Academic journal article
By Dann, B. Michael
Judicature , Vol. 91, No. 1
I presided over jury trials of felony cases during several of my 20 years on Arizona's trial bench. I routinely instructed juries regarding the reasonable doubt standard and that the jurors "must" convict the defendant if they were satisfied that the prosecution had carried its burden. The operative language of the pattern instruction read something like this:
If, based on your consideration of the evidence, in light of the law that applies, you are satisfied that the defendant's guilt has been proven beyond a reasonable doubt, then you must find him/her guilty.
As time passed, I became increasingly uncomfortable reading this instruction to juries. Telling them they "must" convict when all the elements of the crime had been established beyond a reasonable doubt seemed too strong and provocative a direction from the judge. But I never could articulate, to myself or to others, the legal reasons for my discomfort. Now, having reflected on the question from a greater distance, I feel I can.
My survey of the states' and federal circuits' corresponding jury instruction language reveals that 24, or almost 40 percent, of state courts and federal circuits use the command "must" or its equivalent ("shall" or "duty") to direct juries to verdicts of guilty when all of the elements of the alleged crime have been proven. Another 7, or 13 percent, use the milder admonition "should" to steer the jury's decision to guilt. (See Table 1).
In this article I will attempt to explain why this kind of mandatory instruction invades the jury's constitutional prerogative to return a verdict against the weight of the evidence and the law. Indeed, the power of the American jury to return a verdict based on mercy or leniency, or to check abusive prosecutions, is "one of the peaceful barricades of freedom."1 The refusal of jurors to enforce the law in a particular case because their consciences cannot abide a guilty verdict is a central feature of our criminal justice system and is a component and incident of the Sixth Amendment right to trial by jury. Such judicial commands invade the province of the jury and violate the constitutional guarantee of an "impartial jury."
I also consider the arguments for and against telling jurors of this limited form of constitutionally sanctioned nullification2 prerogative and suggest an instruction informing them of their power and giving them needed guidance for the wise and rare exercise of it.
Nullification, or what is often confused witii nullification, takes a number of forms. Two types of power associated with juries in the rather distant past are (1) the power to pass on all legal questions, including the interpretation and application of law; and (2) resolving constitutional issues. Some still advocate for this form of jury power, contending that juries should be told they can accept or reject the judge's instructions on the law. I do not believe jurors should have such broad powers or rights.
The remaining type of nullification assumes that the judge, not the jury, resolves all legal questions at trial, and that the jury applies the court's legal instructions to the facts. However, the final step of reaching a verdict in the light of the law and the facts is the sole province of the jury. Its deliberate decision to acquit for reasons of conscience, despite the judge's instructions, is the only form of nullification that is the subject of current, serious legal debate and of this article.
The power to acquit
Others have ably recounted the history of jury nullification and I will not repeat it here. Examples of the narrow form of nullification on which I will focus, both by English and American juries, dot our legal, political, and social landscapes. Some are celebrated-acquittals of political dissidents, those accused of aiding slaves in violation of fugitive slave laws, Prohibition-era liquor law violators, and peaceful war protestors. …