Did you know that you qualify for another, much more
powerful vote than the one which you cast on election day? This opportunity comes when you
are selected for jury duty, a position of honor for over 700 years.
The principle of a Common Law Jury or Trial by the Country
was first established on June 15, 1215 at Runnymede, England when King John signed the
Magna Carta, or Great Charter of our Liberties. It created the basis for our
Constitutional system of Justice.
JURY POWER is the system of checks and
balances. Jury Duty restrains out-of-control laws and judges:
In a Constitutional system of justice, such as ours, there
is a judicial body with more power than Congress, the President, or even the Supreme
Court. Yes, the trial jury protected under our Constitution has more power than all these
government officials. This is because it has the final veto power over all "acts of
the legislature" that may come to be called "laws".
In fact, the power of jury nullification predates our
Constitution. In November of 1734, a printer named John Peter Zenger was arrested for
seditious libel 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
not enjoyed by the early colonialists! Zenger, however, defied this censorship and
published articles strongly critical of New York colonial rule.
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 publication. The judge instructed the jury that truth is not justification for
libel. Rather, truth makes the libel more vicious, for public unrest is more likely to
follow true, rather than false claims of bad governance. And since the defendant had
admitted to the "fact" of publication, only a question of "law"
Then, as now, the judge said the "issue of law"
was for the court to determine, and he instructed the jury to find the defendant guilty. It
took only ten minutes for the jury to disregard the judge's instructions on the law and
find Zenger NOT GUILTY.
That is the power of the jury at work; the power to decide
the issues of law under which the defendant is charged, as well as the facts. In our
system of checks and balances, the jury is our final check, the people's last safegard
against unjust law and tyranny.
A Jury's Rights, Powers, and Duties:
But does the jury's power to veto bad laws exist under our
It certainly does! At the time the Constitution was written,
the definition of the term "jury" referred to a group of citizens empowered to
judge both the law and the evidence in the case before it. Then, in the February term of
1794, the Supreme Court conducted a jury trial in the case of the State of Georgia vs.
Brailsford (3 Dall 1). The instructions to the jury in the first jury trial before the
Supreme Court of the United States illustrate the true power of the jury. Chief Justice
John Jay said: "It is presumed, that juries are the best judges of facts; it is, 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 right to
take it upon yourselves to judge of both, and to determine the law as well as the fact in
So you see, in an American courtroom there are in a sense
twelve judges in attendance, not just one. And they are there with the power to review the
"law" as well as the "facts"! Actually, the "judge" is there
to conduct the proceedings in an orderly fashion and maintain the safety of all parties
As recently as 1972, the U.S. Court of Appeals for the
District of Columbia said that the jury has an " unreviewable and irreversible
power... to acquit in disregard of the instructions on the law given by the trial
judge.... (US vs Dougherty, 473 F 2d 1113, 1139 (1972))
Or as this same truth was stated in a earlier decision by
the United States Court of Appeals for the District of Maryland: "We recognize, as
appellants urge, the undisputed power of the jury to acquit, even if its verdict is
contrary to the law as given by the judge, and contrary to the evidence. This is a power
that must exist as long as we adhere to the general verdict in criminal cases, for the
courts cannot search the minds of the jurors to find the basis upon which they judge. If
the jury feels that the law under which the defendant is accused, is unjust, or that
exigent circumstances justified the actions of the accused, or for any reason which
appeals to their logic of passion, the jury has the power to acquit, and the courts must
abide by that decision." (US vs Moylan, 417 F 2d 1002, 1006 (1969)).
YOU, as a juror armed with the knowledge of the purpose of a
jury trial, and the knowledge of what your Rights, powers, and duties really are, can with
your single vote of not guilty nullify or invalidate any law involved in that case.
Because a jury's guilty decision must be unanimous, it takes only one vote to effectively
nullify a bad "act of the legislature". Your one vote can "hang" a
jury; and although it won't be an acquittal, at least the defendant will not be convicted
of violating an unjust or unconstitutional law.
The government cannot deprive anyone of "Liberty",
without your consent!
If you feel the statute involved in any criminal case being
tried before you is unfair, or that it infringes upon the defendant's God-given
inalienable or Constitutional rights, you can affirm that the offending statute is really
no law at all and that the violation of it is no crime; for no man is bound to obey an
unjust command. In other words, if the defendant has disobeyed some man-made criminal
statute, and the statute is unjust, the defendant has in substance, committed no crime.
Jurors, having ruled then on the justice of the law involved and finding it opposed in
whole or in part to their own natural concept of what is basically right, are bound to
hold for the acquittal of said defendant.
It is your responsibility to insist that your vote of not
guilty be respected by all other members of the jury. For you are not there as a fool,
merely to agree with the majority, but as a qualified judge in your right to see that
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, you can await the
reading of the verdict secure in the knowledge you have voted your conscience and
convictions, not those of someone else.
So you see, as a juror, you are one of a panel of twelve
judges with the responsibility of protecting all innocent Americans from unjust laws.
Jurors Must Know Their Rights:
You must know your rights! Because, once selected for jury
duty, nobody will inform you of your power to judge both law and fact. In fact, the
judge's instructions to the jury may be to the contrary. Another quote from US vs
Dougherty (cited earlier): "The fact that there is widespread existence of the jury's
prerogative, and approval of its existence as a necessary counter to case-hardened judges
and arbitrary prosecutors, does not establish as an imperative that the jury must be
informed by the judge of that power".
Look at that quote again. the court ruled jurors have the
right to decide the law, but they don't have to be told about it. It may sound
hypocritical, but the Dougherty decision conforms to an 1895 Supreme Court decision that
held the same thing. In Sparf vs US (156 US 51), the court ruled that although juries have
the right to ignore a judge's instructions on the law, they don't have to be made aware of
the right to do so.
Is this Supreme Court ruling as unfair as it appears on the
surface? It may be, but the logic behind such a decision is plain enough.
In our Constitutional Republic (note I didn't say democracy)
the people have granted certain limited powers to government, preserving and retaining
their God-given inalienable rights. So, if it is indeed the juror's right to decide the
law, then the citizens should know what their rights are. They need not be told by the
courts. After all, the Constitution makes us the masters of the public servants. Should a
servant have to tell a master what his rights are? Of course not, it's our responsibility
to know what our rights are!
The idea that juries are to judge only the "facts"
is absurd and contrary to historical fact and law. Are juries present only as mere pawns
to rubber stamp tyrannical acts of the government? We The People wrote the supreme law of
the land, the Constitution, to "secure the blessings of liberty to ourselves and our
posterity." Who better to decide the fairness of the laws, or whether the laws
conform to the Constitution?
