Abstract
Juries have the power to nullify, but not the right. As a result, judges do not instruct jurors on nullification. If jurors learn about this power, they can exercise it. However, if they indicate their intentions during deliberations, they can be removed from the jury. This state of affairs, in which the judge does not tell jurors of their full power and jurors have to be careful not to signal their intent to nullify, is harmful to the judge-jury relationship. If judges instructed jurors on their power, jurors would be fully informed and would be able to trust the judge.
I. Introduction
Jurors in the American jury system have the power to engage in jury nullification but they do not learn about it from the judge. Judges do not instruct jurors on nullification. If jurors learn about this power from an outside source, they can exercise it, but they cannot mention it to the judge during their deliberations. If they do, they might be removed from the jury. If the jury does nullify, the verdict stands because the jury has that power. However, it is a rare jury that admits to nullification. When jurors choose to explain their verdict to the press, they usually cast it in terms of evidence and reasonable doubt. If the jurors would have nullified but did not know they could do so, they are likely to feel a mix of emotions, from anger to regret, for not having been told about this option.
The relationship between judge and jury, so central to the work that jurors do, is strained when it comes to jury nullification. The judge needs to believe that jurors will follow the law and jurors need to believe that the judge has fully informed them about their role. As a result, judges and jurors are not candid with each other about nullification. Judges and jurors take a “don’t ask, don’t tell” view. Each maintains a silence on the subject and must be careful not to bring it to the other’s attention.
Judges and jurors currently maintain this stance with respect to jury nullification, but it does not have to be this way. Judges could instruct juries on nullification in a way that would tell them about their power, but counsel them to use it sparingly. If judges instructed juries on this power, this act would enhance the judge-jury relationship and ensure that it is based on candor rather than deception. It would also mean that jurors could rely on judges for information about nullification rather than turning to outside sources that might be unreliable and agenda-driven. A few judges have suggested that judges should instruct juries on their power to nullify, but they remain in the minority.
This commentary, after describing the jury’s power to nullify, will explore the ways in which judges and jurors currently avoid any mention of jury nullification and how this state of affairs harms the judge-jury relationship, which depends upon trust. Judges refuse to instruct on nullification and jurors have to be careful not to signal their intent to nullify. When juries do acquit they have to explain their verdict in terms of reasonable doubt rather than nullification when they choose to explain their verdict to the press.
II. Jurors’ Power to Nullify
1 Types of nullification
Jury nullification is when the jury decides not to follow the law. This is different from mistake, which is when the jury misunderstands the law. Nullification is when the jury understands the law, but decides not to follow it.
There are at least three reasons that the jury might decide not to follow the law. 1 One reason is because it disagrees with the law. For example, this reason motivated juries to acquit defendants charged with making, selling, or transporting alcohol in violation of the National Prohibition Act (National Prohibition Act of Oct. 28, 1919, ch. 85, 41 Stat. 305, repealed by U.S. Const. amend. XXI, § 1). The Eighteenth Amendment, which provided the basis for the Act, proved to be unpopular. Many juries acquitted until the Eighteenth Amendment was repealed by the Twenty-first Amendment. Kalven and Zeisel, in their 1966 landmark study of the jury, described the Prohibition era as “the most intense example of jury revolt in recent history.” 2 More recently, California’s “three-strikes” law, which results in lengthy, mandatory prison sentences, inspires some juries to nullify when they suspect they are hearing a three-strikes case because they disagree with the law and its harsh sentences. 3
Another reason a jury might nullify is when it agrees with the law but believes it should not be applied to the defendant. This type of nullification occurred in the case of Leroy Reed, a man of limited intelligence who was unemployed and purchased a firearm so that he could become a private investigator. 4 He was charged with a firearm possession violation because he was a convicted felon who was not allowed to own a firearm. 5 The jury acquitted him, even though it recognized that the prosecutor had established all three elements of the crime. The jurors said that the law was good, but should not be applied to Leroy Reed. 6 They did not use the word “nullification” during their deliberations, but they understood the law and what it required. They decided not to apply the law to Leroy Reed because they felt their larger purpose as a jury was to do justice. 7 Their deliberation was filmed and aired on Frontline: Inside the Jury Room in 1986, providing one of the rare instances in which television viewers could observe an actual jury deliberation. 8
Finally, the jury might not follow the law because it wants to protest some aspect of the criminal justice system and uses its verdict as a vehicle to express its disagreement. An example of this kind of nullification could be the Bronx juries that refuse to convict in some criminal cases because they find the police too intrusive in their communities. 9 Admittedly, this type of nullification is harder to discern than the other two because it is less tied to the actual case before it and more difficult to know which feature of the criminal justice system the jury is protesting.
