Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right

By Brody, David C. | American Criminal Law Review, Fall 1995 | Go to article overview

Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right


Brody, David C., American Criminal Law Review


Introduction

During the past few years, the results of high-profile criminal trials have led to increasing public debate concerning the criminal trial jury. In this period, juries acquitted O.J. Simpson,(1) Marion Barry,(2) Oliver North,(3) Lorena Bobbitt,(4) the Menendez brothers,(5) and the Los Angeles police officers accused of beating Rodney King,(6) of the primary charges brought against them, despite what is commonly perceived as overwhelming evidence of guilt. Such verdicts were vociferously denounced in the media and spawned widespread criticism that juries are running amok and refusing to follow the law.(7)

Ironically, during this same period, a number of legislatures nationwide debated whether the jury in a criminal trial should be instructed that it has the right to return a verdict of not guilty despite overwhelming evidence of guilt. In the first half of 1995, at least ten legislatures introduced bills or proposed amendments to state constitutions that would require courts to inform juries of their absolute right to extend mercy to obviously guilty defendants in criminal trials.(8)

As a general rule in the United States, every political institution is in some manner monitored or checked by another institution. In the federal government, the President is restrained by his inability to enact laws except through bills passed by Congress,(9) Congress's capacity to override a veto,(10) the Supreme Court's judicial review of his actions,(11) and the possibility of impeachment.(12) Congress is similarly limited by Presidential vetoes,(13) judicial review,(14) and voter removal.(15) The judiciary is limited by the President's ability to make appointments,(16) Congress's power to impeach,(17) and the Constitution's amendability.

The jury is unique in that it is the only political institution(18) in which citizens directly exercise governmental power and--in the case of a criminal trial--the only political institution whose power is unchecked by another institution. In a criminal trial, the jury has the indisputable and absolute authority to acquit the defendant regardless of the weight of the evidence.(19) Exercise of this authority is unreviewable due to the constitutional prohibition against "double jeopardy"--the retrying of an acquitted defendant for the same offense.(20) Additionally, a court may not reverse the acquittal, and the prosecution may not appeal.

In our society, which relies on institutional checks and balances to curb abuses of governmental power, we accept the jury's unchecked power to acquit as a necessary part of its role to mediate the harshness of the criminal law in certain cases, but we remain wary of the potential for abuse present with such unchecked power. Hence the jury's power to acquit, notwithstanding overwhelming evidence of guilt, is commonly referred to as "jury nullification.(21) The term "jury nullification" is actually a pejorative misnomer in that the jury does not "nullify" or have any effect on the substantive law.(22) Rather, the return of a not-guilty verdict is simply an act of mercy to a particular defendant in a specific case.(23)

As evidence of our societal unease, we accept as indisputable the jury's power to extend mercy, but whether the jury has the right to dispense mercy by deciding questions of law against the weight of the evidence and rendering a general verdict is "one of the great dilemmas in our legal system."(24) Not surprisingly, this dilemma has been widely debated.(25) The practical import of the debate lies in whether the trial court should explicitly instruct the jury that it may disregard the court's instructions on the law and acquit the defendant regardless of the weight of the evidence.

Under current law, the question is not directly a matter of textual constitutional interpretation so much as a policy balance struck either by the courts or by legislatures. The Constitution does not require that the jury be informed of its unreviewable power to acquit in a criminal trial. …

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