HEBETS & MCCALLIN LEGAL ESSAY WINNER
May 2, 2012
This spring Hebets & McCallin conducted a national essay competition for writings related to criminal defense topics. The winner of this year’s contest is Joshua Wilson from Kansas State University. His essay appears in full below, and in the coming weeks several of the other notable essays will appear on our blog also.
An Argument Regarding the Delicate Safeguard of Jury Nullification
JOSHUA TANNER WILSON
Legal Communications Scholar
Sophomore, Kansas State University
In the fall of 1670, William Penn, the future father of Pennsylvania, along with his codefendant, William Mead, stood trial before twelve of their peers for unlawful outdoor preaching which allegedly caused a public disturbance. After preliminary deliberation, the jury returned a verdict finding Mead not guilty and Penn, “guilty of speaking or preaching to an assembly, met together in Grace-church street,” but they declined to use the term ‘unlawful’ in their verdict. The court rejected the verdict, since it didn’t conform to the accusation of an ‘unlawful’ assembly, and ordered the jury to render a verdict that conformed to the accusation. After two days of confinement without food, drink, or other accommodations, the jury ultimately returned a verdict of ‘not guilty’ in the teeth of both fact and law. The Recorder of London fined the jurors for contempt of court and then threw them in jail until they paid the fine. One of the jurors, a man by the name of Edward Bushell, was granted a writ of habeas corpus by the court of common pleas which subsequently ruled that jurors could no longer be, “punished for not finding in accordance with the courts instructions”.
Ever since this landmark decision in the history of western law, the question has been raised: Should the jury have the right to ignore the law when handing down their verdict? This practice, often labeled “jury nullification,” is just as applicable and controversial today as it was in 1670. Although not without pitfalls, the ability of a jury to issue a verdict that is at odds with the court’s interpretation of the law is a necessary element in the judicial system’s protection of the rights of the accused. Nevertheless, it should not be actively encouraged.
Many use the term ‘jury nullification’ pejoratively to infer that the jury has, in effect, done away with the law in question. In all but the rarest of cases (such as in the particular local mentioned by Neubauer and Meinhold where the prosecutor refused to prosecute a minor drug possession law “because jurors will not convict in possession-of-marijuana cases”) the jury do not void the application of a law in its entirety; they merely bend it in a particular instance. As Guinther notes, “The law selected may not have been the one the judge would have preferred, may not technically fit the evidence, but the jury has rejected the law only in the narrow sense that it has chosen another; the one it has rejected remains in effect.”. Thus, the term ‘nullification’ must be used loosely as the jury in such an instance is simply extending their scrutiny to cover a particular application of the law, not the law per se, in addition to the facts of the case.
The appropriate use of jury nullification can be justified on several grounds. Among other reasons, it is firmly established in precedent, cannot be practically eliminated, acknowledges the interplay of law and fact, gives common sense flexibility to the law, provides a check against majority rule, leads to the creation of more just laws, and favors the innocent. This wholehearted defense must, however, include the caveat that jury nullification should not be unnecessarily encouraged; this will serve to mitigate its potential for misuse.
This prerogative of the jury is firmly established in historical precedent. Without the ability to defy unjust application of the law, the jury is an empty right…and so it often was, until Edward Bushell. Ever since then it has been assumed that jury have the sole right to determine innocence and guilt, even when an acquittal seems to directly conflict with the law as interpreted by the court. The first recorded instance of jury nullification in Americawas in 1735 when a New York jury acquitted Peter Zenger of libel since the words were commonly known to be true. Since then it has been used to acquit apartheid protesters, prohibitionists, abortionists, war protesters, marijuana users, abolitionists, homicidal victims of abuse, and, perhaps most controversially, racist behavior, especially in the early 20th century South. For every instance that one can find to praise it seems that one can find an opposite verdict to vilify.