2 Sources of power
With each of these types of nullification, jurors have the power to nullify because of a confluence of practices and principles, including the general verdict, the secrecy of the jury room, and the Double Jeopardy Clause. Although nullification can occur in civil as well as criminal cases, the judge can intervene in civil cases 10 and in criminal cases in which the jury convicts. 11 However, in criminal cases in which the jury acquits, the judge cannot take action and the verdict cannot be appealed. Thus, in criminal cases in which the jury acquits, the acquittal stands regardless of the reason, including nullification.
In most criminal cases, the jury renders a general verdict in which it has to decide whether the criminal defendant is guilty or not guilty. 12 Jurors can have different reasons for their vote, but they only have to give reasons to each other, not to anyone outside the jury room. Only the vote of guilty or not guilty is communicated to those outside the jury room. 13
The jury conducts its deliberations in secret and structures its deliberations however it sees fit. 14 The idea is that jurors can be candid in their deliberations because what they say to each other does not go beyond the jury room. In general, the judge is not permitted to inquire about the jury’s deliberations or to intrude in any way.
Once a defendant has been acquitted, he or she cannot be retried by the same sovereign for the same crime; to do so would violate the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution. 15 Even if the judge disagrees with the acquittal, the law, beginning with Bushel’s Case (124 Eng. Rep. 1006 (C.P. 1670), has long recognized that only those in the jury room can understand what motivated the jury to reach its verdict and others, including the judge, cannot put themselves in the jurors’ shoes. Thus, the secrecy of the deliberations and the opacity of a general verdict mean that the jury can reach its verdict without any scrutiny, even by the judge. The Double Jeopardy Clause precludes an appeal of an acquittal so the acquittal stands. As long as these principles and practices are adhered to, juries have the power to nullify.
Even though the jury has the power to nullify, it does not always know it has this power. The judge does not instruct the jury on this power, so the jury has to acquire this knowledge on its own. Some jurors might know about nullification (even if they do not know the word) from movies or books in popular culture. Other jurors might know about it from nullification advocates. Paul Butler, an academic and former prosecutor, wants African-American jurors to engage in race-based nullification and acquit African-American defendants charged with victimless drug crimes. 16 He hopes that African-American communities will learn about this power through grassroots organizing and word of mouth. Members of the Fully Informed Jury Association (FIJA) stand on the courthouse steps distributing leaflets so that potential jurors will know about their power to nullify, particularly in drug cases and other laws with which FIJA members disagree. 17 However, these efforts can be hit-or-miss and not all jurors will know about their power to nullify. In some cases, defense lawyers will be permitted to lay the basis for the jury to nullify (without actually mentioning nullification) in their closing argument, as Leroy Reed’s lawyer was able to do, but jurors might dismiss the lawyers’ arguments as zealous advocacy and remain doubtful about whether they can nullify unless they hear it from the judge.
III. Judges’ Refusal to Instruct on Nullification
Judges usually justify their decision not to instruct jurors on nullification by saying that juries have the power to nullify, but not the right. Although judges cannot stop juries from nullifying, they claim they do not have an obligation to inform them of their power. All of the federal circuits 18 and almost all of the states 19 are in agreement that judges cannot instruct jurors on their power to nullify.
