Jury nullification in the United States

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John Peter Zenger, a printer in the English colony of New York, was tried for seditious libel in 1734 for publishing a newspaper critical of the governor. The jury acquitted Zenger despite the judge's instructions; this is perhaps the most famous early instance of jury nullification in the colonies that became the United States.

The use of the jury to act as a protection of last resort was espoused by many influential people surrounding the framing of the U.S. Constitution. For example, John Adams said of jurors: "It is not only his right but also his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."^[1]

First Chief Justice of the US John Jay wrote: "It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision… you [juries] have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy".State Of Georgia v. Brailsford, 3 U.S. 1,4 (1794),^[2]

It was over time that judicial and legal opinion slowly changed to consider jury nullification only a power and not a right of juries, as judges and prosecutors wanted stricter enforcement of laws that juries nullified. This shift stemmed from the 18th century conflict between two factions of English jurists, the first led by Lord Camden, which was originally prevalent in what became the United States, and the second led by Lord Mansfield. The position of the latter was called "Mansfieldism" by Jefferson^[3] and the shift has been called "Mansfieldization".^[4]

Contents 1 Nullification in practice 2 Court rulings 3 Advocacy groups 4 Opponents 5 References

[edit] Nullification in practice

Nullification has a mixed history in the United States. Jury nullification appeared in the pre-Civil War era when juries sometimes refused to convict for violations of the Fugitive Slave Act. During the 20th century, especially in the Civil Rights Movement, all-white juries were known to refuse to convict white defendants of murdering blacks.^[5] During Prohibition, juries often nullified alcohol control laws,^[6] possibly as often as 60% of the time.^[7] This resistance is considered to have contributed to the adoption of the Twenty-first amendment repealing the Eighteenth amendment which established Prohibition.

In the 21st century, many discussions of jury nullification center around drug laws that some consider unjust either in principle or because they are seen to discriminate against certain groups. A jury nullification advocacy group estimates that 3–4% of all jury trials involve nullification,^[7] and a recent rise in hung juries (from an average of 5% to nearly 20% in recent years) is seen by some as being indirect evidence that juries have begun to consider the validity or fairness of the laws themselves (though other reasons such as the CSI effect may also be involved).^[8]

In criminal cases, jury nullification arguments sometimes focus on the precise language of the jury instruction on the burden of proof. Many jury instructions on the issue of the burden of proof invite nullification arguments. According to these instructions juries must find the defendant not guilty if the case has not been proven beyond a reasonable doubt. Conversely the jury should find the defendant guilty if the case has been proven beyond a reasonable doubt. The permissive language "should" arguably allows juries to consider nullification arguments. It is also possible to receive a specific jury instruction on nullification, though this is based on the discretion of the judge and is very rare.

[edit] Court rulings

In recent years, judges seem to be less likely to favor jury nullification. While unable to take away the power of nullification, they have done much to prevent its use.

The first landmark decisions since the adoption of the U.S. Constitution confirmed several rights of the defense in a criminal case: a requirement on the bench not make a decision on motions until all legal arguments had been made by both sides; the right to be free of making those arguments before the jury had been seated; and the right to make those legal arguments to the jury. In both cases, in the DC Circuit, the same judge, William Cranch, rendered the opinions, creating precedents that have never been overturned:

• United States v. Fenwick, 25 F. Cas. 1062; 4 Cranch C.C. 675 (1836): Right to make legal argument to jury.
• Stettinius v. United States, 22 F. Cas. 1322; 5 Cranch C.C. 573 (1839): Right to make legal argument to jury.

The first major decision that departed from this line was Games v. Stiles ex dem Dunn, 39 U.S. 322 (1840),^[9] which held that the bench could override the verdict of the jury on a point of law.

The 1895 decision in Sparf v. U.S. written by Justice John Marshall Harlan held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5-4 decision. This decision, often cited, has led to a common practice by United States judges to penalize anyone who attempts to present legal argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.^[10]

A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the right of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect.

We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision. U.S. vs Moylan, 417 F 2d 1002, 1006 (1969).[2]

Nevertheless, in upholding the refusal to permit the jury to be so instructed, the Court held that:

…by clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences (for there is no check to insure that the judgment is based upon conscience rather than prejudice), we would indeed be negating the rule of law in favor of the rule of lawlessness. This should not be allowed. Id.

In 1972, in United States v. Dougherty, 473 F.2d 1113, the United States Court of Appeals for the District of Columbia Circuit issued a ruling similar to Moylan that affirmed the de facto power of a jury to nullify the law but upheld the denial of the defense's chance to instruct the jury about the power to nullify. However, in Dougherty the then-chief judge David L. Bazelon authored a dissenting in part opinion, arguing that the jury should be instructed about their power to render the verdict according to their conscience if the law was unjust. He wrote that refusal to allow the jury to be instructed constitutes a "deliberate lack of candor".^[11]

In 1988, in U.S. v. Krzyske, the jury asked the judge about jury nullification. The judge responded "There is no such thing as valid jury nullification." The jury convicted the defendant, and the judge's answer was upheld on appeal.

In 1997, in U.S. v. Thomas,^[12] the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law, under Federal Rules of Criminal Procedure 23(b).

We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent. Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court's instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.

In 2001, a California Supreme Court ruling on a case involving statutory rape led to a new jury instruction that requires jurors to inform the judge whenever a fellow panelist appears to be deciding a case based on his or her dislike of a law.^[13] However, the ruling could not overturn the practice of jury nullification itself because of double jeopardy: a defendant who has been acquitted of a charge cannot be charged a second time with it, even if the court later learns jury nullification played a role in the verdict.

The Supreme Court has not recently confronted the issue directly.

Some have argued that it is not sufficient to instruct jurors that they may judge the law if legal arguments are not made to them, that such incomplete information may indeed do more harm than good, and that we must return to the standard of due process represented by the Stettinius and Fenwick cases.^[14]

[edit] Advocacy groups

Some advocacy groups and websites argue that private parties in cases where the government is the opponent have the right to have juries be instructed that they have the right and duty to render a verdict contrary to legal positions they believe to be unjust or unconstitutional.^{[15][16][17][18]} These and other organizations contact citizens directly and lobby for legal reforms regarding instructions given to jurors.

Clay Conrad argues that there is nothing "wrong" with jury nullification; nullification is part and parcel of what a jury is all about. Conrad argues that the nullification power has sometimes been abused, as has all power. However, the abuses have been exaggerated to discredit the nullification idea itself.^[19]

[edit] Opponents

A notable opponent of jury nullification is former judge and unsuccessful Supreme Court nominee Robert Bork. In an essay he wrote jury nullification is a "pernicious practice".^[20]

[edit] References