From a practical standpoint, jury nullification is virtually inevitable and cannot be stopped without completely eviscerating the fundamental right to trial by a jury of one’s peers. Since the jury has the ultimate jurisdiction over the factual guilt of the defendant, they will always have the power to acquit in variance to the facts. Juries can always give a surprising verdict; to disregard it because certain individuals, or even a majority of society, don’t like the verdict would be a violation of double jeopardy and reduce the jury to a powerless formality, not much more than a rubber stamp. Although seeming to disapprove of jury nullification, Neubauer and Meinhold cede that “Indeed, the right to trial by jury creates the right to jury nullification.” Since we cannot attempt to eradicate jury nullification, the question then becomes primarily normative: Ought juries to take their views of the law into account in their verdict and to what degree should such behavior be encouraged or discouraged?
It is convenient to talk as if there is a clear distinction between law and fact, however, in reality, the two are so intertwined that it would be practically impossible to completely separate the two. Even as far back as colonial times, locals, such as Virginia, acknowledged that “most of the time there would be no clear distinction between facts and law”. For instance, the jury has the obligation to determine whether a particular defendant’s actions meet the definition of a particular crime; although ostensibly a question of fact, such a determination inherently requires an interpretation of the potential applicability of the law and, at least a subconscious, judgment as to which, if any, particular codified sanction is appropriate for the alleged behavior. In the words of Professor Thomas Regnier, “Today, we might use the word “holistically,” or we might say that the jury looks at the “gestalt” of the case and then reaches a verdict. The two must be decided together because a law without a fact is meaningless…What has come to be called “jury nullification” today is merely an occasional byproduct of a jury’s right and duty to determine the law and the facts complicately.”. He also notes that the ability of the jury to return a “special verdict,” where they only state their findings on specific facts, further demonstrates that a normal verdict is a holistic determination which, at least implicitly, takes the law into account as well.
Not every case before a jury, with its own unique combination of circumstances, will perfectly fit the law, which is seemingly unbending in its written form. This can occasionally create dilemmas when the letter of the law would seem to unreasonably apply to a relatively harmless behavior. That is what the jury trial is for. It supplies that flexibility to legal rules which is essential for justice and popular contentment. Regnier quotes the legal scholar John H. Wigmore on the subject, “Law and justice are from time to time inevitably in conflict…Now this is where the jury comes in. The jury, in the privacy of its retirement, adjusts the general rule of law to the justice of the particular case. Thus the odium of inflexible rules of law is avoided, and popular satisfaction is preserved.” From the 1735 acquittal of Peter Zenger to the 2009 acquittal of honorably discharged veteran Keith Alexander of gun possession charges, jury nullification has consistently been used in this manner to balance the general law with the community’s notions of justice.
Many have objected that such a view of the jury process subordinates law to popularity and majority whim. Such a criticism seems quite potent until one realizes that what is referred to as ‘law’ is merely the majority rule of a larger community. Thus the difference is not so much one of type as of magnitude. Viewed in this manner, the ultimate ability of the jury to acquit regardless of majority interpretation of law is a way to protect the rights of minorities in the application of the law. As the preeminent Harvard Dean Roscoe Pound noted, “Jury lawlessness is the greatest corrective of law in its actual administration. The will of the state at large imposed on a reluctant community, the will of a majority imposed on a vigorous and determined minority, find the same obstacle in the local jury that formerly confronted kings and ministers.” A jury of peers is distinctly suited to this task as they are most likely to have a sense of a particular community’s norms and sensibilities. This approach was perhaps most powerfully stated by Sean Overland, “The jury applies community values and beliefs to the administration of justice. As such, the jury verdict is more than a statement of fact; it is also an expression of popular will.” Such a view of the jury’s essence leads him to the conclusion that particular verdicts are no more right or wrong than an election, since, in both instances, those within a particular community are expressing the will of that community in regards to how the law should be applied.
