[Copyright 1996 Litigation. Originally published as 22:4 LITIGATION 6-60 (1996).

Jury Nullification: The Top Secret

Constitutional Right

by James Joseph Duane*

A bill now pending in the Missouri state legislature distributingand then her jury would know the truth
has whipped up a firestorm of controversy. Judges about nullification.
and prosecutors there call it "a gut-punch to Despite all the modern government
democracy," "an invitation to anarchy," and a bill that resentment toward "jury nullification," its roots run
"flies in the face of everything this country stands deep in both our history and law. At least two
for." One county prosecutor has even called for the provisions of the Constitution, and arguably three,
resignation of the 20 state representatives who protect the jury's power to nullify. They also explain
introduced the bill. why that power is limited to criminal cases, and has
What could have caused such calamity? This no analogy in the civil context.
supposedly radical legislation would merely require First, it is reflected in the Sixth Amendment,
judges to tell criminal juries the undisputed fact that which grants the accused an inviolable right to a jury
they have "the power to judge the law as well as the determination of his guilt or innocence in all criminal
evidence, and to vote on the verdict according to prosecutions for serious offenses. Because of this
conscience." It is hard to remember the last time there right, a trial judge absolutely cannot direct a verdict
was so much turmoil over a proposal to declassify a in favor of the State or set aside a jury's verdict of not
government secret during peacetime. guilty, "no matter how overwhelming the evidence."
Meanwhile, out in Nevada, a 50-year-old Sullivan v. Louisiana, 508 U.S. 275, 277 (1993).
florist and grandmother almost landed in prison for Any violation of this rule is automatically reversible
her efforts to help spread the word to jurors. When error without regard to the evidence of guilt. Id.
her son went on trial for drug charges in federal court, Indeed, the point is so well settled that it was
Yvonne Regas and a friend papered the windshields announced without dissent in Sullivan by a Court that
of nearby parked cars, hoping to let the jurors learn has been unanimous on only a few constitutional
the completely unexpected fact that her son faced 450 questions in the past ten years.
years in prison for a single drug transaction nine This rule is applied with a rigor that is
years earlier. Federal authorities charged her with without parallel in any area of civil practice. For
jury tampering and obstruction of justice, but example, it is reversible error to direct a verdict of
eventually dropped the charges. Presumably, they guilty over the defendant's objection, even if he takes
gave up hope of figuring out how they could get the witness stand and admits under oath that he
jurors to convict her without showing them the committed every element of the charged offense!
contents of the pamphlets she had been Bryant v. Georgia, 163 Ga. App. 872, 296 S.E.2d

*
Mr. Duane is an associate professor at Regent Law
School in Virginia Beach, Virginia
168 (Ga. Ct. App. 1982). (Although one might fairly is designed to safeguard the jury's power "to arrive at
describe that particular defense strategy as a a general verdict without having to support it by
questionable use of direct examination.) reasons or by a report of its deliberations," and to
protect its historic power to nullify or temper rules of
Judicial Deference law based on the jurors' sense of justice as conscience
of the community. Id.; United States v. Spock, 416
Likewise, when a judge takes judicial notice F.2d 165, 181-82 (1st Cir. 1969). The jury is given
of a fact in a criminal casefor example, that the "a general veto power, and this power should not be
defendant could not have boarded a train in New attenuated by requiring the jury to answer in writing
York and exited in Texas without somehow crossing a detailed list of questions or explain its reasons."
state lineshe will tell the jury they "may" accept United States v. Wilson, 629 F.2d 439, 443 (6th Cir.
that fact as proven without further evidence. But he 1980). Although the issue is far from settled, a
may not tell them that they are required to do so, or powerful argument can be made that this rule "is of
take the factual question away from them, no matter constitutional dimensions," and a direct corollary of
how obvious the fact might seem. See Advisory the Sixth Amendment's protection of the jury's power
Committee Notes to Fed. R. Evid. 201(g). Even to nullify. Wayne LaFave & Jerold Israel, Criminal
where the defendant and his attorney enter into a Procedure 24.7(a) (2d ed. 1992).
formal stipulation admitting an element of the offense, These constitutional rules, in combination,
the jury should be told merely that they may regard give a criminal jury the inherent discretionary power
the matter to be "proved," if they wish, but the judge to "decline to convict," and insure that such
still cannot direct a verdict on that factual issue or "discretionary exercises of leniency are final and
take it away from the jury over the defendant's unreviewable." McCleskey v. Kemp, 481 U.S. 279,
objection. United States v. Muse, 83 F.3d 672, 311 (1987). This state of affairs does not even have
679-80 (4th Cir. 1996). All of these rules are a rough parallel in civil cases, where the Seventh
designed, in part, to protect the jury's inviolable Amendment right to a "trial by jury" does not
power to nullify and to avoid the reversible error preclude judges from granting summary judgment,
always committed when "the wrong entity judge[s] the directed verdicts, and new trials. (In effect, although
defendant guilty." Rose v. Clark, 478 U.S. 570, 578 both amendments are written quite similarly, the
(1986). Supreme Court has interpreted the Sixth Amendment
Second, the roots of nullification also run to give criminal defendants a right to a jury and a
deep into the (pg.7) Double Jeopardy Clause. Even trial; the Seventh Amendment, where it applies, only
where the jury's verdict of not guilty seems gives civil litigants the right to a jury if there is a
indefensible, that clause prevents the State from trial.)
pursuing even the limited remedy of a new trial. This The existence of a criminal jury's power to
rule, by design, gives juries the power to "err upon the nullify is currently as well settled as any other rule of
side of mercy" by entering "an unassailable but constitutional law. It is a cornerstone of American
unreasonable verdict of not guilty." Jackson v. criminal procedure. The far more controversial
Virginia, 443 U.S. 307, 317 n.10 (1979). issueand much more frequently litigatedis that
Finally, the jury's power to nullify is perennial dilemma: What should we tell the kids?
