California Bar Journal
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Nullification?Point Counter Point

Is it ever proper for juries to ignore or reinterpret the law?

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Alan W. Scheflin is a professor of law at Santa Clara University School of Law. He teaches legal ethics, forensic persuasion and law and psychiatry.

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Alan W. ScheflinBecause juries have the right to nullify, judges have the obligation to give proper instructions

"You must be crazy," French psychiatrists told Phillipe Pinel in 1792 after Pinel announced his intention to free the mentally ill from the shackles and bonds that kept them tightly chained to cold and filthy institutional walls and beds. "They are dangerous and violent and will kill us all," Pinel was repeatedly warned. Yet, his loosening of the chains was the foremost affirmative act that encouraged a wave of humane treatment finally leading to relief and cure.

"Don't put fluoride in the water," critics screamed in the late 1940s. "You will destroy the health and water supply of innocent people." Once again, however, the naysayers were proven wrong.

Today, Chicken Little's "the sky is falling" argument thunders through American courtrooms as judges march lockstep to the tune that jury nullification will produce "anarchy," the favorite word used by judges ostensibly as a reasoned discourse against the nullification position. Interestingly, unlike Pinel and fluoride, which brought something new to society, the "nullification is anarchy" refrain sounds fervently despite the fact that nullification has been the rule of law in all but the last century, and remains the rule of law in a few states, like Maryland and Indiana, where, not surprisingly, anarchy has not resulted.

In general, the exercise of "jury nullification" involves the refusal of the jury to convict a defendant if, acting as the conscience of the community under the United States Supreme Court's formulation in Duncan v. Louisiana, the jury believes it unjust to apply the law as written to the facts of the case. In short, the jury exercises its discretion for mercy by saying that it would be wrong to stigmatize the defendant as a criminal in that particular case.

Actually, everyone concedes the jury has the power to nullify, to extend mercy to some hapless souls who get trapped in the netherworld between law and justice. Because the founders of our republic themselves had been caught in that netherworld, they lodged ultimate power in the people, not in the government. No person may be convicted of an offense without the verdict of a jury of peers. John Adams, one of the more conservative leaders of this period, expressed the prevailing sentiments in his diary in 1771: "Now, should the melancholy case arise that the judges should give their opinions to the jury against one of these fundamental principles, is a juror obliged to find his verdict generally, according to this direction, or even to find the fact specially and submit the law to the court? Every man of any feeling or conscience, will answer no. It is not only his right, but his duty, in that case to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the directions of the court."

As I write this essay, I am mindful that it will be published in a newspaper. In colonial America, publishing truthful statements against the government was seditious libel carrying severe criminal penalties. It took a nullifying jury in the famous case of John Peter Zenger to establish the freedom of the press we all enjoy today. Judges then dutifully sent law violators to prison whose only crime was to tell a truth about the government. A courageous jury in 1725 freed Zenger, who was technically guilty under the law. Had they not done so, today's magazine and newspaper readers would only be seeing the government's side of this and every other issue.

Commentators have determined that nullification was the prevalent rule since the inception of the jury. It was only at the end of the last century that courts began to severely restrict the authority jurors had enjoyed for centuries. The first two-thirds of this century witnessed the near extinction of the sovereignty of the jury to acquit on the basis of conscience. Arguments favoring jury nullification were resurrected in the late 1960s to counter the maneuvering of government prosecutors to obtain convictions of its more vocal opponents during the Vietnam war era. Since that time, most legal commentators who have written on this issue have favored nullification, though there remains disagreement over what exactly it is.

Because it is clear that jurors have the power to nullify, the modern argument concerns whether the jury has the right to be instructed of its power to nullify. The central question is, "May the jurors be instructed as to their power, in rare cases, to refuse to convict a defendant if, acting as the conscience of a community, the jurors believe it would be unjust to punish the defendant?" Once this question is asked, the right issue can be explored: Is it ever wise for a jury to exercise mercy?