Our Defense - Jury Power:
Sometime in the future, you may be called upon to sit in
judgment of a sincere individual being prosecuted (persecuted?) for trying to exercise his
or her Rights, or trying to defend the Constitution. If so, remember that in 1804, Samuel
Chase, Supreme Court Justice and 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, or we most assuredly will all hang separately".
You now understand how the average citizen can help keep in
check the power of government and bring to a halt the enforcement of tyrannical laws.
Unfortunately, very few people know or understand this power which they as Americans
possess to nullify oppressive acts of the legislature.
America, the Constitution and your individual rights are
under attack! Will you defend them? READ THE CONSTITUTION, KNOW YOUR RIGHTS! Remember, if
you don't know what your Rights are, you haven't got any!
[Copyright © 1996 Litigation. Originally
published as 22:4 Litigation 6-60 (1996).]
Nullification: The Top Secret
by James Joseph Duane
A bill now pending in the
Missouri state legislature has whipped up a firestorm of controversy. Judges and
prosecutors there call it "a gut-punch to democracy," "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 state
representatives who introduced the bill.
What could have caused such calamity? This
supposedly radical legislation would merely require judges to tell criminal juries the
undisputed fact that they have "the power to judge the law as well as the evidence,
and to vote on the verdict according to conscience." It is hard to remember the last
time there was so much turmoil over a proposal to declassify a government secret during
Meanwhile, out in Nevada, a 50-year-old florist
and grandmother almost landed in prison for her efforts to help spread the word to jurors.
When her son went on trial for drug charges in federal court, Yvonne Regas and a friend
papered the windshields of nearby parked cars, hoping to let the jurors learn the
completely unexpected fact that her son faced 450 years in prison for a single drug
transaction nine years earlier. Federal authorities charged her with jury tampering and
obstruction of justice, but eventually dropped the charges. Presumably, they gave up hope
of figuring out how they could get jurors to convict her without showing them the contents
of the pamphlets she had been distributing--and then her jury would know the truth about
Despite all the modern government resentment
toward "jury nullification," its roots run deep in both our history and law. At
least two provisions of the Constitution, and arguably three, protect the jury's power to
nullify. They 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 determination of his guilt or
innocence in all criminal prosecutions for serious offenses. Because of this right, a
trial judge absolutely cannot direct a verdict in favor of the State or set aside a jury's
verdict of not guilty, "no matter how overwhelming the evidence." Sullivan v. Louisiana, 508 U.S. 275, 277 (1993). Any violation of
this rule is automatically reversible error without regard to the evidence of guilt. Id.
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 few constitutional questions in the past ten
This rule is applied with a rigor that is without
parallel in 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 charged offense! Bryant
v. Georgia, 163 Ga. App. 872, 296 S.E.2d 168 (Ga. Ct. App. 1982). (Although one
might fairly describe that particular defense strategy as a questionable use of direct
Likewise, when a judge takes
judicial notice of a fact in a criminal case--for example, that the defendant could not
have boarded a train in New York and exited in Texas without somehow crossing state
lines--he will tell the jury they "may" accept that fact as proven without
further evidence. But he may not tell them that they are required to do so, or take the
factual question away from them, no matter how obvious the fact might seem. See Advisory
Committee Notes to Fed. R. Evid. 201(g). Even where the defendant and his attorney
enter into a formal stipulation admitting an element of the offense, the jury should be
told merely that they may regard the matter to be "proved," if they wish, but
the judge still cannot direct a verdict on that factual issue or take it away from the
jury over the defendant's objection. United States v. Muse, 83 F.3d 672,
679-80 (4th Cir. 1996). All of these rules are designed, in part, to protect the
jury's inviolable power to nullify and to avoid the reversible error always committed when
"the wrong entity judge[s] the defendant guilty." Rose v.
Clark, 478 U.S. 570, 578 (1986).
Second, the roots of nullification also run deep
into the (p.7)Double Jeopardy Clause. Even where the
jury's verdict of not guilty seems indefensible, that clause prevents the State from
pursuing even the limited remedy of a new trial. This rule, by design, gives juries the
power to "err upon the side of mercy" by entering "an unassailable but
unreasonable verdict of not guilty." Jackson v. Virginia, 443
U.S. 307, 317 n.10 (1979).
Finally, the jury's power to nullify is protected
by our abiding "judicial distaste" for special verdicts or interrogatories to
the jury in criminal cases. United States v. Oliver North, 910 F.2d
843, 910-11 (D.C. Cir. 1990). Unlike in civil cases, where such devices are
routinely employed, in criminal cases it has frequently been held to be error to ask a
jury to return anything but a general verdict of guilty or not guilty. United
States v. McCracken, 488 F.2d 406, 418-419 (5th Cir. 1974) (collecting cases).
This rule is designed to safeguard the jury's power "to arrive at a general verdict
without having to support it by reasons or by a report of its deliberations," and to
protect its historic power to nullify or temper rules of law based on the jurors' sense of
justice as conscience of the community. Id.; United States v.
Spock, 416 F.2d 165, 181-82 (1st Cir. 1969). The jury is given "a general
veto power, and this power should not be attenuated by requiring the jury to answer in
writing a detailed list of questions or explain its reasons." United
States v. Wilson, 629 F.2d 439, 443 (6th Cir. 1980). Although the issue is far
from settled, a powerful argument can be made that this rule "is of constitutional
dimensions," and a direct corollary of the Sixth Amendment's protection of the jury's
power to nullify. Wayne LaFave & Jerold Israel, Criminal Procedure
24.7(a) (2d ed. 1992).
These constitutional rules, in combination, give a
criminal jury the inherent discretionary power to "decline to convict," and
insure that such "discretionary exercises of leniency are final and
unreviewable." McCleskey v. Kemp, 481 U.S. 279, 311 (1987).
This 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 summary judgment, directed verdicts, and new trials. (In effect, although both
amendments are written quite similarly, the Supreme Court has interpreted the Sixth
Amendment to give criminal defendants a right to a jury and a trial; the Seventh
Amendment, where it applies, only gives civil litigants the right to a jury if there is a
The existence of a criminal jury's power to
nullify is currently as well settled as any other rule of constitutional law. It is a
cornerstone of American criminal procedure. The far more controversial issue--and much
more frequently litigated--is that perennial dilemma: What should we tell the kids? Should
(or must) the judge tell the jurors anything about their power (or right) to nullify?
Should the judge at least allow the defense to tell them? If so, how much should we tell
them, and how should we do it? These issues lie at the very core of our criminal justice
system, and have been debated by lawyers, journalists, philosophers, and patriots for two
centuries. It is therefore ironic that these questions have, at least in recent decades,
generated one of the most remarkable displays of unanimity ever orchestrated by state and
federal courts on any issue of law in American history.