protected by our abiding "judicial distaste" for special Should (or must) the judge tell the jurors anything
verdicts or interrogatories to the jury in criminal about their power (or right) to nullify? Should the
cases. United States v. Oliver North, 910 F.2d 843, judge at least allow the defense to tell them? If so,
910-11 (D.C. Cir. 1990). Unlike in civil cases, where how much should we tell them, and how should we do
such devices are routinely employed, in criminal cases it? These issues lie at the very core of our criminal
it has frequently been held to be error to ask a jury to justice system, and have been debated by lawyers,
return anything but a general verdict of guilty or not journalists, philosophers, and patriots for two
guilty. United States v. McCracken, 488 F.2d 406, centuries. It is therefore ironic that these questions
418-419 (5th Cir. 1974) (collecting cases). This rule have, at least in recent decades, generated one of the
most remarkable displays of unanimity ever
orchestrated by state and federal courts on any issue Nor can the defense offer evidence that is
of law in American history. relevant to nothing (pg.8) but the justness of a
It would take at most four words to fairly conviction or acquittal, or is otherwise designed to
summarize the unanimous consensus of state and induce the jury to nullify. United States v. Griggs, 50
federal judges on the idea of telling jurors about their F.3d 17, 1995 WL 7669 (9th Cir. 1994). This
power to nullify: "Forget it. No way." Even while includes, most notably, any information about the
extolling the beauty and majesty of our commitment sentence faced by the defendant, even if it is a
to the jury's constitutional role as a guardian against minimum mandated by law. United States v.
tyranny, no state or federal appellate court in decades Johnson, 62 F.3d 849, 850-51 (6th Cir. 1995).
has held that a trial judge is even permittedmuch Judicial disapproval also extends to any
less required to explicitly instruct the jurors on their evidence or argument designed solely to persuade the
undisputed power to return a verdict of not guilty in jury that the government was guilty of misconduct in
the interests of justice. The federal courts are its investigation or prosecution. United States v.
unanimous and have been for years, e.g., United Rosado, 728 F.2d 89, 93-95 (2d Cir. 1984).
States v. Manning, 79 F.3d 212, 219 (1st Cir. 1996) Predictably, the battle is moving to the
("a district judge may not instruct the jury as to its earliest stages of the trial, but the results are the
power to nullify"). So are the state appellate courts, same. Requests to ask jurors about nullification on
e.g., Mouton v. Texas, 923 S.W.2d 219 (Tex. Ct. voir dire have been denied. United States v. Datche,.
App. 1996); Michigan v. Demers, 195 Mich. App. 830 F. Supp. 411, 418 (M.D. Tenn. 1993).
205, 489 N.W.2d 173 (Mich. Ct. App. 1992). One pro se defendant tried to persuade the
Supreme Court that her trial judge improperly refused
State Law to let her challenge for cause those prospective jurors
who did know or understand the term "jury
There is a pervasive myth that three states nullification." Mendonca v. Oregon, 55 U.S.L.W.
supposedly allow jury nullification instructions: 3362 (1986) (petition for certiorari). The Court
Georgia, Maryland, and Indiana. See State v. Morgan decided it might tackle that one later, and denied
Stanley & Co., 194 W.V. 163, 175, 459 S.E.2d 906, review. 479 U.S. 979 (1986).
918 n.27 (W.V. 1995); Paul Butler, Racially Based Defendants will go to any lengths to get this
Jury Nullification: Black Power in the Criminal forbidden topic of discussion before the jury. In one
Justice System, 105 Yale L.J. 677, 704 n.147 (1995). recent case involving minor charges in traffic court,
Some lists also include Oregon. This is presumably a pro se defendant offered the State of Pennsylvania
because those states have laws or constitutional a bargain of almost Faustian proportions. He asserted
provisions suggesting that criminal jurors are judges a right to execute a release of his property rights
of the law and the facts. But the myth is false. Despite under state law and all of his privileges and
their differing constitutions, all four states have held immunities secured by the Fourteenth Amendment,
that a jury has, at most, the power to acquit a guilty subject to the condition that he would revert to the
man, not the right, and should not be told that it may status of an "American Freeman" with all of the
ignore or nullify the law. See, e.g., Miller v. Georgia, "common law rights thereof, including the right to a
260 Ga. 191, 196, 391 S.E.2d 642, 647 (Ga. 1990). jury possessing the power of jury nullification."
Resourceful defendants and their attorneys Phelps v. Pennsylvania, 59 U.S.L.W. 3522 (1991)
have tried every conceivable route around this (petition for certiorari). The Supreme Court passed
immovable roadblock. All have been thwarted. up this chance to decide the issue, perhaps preferring
Without exception, the appellate courts will not allow to wait until it percolates a bit more in the lower
a defense attorney to use her closing argument to tell courts. 498 U.S. 1088 (1991).
the jurors about their power to nullify, or to urge Judicial hostility to jury nullification goes
them to use it. See, e.g., United States v. Muse, 83 well beyond the stone wall of silence erected around
F.3d 672, 677 (4th Cir. 1996). the jury box. Case after case has approved jury
instructions actually designed to imply that jurors do
not have such power at all, or to "instruct the jury on
the dimensions of their duty to the exclusion of jury conscience and protect him from government
nullification." United States v. Sepulveda, 15 F.3d oppression, and yet only the State is allowed, when it
1161, 1190 (1st Cir. 1993). For example, criminal chooses, to ask the jury to consider matters of
jurors are routinely ordered: "You must follow my morality and conscience. Id. at 590-602. Thus have
instructions on the law, even if you thought the law we witnessed a complete perversion of the
was different or should be different," Eighth Circuit constitutional priorities and structure.
Pattern Criminal Jury Instruction 3.02 (1991), and One might fairly summarize the case law this
"even if you disagree or don't understand the reasons way: "You may hope that the jury will refuse to apply
for some of the rules." Federal Judicial Center, a harsh, unfair, or inequitable law, but you may not
Pattern Criminal Jury Instruction 9 (1987). urge them to do so." Steven Lubet, Modern Trial
In extreme cases, this judicial hostility even Advocacy 436 (1993) (emphasis added). But why
extends to dishonesty. As Chief Judge Bazelon not? Why can't we tell the jury a little bit more than
correctly observed, current law on this topic is we do about the truth? Not since the storming of the
tantamount to a "deliberate lack of candor." United Bastille have the forces of government been so tightly
States v. Dougherty, 473 F.2d 1113, 1139 (D.C. Cir. united in their opposition to a popular uprising.
