Jury Nullification and the Rule of Law
| Publication year | 1988 |
| Pages | 2151 |
| Citation | Vol. 17 No. 11 Pg. 2151 |
1988, November, Pg. 2151. Jury Nullification and the Rule of Law
The operation of the criminal jury system in the United States continues to fascinate those interested in the workings of government.(fn1) This is probably because few organized societies regularly give ordinary citizens the right to decide whether other ordinary citizens are to be held criminally responsible for their conduct. The U.S. Supreme Court described the jury's purpose as being a guardian
against the exercise of arbitrary power---to make available the common sense judgment of the community as a hedge against the overzealous prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge.(fn2)
This language could be interpreted to mean the Court supports the notion of jury nullification---that is, that in certain circumstances juries may ignore or nullify the law and render verdicts based on the jury's own standards of justice.(fn3) This article discusses the concept of jury nullification and the Rule of Law.
In the 1894 case of Sparf & Hanson v. U.S.,(fn4) the U.S. Supreme Court found that the asserted right of jury nullification in criminal cases had remained unsettled and open to debate too long. Writing for the Court, Justice Harlan reviewed prior reported decisions of the Court on the subject, pronouncements of noted jurists, state court decisions and authority from England. Harlan found that in jurisdictions where the matter was not controlled by constitutional or statutory provision, the common law was that counsel could not dispute the law before the jury as the law was declared by the court. He also found that in the federal courts it was the jury's duty in criminal cases to take the law from the court and apply it to the facts as the jury found them from the evidence.(fn5)
Harlan wrote that to do otherwise would only bring, "confusion and uncertainty in the administration of justice."(fn6)
Public and private safety alike would be in peril, if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court and become a law unto themselves. . . .
When Justice Harlan wrote that, "[l]iberty regulated by law is the underlying principle of our institutions,"(fn8) probably he was referring to the Rule of Law, which Black's Law Dictionary says "calls for decisions to be made by the application of known principles without the intervention of discretion in their application."(fn9)When that occurs our government will cease to be a government of laws, and become a government of men. Liberty regulated by law is the underlying principle of our institutions.(fn7)
The interplay of discretion and the application of known legal principles is at the heart of the argument over whether jurors should have the power to determine what the law is or even to ignore the law as it is given to them by the trial judge.
The noted contemporary philosopher John Rawls has warned against a system with too much discretion:
It is therefore not surprising that many people feel uneasy when juries are given too much discretion. However on occasion, law and justice will be in conflict because the law dictates...If deviations from justice as regularity are too pervasive, a serious question may arise whether a system of law exists as opposed to a collection of particular orders designed to advance the interests of a dictator or the ideal of a benevolent despot.(fn10)
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