Judges give several reasons for why they should not tell jurors about their power to nullify. One reason is their view that nullification is contrary to the rule of law and the oath that jurors have taken to follow the law and they do not want to encourage “lawless” behavior. Typically, judges express this concern by saying that instructing jurors on nullification will lead to “anarchy” and “chaos.” 20 Also, judges instruct jurors that they are to find the facts and apply the law as the judge gives it to them. Judges resist the notion of telling jurors that their role entails more discretion than this instruction suggests. They worry about juries overstepping their role and intruding on legislative or judicial roles.
Some judges have explained that an instruction on nullification will lead jurors to engage in it more often, which will undermine the legal system. In United States v. Dougherty (473 F.2d 1113, 1134 (D.C. Cir. 1972)), Judge Leventhal, writing for the majority, offered the comparison that not instructing on nullification is like having speed limits for drivers. Drivers might go over the speed limit by a few miles and that does not cause havoc, but if there were no speed limits and every driver could decide for himself or herself at what speed to travel that would lead to chaos. Judges know that jurors have the power to nullify, and that they do it occasionally, but if judges told jurors that they could nullify, it would be like removing all speed limits and creating a “Wild West” for jurors. Just as drivers could go at any speed, even to the detriment of everyone else on the road, if judges told jurors about nullification, they would stop following the law and the law would become whatever any jury decided it should be.
Judge Bazelon, writing in dissent in Dougherty, explained that judges need to trust jurors, be candid with them, and assume that they will behave responsibly even if they are instructed on nullification. He suggested that judges could explain to jurors that they have the power to nullify, but that it should be exercised only in rare instances. He trusted jurors to understand such an instruction. He thought it far more damaging for judges to keep this information about nullification from jurors than to instruct them on it. If jurors learned about their power to nullify after their jury service they would feel that the court had deceived them.
Judge Bazelon also pointed out that judges view jurors as representing the judgment of the community 21 and so they should be able to vote their conscience when they think the case requires it. To have judges instruct them that they must follow the law, when in fact they can follow their conscience, does not give them the full picture of their role and might lead them to vote in a way that they would not have done if they had been given complete information. This lack of knowledge could lead them to have regrets long after their jury service has ended. One juror in the Leroy Reed case was reluctant to go along with the other jurors and to nullify because he thought that once the jurors had concluded that Leroy Reed met the elements of the crime, the jury had no choice but to convict. 22 If the judge had instructed the jury on nullification, this juror would have known that the jury had another choice and he would not have experienced such an agonizing deliberation, in which he became the lone juror defending his view until he capitulated.
Other judges have taken Judge Bazelon’s view and tried to draft an instruction that tells jurors that they have the power to nullify, but cautions them to use it sparingly. Although it is not an easy instruction to draft, that does not mean that it should not be attempted. 23 According to Judge Michael Dann, a former superior court judge in Maricopa County, Arizona, it is important for the judge to be candid with jurors – the success of the judge-jury relationship depends on it. He also suggested that the current instruction that the judge typically gives to jurors to follow the law presents an incomplete picture and does a disservice to the judge and the jury. It does not inform the jury of the full range of its powers and it puts the judge in the uncomfortable position of not being completely honest with the jury. However, Judge Dann’s view remains a minority view.
IV. Jurors’ Announced Intention to Nullify Can Lead to Dismissal
Typically, judges recognize that jurors have the power to nullify, but they will not encourage jurors to exercise it by instructing them on that power. If judges are confronted by deliberating jurors intending to nullify, judges in some federal circuits do not have to allow it to happen.
In the Second Circuit, when trial judges have received a note from the jury indicating that one of the jurors seems intent upon nullifying, the appellate court has indicated that the trial judge can respond. In United States v. Thomas (1997), Juror No. 5, the only African-American juror on the jury in a case involving several African-American defendants charged with drug crimes, was the subject of several notes sent by various jurors to the judge throughout the trial and deliberations. Early in the trial, several jurors complained about Juror No. 5. They thought he was making noises during the trial and distracting other jurors. The trial judge interviewed Juror No. 5 and other jurors and concluded that Juror No. 5 could remain on the jury. Once the deliberations began, the judge received other notes about Juror No. 5. Some jurors thought he had expressed a disagreement with the drug laws and an unwillingness to apply them. The trial judge interviewed Juror No. 5 again. Some of his comments suggested that he took his role as juror seriously and would vote based on the evidence and whether he had a reasonable doubt. Other comments by Juror No. 5 suggested that he disagreed with the drug laws, sympathized with the defendants, and had a fixed view. In the end, the trial judge removed Juror No. 5 and replaced him with an alternate.
