Trial by Jury on Trial: The Power to Nullify?
By Zachary J. Lee
We touched on jury nullification in Criminal Law this semester, and because its support seems to be rooted in the constitutional right to a jury trial, I thought this would be an appropriate forum for exploring the subject. The blogosphere seems to be full of both avid proponents (here and here) and vigorous opposition (which argues directly against this article in Time magazine).
The case we looked at in class concerned a judge’s instructions to the jury that if it found certain facts, it “must” find the defendant guilty. State v. Ragland, 105 N.J. 189 (1986). The defendant argued that the word “must” should have been replaced by the word “may” in order to allow for the jury’s essential power of jury nullification.
On appeal, the New Jersey Supreme Court dismissed this argument, citing public policy as an overriding concern:
We conclude that the power of the jury to acquit despite not only overwhelming proof of guilt but despite the jury’s belief, beyond a reasonable doubt, in guilt, is not one of the precious attributes of the right to trial by jury. It is nothing more than a power. By virtue of the finality of a verdict of acquittal, the jury simply has the power to nullify the law by acquitting those believed by the jury to be guilty. We believe that the exercise of that power, while unavoidable, is undesirable and that judicial attempts to strengthen the power of nullification are not only contrary to settled practice in this state, but unwise both as a matter of governmental policy and as a matter of sound administration of criminal justice.
Id. at 204-05. This case certainly goes to an extreme by virtually calling for complete judicial deference to the jury. Public policy would not be served by telling juries that, despite the (potentially extended) time they spent listening to testimony and weighing witness credibility, despite the seriousness of their duty to determine the facts of a case, and despite the fact that some of these juries may have been sequestered from their friends or families, if they have a gut feeling about the defendant or the law at issue, they can just go ahead and ignore the law. Telling juries that they “may” find a defendant guilty if the facts establish his guilt beyond a reasonable doubt would change our judicial system drastically–not because a jury should never exercise nullification power, but because a judge should never explicitly condone it. A judge has presumably been to law school and practiced law, and he presumably understands both the history and the application of the law much more thoroughly than a juror who has presumably neither been to law school nor practiced law. If a judge were to place his stamp of approval on the layman’s interpretation of the law, the system would be turned on its head.
Article III, Section 2 of the Constitution (“The Trial of all Crimes . . . shall be by Jury”) and the Sixth Amendment (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”) clearly state that criminal defendants have the right to a jury trial. That right is obviously weakened if it is subservient to a judge’s interpretation of the law. That said, there is a jurisprudential gulf between asserting that the court has a responsibility to inform the jury sua sponte of its power of nullification and removing jurors for attempting to assert their power to nullify. The latter occurred in one of the cases mentioned in a blog entry above: United States v. Luisi, 568 F.Supp.2d 106 (D. Mass. 2008).
One of the jurors in Luisi questioned the validity of the U.S. drug laws at issue in that case. The juror reasoned that, if it took the 18th Amendment to the Constitution to allow Congress to regulate alcohol, without a similar constitutional amendment, Congress did not have the power to regulate the cocaine that was at issue in Luisi. Judge Young explained that the Supreme Court had interpreted the Commerce Clause broadly to grant Congress that power, but the juror would not be swayed. The problem juror was replaced with a substitute, and the new jury quickly returned with a conviction.
An interesting first-hand account of the proceedings from the problem juror himself is available here. Though his reasoning and responses to Judge Young would not garner the highest grade in a constitutional law class, there is no requirement in this country that jurors receive an elite legal education. Judge Young went further than the Ragland court by explicitly preempting jury nullification.
A criminal’s right to a jury trial is constitutionally guaranteed, but the nullification debate centers on whether that right guarantees that a jury will decide what is legal or what is just.Explore posts in the same categories: Uncategorized