Sometimes the law itself is unjust. It certainly should not be assumed to be so, and should only rarely be treated as such, but in such cases the jury may be the final check to draw attention to unjust laws. In 18th and 19th century England many crimes that we would consider fairly minor today had prescribed sanctions clearly out of proportion to the harm inflicted by the miscreant. Due to the harsh penalties, many juries would engage in nullification by acquitting rather than impose a sentence of capital punishment. At one point, bankers even asked the legislature to repeal the death penalty for forgery because too many forgers were being acquitted by juries. In fact, “Historians maintain that the reluctance of juries to return verdicts of guilty during the period of the bloody code led to the decline of capital punishment in England.” In these and other cases jury nullification has lead to more just laws.
Ruling on the law has even lead to a more just system in those cases where jury nullification is almost universally presumed to have gone awry. The repudiated practice of acquitting racially motivated crimes is often cited against jury nullification, however, “the revulsion and sense of shame fostered by that practice fueled the civil rights movement … spurred on the revitalization of the equal protection clause and, in particular, the recognition of the right to be tried before a jury selected without bias. The lessons we learned from these abuses helped to create a climate in which such abuses could not so easily thrive.” The problem was jury selection, not nullification; even the abuses of nullification lead to better selection practices.
There are those that believe that the jury no longer needs the power to lay aside the law. Those who advocate such positions argue that jury nullification may have developed to check the power of an unelected, distant king and parliament, but “Now that our laws are made and enforced by officials who are answerable to the people, the theory goes, jury independence is no longer needed.” This argument, however, fails to take into account the previously analyzed facts that jury discretion is still necessary as a safeguard for minority communities and is often necessary to adjust the law in a particular application.
The U.S Supreme Court of 1895 offered a much more direct critique. While acknowledging that there was nothing that could be done about a jury that choose to acquit in the face of uncontested facts, the majority nonetheless contended that since jurors “cannot be allowed to increase the penalties or create laws on their own, they cannot be allowed to reduce such penalties or nullify the law.” In this, the Court erred in their reasoning. Our system is built on the fundamental principle that it is better to let the guilty go free than to wrongly convict the innocent. Accordingly, it is valid to draw a line by upholding an easier ability to acquit while still proscribing the ability to arbitrarily convict using an ex post facto standard. This ability of the jury is yet another way to ensure that the innocent do not wrongly suffer harm at the hands of a political majority.
The question naturally comes whether the ability of a jury to void a particular application of a law would not necessarily lead to a general anarchic disregard of law. Just such a fear was expressed by the 4th Circuit Court of Appeals in United States v. Moylan, “No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic, as appellants claim, but inevitably anarchic.” This assumption, however, is challenged by empirical research in the field, such as multiple studies cited by Hans and Vidmar which show that, “When the evidence was clear, the jury was inclined to follow the law, but when it was unclear, jurors felt liberated to give reign to their own sense of justice and equality…Deviations are not widespread, nor routine. When they do occur, they are not invariably irrational and capricious.”
Many of these critiques of the jury system rest implicitly on an elitist attitude of, “law as a sacrament to be administered exclusively by an endowed priesthood,” that the average juror is too ignorant and susceptible to emotion to be entrusted with such power. This fear is partially offset by the built-in check of the peremptory challenge. If the attorneys care about the outcome, both sides theoretically have the chance to exclude those with opinions they view as unreasonable. This mindset also ignores the aforementioned studies which consistently show that juries, by and large, are reasonable, view the evidence, generally only depart from the letter of the law in abnormal circumstances, and only bend the law to fit particular circumstances rather than categorically ignoring it.
As recently as 1972, in the case of U.S vs. Dougherty, the United States Court of Appeals for the District of Columbia Circuit, in a case involving vandalism by Vietnam war protesters, extensively reviewed precedent and upheld the ability of the jury to engage in judging both fact and law, noting that “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge. Most often commended are the 18th century acquittal of Peter Zenger of seditious libel, on the plea of Andrew Hamilton, and the 19th century acquittals in prosecutions under the fugitive slave law.”  Nevertheless, the court, in accordance with Supreme Court precedent of Sparf v Hansen (1895), refused to overrule the actions of a judge who had denied to the jury that they had such a right and had refused to allow the defendant’s counsel to make arguments to the jury based on their ability to judge the law in its application.
