* Mr. Duane is an associate professor at Regent Law
School in Virginia Beach, Virginia
[Copyright © 1996 Litigation. Originally published as 22:4 LITIGATION 6-60 (1996).]
Jury Nullification: The Top Secret
Constitutional Right
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 peacetime.
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 nullification.
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 years.
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 examination.)
Judicial Deference
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 the
defendant guilty." Rose v. Clark, 478 U.S. 570, 578
(1986).
Second, the roots of nullification also run
deep into the (pg.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
trial.)
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).
State Law
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 (Ga. 1990).
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 Cir. 1996).
Nor can the defense offer evidence that is
relevant to nothing (pg.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, 576-79 (1995).
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
(pg.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 behavior.)
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) (plurality opinion).
This is also the defect in the long line of cases
that disparage (pg.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
governor. Id.
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 opinions.
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.(pg.11)
Our entire system of justice would be
undermined if jurors had the liberty to return a false
verdict—even for benign mot ives 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 (pg.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 the prisoners").
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.
Constitutional Protection
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 (pg.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. 1995).
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 (1976).
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 (pg.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 technicalities?
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 the judge.
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 (pg.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 (pg.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"!
Inadequate Solution
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.
