(Editor’s note: This is the second article in a three-part series. Part One discussed the historical basis for jury nullification and was included in the March-April issue of For the Record. Part Three will address relevant state statutes as well as tactics various organizations are using to encourage the practice.)
Part Two
There seems to be nearly universal agreement that juries have the power to nullify the law, that is, to acquit a defendant regardless of the strength of the evidence against him or her.
As early as 1895, the United States Supreme Court addressed jury nullification in Sparf v.U.S.1 Justice Harlan, writing for the majority, opined that courts have no recourse if jurors acquit in spite of overwhelming inculpatory evidence.
U.S. District Judge Jack Weinstein of the Eastern District of New York has written and spoken extensively n the topic. “Along with its sibling, civil disobedience, jury nullification was an integral feature of the birth of our nation,” Judge Weinstein has said. “The Boston Tea Party ...might be called [a] founding act[ ] of civil disobedience and nullification..”2
A remaining question, however, in spite of the holding in Sparf, is whether nullification is a Constitutional right requiring an instruction to jurors from the bench.
In 1969,the Fourth Circuit Court of Appeals acknowledged the continued debate between nullification as a power or a right in United States v.Moylan.3 “Historically,” wrote Judge Sobeloff, “a fierce controversy has raged over the question of whether the trial judge was under a duty to instruct the jury that it may disregard the law as he has explained it...Concededly, this power of the jury is not always contrary to the interests of justice...No less an authority than Dean Pound has expressed the opinion that ‘Jury lawlessness is the great corrective of law in its actual administration.’4 However, this is not to say that the jury should be encouraged in their lawlessness.”5
The relative merits of juries’ deciding to defy the law seem to hinge on the issue being decided.“ The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge,” writes Judge Leventhal in U.S. v.. Dougherty.6 “Most often commended are...the 19th century acquittals in prosecutions under the fugitive slave law.7 The values involved drop a notch when the liberty vindicated by the verdict relates to the defendant’s shooting of his wife’s paramour, or purchases during Prohibition of alcoholic beverages.”
In the end, though, the Dougherty majority rejects an instruction on jury nullification as a risky business.
[T]he advocates of jury “nullification ”apparently assume that the articulation of the jury ’s power will not extend its use or extent, or will not do so significantly or obnoxiously. Can this assumption fairly be made? We know that a posted limit of 60 m.p.h. produces factual speeds 10 or even 15 miles greater, with an understanding all around that some “tolerance” is acceptable to the authorities, assuming conditions warrant. But can it be supposed that the speeds would stay substantially the same if the speed limit were put: Drive as fast as you think appropriate, without the posted limit as an anchor, a point of departure?...What makes for health as an occasional medicine would be disastrous as a daily diet. The fact that there is widespread existence of the jury ’s prerogative, and approval of its existence as a “necessary counter to case-hardened judges and arbitrary prosecutors”8 does not establish as an imperative that the jury must be informed by the judge of that power.9
In his dissent, however, Judge Bazelon differs with the majority on this issue.
The sticking point...is whether or not the jury should be told of its power to nullify the law in a particular case...I see no justification for, and considerable harm in, this deliberate lack of candor...[T]he spontaneous and unsolicited act of nullification is thought less likely [by the majority] to reflect bias and a perverse sense of values than the act of nullification carried out by a jury carefully instructed on its power and responsibility…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.10 (Emphasis added.)
Realistically, courts are hard pressed to know whether or not a juror has, in fact, decided to nullify the law. Because juror deliberations are held in secret, no one outside the deliberation room can know what has motivated a particular juror.
Concerns about violation of the confidentiality of jury deliberations and the inviolability of a verdict prompted Justice O ’Connor to write, in the majority opinion in Tanner v. U.S..,11 “There is little doubt that post verdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such effort to perfect it.”
This essential question at the heart of the argument over jury nullification seems best to have been articulated by Judge Davidson in People v. Garcia.12 “Courts and commentators agree that the secrecy of jury deliberations is essential to the proper functioning of juries. Thus, when reports of juror misconduct arise during deliberations, a court is confronted with a delicate and complex task: It must balance its duty to dismiss a juror for misconduct and its duty to safeguard the secrecy of jury deliberations.”
Perhaps one of the most controversial recent opinions regarding jury nullification and the near-impossibility of determining a juror ’s motivation is that of U.S.v.Thomas.13 In Thomas, the Second Circuit Court of Appeals found that a trial judge has a duty to expel a juror who makes it clear that he or she is refusing to perform a juror ’s legal duty to weigh the evidence in a case, using instead some personal standard of justice.14 However, the court qualified this holding by declaring that “where the record evidence raised the possibility that the juror ’s view on the merits of the case was motivated by doubts about the defendant’s guilt,” a decision to dismiss the juror was in error.15
A notorious case that has become the cause celebre for advocates of jury nullification and the sanctity of secret deliberations is that of Colorado juror Laura Kriho. In 1996, Kriho refused to convict a 19-year-old arrested on charges of felony possession of amphetamines.16 Several of her fellow jurors testified that, during deliberations, Kriho raised the issues of jury nullification and suggested that drug cases should be handled in the community, not the courts. Based on this testimony, Gilpin County, Colorado District Judge Henry Nieto found Kriho in contempt.17 In commenting on the case, a University of Colorado School of Law professor observed that the contempt ruling would not deter jurors from nullification. “Next time, jurors will just be quiet,” he said..18
As one reporter has observed, “Jury nullification [is] the ultimate wild card of the American criminal justice system.”19
1 Submitted March 5,1984; decided January 21,1895.
2 Gail Diane Cox, “Jurors Rise Up Over Principle and Their Perks, ”The National Law Journal, May 29,1995,p.A01.
3 417 F.2d 1002 (1969).
4 Pound, “Law in Books and Law in Action,” 44 Am..L.Rev.12,18 (1910).
5 Judge Weinstein comments that informing jurors of this potential right “is like telling children not to put beans in their noses. Most of them wouldn’t have thought of it had it not been suggested.” Cox, supra note 1.
6 473 F.2d 1113 (1972).
7 Judge Cabranas, writing for the majority in U.S. v. Thomas, infra n.12, calls these “examples of ‘benevolent ’ nullification.”
8 ”Follow-Up/The Jury,“ Center magazine,64-65 (July,1970).
9 Dougherty ,supra n.7.
10 Ibid.
11 483 U.S.107.
12 964 P.2d 619 (Colo.App.1998).
13 116 F.3d 606 (2nd Cir.1997).
14 In an editorial supporting the opinion, The National Law Journal indicated approval of the right of juries “to nullify in rare cases involving an accused being tried under an unconscionable law.” (The National Law Journal ,Monday, June 2,1997, p.A14). The editorial failed, however, to define “unconscionable,” nor did it indicate who has the authority to make this definition. If it is a jury ’s right to determine the conscionability of a law, does it not follow that it is the jury ’s right to nullify in more than the “rare ” case??
15 The question remains, however, as to how to determine the true motivation of a juror and whether having jurors testify against another juror about what goes on during secret deliberations jeopardizes the privacy of those deliberations.
16 People v. Brannon, 684 P 2d 243.
17 People v. Kriho ,996 P.2d 158.
18 David E. Rovella,“ A Judge Mulls: Did Juror Lie, or Did She Nullify?” The National Law Journal, Monday, October 14, 1996,P.A09.
19 Rovella, supra ,n.17.
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