It would take at most four words to fairly
summarize the unanimous consensus of state and federal judges on the idea of telling
jurors about their power to nullify: "Forget it. No way." Even while extolling
the beauty and majesty of our commitment to the jury's constitutional role as a guardian
against tyranny, no state or federal appellate court in decades has held that a trial
judge is even permitted--much less required to explicitly instruct the jurors on their
undisputed power to return a verdict of not guilty in the interests of justice. The
federal courts are unanimous and have been for years, e.g., United
States v. Manning, 79 F.3d 212, 219 (1st Cir. 1996) ("a district judge may
not instruct the jury as to its power to nullify"). So are the state appellate
courts, e.g., Mouton v. Texas, 923 S.W.2d 219 (Tex. Ct. App.
1996); Michigan v. Demers, 195 Mich. App. 205, 489 N.W.2d
173 (Mich. Ct. App. 1992).
There is a pervasive myth that
three states supposedly allow jury nullification instructions: Georgia, Maryland, and
Indiana. See State v. Morgan Stanley & Co., 194 W.V.
163, 175, 459 S.E.2d 906, 918 n.27 (W.V. 1995); Paul Butler, Racially
Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J.
677, 704 n.147 (1995). Some lists also include Oregon. This is presumably because
those states have laws or constitutional provisions suggesting that criminal jurors are
judges of the law and the facts. But the myth is false. Despite their differing
constitutions, all four states have held that a jury has, at most, the power to acquit a
guilty man, not the right, and should not be told that it may ignore or nullify the law. See,
e.g., Miller v. Georgia, 260 Ga. 191, 196, 391 S.E.2d 642, 647
Resourceful defendants and their attorneys have
tried every conceivable route around this immovable roadblock. All have been thwarted.
Without exception, the appellate courts will not allow a defense attorney to use her
closing argument to tell the jurors about their power to nullify, or to urge them to use
it. See, e.g., United States v. Muse, 83 F.3d 672, 677 (4th
Nor can the defense offer evidence that is
relevant to nothing (p.8)but the justness of a
conviction or acquittal, or is otherwise designed to induce the jury to nullify. United States v. Griggs, 50 F.3d 17, 1995 WL 7669 (9th Cir. 1994).
This includes, most notably, any information about the sentence faced by the defendant,
even if it is a minimum mandated by law. United States v. Johnson,
62 F.3d 849, 850-51 (6th Cir. 1995).
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 or prosecution. United States v. Rosado,
728 F.2d 89, 93-95 (2d Cir. 1984).
Predictably, the battle is moving to the earliest
stages of the trial, but the results are the same. Requests to ask jurors about
nullification on voir dire have been denied. United States v. Datche,.
830 F. Supp. 411, 418 (M.D. Tenn. 1993).
One pro se defendant tried to persuade the Supreme
Court that her trial judge improperly refused to let her challenge for cause those
prospective jurors who did know or understand the term "jury nullification." Mendonca v. Oregon, 55 U.S.L.W. 3362 (1986) (petition for
certiorari). The Court decided it might tackle that one later, and denied review. 479 U.S. 979 (1986).
Defendants will go to any lengths to get this
forbidden topic of discussion before the jury. In one recent case involving minor charges
in traffic court, a pro se defendant offered the State of Pennsylvania a bargain of almost
Faustian proportions. He asserted a right to execute a release of his property rights
under state law and all of his privileges and immunities secured by the Fourteenth
Amendment, subject to the condition that he would revert to the status of an
"American Freeman" with all of the "common law rights thereof, including
the right to a jury possessing the power of jury nullification." Phelps
v. Pennsylvania, 59 U.S.L.W. 3522 (1991) (petition for certiorari). The Supreme
Court passed up this chance to decide the issue, perhaps preferring to wait until it
percolates a bit more in the lower courts. 498 U.S. 1088 (1991).
Judicial hostility to jury nullification goes well
beyond the stone wall of silence erected around the jury box. Case after case has approved
jury instructions actually designed to imply that jurors do not have such power at all, or
to "instruct the jury on the dimensions of their duty to the exclusion of jury
nullification." United States v. Sepulveda, 15 F.3d 1161, 1190
(1st Cir. 1993). For example, criminal jurors are routinely ordered: "You must
follow my instructions on the law, even if you thought the law was different or should be
different," Eighth Circuit Pattern Criminal Jury Instruction 3.02 (1991),
and "even if you disagree or don't understand the reasons for some of the
rules." Federal Judicial Center, Pattern Criminal Jury Instruction 9 (1987).
In extreme cases, this judicial hostility even
extends to dishonesty. As Chief Judge Bazelon correctly observed, current law on this
topic is tantamount to a "deliberate lack of candor." United
States v. Dougherty, 473 F.2d 1113, 1139 (D.C. Cir. 1972) (dissenting opinion).
In one especially outrageous case, the jury deliberated for hours in a criminal tax case
before sending the judge a note asking: "What is jury nullification?" The
defendant was convicted shortly after the judge falsely told the jury that "there is
no such thing as valid jury nullification," and that they would violate their oath
and the law if they did such a thing. United States v. Krzyske, 836
F.2d 1013,1021 (6th Cir. 1988). Over a vigorous dissent, the Court of Appeals
deemed the instruction proper and affirmed the conviction, id., even after the
defendant furnished the court with an affidavit from a juror who swore he would have
acquitted if "we were told the truth about jury nullification." United
States v. Krzyske, 857 F.2d 1089,1095 (6th Cir. 1988).
This widespread judicial pattern is highly
ironic. The courts have unanimously (and erroneously) refused to let defense attorneys
argue for nullification, typically by insisting that the jury has no power to consider
what the law should be, and that juries have no lawful task but to decide whether the
defendant broke the law. Yet, in a fit of sheer inconsistency, the same federal courts of
appeals are also unanimous that it is permissible for prosecutors to urge juries to act as
the "conscience of the community" and use their verdict to "send a
message" about whether society should be willing to tolerate the defendant's alleged
conduct. James J. Duane, "What Message Are We Sending to Criminal Jurors When
We Ask Them to 'Send a Message' With Their Verdict?," 22 Am. J. Crim. Law 565,
The Sixth Amendment creates a right for the
defendant to insist on a jury to act as a community conscience and protect him from
government oppression, and yet only the State is allowed, when it chooses, to ask the jury
to consider matters of morality and conscience. Id. at 590-602. Thus
have we witnessed a complete perversion of the constitutional priorities and structure.
One might fairly summarize the case law this way:
"You may hope that the jury will refuse to apply a harsh, unfair, or
inequitable law, but you may not urge them to do so." Steven Lubet, Modern
Trial Advocacy 436 (1993) (emphasis added). But why not? Why can't we tell the
jury a little bit more than we do about the truth? Not since the storming of the Bastille
have the forces of government been so tightly united in their opposition to a popular
uprising. Numerous arguments have been advanced by judges around the country for this
refusal, but not one stands up to serious analysis.