1972) (dissenting opinion). In one especially Numerous arguments have been advanced by judges
outrageous case, the jury deliberated for hours in a around the country for this refusal, but not one stands
criminal tax case before sending the judge a note up to serious analysis.
asking: "What is jury nullification?" The defendant 1. "Jury nullification is an embarrassing
was convicted shortly after the judge falsely told the glitch in our law." What should we tell jurors about
jury that "there is no such thing as valid jury their power to nullify? The answer depends largely on
nullification," and that they would violate their oath one's attitude toward a closely related issue: Just what
and the law if they did such a thing. United States v. is nullification anyway, and why is it protected by the
Krzyske, 836 F.2d 1013,1021 (6th Cir. 1988). Over Constitution? One of the most frequent justifications
a vigorous dissent, the Court of Appeals deemed the for refusing to tell juries about their power to nullify
instruction proper and affirmed the conviction, id., is the pernicious suggestion that this power is the
even after the defendant furnished the court with an product of some accidental or regrettable flaw in our
affidavit from a juror who swore he would have system of justice.
acquitted if "we were told the truth about jury Jury nullification has been described in many
nullification." United States v. Krzyske, 857 F.2d ways, some of which cannot be repeated in
1089,1095 (6th Cir. 1988). respectable society. At one extreme, a federal judge
This widespread judicial pattern is highly recently hailed it as "one of the peaceful barricades of
ironic. The courts have unanimously (and freedom." Jack B. Weinstein, "Considering Jury
erroneously) refused to let defense attorneys argue for 'Nullification': When May and Should a Jury
nullification, typically by insisting that the jury has no (pg.9) Reject the Law to Do Justice," 30 Am. Crim. L.
power to consider what the law should be, and that Rev. 239, 254 (1993). Even courts declining to
juries have no lawful task but to decide whether the instruct juries about the doctrine have conceded that
defendant broke the law. Yet, in a fit of sheer "the pages of history shine on instances of the jury's
inconsistency, the same federal courts of appeals are exercise of its prerogative to disregard uncontradicted
also unanimous that it is permissible for prosecutors evidence and instructions of the judge." United States
to urge juries to act as the "conscience of the v. Dougherty, 473 F.2d 1113, 1130 (D.C. Cir. 1972).
community" and use their verdict to "send a message" Notable examples include the courageous refusal of
about whether society should be willing to tolerate the northern jurors to convict "guilty" men who violated
defendant's alleged conduct. James J. Duane, "What the fugitive slave laws. Id.
Message Are We Sending to Criminal Jurors When On the other hand, some courts have
We Ask Them to 'Send a Message' With Their suggested that the power to nullify is merely "a
Verdict?," 22 Am. J. Crim. Law 565, 576-79 (1995). tolerated anomaly in the rule of law.'" Mayfield v.
The Sixth Amendment creates a right for the United States, 659 A.2d 1249, 1254 (D.C. 1995).
defendant to insist on a jury to act as a community They call it a void in the law, giving jurors "the power
to do what they want in a given case because neither nobody would publicly hold up as a model of good
the prosecution nor the court has the authority to civic behavior.)
compel them to do what they should." State v. There is no compelling reason why a jury
Bjerkaas, 472 N.W.2d 615, 619 (Wis. App. 1991). should learn every dirty little secret of our system of
(emphasis added). Others assert that the power exists justice, especially if that knowledge would undermine
only because "there is nothing to prevent" it, but that the purpose of the proceeding or the jurors' perception
it "is not a legally sanctioned function of the jury and of the seriousness of their role. See Caldwell v.
should not be encouraged by the court." State v. Mississippi, 472 U.S. 320, 323 (1985) (error to give
Weinberg, 631 N.E.2d 97, 100 (N.Y. 1994). The jury misleading view of the extent of appellate review
sensational-sounding charges have been made that a of their sentencing recommendation). Thus, the courts
nullification instruction would "encourage the jury to are correct to hold that the law should not require or
abdicate its primary function," id., or that it would "in encourage a judge to remind jurors of the regrettable
essence direct juries that they could run amuck" fact that they have the raw power to acquit for any
Davis v. State, 520 So. 2d 493, 494-95 (Miss. 1988). arbitrary or spiteful reason, or indeed for no reason at
Scores of other cases have tried to capture this same all. But in no reported case, to my knowledge, has
point by insisting that juries always have the power to any defendant or his attorney requested an instruction
nullify, but never the right to do so. that would go even half that far.
So who is correct? Is the institution of In the real world, outside the pages of
nullification deliberately enshrined and protected in appellate judicial opinions, defendants almost
the Constitution as a valuable political end in itself, invariably make the far more modest request that the
as some have suggested? Or is it merely a regrettable jury be told merely of its authority to acquit an
byproduct of careless drafting, or an anomalous but accused if a conviction would conflict with their
necessary evil we "tolerate" because of our deeply seated sense of morality and justice. In this, its
commitment to some greater good? And how could purest form, the possibility of "nullification" is not
the courts be so very far apart in their responses? The some accidental byproduct of careless drafting in the
answer to this confusion depends on how one defines Constitution, nor of our commitment to some greater
"jury nullification," a term with various shades of good. It is one of the very reasons for the existence of
meaning. the Sixth Amendment's inflexible insistence that the
In its broadest form, "nullification" has often accused has the right to a jury of his peers.
been used to describe the jury's "raw power to set an The jury is there, by design, "to prevent
accused free for any reason or for no reason," oppression by the Government" and to "protect
Sepulveda, 15 F.3d at 1190, even for reasons having against unfounded criminal charges brought to
nothing to do with justice or guilt. eliminate enemies and against judges too responsive
to the voice of higher authority." Duncan v.