This bipolar approach has been the defining element of a delicate balancing act where juries are allowed to acquit in the face of ‘uncontradicted evidence,’ yet are frequently told that they have no such right. In fact, only two states have judges even mention in their instructions to the jury that the jury has jurisdiction over both law and fact. This seemingly schizophrenic posture is, in fact, an attempt to balance the jury’s historic right to rule on the law with the desirability of the rule of law. “An equilibrium has evolved…with the jury acting as a “safety valve” for exceptional cases, without being a wildcat or runaway institution. There is reason to believe that the simultaneous achievement of modest jury equity and avoidance of intolerable caprice depends on formal instructions that do not expressly delineate a jury charter to carve out its own rules of law.” In fact, most judges expressly dictate to the jury that they must accept the law as interpreted by the judge regardless of their personal feelings on the subject.
This balance has merit, but is controversial nonetheless. By comparing the average number of acquittals in the states that tell the jury that they have jurisdiction over both law and fact with the average in the greater majority of states that specifically deny that the jury has such a power, DiPerna concludes that “the jury system works as well with an explicit reference to jury nullification as without it.” Hans and Vidmar, on the other hand, reference a systematic study by psychologist Horowitz where some juries were specifically told that they had the power to lay the law aside if applying it strictly would produce a result that they felt was unjust, he then compared the juries’ deliberations and outcome with that of juries where the jury’s ability to rule on the law was left unmentioned. Horowitz found that not only was the first group more likely to acquit, but “they spent less time discussing the actual evidence, and spent more time discussing nullification powers, the character of the defendant, and their own personal experiences as they applied to the case.” With this knowledge, it seems that it may be best not to explicitly mention the jury’s ability to rule on the law and merely to accept it when it happens, as is periodically necessary, i.e. refrain from actively encouraging it.
Jurors are the conscience of the law, their unique role in our judicial system provides a way to balance analytical jurisprudence’s rigid adherence to the law with natural law and the social context of a particular event. This ability to judge the law under particular circumstances is one of the main reasons juries exist in the first place. If the jury can do no more than consider cold facts then what comfort is there in a trial by one’s peers? The defense of the jury institution itself is usually that they protect against unjust sentencing. Such is implied in the opinion of Byron White in Duncan v. Louisiana where the majority ruled that the right to jury was fundamental and applicable to the states, largely because “Fear of unchecked power…found expression in this insistence upon community participation in the determination of guilt and innocence…as a defense against arbitrary law enforcements for protection under the due process clause”. Without the ability to check unjust application of the law the efficacy of the jury as a safeguard would be significantly mitigated.
Admittedly, it can be disconcerting to leave justice in its entirety to a group of 12 citizens; fortunately, research shows that it has been left in good hands. Not only is it futile to attempt to stand against the jury’s holistic jurisdiction over fact and law due to the interplay of fact and law and their de facto ability to acquit, limited use of jury nullification is firmly established in precedent, provides flexibility to the law on the books, safeguards rights against tyranny (whether by an individual or majority), aids in creating more just laws, and favors the innocent. When balanced by having judges not encourage its use, we can agree with Hans and Vidmar that “[s]ome times the jury is at war with the law, but for the most part it is, in Kalven and Zeisel’s phrase, a ‘modest war.’…Regardless, the hard facts indicate that on the whole the jury behaves responsibly and rationally.”