Since 1972, when my first article on jury nullification was published in the Southern California Law Review, I have argued a cautious "yes." I do not believe that juries have the right to rewrite laws, or to disregard laws they do not like. But juries do not do that, as the major jury studies demonstrate, and they cannot do that, for no jury has the power to alter or repeal legislation. Jury nullification is merely a discretionary refusal to apply the law announced by the judge to a setting it may not have been intended to govern. General laws need particularized application if justice is to be served. In rare cases, where laws are being used oppressively or unfairly, the jury may say "no." Murderers, rapists, thieves and scoundrels are not likely to be freed by big-hearted juries. These are not the cases jury nullification affects.

The term "jury nullification" appears to connote jurors violating the law and violating their oaths. As Professor George Fletcher has noted, the term ". . . is unfortunate and misleading, because it suggests that when the jury votes its conscience, it is always engaged in an act of disrespect toward the law. The acquittal, supposedly, nullifies the law. In place of the law, it is said, the jury interposes its own moral judgment or political preferences."

Fletcher rejects the belief that jury nullification is an affront to the rule of law, and he provides a healthier image for the practice of it:

"[T]he function of the jury as the ultimate authority on the law [is] not to ‘nullify' the instructions of the judge, but to complete the law, when necessary, by recognizing principles of justification that go beyond the written law. It would be better if we abandon the phrase ‘jury nullification' and spoke instead of the jury's function in these cases of completing and perfecting the positive law recognized by the courts and the legislature."

Every once in a while, a case arises that does not fit the general mold. Such a case was presented in a brilliant PBS television documentary on Frontline, entitled "Inside the Jury Room," that filmed an actual jury deliberation. Leroy Reed, a sincere but dull-witted man, was arrested by his parole officer for illegal possession of a weapon. Reed, who enjoyed the television detective The Enforcer and fancied becoming a private investigator himself, received a mail-order detective course that said he would need a gun. Reed obediently bought one, not fully realizing his actions violated a condition of his parole. No one in the courtroom doubted that Reed was only vaguely aware of why he was on trial and what he had done wrong. He had not caused harm, was not likely to cause harm, and certainly did not have any intent to cause harm or violate rules.

Convicting him would be like rebuking a 5-year-old for not knowing algebra. Under the technical wording of the law, however, Reed was guilty. His defense lawyer pleaded for a jury nullification instruction, but the trial judge called it "an invitation to anarchy."

Once in the jury room, it was clear that the jurors were unanimous about two things: under the law, Reed was guilty; morally, he was innocent. The just thing to do would be to acquit him, but the jurors had been told only that they had to follow the letter of the law. What should they do? During the spirited two-hour debate, some jurors argued that their oath required that they convict even though it meant doing an injustice. Others argued that they must follow what conscience told them was the right thing to do in this case. Both sides, however, seemed upset that the law had left them in this predicament. In the end, the conscience arguments swept over the last remaining holdout. When he reluctantly retreated from his belief that the jury had no moral leeway, a verdict was reached. Leroy Reed was acquitted, and several jurors went home having less respect for the legal system than when they had first reported for jury duty.

Unless juries can exercise mercy in these cases, they can never fulfill their constitutional function as the conscience of the community. Without "jury nullification," properly understood, the "conscience of the community" language in Supreme Court opinions including Duncan v. Louisiana is empty rhetoric.

My reasons for supporting jury nullification are based on historical research (which demonstrates that juries did not abuse their power), pragmatic values (which suggest that better jury verdicts will come from juries that are given the option to nullify in tough cases) and democratic principles (which teach that jury nullification is directly linked to participatory government of, by and for the people). Clay S. Conrad, in his new book Jury Nullification: The Evolution of a Doctrine, provides ample support that jury nullification is an essential part of our government system.

