Executive summary *

Introduction *

Concept *

What’s in a name? *

History *

The Magna Carta *

Early English cases *

The Lilburne trials *

Bushell’s Case *

Early American cases *

Zenger’s Case *

Georgia v. Brailsford *

United States v. Battiste *

United States v. Morris *

Sparf & Hansen v. United States *

Modern instances *

United States v. Dougherty *

United States v. Thomas *

Nullification at the state level *

Indiana *

Maryland *

Georgia *

New Hampshire *

Cost/benefit analysis *

Anarchy? *

Misinformation *

Consistency *

One-way vs two-way nullification *

 

Ethical implications *

Is it ethical for the jury to judge the law? *

The resulting verdicts *

The nullification movement *

Conclusion *

Endnotes *

Bibliography *

The right of "jury nullification" is more accurately described as the right of a jury to judge both law and fact. It can be traced back over 700 years to the Magna Carta, the document that formed the original basis for our modern legal system.

The concept of nullification was widely recognized since that time in England, and in the courts of America since colonization. The first record of the concept showing up in court was the English trial of John Lilburne, who was charged with printing anti-government literature and acquitted after asking the jury to consider the justness of the law.

In colonial America nullification was first invoked by Alexander Hamilton in the seditious libel trial of John Zenger, who was subsequently acquitted. The jury charge given by United States Supreme Court Justice John Jay in the Court’s first ever opinion included an explicit statement of the jury’s right to judge both law and fact. The right to nullify remained widely acknowledged in the U.S. throughout the 18th and 19th centuries, but the Court’s ruling in 1894 in Sparf & Hansen v. United States, though inconsistently worded, is widely viewed as the official end to nullification at the federal level in the U.S. Several states, on the other hand, continue to support the right to varying degrees.

Critics’ arguments that nullification leads to anarchy are not supported by either its long history or by recent studies. Indeed, suppressing it is inconsistent both with the guilt beyond a reasonable doubt standard and with the long list of other structural checks provided by our legal system. Nullification is favored by ethical arguments as well.

Recent political and cultural phenomenons have popularized the nullification cause, and many special interest groups are advocating it, sometimes inconsistently. The Fully Informed Jury Association attempts to bring these disparate groups together to promote consistent, concentrated advocacy of this ancient, essential right.

You are the consciences of the community. You set the standards. You tell us what is right and wrong. You set the standards. You use your common sense to do that…

-Johnny Cochran, closing arguments (People v. Simpson, 1995)

What casual observer of the O.J. Simpson murder trial would have recognized that in this and other closing statements, Johnny Cochran was actually inciting the jury to exercise a little-known right dating back over 700 years to the very origins of our modern trial-by-jury system?

Yet it is widely argued in the legal literature (Gormlie, 1996; Hodes, 1996), and indeed suggested by Cochran’s partner Alan Dershowitz (Dershowitz, 1996) that Cochran was doing just that—by telling the jury to "set the standards," to "determine right from wrong"—in other words, to disregard the law as explained by the judge and come to a decision on Simpson’s guilt based on their own consciences; to "nullify" the law.

In this paper, I’ll examine the concept, history, costs and benefits, ethics, and current state of jury nullification, and argue that it is a natural right that is absolutely essential to the maintenance of justice in the legal system of any democracy.

Definitions of jury nullification span the range from the dramatic: "when a jury ignores the law as given by the court and chooses instead to play by its own rules" (Crispo, 1997) to the almost-beatnik: "the power of a jury to soften the harsh commands of the law and return a verdict that corresponds to the community’s sense of moral justice…" (Scheflin, 1991). For purposes of this paper, however, I’ll generally define jury nullification as the power and right of a jury, in criminal cases, to judge both the law pertaining to the case and the facts of the case, and to vote on the verdict primarily according to conscience and secondarily according to the judge’s charge.

Having said that, let me digress for a moment on the potential unconscious source of Mr. Crispo’s apparent bitterness: the connotations associated with the idea of "nullifying" a law.

While advocates broadly understand its meaning as I’ve stated it above, nullification is simply the wrong word to use in the context of a jury’s right to judge the law as well as the facts. It appears to have only recently come into use to describe this right, as I could find no mention of "nullification" in the transcripts of any of the major trials I researched in writing this paper. Serious advocates of "jury nullification" by no means advocate that juries be empowered to overturn, amend, or eliminate a law or precedent; rather, their aim is to give the jury the right to be the final judges of the applicability, interpretation and justness, on a case-by-case basis, of the law.

In (Scheflin, 1991), the authors argue that jury nullification involves the "power to ‘complete’ or ‘perfect’ the law by permitting the jury to exercise that one last touch of mercy where it may not be appropriate and just to apply the literal law to the actual facts." They propose that a better name might be "jury mercy."