The Jury's Rights Louisiana, 391 U.S. 145, 155-56 (1968). The jury's
role "as a check on official power" is in fact "its
An acquittal may come because the jurors intended function." Batson v. Kentucky, 476 U.S. 79,
found the defendant attractive, or were members of 86-87 n.8 (1986). The jury injects "a slack into the
the same race, or harbored hatred toward the victim's enforcement of law, tempering its rigor by the
race, or merely because they were tired of being mollifying influence of current ethical conventions."
sequestered for months. This possibility, which might United States ex rel. McCann v. Adams, 126 F.2d
fairly be called "lawless nullification," is protected by 774, 775-76 (2d Cir. 1942) (Learned Hand, J.). That
our Constitution not for its own sake, but because of is why a directed verdict for the state would be not
our commitment to the secrecy of jury deliberations merely unconstitutionalit "would be totally alien to
and the finality and unreviewability of their verdicts. our notions of criminal justice," since "the
(This is true in much the same way that the First discretionary act of jury nullification would not be
Amendment protects the right to say many things that permitted." Gregg v. Georgia, 428 U.S. 153, 199
n.50 (1976) (plurality opinion).
 This is also the defect in the long line of cases convict even though the evidence supported the
that disparage (pg.10) nullification by claiming that the charge." Gregg, 428 US. at 199 n.50. Any system
jury has only the "power," but not the "right," to do it. that restricted such liberty "would be totally alien to
That may be a fair description of the jury's latitude to our notions of criminal justice." Id. In this respect,
acquit for any lawless reason that pleases themits nullification is every bit as lawful as leniency
"power to bring in a verdict in the teeth of both law extended by the prosecutor, or the judge, or the
and facts." Horning v. District of Columbia, 254 governor. Id.
U.S. 135, 138 (1920). But the jury's power to acquit Nor does any "law" forbid a jury from
out of justice or mercy is a constitutionally protected pardoning a man who violated an unjust statute, even
right. If not their right, it is at least the defendant's if an acquittal requires them to ignore the court's
firmly settled right that he insist on a jury with such instructions on the law. The Constitution does no
power, regardless of whether the proof of his such thing; it actually protects the jury's right to
technical legal guilt is literally overwhelming and acquit based on their sense of justice. The penal code
uncontradicted. Sullivan v. Louisiana, 508 U.S. 275, does not criminalize such conduct, and would be
277-82 (1993). Any judicial instructions that would clearly unconstitutional if it did. Not even the Bible
prevent the exercise of this right are unconstitutional. imposes any such rule. See Deuteronomy 16:20
These considerations about the historical ("Follow justice and justice alone"). If there is any
roots of the right to a jury trial, by themselves, do not such "law," it is true only in the narrow sense of
dispose of the question whether the jury should be illegitimate case law made up by judges acting well
instructed about nullification. But they easily suffice beyond the scope of their lawful authority.
to dispatch the absurd suggestion that the latitude Judges who tell each other that "nullification
allowed for an acquittal based on the jury's sense of is illegal" are more than vaguely reminiscent of the
justice should be kept from the jury because it is only judge who once told a criminal defendant: "Rule
a flaw in the system's design, or that it is not a legally Forty-Two. All persons more than a mile high to
sanctioned function of the jury. leave the court! It's the oldest rule in the book." Lewis
2. "Nullification instructions encourage the Carroll, Alice's Adventures in Wonderland 256
jury to violate the law." Some courts have reasoned (Bramhall House 1960). As the defendant adroitly
that a nullification instruction would permit, if not responded: "Then it ought to be Number One"or it
encourage, the jurors to disregard or break the law. ought to be, at the very least, written down in the
One court even held that it is proper to affirmatively Constitution, or the penal code, or somewhere besides
instruct the jurors that they would "violate the law" if judicial opinions.
they engaged in nullification or if they violated any of 3. "The Supreme Court said not to tell the
the judge's instructions on the law. United States v. jury about it." A surprising number of courts have
Krzyske, 836 F.2d 1013, 1021 (6th Cir. 1988). tried to blame the Supreme Court for their refusal to
Another has reasoned that "anarchy would result from tell juries about the power to acquit on moral
instructing the jury that it may ignore the grounds. That myth is also false. The Supreme Court
requirements of the law." Powell, 955 F.2d at 1213. has never said such a thing.
Such assertions are baseless. In the two cases widely cited for this
Contrary to the widespread myth popular proposition, the Court merely declared that a jury is
among judges, there is no "law" that requires juries to not entitled to decide what the law is or should be,
convict every man shown to be technically guilty and that "a judge always has the right and duty to tell
beyond a reasonable doubt. "The power of the courts them what the law is upon this or that state of facts
to punish jurors for corrupt and incorrect verdicts," that may be found." Horning v. District of Columbia,
Dougherty, 473 F.2d at 1130, that darling of the Star 254 U.S. 135, 138 (1920) (Holmes, J.); accord Sparf
Chamber's nursery, was banished from the pages of and Hansen v. United States, 156 U.S. 51 (1895).
Anglo-American law centuries ago. Today, at its very This language has been widely cited by lower courts
core, our system of justice is unflinchingly committed as authority for their refusal to permit any argument
to the liberty of criminal juries to "err upon the side of or instructions on nullification. E.g., Krzyske. 836
mercy," Jackson, 443 U.S. at 317, or to "refuse to F.2d at 1021.