On appeal, the Second Circuit explained that a trial judge need not sit idly by when he receives a note from the jury indicating that one of the jurors seems intent upon nullifying. The Second Circuit instructed the trial judge to interview the juror in question and to discern whether the juror was intent on nullifying or was basing his views on the evidence and reasonable doubt. The appellate court believed that the trial judge could interview the juror carefully so that the judge would not interfere with the deliberations or ask the juror to disclose his reasons or vote. The appellate court also recognized the importance of protecting the secrecy of jury deliberations. It tried to strike a balance between protecting the secrecy of the jury’s deliberations and making sure that the judge had some recourse when faced with a juror who seemed intent upon nullifying. In Thomas (1997), the Second Circuit remanded the case to the trial court to conduct an interview that met the Second Circuit’s high evidentiary standard.
One lesson from the Second Circuit is that trial judges who receive a note from the jury indicating a juror might intend to nullify can interview that juror, albeit carefully, and try to discern the juror’s intentions. If he or she is intent upon nullifying, then that juror can be removed from the jury. The judge can take action when faced with a nullifying juror. However, this action is only in response to a note from the jury. As long as jurors do not send a note, then the judge will not know. The jury, as long as it engages in “don’t ask, don’t tell,” will be able to nullify as long as it knows of its power. If all of the jurors choose to nullify, as long as they do not signal it to the judge, they can nullify. If only a few jurors are intent on nullifying (in which case there would be a hung jury), the few jurors can proceed as long as the other jurors do not send a note to the judge. As long as the jury takes a “don’t ask, don’t tell” approach, whether on the part of all or several jurors, they can nullify, unhampered by the judge.
V. Lack of Knowledge about When Nullification Takes Place
If jurors know about nullification through outside sources and do not signal to the judge during deliberations that they intend to use this power, they remain free to exercise it. They do not have to provide the judge, or anyone else, with an explanation for their verdict. Members of the press and public might try to figure out what motivated the jury to reach its verdict, but they can never be certain unless the jury chooses to break its silence. There is no formal mechanism for the jury to explain its verdict. Individual jurors might choose to speak to the press after the verdict, but they speak only for themselves.
After the verdict is announced in court, and the jury is thanked for its service and dismissed, jurors in some courts meet with the judge and then the lawyers. Once they leave the courthouse, they might meet with the press. In courtrooms in which the judge meets with the jurors after the verdict, the meeting is usually so that the judge can thank the jurors for their service. 24 The judge is willing to answer the jurors’ questions, but is careful to say that he or she will not answer the question whether the jury reached the right verdict. 25 The jurors know not to ask the judge about their verdict, and the judge will not ask the jurors for their reasons. There is an agreed-upon silence. When lawyers meet with the jurors they usually want to know what they did well and which arguments were persuasive. They are mainly looking for feedback on their trial performance.
Typically, the judge tells jurors that they do not have to talk to the press about the case; it is their decision. They are free to leave and to return to their lives as private citizens. Some jurors are willing to speak to the press after the trial, but they limit their remarks. Some indicate that they are only speaking for themselves and that they will not criticize fellow jurors, even if they disagreed with them. 26 Occasionally, jurors will go together to meet with the press as a group. In some instances, they have issued a written statement and held their own press conference. 27 In high-profile cases, members of the press might pursue jurors to talk to as many of them as possible. 28 In ordinary cases, the press might not have any interest at all.
