Jury Nullification

The Evolution of a Doctrine

Clay S. Conrad

• Publisher: Cato Institute
• Year: 2013
• ISBN:
  9781939709011
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

The Founding Fathers guaranteed trial by jury three times in the Constitution—more than any other right—since juries can serve as the final check on government's power to enforce unjust, immoral, or oppressive laws. But in America today, how independent can a jury be? How much power does a jury have to not only judge a defendant's actions, but the merits of the law? What happens when jurors decide in criminal trials not to enforce the law or not to convict a defendant if they conclude it would be unjust? This classic book, originally published 15 years ago and now brought back into wide national view by the Cato Institute, answers these questions by taking readers through a history of jury independence and exploring the range of powers a jury can undertake in ensuring justice and fairness in our cherished legal system.

Chapter 1

Introduction

Trust in the jury is, after all, one of the cornerstones of our entire criminal jurisprudence, and if that trust is without foundation we must re-examine a great deal more than just the nullification doctrine.

Judge David L. Bazelon

There may be no feature more distinctive of American legal culture than the criminal trial jury. Americans have a deep and stubborn devotion to the belief that the guilt or innocence of a person accused of crime can only be judged fairly by a “jury of his peers.” This notion is a particularly American one, although it was inherited from English common law during the Colonial era. While throughout the last century those European countries which had adopted them have steadily reduced or eliminated the role of trial juries,¹ we Americans have steadfastly continued using trial juries in both civil and criminal cases. Even England, where our common law system of trial by jury first evolved, has almost eliminated civil jury trials and has taken large measures to restrict the role of the jury in criminal cases.² We in America are far less willing to relinquish our right to have our disputes settled by a jury of our peers.

It would be exceedingly difficult to completely eliminate the institution of trial by jury in America. Besides the fact that jury trial is deeply ingrained in American tradition, history, and popular culture, the right to have a jury hear and decide legal disputes is guaranteed by Art. III, § 2 of the Constitution and the Sixth Amendment in criminal cases, and by the Seventh Amendment in civil cases. Jury trial is also guaranteed in the Constitutions of every state in the Union. The Founding Fathers on both sides of the ratification debate had abundant faith in the power of the criminal trial jury to prevent governmental overreaching, as was best expressed by Alexander Hamilton:

The friends and adversaries of the plan of the convention, if they agree on nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists of this: the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government.³

American history is replete with similar references to the prophylactic role of the criminal trial jury. Moreover, the jury’s history as an essential safeguard of liberty began centuries before the American revolution. Long before the Battle of Runnymede led to the signing of the Magna Carta in 1215, Anglo-Saxon juries were acting as the final arbiter of the guilt or innocence of the accused. British courts, after a long history of persecuting jurors for acquitting against the wishes of the Crown, finally guaranteed the independence of criminal trial juries in 1670. Early American jurors had frequently refused to enforce the acts of Parliament in order to protect the autonomy of the colonies. The Founding Fathers inherited a well-evolved view of the role of the jury, and both adopted it and adapted it for use in the new Nation.

Even though Americans maintain a practically religious devotion to the institution of trial by jury, we remain ambivalent about what juries in criminal cases are supposed to do. We want them to impartially judge the evidence in the case before them, and to decide the case solely on the facts according to the instructions given to them by the judge. They are supposed to be able to put their personal feelings aside and use their common sense and experience to objectively determine whether witnesses are believable, whether the evidence makes sense, and whether or not the prosecution has proven its case beyond the requisite reasonable doubt. According to this model, juries are supposed to act dispassionately, almost mechanically, and apply the law given to them by the Judge without question. And, according to this “jury as fact-finder” model, that is all juries are supposed to do.

In analyzing the evidence, we want jurors to act as independent, autonomous, self-motivated individuals, deciding the facts according to their own ability, belief, and understanding. Jurors are expected to be independent actors, beholden to none. However, we also find it important to ensure that all segments of society have an equal chance of participating in the process. We speak of “representative” juries, while being none too clear about who the jurors are representing, or how they are supposed to represent them. Is the straight black female Christian juror to represent the views of heterosexuals, of African-Americans, of Christians, of women, or merely her own views after hearing the facts and law involved in the case before her? We have no touchstone to measure whether the jury we have is in fact a representative one, but we do know that nothing less than the Constitution demands that it be so. Even more confusing, in some cases we are none too clear as to whether fairness and impartiality or representativeness is the more important value.

Finally, and most importantly for our purposes, we want juries to act as Alexander Hamilton’s “valuable safeguard to liberty,” and as the “conscience of the community.”⁴ The first job of a juror is to see that justice is done, or at least that injustice is prevented. We want juries to act as a safety valve, limiting the ability of the courts and legislatures to impose punishment on well meaning or morally blameless defendants, and to protect their neighbors from overreaching or oppressive laws or law enforcement. Juries do this by rendering an independent verdict, acquitting a defendant who may be factually guilty when they believe that it would be unjust, unfair, or pointless to enter a conviction. In order for juries to do this, they must go beyond the “jury as fact-finder” paradigm and form an independent view of what it will take for justice to be done.

We are unable to be too clear about when jurors are supposed to judge just the facts, and when they are supposed to conscientiously intervene on behalf of the defendant. The borderline is fuzzy, and the more intently we examine it, the fuzzier it gets. We want juries to intervene on occasion; we just want them to do it on their own initiative, without any guidance, without us telling them about their power to do so, and without their telling us about their decision to do so. Our awareness of the practice is somehow believed to cheapen it, to take away its dignity.

