Jury: Legal Aspects

In England, although jury nullification was recognized and even welcomed in some cases, juries never acquired any official authority to disregard the instructions of judges and resolve questions of law for themselves. In America following the Revolution, however, the authority of juries to resolve issue of law was frequently confirmed by constitutions, statutes, and judicial decisions.

How American juries gained their authority to resolve questions of law is obscure. When, however, Andrew Hamilton declared in the Zenger trial in 1735 that juries "have the right . . . to determine both the law and the fact," he insisted that this authority was "beyond all dispute." Hamilton's position probably reflected the practice in some colonies but not all. In the absence of law books and law-trained judges, colonial jurors may have seemed as well suited to resolve legal issues as anyone else. In 1771, John Adams called it "an Absurdity to suppose that the Law would oblige [jurors] to find a Verdict according to the Direction of the Court, against their own Opinion, Judgment, and Conscience" (Adams, vol. 1, p. 230).

Whether juries should be the judges of law as well as fact was a contentious issue throughout the first half of the nineteenth century, but over the course of the second half of the century, legal issues became, almost everywhere, the exclusive province of the court. The Supreme Court endorsed this position in 1895 in Sparf and Hansenv. United States, 156 U.S. 51 (1895). The Court acknowledged that federal courts in earlier decades often had told jurors that they were to judge both the law and the facts. It nevertheless held that jurors must be bound by judicial instructions concerning the law.

The constitutions of three states—Georgia, Indiana, and Maryland—still declare that jurors shall judge questions of law as well as fact. In all three states, however, judicial decisions have effectively nullified these constitutional provisions. The clear rule in all other American jurisdictions is that juries must "take their law" as the trial judge declares it.

Jurors have the practical power to disregard this rule and to acquit defendants despite unmistakable proof of their guilt. Under the "principle of noncoercion of jurors" established by Bushell's Case in 1671, they may not be punished for doing so, and the double jeopardy clause prevents judges from setting aside their acquittals, however lawless they may seem (United States v. Scott, 437 U.S. 82 (1978)).

In the late 1960s and 1970s, defendants charged with unlawful resistance to the Vietnam War frequently contended that because jurors have a right to acquit whenever conviction would be unjust, judges should inform jurors of this right and allow defense attorneys to argue in favor of its exercise. Appellate courts uniformly rejected this argument. They insisted that jurors have the power to nullify the law but not the right.

The leading case is United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972). The court did not deny in Dougherty that jury nullification was sometimes appropriate. Indeed, it wrote, "The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge." The court nevertheless concluded, "[W]hat is tolerable or even desirable as an informal, self-initiated exception, harbors grave dangers to the system if it is opened to expansion and intensification through incorporation in the judge's instruction." In the court's view, jurors should view nullification, not as a right, but as a form of civil disobedience.

Nearly everyone applauds the Zenger jury's nullification of the law of seditious libel and the nullification of fugitive slave laws by Northern juries in the period before the Civil War (although fugitive slave cases came before juries very infrequently). Some may also applaud the nullification of laws forbidding draft resistance during the Vietnam era and laws imposing harsh drug sentences today. Hardly anyone, however, applauds the nullification by Southern juries of laws forbidding the murder of blacks and white civil rights workers from the end of Reconstruction through the 1960s. The most frequent form of jury nullification probably has been, and still is, the nullification of laws against violence when juries have concluded that the victims of this violence "deserved it." Moreover, over the course of American history, many juries have seen skin color as an indicator of which victims "deserved it." For many, the 1991 acquittal of the police officers who were videotaped beating Rodney King confirmed that some American juries still tolerate violence against blacks. The King verdict triggered the worst race riot in American history, two days of violence that claimed fifty-eight lives and cost nearly one billion dollars in property damage.

In a reversal of historic roles, whites apparently have begun to fear black jurors. A controversial 1995 Yale Law Journal article argued that black jurors should vote to acquit black defendants in drug cases and other cases regardless of the evidence of their guilt (Butler). Although this article opposed the acquittal of black defendants who had committed crimes of violence, a few publicized acquittals and hung juries (including, justifiably or unjustifiably, the acquittal of O. J. Simpson) have prompted concern that black jurors may block the conviction of black defendants who have committed serious crimes against whites. Some members of America's majority race have begun to experience a glimmer of the fear of juries that the members of minority races have experienced throughout U.S. history.

A federal Court of Appeals declared in 1997, "We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent" (United States v. Thomas, 116 F.3d 606 (2d Cir.1997)). The court held that, even after jury deliberations had begun, a trial judge could remove a juror who had revealed "beyond doubt" an intention to violate the court's instructions. A jury instruction approved in California in 1998 requires jurors to "immediately advise" the court when "any juror . . . expresses an intention to disregard the law or to decide the case on . . . any . . . improper basis." In 2000, the California Supreme Court agreed to consider the appropriateness of this instruction, which three districts of the California Court of Appeal had upheld.

Dougherty and other Vietnam-era decisions declining to inform jurors of a "right" to nullify had indicated that jury nullification could be appropriate. They had sought only to specify the terms on which this nullification would occur. Thirty years later, however, a juror's advocacy of nullification on the terms Dougherty approved could lead to the juror's dismissal. Moreover, this juror's fellows could be instructed to assume the jury's long-abandoned role as witnesses, monitoring the jury room on behalf of the court to facilitate the rebellious juror's expulsion.