Jury nullification, defined as occurring when a jury acquits "in the teeth of both law and facts,"1 has stimulated both enthusiastic praise2 and harsh condemnation.3 Although there is no clear account or tabulation of how often juries nullify, the effect when a jury nullifies is unambiguous: it ends the case. A court, even if convinced that the jury ignored or misinterpreted the facts or the law, cannot reverse an acquittal. It is indisputable that, whether nullification promises justice beyond the law or merely represents lawlessness, juries possess significant power in their ability to nullify.
The controversies about nullification then lie not in the question of whether juries actually have this power, but in whether they have the right to nullify and whether they should be informed about their power to nullify. Courts uniformly reject requests to instruct juries about their nullification power.4 Some legal scholars take a more benign view of nullification,5 but the academic community as well-with some notable exceptions-generally resists such explicit instruction.6 Against this background, is Judge Dann tilting at windmills to advocate that judges should inform jurors about their undisputed power, recognizing nullification as a right?
Courts sometimes suggest discomfort with the directions they give to jurors about the jury's obligation to follow the law. Thus, courts have occasionally rejected explicit instructions that seem to deny that juries have any discretion.7 Nonetheless, despite that discomfort, courts consistently balk at explicitly describing that discretion.8 Some scholars have argued in favor of instructing the jury on nullification,9 but Dann has recently added his distinctive voice in favor of straight talk on nullification to jurors. And Dann is no Don Quixote.10 He has shown in other areas that courts will significandy change the way they handle jurors and jury trials when they are led by someone who provides the thoughtful leadership he supplied in Arizona." His article on nullification is appropriately viewed as an opening shot in what is likely to be a serious and focused attack. Grounding his argument in both constitutional and ethical terms, he forcefully argues that judges not only are constitutionally permitted to tell jurors about their nullification power, but also that judges ethically should tell jurors that they are entitled to acquit on grounds of conscience.12
The thrust of my alternative perspective here is both ethical and empirical. One aspect of this ethical perspective shares Dann's vision: we should not lie to jurors, as we regularly do now, about what they must do. I also put myself in the camp of those who celebrate occasional instances of jury nullification as a crucial safety valve in the criminal justice system.13
Other ethical concerns, however, are introduced by Dann's proposal to instruct explicitly on nullification. We have an ethical obligation to consider proposed changes in light of the unintended costs they may produce. Based on an analysis of the empirical evidence on nullification, I am not sanguine about embarking on a path of dramatic reform grounded on what we currently know about the potential effects of instructions on nullification. To anticipate the potential costs of explicitly informing jurors about their nullification role, I analyze the empirical evidence we currently have and what we still need to know in order to justify a radical change in our treatment of jury nullification. I also suggest an alternative: that permitting defense attorneys to argue nullification, rather than charging judges with instructing the jury on the topic, can accomplish much of what Dann advocates without entangling the judiciary in an awkward and potentially harmful role.
Before turning to the potential results of a nullification instruction, it is important to have a clear picture of the idealized version of nullification that is under discussion here. …