1. "Jury nullification is an embarrassing
glitch in our law." What should we tell jurors about their power to nullify? The
answer depends largely on one's attitude toward a closely related issue: Just what is
nullification anyway, and why is it protected by the Constitution? One of the most
frequent justifications for refusing to tell juries about their power to nullify is the
pernicious suggestion that this power is the product of some accidental or regrettable
flaw in our system of justice.
Jury nullification has been described in many
ways, 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." Jack
B. Weinstein, "Considering Jury 'Nullification': When May and Should a Jury (p.9)Reject the Law to Do Justice," 30 Am. Crim. L. Rev.
239, 254 (1993). Even courts declining to instruct juries about the doctrine have
conceded that "the pages of history shine on instances of the jury's exercise of its
prerogative to disregard uncontradicted evidence and instructions of the judge." United States v. Dougherty, 473 F.2d 1113, 1130 (D.C. Cir. 1972).
Notable examples include the courageous refusal of northern jurors to convict
"guilty" men who violated the fugitive slave laws. Id.
On the other hand, some courts have suggested
that the power to nullify is merely "a tolerated anomaly in the rule of law.'" Mayfield v. United States, 659 A.2d 1249, 1254 (D.C. 1995). They
call it a void in the law, giving jurors "the power to do what they want in a given
case because neither the prosecution nor the court has the authority to compel them to do
what they should." State v. Bjerkaas, 472 N.W.2d 615,
619 (Wis. App. 1991). (emphasis added). Others assert that the power exists only
because "there is nothing to prevent" it, but that it "is not a legally
sanctioned function of the jury and should not be encouraged by the court." State v. Weinberg, 631 N.E.2d 97, 100 (N.Y. 1994). The
sensational-sounding charges have been made that a nullification instruction would
"encourage the jury to abdicate its primary function," id., or that it
would "in essence direct juries that they could run amuck" Davis
v. State, 520 So. 2d 493, 494-95 (Miss. 1988). Scores of other cases have tried
to capture this same point by insisting that juries always have the power to nullify, but
never the right to do so.
So who is correct? Is the institution of
nullification deliberately enshrined and protected in the Constitution as a valuable
political end in itself, as some have suggested? Or is it merely a regrettable byproduct
of careless drafting, or an anomalous but necessary evil we "tolerate" because
of our commitment to some greater good? And how could the courts be so very far apart in
their responses? The answer to this confusion depends on how one defines "jury
nullification," a term with various shades of meaning.
In its broadest form, "nullification"
has often been used to describe the jury's "raw power to set an accused free for any
reason or for no reason," Sepulveda, 15 F.3d at 1190,
even for reasons having nothing to do with justice or guilt.
The Jury's Rights
An acquittal may come because
the jurors found the defendant attractive, or were members of the same race, or harbored
hatred toward the victim's race, or 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 unreviewability
of their verdicts. (This is true in much the same way that the First Amendment protects
the right to say many things that nobody would publicly hold up as a model of good civic
There is no compelling reason why a jury should
learn every dirty little secret of our system of justice, especially if that knowledge
would undermine the purpose of the proceeding or the jurors' perception of the seriousness
of their role. See Caldwell v. Mississippi, 472 U.S. 320,
323 (1985) (error to give jury misleading view of the extent of appellate review of
their sentencing recommendation). Thus, the courts are correct to hold that the law should
not require or encourage a judge to remind jurors of the regrettable fact that they have
the raw power to acquit for any arbitrary or spiteful reason, or indeed for no reason at
all. But in no reported case, to my knowledge, has any defendant or his attorney requested
an instruction that would go even half that far.
In the real world, outside the pages of appellate
judicial opinions, defendants almost invariably make the far more modest request that the
jury be told merely of its authority to acquit an accused if a conviction would conflict
with their deeply seated sense of morality and justice. In this, its purest form, the
possibility of "nullification" is not some accidental byproduct of careless
drafting in the Constitution, nor of our commitment to some greater good. It is one of the
very reasons for the existence of the Sixth Amendment's inflexible insistence that the
accused has the right to a jury of his peers.
The jury is there, by design, "to prevent
oppression by the Government" and to "protect against unfounded criminal charges
brought to eliminate enemies and against judges too responsive to the voice of higher
authority." Duncan v. Louisiana, 391 U.S. 145, 155-56 (1968).
The jury's role "as a check on official power" is in fact "its intended
function." Batson v. Kentucky, 476 U.S. 79, 86-87 n.8 (1986).
The jury injects "a slack into the enforcement of law, tempering its rigor by the
mollifying influence of current ethical conventions." United
States ex rel. McCann v. Adams, 126 F.2d 774, 775-76 (2d Cir. 1942) (Learned
Hand, J.). That is why a directed verdict for the state would be not merely
unconstitutional--it "would be totally alien to our notions of criminal
justice," since "the discretionary act of jury nullification would not be
permitted." Gregg v. Georgia, 428 U.S. 153, 199 n.50 (1976)
This is also the defect in the long line of cases
that disparage (p.10)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 bring in a verdict in the teeth of both law and facts." Horning v. District of Columbia, 254 U.S. 135, 138 (1920). But the
jury's power to acquit out of justice or mercy is a constitutionally protected right. If
not their right, it is at least the defendant's firmly settled right that he insist on a
jury with such power, regardless of whether the proof of his technical legal guilt is
literally overwhelming and uncontradicted. Sullivan v. Louisiana,
508 U.S. 275, 277-82 (1993). Any judicial instructions that would prevent the
exercise of this right are unconstitutional.
These considerations about the historical roots of
the right to a jury trial, by themselves, do not dispose of the question whether the jury
should be instructed about nullification. But they easily suffice to dispatch the absurd
suggestion that the latitude allowed for an acquittal based on the jury's sense of justice
should be kept from the jury because it is only a flaw in the system's design, or that it
is not a legally sanctioned function of the jury.
2. "Nullification instructions encourage the
jury to violate the law." Some courts have reasoned that a nullification instruction
would permit, if not encourage, the jurors to disregard or break the law. One court even
held that it is proper to affirmatively instruct the jurors that they would "violate
the law" if they engaged in nullification or if they violated any of the judge's
instructions on the law. United States v. Krzyske, 836 F.2d 1013,
1021 (6th Cir. 1988). Another has reasoned that "anarchy would result from
instructing the jury that it may ignore the requirements of the law." Powell,
955 F.2d at 1213. Such assertions are baseless.
Contrary to the widespread myth popular among
judges, there is no "law" that requires juries to convict every man shown to be
technically guilty beyond a reasonable doubt. "The power of the courts to punish
jurors for corrupt and incorrect verdicts," Dougherty, 473
F.2d at 1130, that darling of the Star Chamber's nursery, was banished from the
pages of Anglo-American law centuries ago. Today, at its very core, our system of justice
is unflinchingly committed to the liberty of criminal juries to "err upon the side of
mercy," Jackson, 443 U.S. at 317, or to "refuse to
convict even though the evidence supported the charge." Gregg,
428 US. at 199 n.50. Any system that restricted such liberty "would be totally
alien to our notions of criminal justice." Id. In this respect, nullification
is every bit as lawful as leniency extended by the prosecutor, or the judge, or the
Nor does any "law" forbid a jury from
pardoning a man who violated an unjust statute, even if an acquittal requires them to
ignore the court's instructions on the law. The Constitution does no such thing; it
actually protects the jury's right to acquit based on their sense of justice. The penal
code does not criminalize such conduct, and would be clearly unconstitutional if it did.
