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.(26) Nor does the Constitution prevent a legislature from mandating that the jury be informed of this power.(27) Thus, the question of whether to instruct the jury of its power to acquit against the weight of the evidence must be resolved through consideration of the benefits and harms that such an instruction would produce.

Proponents of instructing the jury(28) argue that: 1) the jury's right to an instruction existed from colonial times through the early 1800,S;(29) 2) the jury's use of its power to extend mercy is needed to do justice in specific, unanticipated cases and fact situations;(30) 3) the power places a curb on the power of judges, legislators, prosecutors, and police;(31) and 4) the jury's knowledge of this power allows it to apply community standards to the law.(32) On the other hand, courts(33) and commentators(34) opposed to instructing the jury of its absolute right to acquit argue that such an instruction will 1) lead to anarchy;(35) 2) defeat the will of the people;(36) 3) violate the defendant's rights;(37) 4) lead to unjust verdicts;(38) and 5) place too great a burden on jurors' psyches.(39)

The leading case capturing this debate is United States v. Dougherty,(40) in which Judge Levanthal, over a vigorous dissent by Chief Judge Bazelon, struck the balance by approving a lower court's refusal to instruct the jury.(41) The circuits and states that have considered the issue have thus far followed the Dougherty majority.(42)

I think that Chief Judge Bazelon had the better of the argument. This Article revisits the debate over instructions to the jury on its nullification power and concludes that the courts in Sparf and Dougherty wrongly struck the balance by overstating the likelihood that informed juries will unjustly acquit and by understating the harms to jurors and the justice system produced by the failure to provide a nullification instruction.

The Article proposes a procedure for informing the jury of its nullification power, including a model instruction and a list of steps a trial court can take when it believes nullification may be an issue.

I. Brief History of Juries and Jury Nullification

The history of jury nullification is bound up with the larger history of the jury's role in American criminal law. After 1670 in England and since America's founding, juries were given broad power to decide the law and the facts in a criminal case. This power was established in England by Bushell's Case(43) and accepted in America in the trial of John Peter Zenger.(44) The Framers considered the jury's role as the voice of the community checking potential abuses by government officials to be essential to the preservation of liberty.(45)

In the last century, however, the jury's role has been scaled back. In 1895, the Supreme Court decided that the jury was not to be given instructions articulating a right to decide a criminal case according to the jury's conscience.(46) The issue was revisited more recently by various courts of appeals, which decided against allowing instructions on the jury's unreviewable power to acquit a defendant in a criminal case.(47)

A. Early History

Prior to 1670, under the English common law, juries in a criminal prosecution could be punished for finding a defendant not guilty if the court believed the evidence clearly proved guilt.(48) This result would occur from time to time as juries tried to temper the rigidity and severity of the criminal law and its corresponding punishments.(49) In 1670, William Penn and William Mead were tried in London for allegedly preaching to an unlawful assembly.(50) Following the presentation of the witnesses and arguments of the parties, the jury retired to deliberate for several hours before delivering verdicts of not guilty. Upon hearing the not-guilty verdicts, the court ordered the jury to resume its deliberations and told the jurors that they would be locked up and denied food and water until they returned with a verdict acceptable to the court.(51) Despite several more hours of deliberation, the jury refused to change its verdicts. The court fined each juror forty marks and imprisoned each until the fine was paid.(52)

Edward Bushell and the other imprisoned jurors filed a habeas corpus petition in the Court of Common Pleas requesting their release. After a hearing before the court, Chief Justice Vaughan ordered Bushell and the others released.(53) The court found that the jury had the right to give a verdict according to its convictions and not merely at the direction of the court.(54) The jury's right to decide the ultimate issue of law (the guilt or innocence of the accused) in a criminal case thus was formally established.(55)

In 1735, the issue of the jury's right to decide questions of law(56) arose in the American colonies. John Peter Zenger was charged with seditious libel for publishing an anti-british newspaper: a charge for which he doubtlessly was guilty.(57) At his trial in New York, his attorney, Alexander Hamilton, argued to the court that the jurors "ha[d] the right, beyond all dispute, to determine both the law and the fact[s],(58) While a conviction was widely anticipated because of the strong evidence of guilt, the jury returned a verdict of not guilty after deliberating for only several minutes.(59)

Hamilton's argument and the jury's verdict reflect the standard adhered to during the colonial period: the jury is the judge of the law and facts in a criminal trial.(60) Under early American common law, the jury's right to determine the law through a general verdict was the norm(61) and was viewed as "a symbol of trust in the public's sense of justice."(62) The legal community presumed and accepted this standard as well.(63) As was noted in the colonial period, "[t]he great constitutional lawyers and judges of [the English and American] Revolutionary period[s]--Somers and Holt, Adams, Jay, Wilson, Iredell, Chase, Marshall, Hamilton, Parsons, and Kent--with one voice maintained the right of the jury upon the general issue to [be the] judge of the law as well as the fact."(64)