Currently, an even more pressing development encourages judicial instructions to juries. As noted by Joan Biskupic in a February Washington Post story about juror protest, millions of potential jurors now have some concept of jury nullification and believe it to be their fundamental right. Judges lately have been attempting to weed jury panels of persons familiar with the nullification concept, but such procedures are constitutionally questionable and ultimately impractical as the numbers of knowledgeable potential jurors grow larger. Many, and perhaps most, potential jurors have an incorrect view of what nullification is and when it should be exercised.

Furthermore, we live in the world's largest yet most successful melting pot with diversity of views as the norm, not the deviation. Even without judicial instruction on nullification, jurors will vote their beliefs anyway. Judicial instructions are now essential to explain to jurors the purposes, limitations and dangers that make nullification an important part of our constitutional democracy.

Failure of judges properly to instruct jurors on their power to acquit could in fact ironically bring about a judicially created anarchy.


J. Clark Kelso is a professor of law and director of the Institute for Legislative Practice at the University of the Pacific McGeorge School of Law.

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J. Clark KelsoJury nullification deprives the accused and the state of knowing what is legal, violating due process

Listen to a proponent of jury nullification for more than about five minutes, and you'll likely discover a person who is upset about something; a person who feels put upon by society's injustices; who's mad as hell and isn't going to take it anymore. This is not to say that all proponents of jury nullification are extremists from the right or left or elsewhere (although it is perhaps symptomatic of jury nullification's problems that some of its more vocal supporters include people who are very politically active, such as members of the National Rifle Association, gun control advocates, abortion rights supporters, pro-life groups, those who support legalizing marijuana, militia groups and tax protesters), or that a legitimate sounding argument in favor of nullification cannot be made (usually supported by selectively chosen historical examples from a time when juries were virtually the only forum for resisting the king's tyranny). In fact, the law reviews have become saturated in recent years with articles from reasonable-sounding proponents and opponents of jury nullification, and several day-long symposiums on the topic have been sponsored around the country. So there must be some good reasons for supporting jury nullification, right?

I don't think so. When all of the rhetorical dust has settled, we come back to the fundamental reality that jury nullification happens only when one or more members of a jury is so disaffected with conditions in society and so angry about the result which the law appears to require in a particular case, that the juror is willing to ignore the law as given to the jury by the court and to cast his or her vote contrary to law. I am against having jurors make decisions based on anger, fear, resentment or pique. I don't want "12 angry men" who decide based upon their personal predilections and prejudices. The risk of injustice and error is just too great with that mix of emotions and subjectivity.

Arguments about jury nullification are often fought over such issues as (1) whether jury nullification is a "power" (it is, in the sense that with a general verdict in a criminal case, courts can only rarely see or do anything about nullification in action) or a "right" (it is not, with two exceptions noted below, since when a juror is identified by other jurors as unwilling to deliberate and follow the law, the court can disqualify the juror); (2) whether the jury should be notified of its "power" to nullify (courts have unanimously rejected instructions telling jurors about nullification); (3) whether race-based nullification should be encouraged as an antidote to a criminal justice system perceived as being heavily biased against African-Americans; and (4) whether a juror's indication of his or her unwillingness to follow the law is grounds for removal (it is, although the standard is very high since courts are properly reluctant to involve themselves too much in the substance of jury deliberations).

Although these are analytically distinct questions and might admit of differing answers, proponents of nullification usually answer all of the questions one way, and opponents usually answer all of the questions the other way (except for the question about race-based nullification, which generates conflicting viewpoints). The debate is not over the details; it is over the underlying wisdom and validity of nullification.

