The Devalued Practice of Jury Nullification

-- By JonathanFriedman - 19 Apr 2009

Introduction

One may argue that a criminal defendant's right to a jury trial is primarily valuable because a jury of citizens may nullify, or refuse to enforce the state's charges.

• One might argue, but almost nobody would. In the first place, the definition of nullification is defective. "Refusing to [convict on] the state's charges" is a definition of acquittal, not of nullification. Nullification is acquittal without regard to the evidence, making the jury not the finders of the fact but the judges of the law. And there are few defenders of having juries find facts who would say that juries are primarily valuable if they ignore their fact-finding function and arrogate to themselves the judicial function of declaring the law. So your premise is fatally flawed, and everything that follows is built on a broken foundation.

As Justice Holmes describes in The Path of the Law, when the imposition of laws by a government contradicts the morality of the populace they will “rise in rebellion and fight; and this gives some plausibility to the proposition that the law, if not a part of morality, is limited by it.” However, it may be argued that the exercise of jury nullification is no longer desirable, and, even to the extent that it could be desirable, the actual implementation of nullification is flawed and ineffective.

• This makes things worse. Nullification isn't desired, and it isn't implemented. It's not a feature of the system. Whether you think of it as a bug that can't be fixed or a property of the system that can't be changed without sacrificing the ability to operate as intended, it's not a design objective and therefore it isn't subject to implementation. Nullification is the necessary consequence of two rules: the one against double jeopardy and the one against directed verdicts of conviction. Taken together, those rules mean an acquittal after attachment of jeopardy cannot be appealed, and a jury that acquits against evidence cannot be reversed. Once you have decided Bushel's Case, ending the use of attainder to punish a jury that acquits against evidence, you have nullification whether you like it or not. Because no one will agree to imprison jurors until they change their minds about acquitting someone (and we could hardly be said to live in a free society if it were possible), the spectre of nullification is a necessary inconvenient fact.

The Justification for the Practice of Jury Nullification

In his article, Making Juries Accountable (50 Am. J. Comp. L. 477), John D. Jackson proposes two main justifications for a jury to nullify. First, juries were once encouraged to nullify “on their view of whether the defendant deserves to be convicted.” Second, juries would nullify where the jury thought the prosecution was inappropriate, or where the defendant, though guilty, was justified in his actions. Essentially, as Jackson puts it, this jury is acting in the role of the mitigator of penalties. For example, American colonial juries systematically nullified attempts to prosecute molasses smugglers who ran British blockades to avoid unpopular tariffs. Similarly, many colonial juries refused to convict on charges of sedition against the Crown. However, systematic jury action of this kind is much rarer in modern U.S. courts.

Transitions and Revelations that Lead to Devaluing

Jury Nullification is not as Relevant as it Once Was

Expressing Consensus Views through the Jury is Unlikely to be Successful

Today, broad consensus of the sort that colonists felt against the British is a much less common phenomenon. Since democratic institutions are created to be responsive to the will of the people, unlike the Crown, the state's position will generally conform to that of a significant portion of the populace. Thus, the issues most likely to inspire jurors to nullify will be politically divisive among the population, rather than opposed by most people.

• This is just as ahistorical as it is possible to get. You have both assumed that localism and community resistance to federal legal norms have somehow ceased to exist (as though the Sagebrush Rebellion or the "illegal immigration," same-sex marriage and abortion issues were ignorable) and also assumed that the common law was generally less reflective of social consensus in the eighteenth century than it is now. You had no basis for both assumptions, which are generally speaking absurd. You also ignore the tendencies to nullify in many communities in the US on many different grounds, all of which are well-known to and shape the decisions of prosecutors every day under the rubric of "you can't get juries in this district to convict [whoever of whatever], so we don't waste our resources on prosecutions like that."

Mechanisms of Change that are More Appropriate and Effective Now Exist

It is not clear that, in a system where the lawmaking branches are responsive to popular will, jury nullification is necessary at all. The importance of requiring the exhaustion of the established channels of seeking change is a principle established in American legal doctrine, as demonstrated by Justice Stewart’s opinion in Walker v. City of Birmingham (388 U.S. 307). To the extent that the community widely believes that a law is unfair, voters can apply democratic pressures on lawmaking institutions. And even when juries nullify laws that are sanctioned by the popular majority, and even where the law is unjust, such nullification will be sporadic and random, rather than systematic and effective.

• This is irrelevant. It's an argument that would be important only if nullification were a design objective subject to modification. Your analysis is wasted until you have given an argument for overruling Bushel's Case and restoring the possibility of attaint. And who will give the executive the power to punish jurors for returning the "wrong" verdict when they acquit? Are you actually ready to make the proposal?

Courtroom Procedure Contradicts the Practice

Additionally, court procedures involving juries seem to directly contradict the notion that nullification is central to the jury's function. The Federal Rules of Criminal Procedure dictates that jurors who state an intention to nullify, or who seem likely to nullify should be removed from the jury pool during voir dire or, alternatively, if reported to the judge by a fellow juror after the trial begins, may be dismissed at that point as well. Further, the state can utilize peremptory challenges to remove potential jurors it suspects of harboring strong feelings against the prosecution. If nullifying jurors are intended to provide a moral check on the state's coercive power, it seems contradictory to require jurors opposed to the state's actions to lie under oath, to avoid dismissal by the judge or challenge by the prosecutor, in order to be empanelled.

• Which should have led you to question your premise. But it didn't. It's always easier to assume other people are stupid than to admit that you haven't understood yourself.

Once they are selected, jurors are almost always instructed to reach a verdict based on careful consideration of the facts of the case, and counsel is not permitted to tell them that they can disregard the facts in reaching their verdict. If nullification is, indeed, such an important part of the jury's role, it seems contradictory that the process forbids anyone in the court from telling the jurors about it. Indeed, jurors are much less likely to unite in moral opposition to the state than they are to simply misunderstand or fail to comprehend testimony and evidence, leading to wrong or arbitrary outcomes.

Jury Nullification is Ineffective

Jerome Frank, in The Role of the Courts, explained that the very necessity of transmitting information between witness and fact-finders leads to unavoidable misinterpretation. Frank contends that it requires magical thinking to assume that a jury is capable of analyzing the facts and reaching a sound decision based on the objective evidence. Witnesses routinely fail to “reproduce mechanically the events which they saw and heard,” and, further, “judges or juries are fallible witnesses of the fallible witness.” In other words, witnesses are likely to get the facts wrong, and even when the witnesses get things right, juries are likely to misunderstand them.

Conclusion

A jury that deliberates in secret and creates no record of its process may reach a decision based on careful study of the facts. It may nullify in outrage at state action. It may earnestly attempt to interpret the facts alone and fail, reaching a wrong conclusion based on flawed assumptions. Finally, it may act on invidious or irrational prejudices, allowing the defendant's race or counsel's clothes to influence the outcome. The ultimate verdict is binary, and difficult to overturn, and the process as it stands is opaque.

So, it comes to light that the assumption behind this secrecy seems to be that any of these bases for reaching a verdict is currently considered valid. Or alternatively, society gives the same validity to a jury that acts misguidedly as to one that acts with earnest resolve to do good. This is not desirable, when there are alternative paths toward creating change in the state of the law, but it is solely up to the jury to find the facts in as unbiased a manner as possible. For this reason, jury nullification should be discouraged.

• As though it weren't discouraged already, as you point out above. So by the time you've finished you've managed to work yourself around to having nothing actual to say at all. You need to go back to the place where the problem started, which is the beginning. Until you straighten out your premises you can't really expect to make good progress.