On jury nullification.

I wrote a short essay for a judicial process class on the topic of jury nullification a couple of years ago. I’ve found few people who are familiar with this interesting legal concept, so I figure it’s worth posting the paper, with citations and such removed.

With the understanding that below is the entirety of my knowledge on the subject, I’d like to see jurors in Virginia informed that they have the power of jury nullification.

Jury nullification is the common law principle that permits juries to refuse to convict somebody who is demonstrably guilty of violating the law. This is seen primarily as a form of protest against the law, either with regard to its application, its relevance within the context of the community, or its very existence. While some see jury nullification as an extralegal method of circumventing the law, others argue that it “is an integral part of the law itself.”

The use of this legal principle has enjoyed recent popularity in part because of its usefulness to certain groups. Organizations that champion causes which are not sufficiently popular to yield a legislative change in law may find that the promotion of jury nullification can be enough to prevent some convictions under the law in question. Euthanasia, medical marijuana, and abortion are all matters in which jury nullification can be usefully employed as a form of legal protest. Divisive issues are nothing new, of course – it is the recent trend of harsh, scaled sentencing that has assisted in the boost of the popularity of jury nullification. “Three strikes” laws, in particular, have led to juries that are unwilling to convict, out of concern that the accused will receive a punishment out of proportion to the crime.

The proposed amendment to Article VI, Section 27 of the Arizona State Constitution could have a meaningful impact on the extent of jury nullification in state trials. The information provided to jurors in Arizona is inconsistent, if not insufficient, and, if the state is much like others, the consistent provision of this information would likely yield verdicts more likely to be perceived as fair.

In November 1994, the Arizona Judicial Council’s Committee on More Effective Use of Juries completed their two-year mission, which culminated in a report, “Jurors: The Power of Twelve”. In addition to other jury trial system reformation recommendations, the group of legal experts recommended against informing juries about jury nullification. Within the context of informing juries about the sentencing range that will result from a “guilty” verdict, the group acknowledged that jury nullification is a power inherent to the jury, as well as the existence of the debate over whether juries should be informed about the power. They concluded, however, that “[e]xcept in extraordinary cases, the jury should not be instructed one way or the other regarding jury nullification in criminal cases,” and that “[a]ttornies in criminal and civil trials should not be permitted to argue jury nullification.”

After the report was issued, the group reconvened to answer more questions, and issued a second report in 1996. On that occasion, on the topic of making jurors aware of the range of potential sentences depending on their verdict, there was a split in the committee, with 8 believing that jurors should be informed, and 4 believing that they should not. The main argument against informing jurors was that jury nullification would occur with too great of a frequency if jurors knew about the severity of the likely punishment.

On the other hand, there is the jury guide provided by the Arizona Supreme Court. It is a brochure-length guide for potential jurors, much like similar guides provided by many states, with the noteworthy feature of its allusion to the existence of jury nullification, though those words are never used. Two paragraphs in particular stand out:

The “Conscience of the Community”
Throughout our history, juries have asserted the conscience of the community against unjust laws and arbitrary government authority. In 1734, John Peter Zenger, publisher of the New York Weekly Journal, was tried for seditious libel for printing blistering criticism of the governor of the colony. A jury acquitted him and established a landmark for freedom of the press.

Why do we love this trial by jury? Because it prevents the hand of oppression from cutting you off.
Colonial juries also refused to enforce the Stamp Act, a tax on paper that was seen as an attempt at newspaper censorship. In the 1850’s, juries in the North frequently refused to convict defendants charged with violating the Fugitive Slave Law under which runaway slaves were required to be returned to their owners. Juries are expected to reflect the community’s values of right and wrong when they apply the narrow letter of the law.

The provision of this information stands in direct conflict with the recommendations of the Arizona Judicial Council’s Committee on More Effective Use of Juries, in addition to the demands of lawmakers seeking a constitutional modification to ensure that juries are aware of the option. Presumably, the information is not provided to those jurors who have been selected through voir dire, at least not in a manner as explicit as in the Supreme Court’s jurors’ guide.

Should the proposed constitutional amendment or one like it ever pass, the decisions reached by Arizona juries may well be “more just and equitable,” if the University of Toledo’s nullification-instructions study is meaningful.

This proposed amendment to the Arizona State Constitution has not passed, and there are likely several different reasons for that. Firstly, it would be easy for a legislator’s vote in favor of such a bill to be cast in a negative light by future electoral opposition. Permitting the guilty to go free could be painted as being “soft on crime” – a smart opponent would attempt to make criminal justice a central tenet of his campaign, presenting a hypothetical picture of an avowed serial killer being set free, never to be tried again, because of the incumbent’s vote in favor of jury nullification. Secondly, state legislators are often attorneys, and are presumably sympathetic to the causes common to the legal profession. Given the opposition among legal professionals to making juries aware of jury nullification, it seems reasonable that elected officials would share this opposition. Thirdly, state constitutions are difficult to amend by design – since the Fully Informed Jury Association just started pushing state legislatures to make such amendments a little over a decade ago, it’s understandable that few states would have done so by now.

Jurors should be informed of their right to nullification.

Jury nullification cuts to the core of modern democracy. From John Peter Zenger to the Stamp Act to the Fugitive Slave Law, the United States owes signification portions of its character to jury nullification, or at least the ideals underpinning it. In our nation, the tyranny of the majority is most likely to manifest itself in the form of unfair laws, such as the allowance of slavery in the early days of the nation, or modern laws that punish those who possess crack cocaine differently than those who possess powered cocaine. So long as the minority remains a minority, it is difficult or even impossible for them to modify the laws to render them fair. The last available recourse under those circumstances is the power of jury nullification. It is with this method that communities can enforce laws in a manner that is consistent with their values, and not those values dictated to them by lawmakers in a far-away capital.

It is also important to present the option of nullification because jury nullification exists. So long as it is a part of the law of the land, failure to inform jurors of it is nothing more than placing blinders on them, preventing them from being aware of an important element of the democratic process. In that they are average citizens, and not legal professionals, jurors are dependent on the court in order to be aware of the judicial process, and they should be able to trust the court to provide full and accurate guidance. Quite simply, laws should be enforced. (This statement is not made without an understanding of its irony.)

Above all, the existence of jury nullification and the practice of informing juries of their ability to rule accordingly aids in the legitimacy of the government and the judicial system. The Rodney King and O.J. Simpson rulings both undermined the public sense of trust in the fairness of the legal process. With the judicial system famously having neither the power of the purse nor the sword, in addition to precious little public oversight, it relies on public support more than the legislature or the executive. The existence of and availability of jury nullification is an essential element of maintaining the legitimacy of the system.