 In fact, however, Horning and Sparf have topic of nullification, the Court recently held that
nothing to do with this matter. It would indeed be jurors should not be given distracting information
improper to tell a jury that "they are to determine the about the sentencing consequences of their verdict,
rules of law." Dougherty, 473 F.2d at 1136. In Sparf, even when that evidence might serve to correct
for example, the Supreme Court properly refused a inconsistent and erroneous beliefs the jury is likely to
murder defendant's request that his jury be told they harbor about the effect of their verdict. Shannon v.
could convict him of manslaughter out of leniency, United States, 114 S. Ct. 2419, 2427 (1994). That
even though he conceded that there was no evidence reasoning would also appear to apply where the
to support a finding of guilt on such a lesser charge! defendant seeks to tell the jury about sentencing
156 U.S. at 99. If that were the law, of course, we information solely to persuade them to acquit out of
ought to read the jury the entire penal code, just in compassion and mercy, as the lower courts have
case manslaughter seems too harsh, so they could already acknowledged. See United States v. Johnson,
perhaps convict him of driving with a bad muffler 62 F.3d at 850.
instead, or maybe acquit him on the grounds of
intoxication.(pg.11) Limiting the Jury's Discretion
Our entire system of justice would be
undermined if jurors had the liberty to return a false The reasoning of Shannon, consistently
ver dicteven for b enign mot ives of applied, would take a big bite out of the jury's power
mercyconvicting a defendant of a lesser offense she to nullify. An oppressive political regime could
simply could not have committed, or acquitting her achieve some surprising results by persuading a jury
because of some legal defense with absolutely no to convict an accused of some seemingly minor
basis in the evidence. offense that carries a surprisingly draconian penalty.
But that straw man has nothing to do with the Without accurate sentencing information, jurors
typical case of a defendant seeking an instruction on would be unable to nullify such a monstrous lawor
nullification. Such instructions need not suggest that worse yet, might even end up playing right into the
jurors be told they can decide for themselves what the government's hands by guessing incorrectly.
law is or should be, or that they can convict the Heidi Fleiss, for example, was convicted of
defendant of some lesser offense (or acquit on the consensual sex offenses by jurors who were
basis of some affirmative defense) with no basis in "outraged" to later learn she faced a minimum
the facts. Our law does not countenance such three-year prison sentence. Despite several jurors'
contrivances and should not encourage them. But a belief that she was innocent, the jurors had struck a
proper nullification instruction or argument would deal after four days of deliberating and acquitted her
merely tell the jury the fact or at least confirm their of drug chargeswhere the evidence was
intuitive suspicion that our law intentionally allows strongerbecause they were "under the mistaken
them the latitude to "refuse to enforce the law's impression that the narcotics charge carried a stiffer
harshness when justice so requires." LaFave and penalty." Shawn Hubler, "Court Overturns Fleiss'
Israel, Criminal Procedure 22.1, at 960. Whether Conviction, Orders New Trial," L.A. Times, at A1
that information should be given to the jury has never (May 30, 1996). (Of course, trials like this oneand
been considered or decided by the Supreme Court. Id. many othersundermine the Supreme Court's crucial
But it is the height of hypocrisy to refuse to report assumption that jurors can be trusted to heed our
that truthful information about our constitutional law standard instruction to disregard possible punishment
to the jury on the pretense that the judge "has the right when reaching their verdict.)
and duty to tell them what the law is." Horning, 254 Shannon did not close the door to most forms
U.S. at 138 (emphasis added). That language, taken of nullification, however. As the Court properly
literally, would require the judge to tell the jury much reasoned, it would be difficult to decide where to
more than we do about nullification. draw the line once we open the jury room door to
There is one variant of nullification, however, even truthful information about the long-run
that appears to have been recently foreclosed by the sentencing consequences of their verdicts. Shannon,
Supreme Court. Without specifically addressing the
114 S. Ct. at 2427-28 & n.11. But that logic does not verdict render according to the evidence, so help [me]
apply to the normal case of nullification, where the God." United States v. Green, 556 F.2d 71 n.1 (D.C.
accused desires an acquittal based only on the moral Cir. 1977).
implications of the evidence already properly before Nobody still alive today knows for sure what
the jury concerning the details of his conduct, and it means to "make a true deliverance." But nothing in
does not seek to smuggle into the record any facts this oath would forbid jurors from acquitting if they
they did not already learn from the prosecutor. are convincedbased solely on "the evidence"that
4. "We can't encourage the jurors to the accused's actions were morally blameless and that
violate their oath." Perhaps the most threadbare a conviction would be unjust. In such rare cases, no
judicial objection to nullification arguments is that jurors could be said to have decided a case "well and
"neither the court nor counsel should encourage jurors truly" if they had to disregard their sense of justice to
to violate their oath." United States v. Trujillo, 714 convict. And an acquittal in that case would certainly
F.2d 102, 106 (11th Cir. 1983). These cases routinely sound like a "true deliverance." See Proverbs 24:11
assume that a jury's oath forbids them from nullifying ("Rescue those being led away to death"); Isaiah 61:1
for any reason, even if based on their firm belief that ("He has sent me to proclaim freedom for the captives
a conviction would be a terrible miscarriage of and release from darkness for the prisoners").
justice. One prosecutor recently reiterated the age-old If a jury refuses to convict a man because of
complaint that "jury nullification gives status and overwhelming feelings of mercy or justice, they are
dignity to what is basically violating your oath as a not returning a "false" verdict. A verdict of "not
juror to follow the law." Tony Perry, "The Simpson guilty" based on a jury's notions of justice is not
Verdicts," LA. Times, at 5 (Oct. 5, 1995). affirmatively declaring that he is innocent. (The same
Moreover, it has been recommended that is true of an acquittal based on their conclusion that
federal judges go one step further and routinely tell he has only been shown to be probably guilty, but not
jurors, "You are bound by the oath that you took at beyond a reasonable doubt.) The general "not guilty"
the beginning of the trial to follow the instructions verdict is merely a shorthand way of allowing the jury
that I give you, even if you personally disagree with to express, for reasons they need not explain, "we do
them." Sixth Circuit Pattern Jury Instruction 1.02. If not choose to condemn the accused by pronouncing
the jurors explicitly ask about nullification, we are him guilty."
told that the judge should warn them of the supposed The standard objection to nullification
"fact" that acquittal of a guilty man for any reason instructions might carry at least superficial
would be a breach of their solemn oaths as jurors. plausibility in those jurisdictions where the jury is
Krzyske, 836 F.2d at 1021. sworn to render "a true verdict according to the
This ominous-sounding charge has no logical evidence and the charge of the Court." United States
substance, although it naturally carries much v. Pinero, 948 F.2d 698, 699 n.3 (11th Cir. 1991). If
emotional appeal. Jurors know that oaths are serious those same jurors are later instructed by the court that
business, see Exodus 20:7, 16, and the law never they "must convict" where there is proof of legal guilt
permits or encourages anyone to do anything contrary beyond a reasonable doubt, it probably would be a
to his oath. But despite its tremendous popularity violation of such an oath to disregard the court's
among judges, this argument is by far the most charge and acquit the man because his conduct was
misshapen stone in the barricade judges have been morally blameless.