Not even the Bible imposes any such rule. See Deuteronomy 16:20
("Follow justice and justice alone"). If there is any such "law," it
is true only in the narrow sense of illegitimate case law made up by judges acting well
beyond the scope of their lawful authority.
Judges who tell each other that
"nullification is illegal" are more than vaguely reminiscent of the judge who
once told a criminal defendant: "Rule Forty-Two. All persons more than a mile high to
leave the court! It's the oldest rule in the book." Lewis Carroll, Alice's
Adventures in Wonderland 256 (Bramhall House 1960). As the defendant adroitly
responded: "Then it ought to be Number One"--or it ought to be, at the very
least, written down in the Constitution, or the penal code, or somewhere besides judicial
3. "The Supreme Court said not to tell the
jury about it." A surprising number of courts have tried to blame the Supreme Court
for their refusal to tell juries about the power to acquit on moral grounds. That myth is
also false. The Supreme Court has never said such a thing.
In the two cases widely cited for this
proposition, the Court merely declared that a jury is not entitled to decide what the law
is or should be, and that "a judge always has the right and duty to tell them what
the law is upon this or that state of facts that may be found." Horning
v. District of Columbia, 254 U.S. 135, 138 (1920) (Holmes, J.); accord Sparf and Hansen v. United States, 156 U.S. 51 (1895). This
language has been widely cited by lower courts as authority for their refusal to permit
any argument or instructions on nullification. E.g., Krzyske. 836
F.2d at 1021.
In fact, however, Horning and Sparf
have nothing to do with this matter. It would indeed be improper to tell a jury that
"they are to determine the rules of law." Dougherty, 473
F.2d at 1136. In Sparf, for example, the Supreme Court properly refused a
murder defendant's request that his jury be told they could convict him of manslaughter
out of leniency, even though he conceded that there was no evidence to support a finding
of guilt on such a lesser charge! 156 U.S. at 99. If 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 with a bad muffler instead, or maybe acquit
him on the grounds of intoxication.(p.11)
Our entire system of justice would be undermined
if jurors had the liberty to return a false verdict--even for benign motives of
mercy--convicting a defendant of a lesser offense she simply could not have committed, or
acquitting her because of some legal defense with absolutely no basis in the evidence.
But that straw man has nothing to do with the
typical case of a defendant seeking an instruction on nullification. Such instructions
need not suggest that jurors be told they can decide for themselves what the law is or
should be, or that they can convict the defendant of some lesser offense (or acquit on the
basis of some affirmative defense) with no basis in the facts. Our law does not
countenance such contrivances and should not encourage them. But a proper nullification
instruction or argument would merely tell the jury the fact-- or at least confirm their
intuitive suspicion that our law intentionally allows them the latitude to "refuse to
enforce the law's harshness when justice so requires." LaFave and Israel, Criminal
Procedure 22.1, at 960. Whether that information should be given to the jury
has never been considered or decided by the Supreme Court. Id. But it is the height
of hypocrisy to refuse to report that truthful information about our constitutional law to
the jury on the pretense that the judge "has the right and duty to tell them
what the law is." Horning, 254 U.S. at 138 (emphasis
added). That language, taken literally, would require the judge to tell the jury much more
than we do about nullification.
There is one variant of nullification, however,
that appears to have been recently foreclosed by the Supreme Court. Without specifically
addressing the topic of nullification, the Court recently held that jurors should not be
given distracting information about the sentencing consequences of their verdict, even
when that evidence might serve to correct inconsistent and erroneous beliefs the jury is
likely to harbor about the effect of their verdict. Shannon v. United
States, 114 S. Ct. 2419, 2427 (1994). That reasoning would also appear to apply
where the defendant seeks to tell the jury about sentencing information solely to persuade
them to acquit out of compassion and mercy, as the lower courts have already acknowledged.
See United States v. Johnson, 62 F.3d at 850.
Limiting the Jury's Discretion
The reasoning of Shannon,
consistently applied, would take a big bite out of the jury's power to nullify. An
oppressive political regime could achieve some surprising results by persuading a jury to
convict an accused of some seemingly minor offense that carries a surprisingly draconian
penalty. Without accurate sentencing information, jurors would be unable to nullify such a
monstrous law--or worse yet, might even end up playing right into the government's hands
by guessing incorrectly.
Heidi Fleiss, for example, was convicted of
consensual sex offenses by jurors who were "outraged" to later learn she faced a
minimum three-year prison sentence. Despite several jurors' belief that she was innocent,
the jurors had struck a deal after four days of deliberating and acquitted her of drug
charges--where the evidence was stronger--because they were "under the mistaken
impression that the narcotics charge carried a stiffer penalty." Shawn Hubler,
"Court Overturns Fleiss' Conviction, Orders New Trial," L.A. Times, at A1
(May 30, 1996). (Of course, trials like this one--and many others--undermine the
Supreme Court's crucial assumption that jurors can be trusted to heed our standard
instruction to disregard possible punishment when reaching their verdict.)
Shannon did not close the door to most
forms of nullification, however. As the Court properly reasoned, it would be difficult to
decide where to draw the line once we open the jury room door to even truthful information
about the long-run sentencing consequences of their verdicts. Shannon,
114 S. Ct. at 2427-28 & n.11. But that logic does not apply to the normal case
of nullification, where the accused desires an acquittal based only on the moral
implications of the evidence already properly before the jury concerning the details of
his conduct, and does not seek to smuggle into the record any facts they did not already
learn from the prosecutor.
4. "We can't encourage the jurors to violate
their oath." Perhaps the most threadbare judicial objection to nullification
arguments is that "neither the court nor counsel should encourage jurors to violate
their oath." United States v. Trujillo, 714 F.2d 102, 106
(11th Cir. 1983). These cases routinely assume that a jury's oath forbids them from
nullifying for any reason, even if based on their firm belief that a conviction would be a
terrible miscarriage of justice. One prosecutor recently reiterated the age-old complaint
that "jury nullification gives status and dignity to what is basically violating your
oath as a juror to follow the law." Tony Perry, "The Simpson
Verdicts," LA. Times, at 5 (Oct. 5, 1995).
