- it "would the side of mercy,"63 or to "refuse to convict even
be totally alien to our notions of criminal justice," since though the evidence supported the charge."64 Any
"the discretionary act of jury nullification would not be system that restricted such liberty "would be totally alien
permitted."56 to our notions of criminal justice."65 In this respect,
nullification is every bit as lawful as leniency extended
This is also the defect in the long line of cases that by the prosecutor, or the judge, or the governor.66
disparage57 nullification by claiming that the jury has
only the "power," but not the "right," to do it. That may
be a fair description of the jury's latitude to acquit for
any lawless reason that pleases them -- its "power to 58
Horning v. District of Columbia, 254 U.S. 135, 138
(1920).
59
Sullivan v. Louisiana, 508 U.S. 275, 277-82 (1993).
52
See Caldwell v. Mississippi, 472 U.S. 320, 323 (1985) 60 United States v. Krzyske, 836 F.2d 1013, 1021 (6th
53
Duncan v. Louisiana, 391 U.S. 145, 155-56 (1968). Cir. 1988).
54 61
Batson v. Kentucky, 476 U.S. 79, 86-87 n.8 (1986). Powell, 955 F.2d at 1213.
55 62
." United States ex rel. McCann v. Adams, 126 F.2d Dougherty, 473 F.2d at 1130,
63
774, 775-76 (2d Cir. 1942) (Learned Hand, J.). Jackson, 443 U.S. at 317,
56 64
Gregg v. Georgia, 428 U.S. 153, 199 n.50 (1976) Gregg, 428 US. at 199 n.50.
65
(plurality opinion). Id.
57 66
(p.10) Id.
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Nor does any "law" forbid a jury from pardoning a man with a bad muffler instead, or maybe acquit him on the
who violated an unjust statute, even if an acquittal grounds of intoxication.73
requires them to ignore the court's instructions on the
law. The Constitution does no such thing; it actually Our entire system of justice would be undermined if
protects the jury's right to acquit based on their sense of jurors had the liberty to return a false verdict -- even for
justice. The penal code does not criminalize such benign motives of mercy -- convicting a defendant of a
conduct, and would be clearly unconstitutional if it did. lesser offense she simply could not have committed, or
Not even the Bible imposes any such rule.67 "Follow acquitting her because of some legal defense with
justice and justice alone". If there is any such "law," it is absolutely no basis in the evidence.
true only in the narrow sense of illegitimate case law
made up by judges acting well beyond the scope of But that straw man has nothing to do with the typical
their lawful authority.
case of a defendant seeking an instruction on
nullification. Such instructions need not suggest that
Judges who tell each other that "nullification is illegal" jurors be told they can decide for themselves what the
are more than vaguely reminiscent of the judge who law is or should be, or that they can convict the
once told a criminal defendant: "Rule Forty-Two. All defendant of some lesser offense (or acquit on the
persons more than a mile high to leave the court! It's basis of some affirmative defense) with no basis in the
the oldest rule in the book."68 As the defendant adroitly facts. Our law does not countenance such contrivances
responded: "Then it ought to be Number One" -- or it and should not encourage them. But a proper
ought to be, at the very least, written down in the nullification instruction or argument would merely tell
Constitution, or the penal code, or somewhere besides the jury the fact -- or at least confirm their intuitive
judicial opinions. suspicion that our law intentionally allows them the
latitude to "refuse to enforce the law's harshness when
3. "The Supreme Court said not to tell the jury about it." justice so requires."74 Whether that information should
A surprising number of courts have tried to blame the be given to the jury has never been considered or
Supreme Court for their refusal to tell juries about the decided by the Supreme Court. Id. But it is the height of
power to acquit on moral grounds. That myth is also hypocrisy to refuse to report that truthful information
false. The Supreme Court has never said such a thing. about our constitutional law to the jury on the pretense
that the judge "has the right and duty to tell them what
In the two cases widely cited for this proposition, the the law is."75 That language, taken literally, would
Court merely declared that a jury is not entitled to require the judge to tell the jury much more than we do
decide what the law is or should be, and that "a judge about nullification.
always has the right and duty to tell them what the law
is upon this or that state of facts that may be found."69There is one variant of nullification, however, that
This language has been widely cited by lower courts as appears to have been recently foreclosed by the
authority for their refusal to permit any argument or Supreme Court. Without specifically addressing the
instructions on nullification.70 topic of nullification, the Court recently held that jurors
should not be given distracting information about the
In fact, however, Horning and Sparf have nothing to do sentencing consequences of their verdict, even when
with this matter. It would indeed be improper to tell a that evidence might serve to correct inconsistent and
jury that "they are to determine the rules of law."71 In erroneous beliefs the jury is likely to harbor about the
76
Sparf, for example, the Supreme Court properly refused effect of their verdict. That reasoning would also
a murder defendant's request that his jury be told they appear to apply where the defendant seeks to tell the
could convict him of manslaughter out of leniency, even jury about sentencing information solely to persuade
though he conceded that there was no evidence to them to acquit out of compassion and mercy, as the
72
support a finding of guilt on such a lesser charge! If lower courts have already acknowledged.77
that were the law, of course, we ought to read the jury
the entire penal code, just in case manslaughter seems
too harsh, so they could perhaps convict him of driving Limiting the Jury's
Discretion
67
See Deuteronomy 16:20
68
Lewis Carroll, Alice's Adventures in Wonderland 256
(Bramhall House 1960).