While I agree in principle, I think that "mercy" has emotional connotations that are as negative as the "anarchistic" connotations associated with "nullification", and that it does not accurately describe every circumstance in which nullification is justified. It is useful here to consider William Hodes’ three kinds of nullification [1] (Hodes, 1996):

• The jury as judge of justice. This simply means that if a jury considers a law unjust they have the right to ignore it. While their doing so consistently can provide good feedback for lawmakers [2], this is a peripheral benefit, and the jury’s actions in no way usurp the power or responsibility of the legislature. This kind of nullification may have been used by the jury in United States v. Morris, discussed below, and this is the kind most often encouraged by single-issue-interest-group advocates, which I shall discuss further on.
• The jury as judge of application. In this case, the jury considers the law just, but finds its application unjust. For example, a jury may fully support anti-trespass laws, but choose not to enforce them in particular circumstances, e.g. an anti-war rally.
• The jury as messenger. In this case, the jury has no problem with the law or the application, but uses its nullification right to send a message to a party to the trial—the police, the prosecutors, etc. For example, the main point of Hodes’ article is that the Simpson verdict was a message to the police; Hodes argues that most or all of the jury knew Simpson was guilty, but also believed that the police were attempting to frame him, and their acquittal was a message that there is no profit in such behavior [3].

Scheflin’s "mercy" definition applies to the first two kinds of nullification, but not the last; the messenger role of nullification has nothing to do with pitying the defense and everything to do with punishing the prosecution. In light of these diverse roles of nullification, I would propose that a more appropriate name than either "nullification" or "mercy" would be "jury scrutiny", as all three forms involve some kind of scrutiny. However, in order to remain consistent with the literature, I will use "nullification" in this paper.

Jury nullification has "deep roots in common law" (Gornlie, 1996); in this section I’ll look at how the idea evolved, and where appropriate, its relation to and interaction with common law.

The notion of common law and trial by a jury of one’s peers was first codified in the Magna Carta; scholars still debate whether this document actually guaranteed a trial by jury and if it allowed the jury to judge both law and fact. In (Spooner, 1998), the author painstakingly analyzes the original Latin text and inconsistencies in its current translations and makes a compelling argument that the Magna Carta recognized common law as the only law and the jury as the only interpreters of it (as well as of the facts of the case). His reasoning, greatly simplified, is that since the Magna Carta demanded rule per legem terræ, or by the law of the land (i.e. common law) and since common law was not at that time codified (but defined up until that time by the whim of the king), the jury would automatically judge the law at every trial. In effect, common law got a fresh start in 1215 since any precedent existing prior to the Magna Carta was the unchecked work of the king and therefore suspect; newly protected juries would be freshly defining common law and setting precedent thereafter.

This interpretation has profound implications, as it unarguably marries the concept of jury as judge of both law and fact with the concept of common law; they become one and the same throughout the evolution of our modern judicial system, which has its deepest roots in the Magna Carta (Gore, 1996). Critics might argue that such a marriage was useful in simpler times when society was highly localized and laws were not exhaustively codified (or uniform) as they are now, but that in our complex, globally integrated world with its extensive volumes of codified law, we no longer need to allow juries the power to interpret it. This is a dangerous attitude. The law must grow and change with society now just as it has grown and changed throughout history. For the better part of 700 years, juries, empowered to judge the law, have provided the final and most direct channel of feedback from the common man to the lawmakers. As long as corruption exists, as long as the majority misuses its democratic power to oppress the minority, in short, as long as we remain human, the jury’s right to judge law as well as fact will be crucial to the maintenance of a free society.

While the Magna Carta can be interpreted to imply that juries, by definition, had the right to judge the law, the concept was not formally introduced into law until the 17th century.

Lt. Col. John Lilburne was the leader of the Levelers, a group of "agitators and pamphleteers" that advocated equality of rights under the law in England in the period following that country’s Civil War of 1641-1646 (Elliiot, 1989). Lilburne was first tried for printing anti-government literature in 1649, and during his trial made the first recorded argument for jury nullification, arguing that jurors "are not only judges of fact, but of law also…", and that the court is only the pronouncer of the jury’s verdict (Crispo, 1997). The court bought it, and he was acquitted. Four years later he was back in the courtroom, this time on charges of criticizing the privileges of a member of Parliament; the penalty if he was convicted was death. This time he further advanced the concept of jury nullification, arguing that the "proscribed punishment was unconscionably severe in light of the acts proved to have been committed…", and that the law under which he was charged failed to provide any crime worthy of death. Again, the jury agreed and he was released. (Crispo, 1997)

Lilburne’s trials represent the first recorded articulation of the most fundamental historic role of the jury: their role as judges of both law and fact. That his arguments were accepted by the court and that they succeeded in the highly oppressive legal climate of 17th century England is strong evidence of the sacred status historically given to the jury’s judgement.

