always have had an uneasy relationship with juries, who have the power
to see cases differently than they do. Many judges have urged the
abolition of the jury system; others have sought more modestly to
reduce the jury's influence by limiting the types of cases brought
commentators universally have recognized, the jury system entered the
19th century with enormous law-making powers but left that century
virtually under the complete control of judges as the exercise of
judicial power whittled away at the role of the jury. What is at stake
today is the question of whether the last vestige of independent jury
influence, the right to acquit on the basis of conscience, will
survive contemporary judicial assault. The California Supreme Court,
in the recent People v. Williams and People v. Cleveland decisions,
has provided the wrong answer.
Since the 1960s, the pros and cons of jury
nullification have produced a vigorous national debate conducted in
courts, legislatures, educational classes and media presentations.
Proponents have pointed to juries protecting freedom of the press in
the William Pitt and John Peter Zenger cases, while opponents have
pointed to civil rights decisions in the South acquitting white
One point is clear - the issue of jury
nullification will never go away. Any time morality and law appear to
be in conflict, jurors will, and should, feel the call to prevent the
unfair or oppressive application of the criminal law upon a person the
community is not prepared to condemn.
Shortly before he was elevated to the highest
judicial office in the land, the late Warren Burger kindly appeared in
one of my classes to talk about the philosophy of judging cases. His
central point to the class was his view that the judicial system could
only function on the basis of respect because it had no real
enforcement authority. Its prestige had to be its power.
Recently, public respect for the judicial system
has suffered seriously. The O.J. Simpson case, President Bush's
announcement that he was no longer interested in neutral appraisals by
the American Bar Association of his judicial appointees and the Bush
administration's recent statements that selection of judicial
candidates will be based solely on their conservative political
ideology are causing public support for the courts to plummet.
When the modern nullification debate began in the
1960s, few people had ever heard of it. Today, by contrast, jury
nullification has been the subject of literally thousands of media
articles, television shows and documentaries. It is taught in high
schools and colleges. Potential jurors are aware of the nullification
power, though they may be mistaken as to its scope.
is why clarifying judicial instructions is preferable to removal of
jurors. Will the court eliminate from jury service every potential
juror who states that he or she has heard of nullification? There is
evidence in California that potential jurors will lie on voir dire
about their knowledge of nullification.
This disrespect for the judicial process will be
amplified by the Williams and Cleveland decisions. And what about the
juror who did not know that he or she could vote on the basis of
conscience and does not do so, only to learn later that the judge
withheld this information? What juror, or citizen, should respect a
judiciary that has turned jurors into handmaidens of judges?
Ironically, the California Supreme Court's
unwarranted fear of runaway jury power led the court itself to nullify
the law by stripping the jury of its constitutional right and
responsibility to act, as the United States Supreme Court held in
Duncan v. Louisiana, as the conscience of the community. Thus, after
the Williams and Cleveland decisions, when the jurors take their oath
in California, they must swear to obey the judge, but violate their
Everyone agrees that the jury has the power to
exercise mercy on the basis of conscience. Proponents argue that they
should have the right to be so instructed. In that way, of course,
jurors would be obeying the judge's instructions, and judges could
fairly and clearly articulate the difference between valid
nullification and impermissible emotion or bias. For proponents, in
keeping with the desire for public respect for the judiciary, honesty
is the best policy.
Apparently, and sadly for the judicial system,
the California Supreme Court prefers deception to truth.
Scheflin is a professor of law at the University of Santa Clara School