erecting around the jury box. But this objection to nullification instructions
To begin with, it is usually false. The typical utterly begs the question. It is clear that defendants
oath taken by jurors today does not forbid them from can make at least a plausible claim to a moral (and
refusing to convict based on their sense of justice. In perhaps constitutional) right to appeal to the jurors to
fact, many oaths administered today are barely even acquit out of justice or mercy. That argument must
intelligible. At the beginning of (pg.12) the trial, jurors either stand or fall on its own merit, without any
are typically asked to swear that they "will well and regard to the present wording of the jurors' oath.
truly try and a true deliverance make between the
United States and the defendant at the bar, and a true
Constitutional Protection which stands at the very bedrock of our system of
justice. United States v. Dunnigan, 507 U.S. 87, 97
It is a colossal red herring to dismiss such (1993).
claims with the rejoinder that nullification acquittals And when citizens and jurors gradually get
would "violate the jurors' oath." No judge can brush wind of the fact that we really don't expect them to
aside a plausible constitutional argument by saying always refrain from nullifying, despite their alleged
"You might be right, but we do not decide the oaths to the contrary, who can blame any of those
question, because we have already extracted a solemn people from cutting corners with their future oaths as
vow from the jurors to abide by a different procedure witnesses or elected officials?
that arguably violates your moral and constitutional 5. "We give them enough hints already."
rights." That "logic" could lead to some remarkable Perhaps the most baffling excuse for refusing to tell
results in jurisdictions determined to defeat other jurors about nullification is the excuse that we
constitutional provisions as well. already give them a few ambiguous (pg.13) clues about
A jury's latitude to nullify is deliberately their power to nullify. In the seminal Dougherty case,
protected by the Constitution. Neither the tradition for example, which remains the most influential
nor the wording of the oath administered to the jurors, opinion ever written on this topic, the Court of
on the other hand, is so dictated. In federal court it is Appeals reasoned that explicit instructions would be
not even prescribed by statute. It is simply an old superfluous, in part because juries get the message in
tradition judges have made up. If the wording of the a variety of subtle ways. The court based this
oath poses some conflict with the jury's constitutional holding, in part, on its axiomatic assumption of "the
prerogative to nullify, it is clear which one must yield fact that the judge tells the jury it must acquit (in case
the right of way. Courts simply have no business of reasonable doubt) but never tells the jury in so
(much less lawful authority) asking jurors to swear to many words that it must convict." 473 F.2d at 1135
anything that would violate the Constitution or the (emphasis added)
jury's deeply held convictions about justice. The first problem with this justification is
Besides, while we are on the subject of oaths, that it proceeds on a premise that is no longer
it is well to remember that there is always one party generally true. Contrary to the Dougherty court's
in the courtroom who is required to take an oath assumption about what a criminal trial judge would
prescribed by federal lawand it is not the jury. "never" do, the United States Judicial Conference has
Before ascending to the bench to try his first case, instructed federal judges to tell every criminal jury
every federal judge is required by law to swear or that "if you are firmly convinced that the defendant is
affirm to uphold the Constitution (which includes the guilty of the crime charged, you must find him
Sixth Amendment), and "that I will administer justice guilty." Federal Judicial Center, Pattern Jury
without respect to persons." 28 U.S.C. 453. That is Instructions 21 (1987). Several courts have formally
a most peculiar-sounding oath for anyone who intends approved similar instructions telling the jury they
to browbeat jurors into putting aside any notions of "must" convict. See People v. Bernhard Goetz, 73
"justice" that might stand in the way of their N.Y. 2d 751, 752, 532 N.E.2d 1273 (N.Y. 1988).
willingness to condemn a morally blameless man. Indeed, one Circuit Court of Appeals recently went so
Beyond all this, perhaps the most far as to state (in an unpublished decision) that
blasphemous aspect of the invocation of the oath is instructing jurors any other wayfor example, that
the simple fact that we really do not expect jurors to they "should" convictis at least "arguably"
refrain from nullifying in all circumstances. That forbidden by the supposed "rule" that a jury is not to
being the case, it ill-behooves us to place jurors under be told that nullification is a permissible course to
an oath that they will not nullify (much less lie to take. United States v. Fuentes, 57 F.3d 1061, 1995
them about whether they have taken such an oath). WL 352808 at **2 (1st Cir. 1995).
At least for those jurors who take their oaths The reasoning of these cases is indefensible.
seriously, it places them in an intolerable and totally Telling a jury they "must" convict where guilt has
unnecessary conflict between deeply held moral been proven beyond a reasonable doubt is a serious
scruples. It demeans the seriousness of the oath, misstatement of the law and "an error of the most
egregious nature." Proceedings of the 53rd Jud. The Supreme Court has repeatedly declared
Conf. of the D.C Circuit, 145 F.R.D. 149, 175 that "arguments of counsel cannot substitute for
(1992) (Remarks of R. Kenneth Mundy, Esq.). Under instructions by the court." Carter v. Kentucky, 450
our Constitution, by design, a defendant is entitled to U.S. 288, 304 (1981). "The former are usually billed
have his fate decided by a jury even if the evidence of in advance to the jury as matters of argument, not
his guilt is undisputed and decisive. Sullivan, 508 evidence, and are likely viewed as the statements of
U.S. at 277. This is because criminal jurors are advocates; the latter, we have often recognized, are
entitled to "refuse to convict even though the evidence viewed as definitive and binding statements of the
supported the charge," and any legal system which law." Boyde v. California, 494 U.S. 370, 384 (1990).