In 1671, Quaker leaders William Penn and William Mead were tried under the charge of seditious preaching before an unlawful assembly. They admitted to assembling a crowd, but Penn argued "the question is not, whether I am guilty of this indictment, but whether this indictment be legal…", and asked the jurors to use their consciences to decide the pair’s guilt. The judge instructed the jurors that they must return a guilty verdict, but 4 of the 12 refused to convict; sent back to deliberate twice, they finally found the pair not guilty. Outraged, the judge ultimately fined the jurors and ordered them imprisoned "without meat, drink, fire and tobacco" (!!) until the fine was paid. (Crispo, 1997; Gormlie, 1996)

The jurors, led by Edward Bushell, filed a writ of habeas corpus. Chief Justice Sir John Vaughan’s opinion on the writ forms the first explicit basis for the claim that nullification doctrine is grounded in common law:

…[the jury must] find for the plaintiff or defendant upon the issue to be tried, wherein they resolve both the law and the fact complicatedly, and not the fact by itself; so as though they answer not singly to the question what is law, yet they determine the law in all matters, where issue is joined…."

(italics mine) (Gormlie, 1996)

All but one of England’s judges concurred with this rather clear-cut endorsement of the jury’s right to judge both law and fact (Crispo, 1997).

Bushell’s case holds significance similar to Lilburne’s, but goes further in that it represents the first recorded plea for jurors to vote according to conscience, and the first record of an explicit association between jury nullification and common law ("yet they determine the law…").

In pre-Revolutionary America, distrust of Crown-appointed judges coupled with strong respect for individual rights contributed to the widespread belief that jury nullification was a fundamental and necessary right (Gormlie, 1996). There is little argument that the leaders of the revolution and framers of the constitution held this belief [4], and that therefore the very definition of the word "jury" at the time of the writing of the constitution implied the right to nullification (Barnet, 1993); an explicit statement of this right is therefore omitted from Article III and from the 5th, 6th and 7th Amendments. Despite this omission, however, it is telling to note that the 6th Amendment’s guarantee of trial by "impartial jury of the state and district wherein the crime shall have been committed…" is considered by many scholars as de facto endorsement of the nullification right, since its primary intent is to protect defendants from laws passed down by political bodies in which the local population had little or no voice (Barnet, 1993). The Constitution’s framers had firsthand experience with such laws, and their adherence to the theme of keeping the protection of rights as close to the individual as possible by favoring the judgement of smaller over larger government entities permeates the language of the document (e.g. Amendments 9 and 10).

This widespread acceptance of nullification as a fundamental jury right forces even its critics to concede that "criminal juries enjoyed the right to decide both law and fact…" throughout the 18th and 19th centuries (Crispo, 1997).

In 1735, newspaper publisher John Peter Zenger was prosecuted for seditious libel against New York’s governor. Unable in those days to use truth as a defense, his lawyer, Alexander Hamilton, argued that juries "…have every right beyond all dispute to determine both the law and the facts…" (Gormlie, 1996) and reinforced the common law nature of nullification, asking them to "see with their own eyes, to hear with their own ears, and to make use of their own consciences and understandings in judging of the lives, liberties or estates of their fellow subjects." (Crispo, 1997). The jury found Zenger not guilty, and in so doing, strengthened freedom of the press.

In addition to the obvious parallels in significance between this case for the U.S. and Lilburne’s case for England, Hamilton’s encouragement that the jury "make use of their own…understandings" is undoubtedly a reference to the distance of the English legislators who passed the law in question.

The first record of a judge advising a jury of its right to judge both law and fact occurs, unsurprisingly (and probably uncoincidentally) in the Supreme Court’s first full opinion. In Georgia v. Brailsford, Chief Justice John Jay instructed the jury:

It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay the respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.

(italics mine) (State of Georgia v. Brailsford, 1794)

While Jay’s words are carefully chosen, it is significant that he stated that nullification is a right, not a power as is argued by some modern scholars. That the Justices unanimously agreed on this instruction in their first opinion was also undoubtedly intended to send a strong message to the future courts of the infant United States—a message which they soon began to disregard.

We first see jury power being tempered in the 1835 case of United States v. Battiste. Battiste was accused of illegally transporting individuals with the intention of making them slaves, and if convicted faced the death penalty. His lawyer argued for nullification. Justice Joseph Story instructed the jury:

My opinion is, that the jury are no more judges of the law in a capital or other criminal case, upon the plea of not guilty, than they are in every civil case, tried upon the general issue. In each of these cases, their verdict, when general, is necessarily compounded of law and of fact; and includes both. In each they must necessarily determine the law, as well as the fact. In each, they have the physical power to disregard the law, as laid down to them by the court. But I deny, that, in any case, civil or criminal, they have the moral right to decide the law according to their own notions, or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime, that the jury should respond as to the facts, and the court as to the law.