Moreover, it has been recommended that federal
judges go one step further and routinely tell jurors, "You are bound by the oath that
you took at the beginning of the trial to follow the instructions that I give you, even if
you personally disagree with them." Sixth Circuit Pattern Jury Instruction 1.02. If
the jurors explicitly ask about nullification, we are told that the judge should warn them
of the supposed "fact" that acquittal of a guilty man for any reason would be a
breach of their solemn oaths as jurors. Krzyske, 836 F.2d at 1021.
This ominous-sounding charge has no logical
substance, although it naturally carries much emotional appeal. Jurors know that oaths are
serious business, see Exodus 20:7, 16, and the law never
permits or encourages anyone to do anything contrary to his oath. But despite its
tremendous popularity among judges, this argument is by far the most misshapen stone in
the barricade judges have been erecting around the jury box.
To begin with, it is usually false. The typical
oath taken by jurors today does not forbid them from refusing to convict based on their
sense of justice. In fact, many oaths administered today are barely even intelligible. At
the beginning of (p.12)the trial, jurors are typically
asked to swear that they "will well and truly try and a true deliverance make between
the United States and the defendant at the bar, and a true verdict render according to the
evidence, so help [me] God." United States v. Green, 556 F.2d
71 n.1 (D.C. Cir. 1977).
Nobody still alive today knows for sure what it
means to "make a true deliverance." But nothing in this oath would forbid jurors
from acquitting if they are convinced--based solely on "the evidence"--that the
accused's actions were morally blameless and that a conviction would be unjust. In such
rare cases, no jurors could be said to have decided a case "well and truly" if
they had to disregard their sense of justice to convict. And an acquittal in that case
would certainly sound like a "true deliverance." See Proverbs
24:11 ("Rescue those being led away to death"); Isaiah 61:1
("He has sent me to proclaim freedom for the captives and release from darkness for
If a jury refuses to convict a man because of
overwhelming feelings of mercy or justice, they are not returning a "false"
verdict. A verdict of "not guilty" based on a jury's notions of justice is not
affirmatively declaring that he is innocent. (The same is true of an acquittal based on
their conclusion that he has only been shown to be probably guilty, but not beyond a
reasonable doubt.) The general "not guilty" verdict is merely a shorthand way of
allowing the jury to express, for reasons they need not explain, "we do not choose to
condemn the accused by pronouncing him guilty."
The standard objection to nullification
instructions might carry at least superficial plausibility in those jurisdictions where
the jury is sworn to render "a true verdict according to the evidence and the charge
of the Court." United States v. Pinero, 948 F.2d 698, 699 n.3
(11th Cir. 1991). If those same jurors are later instructed by the court that they
"must convict" where there is proof of legal guilt beyond a reasonable doubt, it
probably would be a violation of such an oath to disregard the court's charge and acquit
the man because his conduct was morally blameless.
But this objection to nullification instructions
utterly begs the question. It is clear that defendants can make at least a plausible claim
to a moral (and perhaps constitutional) right to appeal to the jurors to acquit out of
justice or mercy. That argument must either stand or fall on its own merit, without any
regard to the present wording of the jurors' oath.
It is a colossal red herring
to dismiss such claims with the rejoinder that nullification acquittals would
"violate the jurors' oath." No judge can brush aside a plausible constitutional
argument by saying "You might be right, but we do not decide the question, because we
have already extracted a solemn vow from the jurors to abide by a different procedure that
arguably violates your moral and constitutional rights." That "logic" could
lead to some remarkable results in jurisdictions determined to defeat other constitutional
provisions as well.
A jury's latitude to nullify is deliberately
protected by the Constitution. Neither the tradition nor the wording of the oath
administered to the jurors, on the other hand, is so dictated. In federal court it is not
even prescribed by statute. It is simply an old tradition judges have made up. If the
wording of the oath poses some conflict with the jury's constitutional prerogative to
nullify, it is clear which one must yield the right of way. Courts simply have no business
(much less lawful authority) asking jurors to swear to anything that would violate the
Constitution or the jury's deeply held convictions about justice.
Besides, while we are on the subject of oaths, it
is well to remember that there is always one party in the courtroom who is required to
take an oath prescribed by federal law--and it is not the jury. Before ascending to the
bench to try his first case, every federal judge is required by law to swear or affirm to
uphold the Constitution (which includes the Sixth Amendment), and "that I will
administer justice without respect to persons." 28 U.S.C. 453.
That is a most peculiar-sounding oath for anyone who intends to browbeat jurors into
putting aside any notions of "justice" that might stand in the way of their
willingness to condemn a morally blameless man.
Beyond all this, perhaps the most blasphemous
aspect of the invocation of the oath is the simple fact that we really do not expect
jurors to refrain from nullifying in all circumstances. That being the case, it
ill-behooves us to place jurors under an oath that they will not nullify (much less lie to
them about whether they have taken such an oath).
At least for those jurors who take their oaths
seriously, it places them in an intolerable and totally unnecessary conflict between
deeply held moral scruples. It demeans the seriousness of the oath, which stands at the
very bedrock of our system of justice. United States v. Dunnigan,
507 U.S. 87, 97 (1993).
And when citizens and jurors gradually get wind of
the 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 cutting corners with
their future oaths as witnesses or elected officials?
5. "We give them enough hints already."
Perhaps the most baffling excuse for refusing to tell jurors about nullification is the
excuse that we already give them a few ambiguous (p.13)clues
about their power to nullify. In the seminal Dougherty case, for example, which
remains the most influential opinion ever written on this topic, the Court of Appeals
reasoned that explicit instructions would be superfluous, in part because juries get the
message in a variety of subtle ways. The court based this holding, in part, on its
axiomatic assumption of "the fact that the judge tells the jury it must acquit
(in case of reasonable doubt) but never tells the jury in so many words that it
must convict." 473 F.2d at 1135 (emphasis added)
The first problem with this justification is that
it proceeds on a premise that is no longer generally true. Contrary to the Dougherty
court's assumption about what a criminal trial judge would "never" do, the
United States Judicial Conference has instructed federal judges to tell every criminal
jury that "if you are firmly convinced that the defendant is guilty of the crime
charged, you must find him guilty." Federal Judicial Center, Pattern Jury
Instructions 21 (1987). Several courts have formally approved similar instructions
telling the jury they "must" convict. See People v.
Bernhard Goetz, 73 N.Y. 2d 751, 752, 532 N.E.2d 1273 (N.Y. 1988). Indeed, one
Circuit Court of Appeals recently went so far as to state (in an unpublished decision)
that instructing jurors any other way--for example, that they "should"
convict--is at least "arguably" forbidden by the supposed "rule" that
a jury is not to be told that nullification is a permissible course to take. United States v. Fuentes, 57 F.3d 1061, 1995 WL 352808 at **2 (1st Cir.