would strip jurors of that discretion would be "totally No matter how infrequently we hope to see
alien to our notions of criminal justice." Gregg v. juries exercise their constitutionally protected power
Georgia, 428 U.S. 153, 199 n.50 (1976). to nullify the operation of unjust laws, there is simply
Besides, even if we gave jurors the far too much at stake to entrust that important
instruction that they "should" convict, it would hardly possibility to the implications of "cryptographic
suffice to convey to the jury the solemnity of their instructions," or to closing arguments that seem to
awesome responsibility to acquit on the grounds of conflict with the charge of the court. In the final
justice in exceptional cases. The Dougherty court analysis, the best answer to all this nonsense was
candidly conceded that the pregnant implications of written long ago by Judge Cardozo. He observed in a
that ambiguity "would on their face seem too weak to related context that he had no objection to giving a
notice." 473 F.2d at 1135. And even if some jurors jury greater latitude with their verdicts in a case that
could be fairly trusted to pick up on the subtle "seems to call irresistibly for the exercise of mercy,
ambiguity left open in the contrast between but it should be given to them directly and not in a
instructions as to when they "should convict" and mystifying cloud of words." "What Medicine Can Do
"must acquit," others will not. Far too much is at for Law," in Law and Literature 70, 100 (1931)
stake here to trust such nuances to a haphazard (quoted in McGautha v. California, 402 U.S. 183,
system of instructing jurors with hints. It violates 199 (1971)).
both the Due Process and Equal Protection Clauses to 6. "If the case is important enough, they
let the outcome of criminal cases turn on "coded will figure out we're not too serious about all this
instructions" that we hope and pray a few jurors will anyhow." There have been many silly excuses for
be clever enough to notice and decipher on their own, refusing to tell juries the truth about their lawful
all for the benefit of a select and arbitrarily chosen authority to nullify. But the most frightening of all
group of lucky defendants. Such a system of "justice" teaches that jurors are most likely to nullify only on
is no better than a judge who thinks too many jurors rare and special cases just as we secretly hope they
are relying on the insanity defense, so he sticks that willif we falsely suggest to them that they have no
portion of his instructions in one of eight empty such power or moral authority.
drawers under the table in the jury room. The reasoning here is that the lawful power
We see a similar fallacy in another bizarre to nullify is least likely to be abused, and most likely
compromise struck by several lower courts. Caught to be reserved for the rare cases when it is truly
between the conflicting commands of the Sixth appropriate, if we structure our rules to make
Amendment ("juries exist to protect the accused from nullification "an act in contravention of the
the Government") and the appellate courts ("tell the established instructions." Dougherty, 473 F.2d at
jury they must ignore the demands of justice"), 1136-37. After all, the argument goes, jurors always
several trial judges have adopted the pathetic draw their understanding about the operation of the
compromise of allowing the defense attorney to talk system from a variety of (pg.14) sources in the popular
about nullification in closing arguments, but have culture, even apart from the judge's instructions. Id.
refused to endorse such arguments in their at 1135. This will, in theory, allow nullification to
instructions, even after the jurors predictably ask for rear its ugly head only when the inequities of the case
further guidance from the judge. E.g., Krzyske, 836 are sufficiently compelling to persuade the jurors to
F.2d at 1021. This, too, is no solution.
cook up the idea and violate the judge's instructions complainswith some justificationthat they desire
on their own initiative. Id. at 1136. only to see to it that judges, like everyone else in the
This "reasoning" was never persuasive even courtroom, are required to tell the truth and the whole
when it was first handed down to the lower courts truth.
more than 20 years ago, as Chief Judge Bazelon With all this amateur mass legal education
noted in his dissenting opinion in Dougherty. But it is going on in earnest, "barber shops and beauty parlors
indefensible today. Even if one could possibly hope everywhere are all abuzz with talk of 'jury
that "nullification" might be a secret to most jurors nullification,' whether they call it by its proper name
two decades ago, those days are now gone. Everyone or not." Clarence Page, "Jury Nullification Can
who followed the key events in O.J. Simpson's Create Justice," Dayton Daily News, A10 (Nov. 27,
criminal trialwhich means everyoneunderstands 1995). Our judicial system needs to take stock of this
by now at least this much: jurors in a criminal trial reality, and fast. The integrity and credibility of the
can listen to ten months of evidence that the system will be stretched to the breaking point as more
government has publicly proclaimed to be and more jurors bring to their secret deliberations
overwhelming and conclusive, and still acquit after "inside knowledge" about the way the system really
three hours of deliberating without being stopped on works, and about the reasons for the judge's refusal to
their way to the parking lot. That is, in the main, a share or confirm those details.
pretty fair description of the rough contours of the To make matters worse, imagine what will
jury's power to nullify. happen when even a few people bring into the jury
At about the same time, a law professor has room the secret knowledge that our system conceals
quickly risen to fame with his remarkable plea that the facts about nullification in the explicit (but
black political and spiritual leaders join his quest to unshared) hope that the jurors will see through our
inform their constituencies of their undisputed power standard instructions and ignore them when that is
to acquit black defendants solely because of their called for! At that point, we will have no reliable
race. Paul Butler, Racially Based Jury Nullification: protection against the danger that some jurors will
Black Power in the Criminal Justice System, 105 reason, perhaps privately, that maybe some of our
Yale L.J. 677, 723-25 (1995). That dirty little secret other hard and fast "rules of law" are also there for
about our criminal justice system was subsequently public relations purposes, designed to be ignored in
featured in countless newspapers, articles, and special cases by jurors sophisticated enough to know
television shows. Professor Butler has appeared to how the system really worksor can be worked. The
discuss this fact on 60 Minutes and Geraldo Rivera. integrity of our court system will then be shattered
If there was anyone who hadn't heard before this beyond repair.
summer, the lid was blown off the story once and for But for the fragile good faith of jurors, for
all when it ran in the June 1996 issue of Reader's example, we have no logical or moral basis for our
Digest. otherwise rash assumption that a juror can be trusted
Joining in the fray with gusto, of course, is to acquit, rather than convict, a defendant who has
the Fully Informed Jury Association (FIJA), a not quite been proven guilty beyond a reasonable
tax-exempt educational group with thousands of doubt, "even if he is convinced the defendant is highly
members devoted to informing future jurors about dangerous and should be incarcerated." Shannon, 114
their power to nullify. They even have an impressive S. Ct. at 2427. When jurors get wind of the
and thoughtful site on the Internet with hundreds of appearance that at least some of our most
visitors each day. (Although I am naturally loath to fundamental rules are really just window dressing,
admit having visited it in a journal the FBI may be what protection will we have against "nullification
reading.) Members have passed out pamphlets about convictions" by jurors who refuse to release
nullification by the thousands outside of key trials. dangerous or despicable villains entitled to acquittals
Legislation to require judges to issue such on the basis of seemingly unjust legal technicalities?