(italics mine)(United States v. Battiste, 1835)

While nullification opponents view this seemingly confused statement as the beginning of the end for nullification arguments being made by the defense, note Story’s language: not only is he careful to couch this portion of his charge as opinion, but he explicitly recognizes the jury’s power to determine both law and fact, despite his opinion. His rejection of the jury’s right to judge the law is qualified by his statement "according to their own notions, or pleasure." Notions and pleasure are highly subjective, almost emotional descriptors; Story tellingly avoids more concrete language, such as "their own consciences" or "their own interpretation" or even "their own rights as citizens", all of which more accurately describe the concept of nullification. I believe that Story grudgingly accepted the right of the jury to judge the law, and carefully avoided denying it in his statement; however, his personal dislike of the concept led him to confusingly phrase his charge, in hopes that the jury’s interpretation would support his personal opinion.

It appears as though his plan failed; Battiste was acquitted.

I shall explore the ethical issues associated with jury nullification later, but if its use in freeing the slave trader Battiste decreases its appeal, consider the case of Morris. The defendants in this 1851 case were prosecuted for violating the Fugitive Slaves Act by aiding and abetting in a slave’s escape to Canada. Defense counsel began to argue for nullification but was cut off by the Court. Justice Benjamin Robbins Curtis then wrote an excruciatingly lengthy opinion rejecting nullification, summing up with:

My firm conviction is, that under the constitution of the United States, juries, in criminal trials, have not the right to decide any question of law; and that if they render a general verdict, their duty and their oath require them to apply to the facts, as they may find them, the law given to them by the court.

(United States v. Morris, 1851)

Despite Curtis’s strong words, however, nullification remained widespread in the U.S. until the end of the 19th Century. (Gormlie, 1996)

For reasons that, as we shall see, defy all logic, this case is accepted by nullification critics and supporters alike as the death knell for open advocacy of jury nullification in the U.S., at least at the federal level. The defendants in this case faced murder charges under a statute which provided for the lesser included offense of manslaughter; the court below refused the defense’s request to instruct the jury on the manslaughter offense, and when, during deliberations, the jury asked whether the crime could be manslaughter, the judge said no. The judge went on to say:

In a proper case, a verdict for manslaughter may be rendered, as the district attorney has stated; and even in this case you have the physical power to do so; but … a jury is expected to be governed by law, and the law it should receive from the court.

(italics mine) (Sparf & Hansen v. United States, 1894)

Note here the judge’s use of the word "should" rather than "must;" throughout the rest of his exchange with the jury (not reproduced above), Harlan never explicitly rejects their right to judge the law, and in fact is meticulous in his assertions that, despite his responsibility to instruct the jury in the law, the final decision as to whether the crime was manslaughter or murder is up to them—which certainly seems to give them some latitude to judge the law.

The jury returned a guilty (of murder) verdict and the defendants appealed, on the grounds that "the court transcended its authority when saying…a jury is expected to be governed by law, and the law it should receive from the court." (Sparf & Hansen v. United States, 1894)

It is Supreme Court Justice John Marshall Harlan’s opinion on this appeal that created the precedent cited in most cases in which the jury’s right to be informed of nullification has been raised. Unfortunately, after a painfully thorough analysis of the Sparf transcript, I can only conclude that Harlan was simply restating the anti-nullification opinions present in case law; in fact, (Crispo, 1997) misquotes Harlan [5], attributing to him Joseph Story’s Battiste opinion (excerpted above), which Harlan cited in his Sparf opinion. Harlan presented no original arguments against informing the jury of their right to judge both law and fact, and in fact, the ultimate resolution of this case came in Harlan’s ordering a new trial:

For the twofold reason that the defendants, by the instructions given by the court to the jury, have been deprived, both of their right to have the jury decide the law involved in the general issue, and also of their right to have to jury decide every matter of fact involved in that issue, we are of directions to order a new trial as to both defendants.

(italics mine) (Sparf & Hansen v. United States, 1894)

The case in which the Supreme Court "effectively ended the right of jury nullification in federal court" (Crispo, 1997) appears, on careful examination, to be at least a partial endorsement of jury nullification!

Jury nullification seems to gain popularity during times of cultural conflict, which makes sense when you consider the power it equips the common man with in his confrontation with "the system." Nullification was used by bootleggers during prohibition, by racists during the civil rights movement, and by war protesters during the Vietnam War (Gormlie, 1996). While some people would jump to the conclusion that nullification is undesirable simply because it may be used for evil purposes [6], we must separate the general existence of a right from its specific exercise, keeping in mind that virtually any right can be used for evil as well as good [7]. We shall examine such ethical issues in more depth further on.