Institutionalized jury nullification, formally sanctioned by the law, is not entirely unknown to our legal landscape. The constitutions of Maryland and Indiana expressly provide that, in a criminal case, the jury is to decide questions of both fact and law. The judge's instructions on the law are advisory only. This gives criminal juries in Maryland and Indiana the power, right and constitutional duty to decide for themselves what the law is in a particular case, and that is the essence of jury nullification - the power to ignore the law as given to the jury by the judge. We don't hear loud cries from Maryland and Indiana about chaos, anarchy and disrespect for the rule of law. So maybe nullification isn't such a bad thing; maybe we can trust juries after all. Or, maybe the cultures and citizenry in Maryland and Indiana are so homogeneous that giving the jury the power to decide the law in criminal cases has no significant practical impact. I was born and raised in Indianapolis, and my sense is that there is a much greater homogeneity in that state than in, say, California or New York. I doubt that the experiences in Maryland and Indiana would be duplicated elsewhere.

In any event, nullification should be rejected for more basic reasons. Giving the jury the power to declare what the law is or to ignore the law entirely is inconsistent with fundamental notions of separation of powers, equal protection, due process and respect for the rule of law. (I hesitate to use the phrase "rule of law" in the wake of the impeachment proceedings, but I trust readers to differentiate between the political process of impeachment, where the phrase "rule of law" was primarily a rhetorical device employed by political advocates, and the judicial process of a real trial, where the "rule of law" still has meaning.)

Jury nullification frustrates the separation of powers because it arrogates to the judicial branch, acting through the jury, the power to ignore the law as enacted by the legislative and executive branches. The judicial branch's role is not to pass upon the wisdom of a statute; it is only to pass upon its constitutionality. Once having determined that a statute is constitutional, the judicial branch is obliged to apply the statute as drafted and intended. I don't want judges or juries to pick and choose at their whim which laws they will or will not enforce. The people elected representatives and a governor to engage in lawmaking. Those laws should not be undermined by judges (who, although technically elected, are not intended to be representatives of the electorate) or by jurors (who are selected by trial counsel whose primary goal is to win, not represent the public).

Jury nullification violates equal protection because the results in individual cases depend not upon the fair and even-handed application of the law to like situations, but upon the arbitrary refusal to apply the law to like situations. I use the word "arbitrary" in a special sense here. A particular juror may have internally consistent and even rational-sounding reasons for refusing to follow the law. For example, a juror might decide not to convict someone of a gun possession charge because of a firmly held belief that such laws are unconstitutional in light of the Second Amendment. However, I would treat this as an arbitrary refusal to apply the law in light of the current state of cases interpreting the Second Amendment. From the law's perspective, the juror who places his or her faith in the Second Amendment is acting arbitrarily and capriciously. The results in individual prosecutions should not depend upon such arbitrary factors as whether a Second Amendment devotee happens to be on the jury.

Jury nullification violates principles of due process because it deprives the accused and the state of the ability to know in advance what conduct is legal or illegal. This basic due process protection finds expression in the ex post facto clause, in rules against vagueness in criminal statutes, and in the constitutional doctrine forbidding prosecution under laws where no reasonable person would expect there to be any obligation to act in a particular way. A defendant should not be exposed to the possibility of criminal penalties because a jury decided to ignore laws providing an affirmative defense or creating or implementing constitutional protections. And, while jury nullification is most often invoked to secure acquittals, once the cat is released from the cage, there is precious little to control its appetite. Jury nullification to secure convictions is a clear risk (although judicial review of such convictions would cure some of the damage, it is inevitable that some of these convictions would be affirmed, resulting in unjust confinement).

Finally, jury nullification undermines the rule of law. The remarkable resilience of our constitutional form of government lies precisely in its rejection of law by personal fiat. Separation of powers is grounded in the same distrust of the concentration of too much power in too few hands. Ours is a cooperative form of governance, and our justice system depends upon those same cooperative elements. We permit great decisions to be made in our courts of justice only because we trust the participants, judges, jurors, counsel and witnesses to come together with dignity and with a sense of public responsibility to do the people's work. That trust would be sorely tested by a doctrine which celebrates the power of a single person to impose his or her personal beliefs upon a process that is designed and intended to reflect law and justice at its best.