69 73
Horning v. District of Columbia, 254 U.S. 135, 138 (p.11)
(1920) (Holmes, J.); accord Sparf and Hansen v. United 74 LaFave and Israel, Criminal Procedure § 22.1, at 960.
75
States, 156 U.S. 51 (1895). Horning, 254 U.S. at 138 (emphasis added).
70 76
E.g., Krzyske. 836 F.2d at 1021. Shannon v. United States, 114 S. Ct. 2419, 2427
71
Dougherty, 473 F.2d at 1136. (1994).
72 77
156 U.S. at 99. See United States v. Johnson, 62 F.3d at 850.
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The reasoning of Shannon, consistently applied, would are bound by the oath that you took at the beginning of
take a big bite out of the jury's power to nullify. An the trial to follow the instructions that I give you, even if
oppressive political regime could achieve some you personally disagree with them."82 If the jurors
surprising results by persuading a jury to convict an explicitly ask about nullification, we are told that the
accused of some seemingly minor offense that carries a judge should warn them of the supposed "fact" that
surprisingly draconian penalty. Without accurate acquittal of a guilty man for any reason would be a
sentencing information, jurors would be unable to nullify breach of their solemn oaths as jurors.83
such a monstrous law -- or worse yet, might even end
up playing right into the government's hands by This ominous-sounding charge has no logical
guessing incorrectly. substance, although it naturally carries much emotional
appeal. Jurors know that oaths are serious business,84
Heidi Fleiss, for example, was convicted of consensual and the law never permits or encourages anyone to do
sex offenses by jurors who were "outraged" to later anything contrary to his oath. But despite its
learn she faced a minimum three-year prison sentence. tremendous popularity among judges, this argument is
Despite several jurors' belief that she was innocent, the by far the most misshapen stone in the barricade
jurors had struck a deal after four days of deliberating judges have been erecting around the jury box.
and acquitted her of drug charges -- where the
evidence was stronger -- because they were "under the To begin with, it is usually false. The typical oath taken
mistaken impression that the narcotics charge carried a by jurors today does not forbid them from refusing to
stiffer penalty."78 (Of course, trials like this one -- and convict based on their sense of justice. In fact, many
many others -- undermine the Supreme Court's crucial oaths administered today are barely even intelligible. At
assumption that jurors can be trusted to heed our the beginning of (p.12)the trial, jurors are typically
standard instruction to disregard possible punishment asked to swear that they "will well and truly try and a
when reaching their verdict.) true deliverance make between the United States and
the defendant at the bar, and a true verdict render
Shannon did not close the door to most forms of according to the evidence, so help [me] God."85
nullification, however. As the Court properly reasoned, it
would be difficult to decide where to draw the line once Nobody still alive today knows for sure what it means to
we open the jury room door to even truthful information "make a true deliverance." But nothing in this oath
about the long-run sentencing consequences of their would forbid jurors from acquitting if they are convinced
verdicts.79 But that logic does not apply to the normal -- based solely on "the evidence" -- that the accused's
case of nullification, where the accused desires an actions were morally blameless and that a conviction
acquittal based only on the moral implications of the would be unjust. In such rare cases, no jurors could be
evidence already properly before the jury concerning said to have decided a case "well and truly" if they had
the details of his conduct, and does not seek to to disregard their sense of justice to convict. And an
smuggle into the record any facts they did not already acquittal in that case would certainly sound like a "true
learn from the prosecutor. deliverance."86 ("Rescue those being led away to
death"), and also87 ("He has sent me to proclaim
4. "We can't encourage the jurors to violate their oath." freedom for the captives and release from darkness for
Perhaps the most threadbare judicial objection to the prisoners").
nullification arguments is that "neither the court nor
counsel should encourage jurors to violate their oath."80 If a jury refuses to convict a man because of
These cases routinely assume that a jury's oath forbids overwhelming feelings of mercy or justice, they are not
them from nullifying for any reason, even if based on returning a "false" verdict. A verdict of "not guilty" based
their firm belief that a conviction would be a terrible on a jury's notions of justice is not affirmatively
miscarriage of justice. One prosecutor recently declaring that he is innocent. (The same is true of an
reiterated the age-old complaint that "jury nullification acquittal based on their conclusion that he has only
gives status and dignity to what is basically violating been shown to be probably guilty, but not beyond a
your oath as a juror to follow the law." 81 reasonable doubt.) The general "not guilty" verdict is
merely a shorthand way of allowing the jury to express,
Moreover, it has been recommended that federal for reasons they need not explain, "we do not choose to
judges go one step further and routinely tell jurors, "You condemn the accused by pronouncing him guilty."
