The Devalued Practice of Jury Nullification

-- By JonathanFriedman - 19 Apr 2009

Introduction

One may argue that a criminal defendant's right to a jury trial is primarily valuable because a jury of citizens may nullify, or refuse to enforce the state's charges. As Justice Holmes describes in The Path of the Law, when the imposition of laws by a government contradicts the morality of the populace they will “rise in rebellion and fight; and this gives some plausibility to the proposition that the law, if not a part of morality, is limited by it.” However, it may be argued that the exercise of jury nullification is no longer desirable, and, even to the extent that it could be desirable, the actual implementation of nullification is flawed and ineffective.

The Justification for the Practice of Jury Nullification

In his article, Making Juries Accountable (50 Am. J. Comp. L. 477), John D. Jackson proposes two main justifications for a jury to nullify. First, juries were once encouraged to nullify “on their view of whether the defendant deserves to be convicted.” Second, juries would nullify where the jury thought the prosecution was inappropriate, or where the defendant, though guilty, was justified in his actions. Essentially, as Jackson puts it, this jury is acting in the role of the mitigator of penalties. For example, American colonial juries systematically nullified attempts to prosecute molasses smugglers who ran British blockades to avoid unpopular tariffs. Similarly, many colonial juries refused to convict on charges of sedition against the Crown. However, systematic jury action of this kind is much rarer in modern U.S. courts.

Transitions and Revelations that Lead to Devaluing

Jury Nullification is not as Relevant as it Once Was

Expressing Consensus Views through the Jury is Unlikely to be Successful

Today, broad consensus of the sort that colonists felt against the British is a much less common phenomenon. Since democratic institutions are created to be responsive to the will of the people, unlike the Crown, the state's position will generally conform to that of a significant portion of the populace. Thus, the issues most likely to inspire jurors to nullify will be politically divisive among the population, rather than opposed by most people.

Mechanisms of Change that are More Appropriate and Effective Now Exist

It is not clear that, in a system where the lawmaking branches are responsive to popular will, jury nullification is necessary at all. The importance of requiring the exhaustion of the established channels of seeking change is a principle established in American legal doctrine, as demonstrated by Justice Stewart’s opinion in Walker v. City of Birmingham (388 U.S. 307). To the extent that the community widely believes that a law is unfair, voters can apply democratic pressures on lawmaking institutions. And even when juries nullify laws that are sanctioned by the popular majority, and even where the law is unjust, such nullification will be sporadic and random, rather than systematic and effective.

Courtroom Procedure Contradicts the Practice

Additionally, court procedures involving juries seem to directly contradict the notion that nullification is central to the jury's function. The Federal Rules of Criminal Procedure dictates that jurors who state an intention to nullify, or who seem likely to nullify should be removed from the jury pool during voir dire or, alternatively, if reported to the judge by a fellow juror after the trial begins, may be dismissed at that point as well. Further, the state can utilize peremptory challenges to remove potential jurors it suspects of harboring strong feelings against the prosecution. If nullifying jurors are intended to provide a moral check on the state's coercive power, it seems contradictory to require jurors opposed to the state's actions to lie under oath, to avoid dismissal by the judge or challenge by the prosecutor, in order to be empanelled.

Once they are selected, jurors are almost always instructed to reach a verdict based on careful consideration of the facts of the case, and counsel is not permitted to tell them that they can disregard the facts in reaching their verdict. If nullification is, indeed, such an important part of the jury's role, it seems contradictory that the process forbids anyone in the court from telling the jurors about it. Indeed, jurors are much less likely to unite in moral opposition to the state than they are to simply misunderstand or fail to comprehend testimony and evidence, leading to wrong or arbitrary outcomes.

Jury Nullification is Ineffective

Jerome Frank, in The Role of the Courts, explained that the very necessity of transmitting information between witness and fact-finders leads to unavoidable misinterpretation. Frank contends that it requires magical thinking to assume that a jury is capable of analyzing the facts and reaching a sound decision based on the objective evidence. Witnesses routinely fail to “reproduce mechanically the events which they saw and heard,” and, further, “judges or juries are fallible witnesses of the fallible witness.” In other words, witnesses are likely to get the facts wrong, and even when the witnesses get things right, juries are likely to misunderstand them.

Conclusion

A jury that deliberates in secret and creates no record of its process may reach a decision based on careful study of the facts. It may nullify in outrage at state action. It may earnestly attempt to interpret the facts alone and fail, reaching a wrong conclusion based on flawed assumptions. Finally, it may act on invidious or irrational prejudices, allowing the defendant's race or counsel's clothes to influence the outcome. The ultimate verdict is binary, and difficult to overturn, and the process as it stands is opaque.

So, it comes to light that the assumption behind this secrecy seems to be that any of these bases for reaching a verdict is currently considered valid. Or alternatively, society gives the same validity to a jury that acts misguidedly as to one that acts with earnest resolve to do good. This is not desirable, when there are alternative paths toward creating change in the state of the law, but it is solely up to the jury to find the facts in as unbiased a manner as possible. For this reason, jury nullification should be discouraged.