The modern nullification precedent was set in United States v. Dougherty, a 1971 case involving prosecution of a group of Catholic Clergy who ransacked the offices of Dow Chemical in protest of Dow’s manufacture of napalm used in the Vietnam War. During the original trial, the defendants asked that the jury be given a nullification instruction and were refused; they were subsequently convicted. The appeals court upheld the conviction, stating in part:

…it is pragmatically useful to structure instructions in such ways that the jury must feel strongly about the values involved in the case, so strongly that it must itself identify the case as establishing a call of high conscience, and must independently initiate and undertake an act in contravention of the established instructions.

(italics mine)(United States v. Dougherty, 1972)

In writing for the majority, Judge Leventhal went on to say "The jury knows well enough that its prerogative is not limited to the choices articulated in the formal instructions of the court." While Judge Leventhal appears to be "leaving the door open" for nullification, his reasoning is fundamentally flawed; the jury can only be assumed to know what it is told by the judge. If the judge does not inform them of their right to nullify, how can they be assumed to know it? More disturbingly, if the jury as a whole is not consistently educated as to the proper use of the right, its interpretation may become a matter of debate amongst the jurors, leading to inconsistent and perhaps improper application.

In fact, it appears that not even some judges know about this unstated right. In United States v. Thomas, the Second Circuit further weakened the nullification precedent set in Dougherty by ruling that nullification was a "…dereliction of a juror’s ‘duty’ to apply the court’s interpretation of the law to the evidence presented…" However, the Court did generously allow that secrecy in jury deliberations is "necessary to the proper functioning of the jury," and therefore acknowledged that nullification may sometimes take place, in secret (Criminal, 1997).

So this is where the ancient "right" of a jury to judge both law and fact stands in 1998, at least at the federal level: it’s is a dereliction of duty, but it’s okay if you don’t get caught.

Despite the Federal Government’s apparent disdain for nullification, the concept is written into the constitutions—and jury instructions—of several states. Unfortunately, there is a distinct recent trend towards anti-nullification "interpretations" of this right in most of these states.

Indiana’s constitution gives the jury "the right to determine the law and the facts." Indiana’s jury instruction reads:

Since this is a criminal case the Constitution of the State of Indiana makes you the judge of both the law and the facts. Though this means that you are to determine the law for yourself, it does not mean that you have the right to make, repeal, disregard, or ignore the law as it exists. The instructions of the court are the best source as to the law applicable to this case.

(St. John, 1997)

While somewhat confusing, this is certainly far preferable to the Federal policy that juries have the right to nullify if they don’t get caught.

Indiana probably has the strongest constitutionally guaranteed jury rights of any state; unlike other nullification-rights states, Indiana’s right has not been watered down through "interpretation" by the courts.

Maryland’s constitution is similar to Indiana’s in stating that, in criminal cases, the jury "shall be the Judges of law, as well as fact." Unfortunately, this right has been diluted in recent decisions; currently, its only remaining vestige is Maryland’s allowance that counsel can argue points of law to the jury, dissenting from the legal position put forth by the judge (St. John, 1997).

If Indiana’s nullification rights are the strongest, Georgia’s are the most uncertain. The state constitution, ratified in 1877, includes the language "the jury shall be the judges of the law and the facts." However, the Georgia Supreme Court, in two decisions closely following ratification, held that a criminal defendant has no right to inform the jury of its constitutional right to judge the law (Gormlie, 1996 and St. John, 1997). Lower Georgia courts inconsistently apply this precedent, but the future of jury nullification in Georgia does not look bright.

New Hampshire lacks a constitutional guarantee of the right to nullify, but has a strong case law tradition of supporting it.

The New Hampshire Supreme Court has deferred to lower courts the decision as to whether to inform juries of their nullification right, based on the facts of a particular case. In one case, the State Supreme Court even reversed a lower court decision because of the effect (due to the circumstances of the particular case) of the lower court’s failure to advise the jury of its nullification right (Gormlie, 1996).

Having looked at nullification’s history and current state, let’s now turn to the costs and benefits of its widespread recognition as a right.

Nullification opponents’ most fundamental and passionate argument is that it would lead to anarchy. I find this view extreme to the point of paranoia.

First, as previously pointed out, even nullification critics acknowledge that the practice was widespread in the U.S. throughout the 18th and 19th centuries. While the political environment of this period was markedly different than now, the country operated under the same constitution, substantially the same body of common law, the same (at least post-revolutionary) court system and the same (again, post-revolutionary) general government structure. Yet during this period, anarchy was suspiciously absent [8]. In fact, I’d speculate that nullification critics would be hard pressed to find a single instance of anarchy directly attributable to the exercise of nullification rights over the 700-year history of their existence.