78 82
Shawn Hubler, "Court Overturns Fleiss' Conviction, Sixth Circuit Pattern Jury Instruction 1.02.
83
Orders New Trial," L.A. Times, at A1 (May 30, 1996). Krzyske, 836 F.2d at 1021.
79 84
Shannon, 114 S. Ct. at 2427-28 & n.11. see Exodus 20:7, 16,
80 85
United States v. Trujillo, 714 F.2d 102, 106 (11th Cir. United States v. Green, 556 F.2d 71 n.1 (D.C. Cir.
1983). 1977).
81 86
Tony Perry, "The Simpson Verdicts," LA. Times, at 5 See Proverbs 24:11
87
(Oct. 5, 1995). Isaiah 61:1
9 of 14
The standard objection to nullification instructions might aside any notions of "justice" that might stand in the
carry at least superficial plausibility in those jurisdictions way of their willingness to condemn a morally
where the jury is sworn to render "a true verdict blameless man.
according to the evidence and the charge of the
Court."88 If those same jurors are later instructed by the Beyond all this, perhaps the most blasphemous aspect
court that they "must convict" where there is proof of of the invocation of the oath is the simple fact that we
legal guilt beyond a reasonable doubt, it probably would really do not expect jurors to refrain from nullifying in all
be a violation of such an oath to disregard the court's circumstances. That being the case, it ill-behooves us
charge and acquit the man because his conduct was to place jurors under an oath that they will not nullify
morally blameless. (much less lie to them about whether they have taken
such an oath).
But this objection to nullification instructions utterly begs
the question. It is clear that defendants can make at At least for those jurors who take their oaths seriously, it
least a plausible claim to a moral, (and perhaps places them in an intolerable and totally unnecessary
constitutional), right to appeal to the jurors to acquit out conflict between deeply held moral scruples. It
of justice or mercy. That argument must either stand or demeans the seriousness of the oath, which stands at
fall on its own merit, without any regard to the present the very bedrock of our system of justice.90
wording of the jurors' oath.
And when citizens and jurors gradually get wind of the
Constitutional Protection fact that we really don't expect them to always refrain
from nullifying, despite their alleged oaths to the
contrary, who can blame any of those people from
It is a colossal red herring to dismiss such claims with cutting corners with their future oaths as witnesses or
the rejoinder that nullification acquittals would "violate elected officials?
the jurors' oath." No judge can brush aside a plausible
constitutional argument by saying "You might be right, 5. "We give them enough hints already." Perhaps the
but we do not decide the question, because we have most baffling excuse for refusing to tell jurors about
already extracted a solemn vow from the jurors to abide nullification is the excuse that we already give them a
by a different procedure that arguably violates your few ambiguous (p.13)clues about their power to nullify.
moral and constitutional rights." That "logic" could lead In the seminal Dougherty case, for example, which
to some remarkable results in jurisdictions determined remains the most influential opinion ever written on this
to defeat other constitutional provisions as well. topic, the Court of Appeals reasoned that explicit
instructions would be superfluous, in part because
A jury's latitude to nullify is deliberately protected by the juries get the message in a variety of subtle ways. The
Constitution. Neither the tradition nor the wording of the court based this holding, in part, on its axiomatic
oath administered to the jurors, on the other hand, is so assumption of "the fact that the judge tells the jury it
dictated. In federal court it is not even prescribed by must acquit (in case of reasonable doubt) but never
statute. It is simply an old tradition judges have made tells the jury in so many words that it must convict."91
up. If the wording of the oath poses some conflict with
the jury's constitutional prerogative to nullify, it is clear
The first problem with this justification is that it proceeds
which one must yield the right of way. Courts simply on a premise that is no longer generally true. Contrary
have no business (much less lawful authority) asking to the Dougherty court's assumption about what a
jurors to swear to anything that would violate the criminal trial judge would "never" do, the United States
Constitution or the jury's deeply held convictions about Judicial Conference has instructed federal judges to tell
justice. every criminal jury that "if you are firmly convinced that
the defendant is guilty of the crime charged, you must
Besides, while we are on the subject of oaths, it is well find him guilty."92 Several courts have formally approved
to remember that there is always one party in the similar instructions telling the jury they "must" convict.93
courtroom who is required to take an oath prescribed by Indeed, one Circuit Court of Appeals recently went so
federal law -- and it is not the jury. Before ascending to far as to state (in an unpublished decision) that
the bench to try his first case, every federal judge is instructing jurors any other way -- for example, that they
required by law to swear or affirm to uphold the "should" convict -- is at least "arguably" forbidden by the
Constitution (which includes the Sixth Amendment), and
"that I will administer justice without respect to
persons."89 That is a most peculiar-sounding oath for 90
United States v. Dunnigan, 507 U.S. 87, 97 (1993).
anyone who intends to browbeat jurors into putting 91
473 F.2d at 1135 (emphasis added)