 Moore, Lloyd E.. The jury, tool of kings, palladium of liberty.Cincinnati: W.H. Anderson Co., 1973. Page 87
 Moore, Lloyd E. Page 89
 Neubauer, David W., and Stephen Scott Meinhold. Judicial process: law, courts, and politics in the United States. 5th ed.Belmont,CA: ThomsonWadsworth, 2010. Page 399
 Guinther, John, and Bettyruth Walter. The jury in America .New York,N.Y.: Facts on File Publications, 1988. Page 220
 Moore, Lloyd E.. Pages 107-109
 Neubauer, David W., and Stephen Scott Meinhold. Page 399
 Miller, Frederick Thornton. Juries and judges versus the law: Virginia’s provincial legal perspective, 1783-1828.Charlottesville: University Press ofVirginia, 1994. Page 98
 Regnier, Thomas. “Restoring the founders’ ideal of the independent jury in criminal cases.” Santa Clara Law Review 51.3 (2011): 775-852. Page 777
 Regnier, Thomas. Page 842
 Block, Frederic. “Reflections on Guns and Jury Nullification” The National Association of Criminal Defense Lawyers Champion Magazine, July, 2009. Accessed 7/23/11 at: http://www.nacdl.org/public.nsf/01c1e7698280d20385256d0b00789923/29634bd8592391b0852576320077b42c?OpenDocument
 Pound, Roscoe, “Law in Books and Law in Action.” American Law Review 44 (1910) 12–36. Page 18
 Overland, Sean G.. The juror factor: race and gender in America’s civil courts.El Paso,Tex.: LFB Scholarly Pub. LLC, 2009. Page 5
 Hans, Valerie P., and Neil Vidmar. Page 149
 Chief Judge Bazelon,United States v. Dougherty, 473 F 2nd 1113, 1139, (1972), concurring in part and dissenting in part.
 Regnier, Thomas. Page 826
 Sparf & Hansen v.United States, 156U.S. 51 (1895)
United States v. Moylan, 417 F 2nd 1002, (1969)
 Hans, Valerie P., and Neil Vidmar. Judging the jury.New York: Plenum Press, 1986. Page 154
 Guinther, John. Page 224
 Majority opinion, United States v. Dougherty, 473 F 2nd 1113, 1139, (1972)
 Hans, Valerie P., and Neil Vidmar. Page 157
 Majority opinion, United States v. Dougherty, 473 F 2nd 1113, 1139, (1972)
 DiPerna, Paula. Juries on trial: faces of American justice.New York: Dembner Books, 1984. Page 192
 Hans, Valerie P., and Neil Vidmar. Page 160
 Duncan v.Louisiana, 391U.S. 145 (1968)
 Hans, Valerie P., and Neil Vidmar. Page 163
Block, Frederic. “Reflections on Guns and Jury Nullification” The National Association of Criminal Defense Lawyers Champion Magazine, July, 2009. Accessed 7/23/11 at: http://www.nacdl.org/public.nsf/01c1e7698280d20385256d0b00789923/29634bd8592391b0852576320077b42c?OpenDocument
DiPerna, Paula. Juries on trial: faces of American justice.New York: Dembner Books :, 1984.
Duncan v.Louisiana, 391U.S.145 (1968)
Guinther, John, and Bettyruth Walter. The jury in America .New York,N.Y.: Facts on File Publications, 1988.
Hans, Valerie P., and Neil Vidmar. Judging the jury.New York: Plenum Press, 1986.
Miller, Frederick Thornton. Juries and judges versus the law: Virginia’s provincial legal perspective, 1783-1828.Charlottesville: University Press ofVirginia, 1994.
Moore, Lloyd E.. The jury, tool of kings, palladium of liberty.Cincinnati: W.H. Anderson Co., 1973.
Neubauer, David W., and Stephen Scott Meinhold. Judicial process: law, courts, and politics in the United States. 5th ed.Belmont,CA: ThomsonWadsworth, 2010.
Overland, Sean G.. The juror factor: race and gender in America’s civil courts.El Paso,Tex.: LFB Scholarly Pub. LLC, 2009.
Pound, Roscoe, “Law in Books and Law in Action.” American Law Review 44 (1910) 12–36.
Regnier, Thomas. “Restoring the founders’ ideal of the independent jury in criminal cases.” Santa Clara Law Review 51.3 (2011): 775-852.
Sparf & Hansen v.United States, 156U.S.51 (1895)
United Statesvs Dougherty, 473 F 2nd 1113, 1139, (1972)
United Statesv. Moylan, 417 F 2nd 1002, (1969)