The reasoning of these cases is indefensible.
Telling a jury they "must" convict where guilt has been proven beyond a
reasonable doubt is a serious misstatement of the law and "an error of the most
egregious nature." Proceedings of the 53rd Jud. Conf. of the D.C Circuit,
145 F.R.D. 149, 175 (1992) (Remarks of R. Kenneth Mundy, Esq.). Under our
Constitution, by design, a defendant is entitled to have his fate decided by a jury even
if the evidence of his guilt is undisputed and decisive. Sullivan,
508 U.S. at 277. This is because criminal jurors are entitled to "refuse to
convict even though the evidence supported the charge," and any legal system which
would strip jurors of that discretion would be "totally alien to our notions of
criminal justice." Gregg v. Georgia, 428 U.S. 153, 199 n.50
Besides, even if we gave jurors the instruction
that they "should" convict, it would hardly suffice to convey to the jury the
solemnity of their awesome responsibility to acquit on the grounds of justice in
exceptional cases. The Dougherty court candidly conceded that the pregnant
implications of that ambiguity "would on their face seem too weak to notice." 473 F.2d at 1135. And even if some jurors could be fairly trusted to pick
up on the subtle ambiguity left open in the contrast between instructions as to when they
"should convict" and "must acquit," others will not. Far too much is
at stake here to trust such nuances to a haphazard system of instructing jurors with
hints. It violates both the Due Process and Equal Protection Clauses to let the outcome of
criminal cases turn on "coded instructions" that we hope and pray a few jurors
will be clever enough to notice and decipher on their own, all for the benefit of a select
and arbitrarily chosen group of lucky defendants. Such a system of "justice" is
no better than a judge who thinks too many jurors are relying on the insanity defense, so
he sticks that portion of his instructions in one of eight empty drawers under the table
in the jury room.
We see a similar fallacy in another bizarre
compromise struck by several lower courts. Caught between the conflicting commands of the
Sixth Amendment ("juries exist to protect the accused from the Government") and
the appellate courts ("tell the jury they must ignore the demands of justice"),
several trial judges have adopted the pathetic compromise of allowing the defense attorney
to talk about nullification in closing arguments, but have refused to endorse such
arguments in their instructions, even after the jurors predictably ask for further
guidance from the judge. E.g., Krzyske, 836 F.2d at 1021.
This, too, is no solution.
The Supreme Court has repeatedly declared that
"arguments of counsel cannot substitute for instructions by the court." Carter v. Kentucky, 450 U.S. 288, 304 (1981). "The former are
usually billed in advance to the jury as matters of argument, not evidence, and are likely
viewed as the statements of advocates; the latter, we have often recognized, are viewed as
definitive and binding statements of the law." Boyde v. California,
494 U.S. 370, 384 (1990).
No matter how infrequently we hope to see juries
exercise their constitutionally protected power to nullify the operation of unjust laws,
there is simply far too much at stake to entrust that important possibility to the
implications of "cryptographic instructions," or to closing arguments that seem
to conflict with the charge of the court. In the final analysis, the best answer to all
this nonsense was written long ago by Judge Cardozo. He observed in a related context that
he had no objection to giving a jury greater latitude with their verdicts in a case that
"seems to call irresistibly for the exercise of mercy, but it should be given to them
directly and not in a mystifying cloud of words." "What Medicine Can Do
for Law," in Law and Literature 70, 100 (1931) (quoted in McGautha
v. California, 402 U.S. 183, 199 (1971)).
6. "If the case is important enough, they
will figure out we're not too serious about all this anyhow." There have been many
silly excuses for refusing to tell juries the truth about their lawful authority to
nullify. But the most frightening of all teaches that jurors are most likely to nullify
only on rare and special cases just as we secretly hope they will--if we falsely suggest
to them that they have no such power or moral authority.
The reasoning here is that the lawful power to
nullify is least likely to be abused, and most likely to be reserved for the rare cases
when it is truly appropriate, if we structure our rules to make nullification "an act
in contravention of the established instructions." Dougherty,
473 F.2d at 1136-37. After all, the argument goes, jurors always draw their
understanding about the operation of the system from a variety of (p.14)sources in the popular culture, even apart from the judge's
instructions. Id. at 1135. This will, in theory, allow
nullification to rear its ugly head only when the inequities of the case are sufficiently
compelling to persuade the jurors to cook up the idea and violate the judge's instructions
on their own initiative. Id. at 1136.
This "reasoning" was never persuasive
even when it was first handed down to the lower courts more than 20 years ago, as Chief
Judge Bazelon noted in his dissenting opinion in Dougherty. But it is indefensible
today. Even if one could possibly hope that "nullification" might be a secret to
most jurors two decades ago, those days are now gone. Everyone who followed the key events
in O.J. Simpson's criminal trial--which means everyone--understands by now at least this
much: jurors in a criminal trial can listen to ten months of evidence that the government
has publicly proclaimed to be overwhelming and conclusive, and still acquit after three
hours of deliberating without being stopped on their way to the parking lot. That is, in
the main, a pretty fair description of the rough contours of the jury's power to nullify.
At about the same time, a law professor has
quickly risen to fame with his remarkable plea that black political and spiritual leaders
join his quest to inform their constituencies of their undisputed power to acquit black
defendants solely because of their race. Paul Butler, Racially Based Jury
Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677,
723-25 (1995). That dirty little secret about our criminal justice system was
subsequently featured in countless newspapers, articles, and television shows. Professor
Butler has appeared to discuss this fact on 60 Minutes and Geraldo Rivera.
If there was anyone who hadn't heard before this summer, the lid was blown off the story
once and for all when it ran in the June 1996 issue of Reader's Digest.
Joining in the fray with gusto, of course, is the
Fully Informed Jury Association (FIJA), a tax-exempt educational group with thousands of
members devoted to informing future jurors about their power to nullify. They even have an
impressive and thoughtful site on the Internet with hundreds of visitors each day.
(Although I am naturally loath to admit having visited it in a journal the FBI may be
reading.) Members have passed out pamphlets about nullification by the thousands outside
of key trials. Legislation to require judges to issue such instructions has been
introduced in dozens of state legislatures, as yet unsuccessfully, generating even more
public attention to the topic. The group complains--with some justification--that they
desire only to see to it that judges, like everyone else in the courtroom, are required to
tell the truth and the whole truth.
With all this amateur mass legal education going
on in earnest, "barber shops and beauty parlors everywhere are all abuzz with talk of
'jury nullification,' whether they call it by its proper name or not." Clarence
Page, "Jury Nullification Can Create Justice," Dayton Daily News, A10
(Nov. 27, 1995). Our judicial system needs to take stock of this reality, and fast.
