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.

Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

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:

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 that 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.

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.