Sparf and Dougherty revisited: why the court should instruct the jury of its nullification right.

Author:Brody, David C.


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.

  1. 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)

    1. 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...

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