The integrity and credibility of the system will be stretched to the breaking point as
more and more jurors bring to their secret deliberations "inside knowledge"
about the way the system really works, and about the reasons for the judge's refusal to
share or confirm those details.
To make matters worse, imagine what will happen
when even a few people bring into the jury room the secret knowledge that our system
conceals the facts about nullification in the explicit (but unshared) hope that the jurors
will see through our standard instructions and ignore them when that is called for! At
that point, we will have no reliable protection against the danger that some jurors will
reason, perhaps privately, that maybe some of our other hard and fast "rules of
law" are also there for public relations purposes, designed to be ignored in special
cases by jurors sophisticated enough to know how the system really works--or can be
worked. The integrity of our court system will then be shattered beyond repair.
But for the fragile good faith of jurors, for
example, we have no logical or moral basis for our otherwise rash assumption that a juror
can be trusted to acquit, rather than convict, a defendant who has not quite been proven
guilty beyond a reasonable doubt, "even if he is convinced the defendant is highly
dangerous and should be incarcerated." Shannon, 114 S. Ct. at
2427. When jurors get wind of the appearance that at least some of our most
fundamental rules are really just window dressing, what protection will we have against
"nullification convictions" by jurors who refuse to release dangerous or
despicable villains entitled to acquittals on the basis of seemingly unjust legal
More and more legal essays are starting to
surface with the rather casual assertion that "nullification convictions" can
never be a real danger, in part because the judge and the Court of Appeals supposedly have
the power to overturn a guilty verdict that is not supported by the evidence. E.g.,
Gail Cox, "Feeling the Pressure: Jurors Rise Up Over Principle and Their
Perks," Nat'l law J., A1 (May 29, 1995). Those assurances, if repeated
often enough, will make the problem even worse.
This supposed "fact" about our system
of justice is the most nefarious of all, and will do irreparable damage if it falls into
the wrong hands in the jury room. It is hard to imagine a clearer illustration of the
maxim that a little knowledge can be a dangerous thing. Any jurors will be far more
inclined to convict in close cases if they have picked up the mistaken impression that a
judge is both empowered and likely to correct any mistakes in their assessment of the
evidence. (That is especially true if one of the jurors advises the others that a mistaken
verdict of acquittal, on the other hand, is final and unreviewable, which is now fairly
common knowledge after the Simpson trial.) That would only enhance the already
great temptation for them to abdicate their solemn responsibility by passing the buck to
In fact, a judge's power to enter a judgment of
acquittal despite a contrary jury verdict is merely a token safeguard against the unjust
conviction of the innocent (and anyone (p.59)else not
proven guilty beyond a reasonable doubt). It serves to overturn unjust convictions only
after the extremely rare trial where there is no evidence that could satisfy any rational
jury beyond a reasonable doubt. In all other cases, one seeking to overturn a guilty
verdict based on the sufficiency or quality of the evidence against him "follows in
the footsteps of countless criminal defendants who have made (p.60)similar
arguments," and "faces a nearly insurmountable hurdle." United
States v. Hickok, 77 F.3d 992, 1002 (7th Cir. 1996). The judge cannot reweigh
the evidence, and challenges to a witness's lack of credibility are "wasted on an
appellate court." United States v. Pulido, 69 F.3d 192, 206
(7th Cir. 1995). Once the jury chooses to convict, regardless of the reason, its
verdict will stand as long as it is based on any evidence in the record they might have
chosen to believe, even testimony that "is totally uncorroborated and comes from an
admitted liar, convicted felon, large-scale, drug-dealing, paid government
informant." Pulido, 69 F.3d at 206. Heaven help us all
if the jurors of the nation get word of these exaggerated suggestions that federal judges
stand guard against "nullification convictions"!
Besides, even if we radically
restructured federal law to give a judge plenary authority to reverse a conviction she
thought was not proven beyond a reasonable doubt, it still would not solve the problem.
Even that arrangement would not be adequate to protect the constitutional rights of the
accused. "It would not satisfy the Sixth Amendment to have a jury determine that the
defendant is probably guilty, and then leave it up to the judge to determine whether he is
guilty beyond a reasonable doubt." Sullivan, 508 U.S. at 278.
Meanwhile, as more Americans get the justifiable
impression that the courts are not being perfectly candid with jurors, they are naturally
and gradually losing their normal inhibitions about lying to judges. Prior to sensational
trials, jurors' rights activists now give everyone entering the courthouse pamphlets
advising of them of their power to nullify, warning them that the judge will deny it, and
pleading with them to deny any "knowledge of this material" during jury
selection. Joe Lambe, "Bill Would Let Juries Decide Law in Cases; Legal
Establishment Reacts to Measure with Shock, Dread," Kansas City Star, at A1
(April 8, 1996). An outspoken law professor has publicly declared his willingness
to lie under oath during jury selection, if necessary, to conceal his true attitudes
toward nullification and get the chance to nullify death penalty cases. Paul Butler,
Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale
L.J. 677, 724-25 n.236 (1995). That same law teacher has also invited Americans
by the thousands to decide for themselves whether perjury during jury selection might be
"morally justifiable" for some greater good such as racial justice. Id.
If our criminal justice system is to retain some
semblance of integrity in the long run, it is vital that we treat jurors with greater
candor about the moral and legal contours of their power to nullify. Fortunately, it
wouldn't take long. A clear and adequate instruction could be conveyed in a single
sentence, explaining that the jury should (not "must") convict anyone proven
guilty beyond a reasonable doubt, unless the jurors have a firm belief that a conviction
would be fundamentally unjust. Such an instruction would give defendants all the
protection they deserve against wrongful prosecution. It would preserve the jury's
constitutionally protected veto power over unjust prosecutions. It would minimize the
terrible danger of jurors persuading each other that the judge is withholding (or
concealing) crucial facts about the way the system is designed to work. And it would, at
long last, permit us in good conscience and good faith to ask jurors to take a solemn oath
to abide by the court's charge.
Proper instructions on nullification are now quite
like sex education to youth in many different ways. There may well have been a time,
several decades ago, when it was feasible to avoid both subjects altogether, hoping that
our young wards would never even hear much about them until a truly pressing need might
arise for them to divine a few things on their own initiative. But now there are precious
few secrets about either subject that cannot be found on the Internet and in every major
magazine--along with many dangerous falsehoods and half-truths. If we persist in our
refusal to confront these delicate topics head-on, jurors and children will continue
making terrible choices as they learn for themselves what a dangerous thing a little
knowledge can be. And in the process, judges and parents alike will continue to lose much
of their credibility in the eyes of those who correctly perceive their right to honest
guidance from us.
Mr. Duane is an associate professor at Regent
Law School in Virginia Beach, Virginia
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