instructions has been introduced in dozens of state More and more legal essays are starting to
legislatures, as yet unsuccessfully, generating even surface with the rather casual assertion that
more public attention to the topic. The group "nullification convictions" can never be a real danger,
in part because the judge and the Court of Appeals all if the jurors of the nation get word of these
supposedly have the power to overturn a guilty exaggerated suggestions that federal judges stand
verdict that is not supported by the evidence. E.g., guard against "nullification convictions"!
Gail Cox, "Feeling the Pressure: Jurors Rise Up Over
Principle and Their Perks," Nat'l law J., A1 (May 29, Inadequate Solution
1995). Those assurances, if repeated often enough,
will make the problem even worse. Besides, even if we radically restructured
This supposed "fact" about our system of federal law to give a judge plenary authority to
justice is the most nefarious of all, and will do reverse a conviction she thought was not proven
irreparable damage if it falls into the wrong hands in beyond a reasonable doubt, it still would not solve the
the jury room. It is hard to imagine a clearer problem. Even that arrangement would not be
illustration of the maxim that a little knowledge can adequate to protect the constitutional rights of the
be a dangerous thing. Any jurors will be far more accused. "It would not satisfy the Sixth Amendment
inclined to convict in close cases if they have picked to have a jury determine that the defendant is
up the mistaken impression that a judge is both probably guilty, and then leave it up to the judge to
empowered and likely to correct any mistakes in their determine whether he is guilty beyond a reasonable
assessment of the evidence. (That is especially true if doubt." Sullivan, 508 U.S. at 278.
one of the jurors advises the others that a mistaken Meanwhile, as more Americans get the
verdict of acquittal, on the other hand, is final and justifiable impression that the courts are not being
unreviewable, which is now fairly common perfectly candid with jurors, they are naturally and
knowledge after the Simpson trial.) That would only gradually losing their normal inhibitions about lying
enhance the already great temptation for them to to judges. Prior to sensational trials, jurors' rights
abdicate their solemn responsibility by passing the activists now give everyone entering the courthouse
buck to the judge. pamphlets advising of them of their power to nullify,
In fact, a judge's power to enter a judgment warning them that the judge will deny it, and pleading
of acquittal despite a contrary jury verdict is merely with them to deny any "knowledge of this material"
a token safeguard against the unjust conviction of the during jury selection. Joe Lambe, "Bill Would Let
innocent (and anyone (pg.59) else not proven guilty Juries Decide Law in Cases; Legal Establishment
beyond a reasonable doubt). It serves to overturn Reacts to Measure with Shock, Dread," Kansas City
unjust convictions only after the extremely rare trial Star, at A1 (April 8, 1996). An outspoken law
where there is no evidence that could satisfy any professor has publicly declared his willingness to lie
rational jury beyond a reasonable doubt. In all other under oath during jury selection, if necessary, to
cases, one seeking to overturn a guilty verdict based conceal his true attitudes toward nullification and get
on the sufficiency or quality of the evidence against the chance to nullify death penalty cases. Paul Butler,
him "follows in the footsteps of countless criminal Racially Based Jury Nullification: Black Power in
defendants who have made (pg.60) similar arguments," the Criminal Justice System, 105 Yale L.J. 677,
and "faces a nearly insurmountable hurdle." United 724-25 n.236 (1995). That same law teacher has also
States v. Hickok, 77 F.3d 992, 1002 (7th Cir. 1996). invited Americans by the thousands to decide for
The judge cannot reweigh the evidence, and themselves whether perjury during jury selection
challenges to a witness's lack of credibility are might be "morally justifiable" for some greater good
"wasted on an appellate court." United States v. such as racial justice. Id.
Pulido, 69 F.3d 192, 206 (7th Cir. 1995). Once the If our criminal justice system is to retain
jury chooses to convict, regardless of the reason, its some semblance of integrity in the long run, it is vital
verdict will stand as long as it is based on any that we treat jurors with greater candor about the
evidence in the record they might have chosen to moral and legal contours of their power to nullify.
believe, even testimony that "is totally uncorroborated Fortunately, it wouldn't take long. A clear and
and comes from an admitted liar, convicted felon, adequate instruction could be conveyed in a single
large-scale, drug-dealing, paid government sentence, explaining that the jury should (not "must")
informant." Pulido, 69 F.3d at 206. Heaven help us
convict anyone proven guilty beyond a reasonable
doubt, unless the jurors have a firm belief that a
conviction would be fundamentally unjust. Such an
instruction would give defendants all the protection
they deserve against wrongful prosecution. It would
preserve the jury's constitutionally protected veto
power over unjust prosecutions. It would minimize
the terrible danger of jurors persuading each other
that the judge is withholding (or concealing) crucial
facts about the way the system is designed to work.
And it would, at long last, permit us in good
conscience and good faith to ask jurors to take a
solemn oath to abide by the court's charge.
Proper instructions on nullification are now
quite like sex education to youth in many different
ways. There may well have been a time, several
decades ago, when it was feasible to avoid both
subjects altogether, hoping that our young wards
would never even hear much about them until a truly
pressing need might arise for them to divine a few
things on their own initiative. But now there are
precious few secrets about either subject that cannot
be found on the Internet and in every major
magazinealong with many dangerous falsehoods
and half-truths. If we persist in our refusal to confront
these delicate topics head-on, jurors and children will
continue making terrible choices as they learn for
themselves what a dangerous thing a little knowledge
can be. And in the process, judges and parents alike
will continue to lose much of their credibility in the
eyes of those who correctly perceive their right to
honest guidance from us.