Capital confusion: the effect of jury instructions on the decision to impose death.

• Author: Cho, Susie

1. INTRODUCTION

   In criminal cases, the Sixth Amendment to the United States Constitution guarantees to the accused the right of trial by jury.(1) Historically, the jury has been exalted as the conscience of the community and as a buffer between the state and the accused.(2) At the same time, however, there have been fears of juror incompetence and partiality. juries that cannot or will not apply the law pose a danger to the liberties of a defendant. This concern is particularly relevant in capital cases where the severity and finality of the "ultimate" punishment require an accurate application of the law.

   This comment discusses the sentencing jury's comprehension and application of the law in capital cases. Beginning with Section Two, this comment explores the jury's role as finder of fact, while warning against the danger of giving juries discretionary power which could lead to jury nullification. Section Three provides an overview of the sentencer's role in death penalty cases, focusing specifically on the Supreme Court's efforts to resolve the tension between avoiding the arbitrary infliction of the death penalty and handing down a sentence suited to the individual defendant. Section Four analyzes the effectiveness of pattern jury instructions, including evidence of juror incomprehension of such instructions. Finally, in Section Five, this comment concludes that defendants in death penalty cases must have the right to appellate review of juror comprehension of instructions. Without this right, defendants are not fully protected against the arbitrary and capricious infliction of the death penalty.

2. ROLE OF THE JURY

   1. HISTORICAL DEVELOPMENT

      Although there is debate as to whether the jury system originated as a uniquely English institution,(3) commentators in England valued the jury,(4) and the United States adopted the basic English system at its inception.(5) The Framers of the Constitution viewed the jury trial as an effective mechanism for maintaining "local control over the critical decisions of government."(6) In the criminal trial, however, jurors played a greater role than in civil cases. This heightened degree of discretion reflected the thinking that in criminal law, as opposed to civil law, laypersons could determine moral culpability as competently as judges.(7) The Supreme Court also recognized the integral role of the jury in criminal proceedings: "Those who wrote our constitutions know from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority."(8)

   2. JURY NULLIFICATION: IS THE Jury THE FINDER OF FACT OR THE FINDER OF LAW?

      People criticize the system of trial by jury as often as they praise it.(9) Many criticisms focus on the competence and representativeness of jury members. Underlying these criticisms is the belief that jurors invent laws or nullify existing law by straying from formal jury instructions.(10) Generally, jury nullification occurs whenever a jury uses its discretionary power to modify or circumvent the requirements of the law.(11) To its advocates, jury nullification is the power to "perfect" the law by injecting a "touch of mercy" where it may not be pennitted.(12) Under this definition, jury nullification allows the jury to vote its conscience.

      Jury nullification occurs in practice through the use of the general verdict.(13) When the juries pronounce their verdict of "guilty" or "not guilty," the court does not seek justification from them.(14) Juries do not, and in most cases may not, reveal the facts found, their reasons, or the method in which they applied the court's instructions during deliberation.(15) Since appellate courts generally cannot set the verdict aside when a jury acquits, the jury is able to effectively make or nullify existing law, even though the evidence would seem to clearly support a finding of guilty.(16) Although three states permit a jury nullification instruction,(17) the Supreme Court and lower courts are uneasy about the power of jury nullification.(18) Similarly, commentators argue that jury nullification comes close to anarchy.(19)

      Proponents of jury nullification cite early precedent in support of the right to nullify, particularly the 1735 trial of John Peter Zenger.(20) Zenger, a printer in the colony of New York, printed stories criticizing the Royal Governor of New York, William Cosby.(21) While political opponents of Cosby controlled the content of the paper and Zenger only printed it,(22) Zenger was prosecuted for the publication of the articles pursuant to the doctrine of seditious libel.(23) Zenger's defense counsel, Andrew Hamilton, decided to concede the issue of publication and argue the legal questions of whether the publication was libelous and whether truth should be a viable defense.(24)

      Although both legal issues were decidedly against Zenger,(25) Hamilton argued that the jury must go beyond its traditional role as the finder of fact and nullify the law in order to return a true general verdict:(26)

      [Juries] have the right beyond all dispute to determine both the law and

      the facts, and where they do not doubt of the law, they ought to do so.

      This of leaving it to the judgment of the Court whether the words are

      libelous or not in effect renders juries useless (to say no worse) in many

      cases.(27) Although the judge instructed the jury that they must follow the law, the jury returned a not guilty verdict.

      At the time of the Zenger trial, and throughout the early years of the republic, there was a wide-spread uneasiness of government authority. The emerging philosophy of democracy motivated the people to seek control over almost every aspect of government, including the administration of law and justice.28 The trial of John Peter Zenger thus came to represent an American tradition of the jury's right to decide the law. Over time, however, the justifications for jury nullification became less compelling. Suffrage was slowly granted, and thus, the people had greater input into government through their elected representatives. Such representatives included judges, who were no longer appointees of the crown but were instead either elected by the people, or appointed by representatives elected by the people.(29)

      Judges have since restricted the jury's prerogative to make the law. Culminating in Sparf & Hansen v. United States,(30) the Supreme Court has rejected the right of jury nullification and limited the jury's role to that of finder of fact. As the Court stated in Sparf & Hansen, "[p]ublic 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."(31) Under a jury nullification system, the judge's primary duty would be to preside and keep order, while jurors who were untrained in the law would decide cases according to their perceptions of relevant legal principles.(32) As a result,

      the courts, although established in order to declare the law, would for

      every practical purpose be eliminated from our system of government as

      instrumentalities devised for the protection equally of society and of individuals

      in their essential rights. 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.(33) After Sparf & Hansen, it is evident that jury nullification arose out of the Zenger trial solely as an extreme reaction to unrepresentative authority. Since this concern is no longer present, the Zenger trial does not support a right to jury nullification.(34) Apart from precedent, proponents of jury nullification claim that the jury, as a representative cross-section of the community,(35) can provide a mechanism for legislative change by nullifying unpopular and obsolete laws.(36) jury nullification can thus provide a refuge for those who may have violated the letter, but not the spirit of the law.(37) Moreover, jurors who are forced by the judge's instructions to convict a defendant whose conduct they support, or at least feel is justifiable, will feel betrayed by a court that forces them to reach such a result.38

      This argument reveals an important difference between modern jury nullification doctrine and traditional doctrine: the proponent's assertion that jurors have the right to vote according to their personal views of morality.(39) Today, nullification is urged not so that a jury can refuse to apply an oppressive law,(40) but rather so that the jury can further the defendant's political or social agenda. Antinuclear protest cases(41) and abortion protest cases(42) are examples where the defendant asked for a jury nullification instruction.

      This argument fails to consider the fact that jury nullification of this kind would inhibit rather than encourage implementation of necessary legislative reform.(43) Advocating juries to ignore the law or to return a verdict contrary to both the evidence and the law invites chaos. Equal justice is not served when one defendant is rescued from an unpopular law by jury nullification, because the perception is that justice is basically being done.(44) With this in mind, there is little incentive for legislative action. The law most likely will remain on the books, adversely affecting those unlucky defendants who did not receive a jury willing to exercise nullification.(45) Therefore, juries should not act as quasi-legislators, deciding which laws to eliminate or revise.(46)

      Courts have almost universally condemned the doctrine of jury nullification. One study of 204 jury verdicts found that rule departures occurred only under fairly specialized circumstances, particularly in cases involving a serious offense, a young victim, or an employed defendant.(47) Considering the lack of judicial support for...