Anarchophobics will likely respond that they didn’t really mean anarchy, just, you know, inconsistent application of the law, which is, after all, kind of like anarchy.

Again, however, experience shows otherwise. For example, a study by David Brody of acquittal rates in Indianapolis (where the right to nullification is explicitly stated in jury instructions) vs. 12 other jurisdictions over a 7 year period found that Indianapolis juries had a lower than average acquittal rate (Gormlie, 1996).

In another study, this one conducted by Irwin Horowitz, 45 six-person juries were assembled at random from the official jury list of Toledo, Ohio. The juries watched the same mock trials, and were given one of three charges: 1. the standard Ohio instruction; 2. the standard Maryland instruction (which includes the explicit right to nullify); and 3. a "radical" nullification instruction. As you may expect, the juries that were informed of their nullification rights were much more likely to take the defendants’ circumstances into account in their determination of a verdict. Ironically, this experiment is cited by both advocates and critics of nullification in support of their positions; advocates point out that given the right to nullify, juries will use it wisely, while critics view this departure from the law as a negative (Scheflin, 1991; St. John, 1997).

Perhaps the most ironic twist on nullification critics’ fears of anarchy is the recent trend toward public misinformation regarding jury nullification.

Judging by the amount of coverage nullification has been getting in the legal press lately, we appear to be at or approaching one of those periods of cultural conflict that I mentioned earlier, during which jury nullification comes into vogue. This is not surprising, considering the attention paid by the mainstream press to debate over issues like abortion and assisted suicide. Supporters and critics of such causes, along with those of more "fringe" causes like the war on drugs, gun control, the environmental movement, etc. are all unified by the notion that jury nullification may offer them relief from laws they see as persecutory.

Realizing this, such groups are more and more often publicizing inconsistent, ill-conceived and sometimes illegal instructions to their members regarding their right to nullify. While (except in the cases where jurors are advised to lie about their beliefs during voir dire) I principally support the right of such groups to publicize jury rights, this situation is far inferior to codifying the educational responsibility as belonging to the judge. Inconsistent, politically-motivated juror "education" efforts only foster more resentment between citizens and their government and increase the likelihood that juries will consist of secretive—perhaps lying—confused, adversarial jurors (Scheflin, 1991). And, considering that the secrecy of jury deliberations is one of the few remaining sacred rights accorded to a jury, these misinformed jurors are likely to spread their misinformation to others—or rely on it to cause costly mistrials. This seems to be a far more anarchic threat than the alternative of charging the judge with dispensing proper jury instructions.

The jury’s right to judge the law can be viewed from another, completely different, angle: one of consistency with other "checks and balances" in our legal system.

In this view, the jury is simply the final—and closest to the private citizen—structural check in our legal system. The legitimacy of many such checks are recognized; before a defendant can be convicted, all of the following groups must "agree": the legislature must have passed a law prohibiting his action, the executive must have signed the law, the police must have chosen to enforce it, the prosecutor must have decided to prosecute, and the judge must have allowed the prosecution to proceed (St. John, 1997). The jury was originally intended as the final check in this long chain. It is interesting to note the widely disproportionate power distribution and derivation throughout this chain; the legislature and executive, arguably the most powerful links, soundly derive their power from the people, but are only infrequently subject to voter scrutiny; the prosecutor, policeman and judge—arguably the links with the most enforcement latitude—

are the least subject to citizen approval and the least sensitive to citizen sensibilities. I assert that a jury of the defendant’s peers, from his community, who have to live with him in their midst if he is acquitted, is the most highly incented and best-suited judge of the law.

One serious shortcoming of the nullification scenarios presented so far is that they can be construed to apply to both acquittals and convictions.

If consistency in the chain of legal checks requires, as I argued above, that jury nullification be included in them, the included nullification must be consistent with the rest of the process, which generally gives the defendant the benefit of the doubt. Therefore, I assert that a jury’s right to nullify is limited to nullification in favor of acquittal; no right to nullify a law so that the defendant can be found guilty can exist.

A pragmatic reason for this, besides its consistency with the standard of proof required in a criminal conviction, is that it would eliminate many of the potential abuses possible with nullification. If nullification can only be used to acquit, instances of jury prejudice resulting in unjust verdicts would be reduced [9].

The clincher for acquittal-only nullification, however, is strictly constitutional; allowing nullification for purposes of conviction would violate the Constitution’s prohibition of ex post facto laws (St. John, 1997). In cases where the defendant did not, in fact, violate the law, by invoking nullification to find him guilty the jury could be seen to be "inventing" a law after the fact.

It seems that history and, I would argue, common sense both support a jury’s right to judge both law and fact. Now I’d like to look at the ethical implications.

There are two rather unrelated areas in which one can address the ethics of jury nullification: 1. actual ethics associated with giving the jury this right and 2. verdicts that result from its use.