The press provides one means by which jurors can convey their views of the case, but it is informal and ad hoc. If jurors choose not to meet with the press, then they will not face any questions. There is no official means by which the jury explains its verdict (assuming it reaches one), other than through its vote of guilty or not guilty. The vote is too blunt an instrument to reveal whether the jury nullified or not. Some in the press have labeled a jury verdict as nullification simply because they disagree with it. 29 However, the jury might not have nullified; it might simply not have been persuaded by the evidence. Without requiring the jury to provide reasons for its verdict, there is no way to know whether it nullified.
Although we cannot know with certainty, nullification is probably a rare occurrence. In one empirical study by the National Center for State Courts, the authors found it “unlikely that juries are frequently nullifying the law strictly on preconceived personal notions of justice.” 30 After all, there are many constraints on jurors that pull them in the direction of following the law. They go through questioning during voir dire, in which they announce in open court that they will follow the law. They take an oath in which they swear to follow the law. They are instructed by the judge that it is their obligation to follow the law as the judge gives it to them and to apply it to the facts as they find them. They tend to see the judge as an authority figure in the courtroom and to take their cues from the judge. They deliberate as a group and must reach a unanimous verdict. It is difficult to maintain a minority position during deliberations, particularly if there are only one or two jurors taking that position. 31 Most succumb to peer pressure and go along with the majority. Thus, it is extremely difficult to play the role of Henry Fonda in 12 Angry Men; 32 he not only stood alone but also persuaded eleven other jurors to change their votes.
Given the powerful reasons for a jury to follow the law, judges should trust that jurors will continue to do so even if they are instructed on nullification. Judges need to trust that jurors will perform their job responsibly. Moreover, information about nullification should come from the judge rather than outside sources. The judge can draft an instruction that informs juries that they have this power, but that it should be exercised carefully. One possibility would be for the judge to borrow from the language of John Adams and instruct jurors as follows: “It is not only [a juror’s] right, but his [or her] duty. . . . to find the verdict according to his [or her] own best understanding, judgment and conscience. . . .” 33 Another possibility is to use Judge Dann’s formulation, which is in part: “If you determine that the defendant has been proven guilty beyond a reasonable doubt, but you cannot in good conscience support a guilty verdict, you cannot be required to do so. However, you should exercise with great caution your power to find not guilty a defendant whose legal guilt has been proven.” 34 If judges provide either instruction it will mean that each juror will be educated as to nullification (even without using the word). Judge Dann’s version also makes the point that nullification should be reserved for rare instances. If properly instructed, jurors will understand the full power of the jury, and will not have regrets afterward that important information had been withheld from them.
VI. Conclusion
Jury nullification depends on judges and jurors withholding information from each other, but this “don’t ask, don’t tell” arrangement is not the only one that is possible. Judges could instruct jurors on their power to nullify through a carefully drafted instruction that tells jurors that they have this power and it should be reserved for rare instances. If judges instructed on nullification, then they would not have to dismiss jurors who indicated an intention to nullify, as they currently do in some federal circuits. Judges need to trust jurors with this information. Jurors are summoned to serve and try to serve as ably as possible. Judges try to educate jurors about their role throughout the trial process; judges should educate jurors on nullification as well.
Footnotes
1.
N. Marder, “The Myth of the Nullifying Jury,” Northwestern University Law Review 93 (1999), 888–901.
2.
Harry Kalven Jr. and Hans Zeisel, The American Jury (Boston, MA: Little, Brown and Company, 1966), p. 291.
3.
F. Butterfield, “‘3 Strikes’ Law in California Is Clogging Courts and Jails,” New York Times, March 23, 1995, p. A1.
4.
Transcript of “Inside the Jury Room” (Boston, MA: WGBH Educational Foundation, 1986), p. 5.
5.
Op. cit., pp. 4–5.
6.
Op. cit., p. 22.
7.
Op. cit., p. 15.
8.
“Frontline: Inside the Jury Room” (WGBH broadcast, April 8, 1986).
9.
B. Holden et al., “Color Blinded? Race Seems to Play an Increasing Role in Many Jury Verdicts,” Wall Street Journal, October 4, 1995, p. A1.
10.
