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 The defendant argued that the word “must” should have been replaced by the word “may” in order to allow for the jury’s essential power of jury nullification.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.
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May 11, 2009 at 5:21 pm
“Must” is a lie. What makes it okay for a judge to lie to a jury?
May 25, 2009 at 12:28 am
by Zachary J. Lee
The Ragland opinion is unclear on what exactly the defendant requested, but would a simple semantic limbo on the part of the judge have removed a nullification concern? For example, would there have been any relevant difference if the trial judge had said that “if you find A, B, and C, the statute requires that you must convict,” instead of just “if you find A, B, and C, you must convict”? It seems to me that the alternative instruction, the one invoking the statute, may avoid the nullification concern because it involves the jury’s duty under the statute as it is written. I presume that few statutes include textual references to the principle of jury nullification, and thus the slightly more technical instruction may be a way for a judge to avoid the nullification quagmire entirely. At the very least, referring to the requirements of the statute would seem to remove the possibility that the judge was lying to the jury about its duties by removing any implication of the nullification doctrine. However, if such semantic tricks are all it takes to avoid a nullification debate, only the laziest judges would make it into casebooks as examples.
Assuming arguendo that the trial judge’s instructions in Ragland were in direct opposition to the jury nullification doctrine and thus constituted a lie to the jury, such an ethically questionable act is essential to the integrity of the entire judicial system. If the jury instructions suggested in Ragland were accepted and judges consistently informed juries that they could ignore the facts and the judge’s legal interpretation, the value of legal precedent would be eliminated completely. The status quo allows for courts to overrule precedent, of course, but such actions are clearly the exception and not the rule. If each jury was made explicitly aware that it could examine the law without regard to judicial precedent, there would be no guarantee as to the ratio of precedents respected to precedents overruled. Thus, criminal litigation costs would skyrocket as prosecutors and defense attorneys would be forced not only to argue new legal issues, but also to re-argue settled legal policies so the jury could re-examine their implications.
Additionally, and in another vein entirely, of jury nullification could conceivably violate a defendant’s due process rights by relieving the prosecution of its duty to prove guilt beyond a reasonable doubt.
In re Winship, 397 U.S. 358, 364 (1970). There is no guarantee that juries who consider nullification will be nullifying in favor of the defendant. Granted, nullification has historically been a tool with which to acquit, but the same principles that allow for nullification–that a jury can assess both the facts and the law of a criminal case–do not foreclose the possibility of jury box tyranny. If a judge is forced to tell a particularly homophobic jury, for example, that it may disregard, or nullifyLawrence v. Texas, there is no concrete rule of law left to protect the rights that the Supreme Court has defined as needing protection.
Perhaps the entire jury nullification debate comes down to one issue: whether the defendant or the jury is the party entitled to wield the power to nullify. The term obviously and unambiguously designates its power to the jury. Chief Justice John Jay further explained this:
Georgia v. Brailsford, Powell & Hopton, 3 U.S. 1, 4 (1794). Notice that Chief Justice Jay does not mention the defendant at all in explaining nullification. It is the jury, and the jury alone, that possesses the power of nullification. The defendant in Ragland sought to expand that power and give it to defendants by right. The Ragland court justifiably denied this expansion. Again, however, the Luisi court clearly went further. The Luisi court was not confronted with a defendant who wanted the jury to be aware of nullification doctrine; the Luisi court nipped nullification in the bud by dismissing a juror, Thomas Eddlem, who seems to have already been aware of nullification principles. In fact, Eddlem was so sure of his knowledge that it was other jurors who went to the judge to ask about the legality of his actions. If a court were to expand the limitations on nullification expounded in Ragland to apply them not only to defendants, but to juries as well, the next logical step was for a court to refuse to inform an inquisitive juror about jury nullification. The Luisi court skipped this step and punished a juror for having outside knowledge.
The affirmative act of the Luisi court seems more strongly set against the principles of jury nullification than the Ragland court’s lack of action embodied in its refusal to inform the jury, albeit implicitly, of its power of nullification. Thus, even if the trial judge in Ragland effectively lied to the jury, his actions were justified at least by the need for reliable judicial precedent. The reliability of judicial precedent is less compelling as a justification for the actions of the Luisi court, however.