While democracy in the U.S. often leaves something to be desired, I must admit that we have implemented the concept more effectively—and for a longer period of time—than any other country that has tried. It is especially sad, then, that even here, examples of the "tyranny of the majority"—first pointed out, with great vision, by Alexis de Tocqueville during America’s relative youth—have been plentiful throughout our history. From the slave trade through the Indian wars, alcohol prohibition, Jim Crow laws, WWII Japanese internment camps, and the McCarthy hearings, to the present-day War on Drugs, the U.S. has a long and bloody body of experience with misguided majority decisions. Such decisions are an inevitable consequence of the fallibility of human beings, and they are sure to plague our species for the rest of its existence.

If there is no cure for human misguidance in a democratic government, can we hope to mitigate it? The answer is yes, and by now the shrewd reader has identified it: jury nullification!

In light of democracy’s shortcomings and the lack of structural solutions to overcome them, I assert that failure to acknowledge the right to jury nullification can only be regarded as unethical, since it purposely deprives free citizens of a tool that helps to ensure their freedom. I can say with no reservations, then, that a jury has every ethical right to judge the law, and further, that the only ethical jury charge that a judge can give is one that instructs them of this right.

At other points in this paper I have touched upon verdicts, reached via nullification, that will almost universally be considered "wrong." The O.J. Simpson case is probably the best known and agreed upon recent example; numerous other civil rights examples exist, from Battiste to race-motivated murders during desegregation in the South⁶.

In retrospect, it is easy to pass ethical judgement on a verdict that, for example, freed a white man plainly guilty of the murder of a black man. This is because, as (Gormlie, 1996) so elegantly points out, history judges morality. Such verdicts were influenced by a complex mix of human, cultural, legal and political issues that only existed at the time they were reached and that we, given our progress and historical perspective, cannot fully comprehend. What we must understand, however, is that such verdicts, along with other events, undoubtedly played a crucial role in the development of the current perspective that allows us, as a society, to agree on the repulsiveness of such behavior. We cannot predict where we would now be had our nation not witnessed the injustice of segregation and the publicity of acquitted racist killers that accompanied it, just as we cannot predict what path anti-Semitic intolerance might have taken had Hitler never risen to power. What we don’t have to predict, because we know it, is the progress we have made as a result of these atrocities, and the great power their memory has in preventing them from happening again.

This argument does nothing to eliminate the short-term injustice that may occasionally be created by a jury abusing the right to nullification, but I think taking such a long-term perspective does much to counter the argument that such abuse merits revocation of the right, especially when you consider that: 1. as long as we respect the secrecy of jury deliberations—something even the most ardent nullification critics support—we will not be able to prevent immoral verdicts from being reached; and 2. to sloppily paraphrase Benjamin Franklin, it’s better to set a thousand guilty men free than to convict one innocent man. Our entire legal system revolves around giving the accused the benefit of the doubt. We frequently tolerate the acquittal of guilty individuals because of botched police procedures, insufficient evidence, inconsistent witnesses, incompetent prosecutors, and even ignorant jurors; we accept it as a consequence of the reasonable doubt standard, which, few would deny, enhances our freedom despite its facilitation of such acquittals. To not extend the spirit of this standard to the law is dangerously inconsistent.

And what about the cases—such as the majority of those detailed in this paper, which represent the majority that are discussed in both the pro- and anti-nullification literature—in which nullification unarguably contributes to an ethical outcome? Is the act of a jury abiding by its conscience to reject an unjust law or application of law unethical? Of course I would argue no. As I have pointed out ad nauseam elsewhere, laws are made by humans, who also make mistakes. Simply codifying the wishes of the majority does not ensure that they are ethical wishes. In fact, in our society, the people are typically so far removed from the lawmaking process that it can convincingly be argued [10] that many laws more accurately represent the whim of a special interest group or the repayment of a favor than the will of the majority.

I argue that the ethical qualities of the bad decisions that nullification may enable is insignificant compared to the overwhelmingly greater ethical good that does, both by enabling more just decisions at the individual case level and by contributing to long-term justice even when the individual verdicts are bad.

As previously stated, the current political and cultural climate in the United States seems to be conducive to nullification advocacy, and in fact, many groups are embracing nullification. Foremost among them is the Fully Informed Jury Association (FIJA).

FIJA was formed in 1989 by Don Doig, a chef, and Larry Dodge, a postcard publisher. FIJA is a "non-profit association dedicated to education of all Americans about their rights, powers and responsibilities as trial jurors." (FIJA, 1998). The group currently has chapters in 40 states, over 10,000 supporters in all 50 states, and since its inception has prompted the introduction of over 25 bills into state legislatures. While some of these have cleared at least one house in at least 5 states, none has yet been signed into law (St. John, 1997).