In civil cases in federal court, judges can grant a motion for judgment as a matter of law according to Fed. R. Civ. P. 50; many states have similar provisions.
11.
In criminal cases in federal court, a judge can grant a motion for judgment of acquittal according to Fed. R. Crim. P. 29, if the judge believes that the evidence is insufficient to support a conviction for the offense charged.
12.
Fed. R. Crim. P. 31.
13.
There are exceptions to the general verdict in criminal cases. According to United States v. Spock (416 F.2d 165, 182 n.41 (1st Cir. 1969)), courts have employed questions in two specific contexts in criminal cases: treason trials and sentencing. In addition, as mentioned in United States v. Palmeri (630 F.2d 192, 203 (3d Cir. 1980)), courts have also found questions acceptable in extremely complex criminal trials when they are employed to reduce juror confusion.
14.
In United States v. Thomas (116 F.3d 606, 618 (2d Cir. 1997)), the Second Circuit described the secrecy of jury deliberations as “the cornerstone of the modern Anglo-American jury system.”
15.
The Fifth Amendment provides: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”
16.
P. Butler, “Racially Based Jury Nullification: Black Power in the Criminal Justice System,” Yale Law Journal 105 (1995), 679.
17.
J. Lambe, “Bill Would Let Juries Decide Law in Cases; Legal Establishment Reacts to Measure with Shock, Dread,” Kansas City Star, April 8, 1996, p. A1.
18.
In United States v. Thomas (1997), the Second Circuit noted that no federal circuit permits judges to instruct jurors on nullification.
19.
Only two states, Indiana and Maryland, permit judges to instruct jurors that they can determine the law and the facts. Although their constitutions provide for this right, their judiciaries have narrowed this right through case law. Jeffrey Abramson, We, the Jury (New York: Basic Books, 1994), p. 62.
20.
United States v. Dougherty, pp. 1133–34.
21.
The Supreme Court in Duncan v. Louisiana (391 U.S. 145, 156 (1968)) has described “the common-sense judgment of a jury” and compared it to “the more tutored but perhaps less sympathetic reaction of the single judge.”
22.
Transcript of “Inside the Jury Room,” pp. 23–4.
23.
B.M. Dann, “The Constitutional and Ethical Implications of ‘Must-Find-the-Defendant-Guilty’ Jury Instructions,” in John Kleinig and James P. Levine (eds), Jury Ethics: Juror Conduct and Jury Dynamics (Boulder, CO and London: Paradigm Publishers, 2006), p. 107.
24.
G. Thomas Munsterman et al. (eds), Jury Trial Innovations (National Center for State Courts, 2nd ed, 2006), pp. 170–1.
25.
Op. cit.
26.
Duaa Eldeib, “Foreman Credited with Easing the Tension,” Chicago Tribune, August 22, 2010, p. C7.
27.
Janice Fuhrman, “Concern on Case Voiced by Jurors,” Los Angeles Times, August 13, 1980, p. A24.
28.
Bennet H. Beach et al., “The Juror as Celebrity,” Time, August 16, 1982, p. 44.
29.
For two examples in which many in the press labeled the verdicts as nullification, though the jurors denied that they nullified, consider the criminal trial of O.J. Simpson for the murders of Nicole Brown Simpson and Ron Goldman (People v. Simpson No. BA097211 (Cal. Super. Ct. L.A. County 1995)), and the criminal trial of police officers Stacey Koon and Laurence Powell for the beating of motorist Rodney King (People v. Powell No. BA035498 (Cal. Super. Ct. L.A. County 1991)). Many of the jurors said their verdicts were based on reasonable doubt.
30.
P. Hannaford-Agor and V. Hans, “Nullification at Work? A Glimpse from the National Center for State Courts Study of Hung Juries,” Chicago-Kent Law Review 78 (2003), 1277.
31.
Valerie P. Hans and Neil Vidmar, Judging the Jury (New York and London: Plenum Press, 1986), p. 110.
32.
12 Angry Men (Orion-Nova Productions 1957).
33.
Marder, p. 957.
34.
Dann, p. 107.