Yet hiding the jury’s decision to look beyond the letter of the law miscasts it as a shameful act, something that must be kept “behind closed doors.” Shouldn’t juries be proud of their integrity, of their willingness to stand up for justice, even in those exceptional cases where justice and law come into conflict? Does our silence concerning the independent powers of the jury discourage jurors from returning nullification verdicts in appropriate cases? Moreover, does the clandestine nature of jury independence make it more or less likely that jurors will set the law aside in inappropriate cases, for racist, prejudicial or political reasons having nothing to do with justice?

When jurors decide not to enforce the written law and to “do justice” instead, we say that they have “nullified” the law. The power of juries to go beyond acting as mere finders of fact has been variously referred to as “jury mercy,” “jury lawlessness,” “jury justice,” “jury nullification,” or “jury veto power.” In this book, I will use the terms “jury nullification” and “jury independence” interchangeably. One source reports that “Despite its routine usage in law-journal prose, the phrase [jury nullification] is both inaccurate and improperly pejorative.”⁵ The media has also routinely used and mis-used the term jury nullification. Whatever its defects, “jury nullification” is the term most often employed to identify this power of the jury.

It is both derisive and deceptive to refer to the discretionary powers of the jury as “jury nullification.” It is derisive because it gives a very negative description of what the jury does, and it assumes that the jury is acting outside their legal powers. However, the law assumes—and occasionally, in some very important circumstances, demands—that juries do just this. Why should we describe the jury’s exercise of lenity solely in negative terms? “Jury independence” provides a more descriptive and positive term to refer to the powers of the jury to reach outside the written law in deciding their verdict.

The term “jury nullification” is also deceptive. When a jury decides not to enforce a law, it is the jury which nullifies that particular application of the statute, and not the jury which is nullified. And the statute is nullified only in the instant case the jury is judging; the statute itself is not struck from the books or made forever inapplicable. Perhaps the most accurate term to describe jury nullification is in fact “prosecutorial nullification.” This is because when a jury returns a verdict of acquittal, it eliminates the power of the prosecutor to pursue charges against the defendant, for those acts on which they refused to convict. The awesome power of the government over that individual, for that act, is what has been nullified by the jury’s discretionary provision of lenity.

What Jury Independence Is All About

Jury independence is a simple doctrine, although in individual applications it has occasionally had dramatic and wide-ranging implications. The doctrine states that jurors in criminal trials have the right to refuse to convict if they believe that a conviction would be in some way unjust. If jurors believe enforcing the law in a specific case would cause an injustice, it is their prerogative to acquit. If they believe a law is unjust, or misapplied, or that it never was, or never should have been, intended to cover a case such as the one they are facing, it is their duty to see justice done.

In this book, I will not examine the law-judging role of civil trial juries. Jury law-judging is especially problematic in civil cases, due to the powers of judges in civil cases to direct verdicts or grant new trials. The decisions of civil juries are not final; a judge may decide to grant a judgment notwithstanding the verdict (non obstante veredicto, or simply “N.O.V.”), or to grant a “remittiture,” effectively reducing the size of the jury’s award. Although in a criminal case the double jeopardy clause of the Fifth Amendment to the United States Constitution prevents a defendant who has been acquitted from being prosecuted anew, there is no similar protection given in civil cases. Although the legal doctrines of res judicata⁶ and collateral estoppel⁷ may prevent an issue from being relitigated in some cases, there are no instances where a civil jury verdict is absolute and unimpeachable, as a jury acquittal in a criminal case unquestionably is.

The basis of the doctrine of jury independence is the fundamental power of criminal trial juries to deliver a general verdict of either “guilty” or “not guilty.” Jurors are not obliged to justify their conclusion to the court. The verdict in a criminal case does not rest on certain “findings of fact” by the jury, as it may in civil cases; there is no need for the jury to elaborate on or justify its verdict in any way. The prosecution cannot re-indict a defendant who has been acquitted due to jury independence, without violating the constitutional prohibition against double jeopardy. Once a defendant has been acquitted, he is legally (although perhaps not factually) not guilty of the charges against him and cannot be required to stand trial for those charges again.⁸

The court may never, regardless of the strength of the evidence against the accused, direct a jury to convict. This is true even when no material fact is in dispute and the only hope for an acquittal is through the jury’s mercy. The Supreme Court has held that “. . . although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the State, no matter how overwhelming the evidence.”⁹ Even where there are no material (or even immaterial) facts in dispute, the decision to convict belongs solely to the jury, not to the court. The court may not so much as inquire whether the jury acquitted the defendant due to doubts about an essential element or fact, or their doubt about the justness of the law. So long as the defendant cannot be subjected to double jeopardy, it will remain within the discretion of jurors to provide absolute and irreviewable clemency. As Supreme Court Justice Oliver Wendell Holmes observed, “The judge cannot direct a verdict it is true, and the jury has the power to bring in a verdict in the teeth of both law and facts.”¹⁰

There is probably no doctrine in the study of criminal law that is more controversial than the doctrine of jury independence. Hundreds of law journal articles on jury independence have been published; several times as many newspaper articles have appeared. While academic interest in the role of the jury has been steadily increasing in recent years, grassroots organizations have either formed specifically to promote jury independence, or participated in promoting jury independence to their members. The largest such organization is the Montana-based Fully Informed Jury Association (FIJA), formed in 1989 with affilliated organizations in 46 states. As this work will show, this debate is essentially a political and not a strictly academic or legal one, and it has been raging for nearly 800 years. There is no reason to anticipate that it will ever be fully resolved, nor can it be expected to simply “go away” at any time in the foreseeable future.

Considered from a different perspective, jury independence is not controversial at all. Nobody questions what jury nullification is, or that modern courts consider it a power that juries possess but may not right fully exercise. On the surface, it appears well established that jury independence is not supposed to play any role whatsoever in modern criminal law. Jurors are expected to follow the “jury as fact-finder” model, and to mechanically apply the facts to the law as given to them by the ju...