In addition to helping to draft prototype jury rights legislation, FIJA promotes nullification through education and keeps track of trials in which nullification would help to serve justice, where members often distribute educational leaflets (and are often harasses and sometimes arrested for doing so).

FIJA is non-partisan, and in fact probably boasts of the most diverse membership of any activist group. Tax protesters, anti-abortionists, drug legalization advocates, gun owners, environmentalists, anti-environmentalists, libertarian groups, anti-drunk driver groups, anti-censorship advocates, pro-censorship advocates, and many others all have reason to be attracted to the right of jury nullification. FIJA provides a mechanism for them to work together constructively to send a consistent message about nullification both to the public and to the government.

I think I’ve shown that the historical, ethical, and pragmatic arguments in favor of jury nullification are extremely compelling, and that the current suspension of this right is arbitrary, inconsistent, and unconstitutional. The right of the jury to judge both law and fact was fundamental in the formation of our legal system, and is no less important or necessary now than it ever has been throughout the history of our nation. Justice and freedom cannot be fully realized if the people do not have ultimate authority over the laws that govern them. And they will not have that authority until the right of their juries to judge both law and fact is reinstated and made clear.

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"Criminal law—jury nullification—Second Circuit holds that juror’s intent to nullify is just cause for dismissal." (Author unknown). Harvard Law Review, Volume 111, Number 5, March 1998: 1347-1352.

Crispo, Lawrence W. et al. "Jury nullification: law versus anarchy. Loyola of Los Angeles Law Review, Volume 31, Number 1, November 1997: 1-61.

Dershowitz, Alan M. Reasonable doubts : the O.J. Simpson case and the criminal justice system. New York: 1996.

de Tocqueville, Alexis. Democracy in America. 1831: See: http://xroads.virginia.edu/~HYPER/DETOC/toc_indx.html

Elliot, Nick. "The Levelers: Libertarian Revolutionaries." The Freeman, May, 1989, or see http://shell5.ba.best.com/~advo/freeman/8905elli.html.

Fallahay, John and David Schneider. "Jury nullification: an example right before our cameras." Judges Journal, Volume 36, Number 4, Fall 1997: 30-31.

FIJA web page. 1998: See http://www.fija.org/.

Gore, George. "A jury of our peers." Defense Counsel Journal, Volume 63 Number 4, October, 1996: 459-460.

Gormlie, G. Frank. "Jury nullification: history, practice, and prospects." National Lawyers Guild Practitioner, Volume 53, Number 2, Spring 1996: 49-70.

Hodes, W. William. "Lord Brougham, the dream team, and jury nullification of the third kind." University of Colorado Law Review, Volume 67, Number 4, Fall 1996: 1075-1108.

Kourlis, Rebecca Love. "Not jury nullification; not a call for ethical reform; but rather a case for judicial control." University of Colorado Law Review, Volume 67, Number 4, Fall 1996: 1109-1120.

People v. Simpson, Official Transcript, Defense Closing Argument. No. BA 097211, 1995 WL 686429, at *10 (Cal. Super. Ct. L.A. County Sept. 27, 1995).

Scheflin, Alan W. "Merciful juries: the resilience of jury nullification." National Lawyers Guild Practitioner, Volume 53, Number 2, Spring 1996: 71-94.

Scheflin, Alan W. (2) "Nullification in the nineties." National Lawyers Guild Practitioner, Volume 53, Number 2, Spring 1996: 95-96.

Sparf & Hansen v. United States. No. 613, SUPREME COURT OF THE UNITED STATES, 156 U.S. 51; 15 S. Ct. 273; 1895 U.S. LEXIS 2120; 39 L. Ed. 343.

Spooner, Lysander. Trial by Jury. Fully Informed Jury Association web page, http://www.fija.org/jury.pdf: 1998.

St. John, Richard. "License to nullify: the democratic and constitutional deficiencies of authorized jury lawmaking." Yale Law Journal, Volume 106, Number 8, June 1997: 2563-2597.

State of Georgia v. Brailsford, et al. SUPREME COURT OF THE UNITED STATES, 3 U.S. 1; 1794 U.S. LEXIS 102; 1 L. Ed. 483; 3 Dall. 1.

United States v. Battiste. Case No. 14,545, Circuit Court, D. Massachusetts, 24 F. Cas. 1042; 1835 U.S. App. LEXIS 335; 2 Sumn. 240.

United States v. Dougherty. United States Court of Appeals for the District of Columbia Circuit, 154 U.S. App. D.C. 76; 473 F.2d 1113; 1972 U.S. App. LEXIS, 8684.

United States v. Morris, Case No. 15,815, Circuit Court, D. Massachusetts, 26 F. Cas. 1323; 1851 U.S. App. LEXIS 468; 9 West. Law J. 151; 1 Curt. 23.