When the colonies gained independence and began to develop a national constitution, the Framers sought to protect the citizenry from the misuse of power by the government.(65) To prevent oppression from the courts of the new nation, the Framers clung to the concept of jury nullification.(66) Moreover, [t]he only right secured in all state constitutions penned between 1776 and 1787 was the right of jury trial in criminal cases."(67) Responding to the distrust felt toward the courts and the high regard in which the jury was held, the Framers guaranteed jury trials in criminal matters.(68) Similarly, the First Congress included the Sixth(69) and Seventh(70) Amendments among the Bill of Rights, further guaranteeing the right to a jury in a criminal trial.(71)

B. The Jury as a Necessary Intermediary

The Sixth Amendment's guarantee of a jury trial embodies a fundamental principle required to ensure justice that a group of citizens mediate between the court, the prosecutor, and the defendant in a criminal trial. Although some recent high-profile acquittals(72) have put pressure on the institution of the jury, throughout our history the courts have continuously recognized the importance of giving the jury the power to decide the question of guilt or innocence even when the jury's answer differs from the more "accurate" result a bench trial would have produced. Before examining the history of changes in the scope of the jury's power, it is useful to examine the broader reasons advanced by courts and commentators to justify the existence of juries at all.

The Supreme Court repeatedly has held that "the inestimable privilege of trial by jury . . . is a vital principle, underlying the whole administration of criminal justice."(73) Professor Wigmore most eloquently provides the general rationale for why this is so:

Law and Justice are from time to time inevitably in conflict. That is

because law is a general rule[(74)] . . . while justice is the fairness of this

precise case under all circumstances. And as a rule of law only takes

account of broadly typical conditions, and is aimed on average results, law

and justice every so often do not coincide.

We want justice, and we think we are going to get it through 'the law,' and

when we do not, we blame the law.

Now this is where the jury comes in. The jury, in the privacy of its

retirement, adjusts the general rule of law to the justice of the particular

case. Thus the odium of inflexible rules of law is avoided, and popular

satisfaction is preserved.(75)

A host of commentators and courts concur.(76) As Judge Learned Hand stated, the institution of trial by jury "introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions."(77)

Courts presumably also try to reach just results in the application of the general law to specific facts. But there are fundamental reasons why we may trust a jury as opposed to a court to reach a just result.(78) Three reasons recognized by the Supreme Court are that the jury has different incentives than the court,(79) the jury draws from broader experience to reach a just result,(80) and "the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence."(81)

Influential social science data support our intuitions about juries.(82) In Duncan v. Louisiana,(83) the Supreme Court explained "when juries differ with the result at which the judge would have arrived, it is usually because they are serving some of the very purposes for which they were created and for which they are now employed."(84)

C. Scope of the Jury's Power

While the Sixth and Seventh Amendments preserve the right to a trial by jury, neither provision explicitly describes the scope of the jury's power. Evidence from early American history supports the proposition that juries had the power and the right to decide the law in a criminal case.(85) During the nineteenth century, however, the law became less clear, with some courts providing the jury with advisory instructions as to what the applicable law was and other courts supplying mandatory instructions requiring the jury to apply the law as given by the court.

Part of what clouds the issue is confusion over the scope of the jury's power to "decide the law." A limited view applies the phrase only to the power to render a general verdict. Since the question of guilt or innocence almost always involves a mixed question of law and fact, through rendering a general verdict as to guilt, the jury is the judge of the law insofar as it applies to specific facts. A broader interpretation, which held some currency early on but which was soon rejected, was that the jury also had the power to declare a statute unconstitutional.

At the time the Constitution was being considered for ratification, evidence indicates that a number of jurists assumed that the jury had the authority to decide questions of both law and fact by rendering a general verdict.(86) For example, in 1788, Theophilus Parsons, Chief Justice of Massachusetts, defended the absence of a bill of rights in the Constitution submitted for ratification by arguing that a bill of rights was not necessary because a jury had the right to refuse to convict a person charged with a law deemed overreaching or usurpatious.(87)

Members of the early Congresses, many of whom participated in the framing of the Constitution, also appear to have accepted the jury's right to decide the law in a criminal case. The debate and legislation concerning the Sedition Law of 1798(88) evidences the state of the jury's right to decide questions of law. According to the last clause of that law, "the jury who shall try the cause, shall have a right to determine the law and the fact, under the direction of the court, as in other cases."(89) In this clause, Congress explicitly stated the jury's right to decide questions of law in criminal cases. During the debate over the Sedition Act in the House of Representatives, Representative William Claiborne suggested the Act be amended to include language protecting the jury's right to be the judge of …

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Publication information: Article title: Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right. Contributors: Brody, David C. - Author. Journal title: American Criminal Law Review. Volume: 33. Issue: 1 Publication date: Fall 1995. Page number: 89+. © 1994 Georgetown University Law Center. COPYRIGHT 1995 Gale Group.

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