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Bar News - July 4, 2003

Opinions - Jury Nullification - Not a Right Anc Not a Good Idea

By: Eugene M. Van Loan, III

Not all proposals for judicial reform are created equal. Some things touted as reforms are in fact steps backwards. House Bill 122, the so-called Jury Nullification Bill, which passed the House earlier this year but fortunately just got axed in the Senate, is definitely one of those proposals which does not deserve the label of "reform". Jury nullification is the proposition that a jury, especially in criminal cases, has the right to disregard or "nullify" the law as applied to the case before it on the grounds of the jury's conscientious objection to the law. HB 122 would require the judge in all criminal cases where the defendant so requests to inform the jury of its supposed "inherent right to disregard the law". This is jargon for instructing the jury that it has a right to let the guilty go free.

As a matter of historical fact, jury nullification has indeed occurred in the United States. Witness, for example, the notable failures to obtain successful prosecutions in the mid-19th century of persons charged with harboring runaway slaves in violation of the Fugitive Slave Act and the refusal of some juries during the Prohibition era to convict people charged with violating the Volstead Act. On the other side of the coin, we are all aware of the conviction of the Salem "witches" by their Puritan neighbors and the all-too-numerous instances of Jim Crow juries in the South convicting blacks simply on account of their color. By virtue of their ability to render a so-called "general verdict" (by which is meant that the jury simply returns a verdict of guilty or not guilty), jurors in such cases were able to "take the law into their own hands".

The case for jury nullification as a legal right, however, rests upon mistaken assumption that rights can be equated with powers. The mere fact that the jury has the power to nullify does not mean that it has any corresponding right to do so. For example, you may have the power to kill another human being, but unless you are a police officer or some other individual authorized by law to use deadly force, you have no right to commit murder.

The starting point for the proposition that where there is a power, there is a right, is the observation that a jury can legally acquit someone whom the law would say is guilty. As noted by the New Hampshire Supreme Court, "We recognize the undisputed power of the jury to acquit even if its verdict is contrary to the law as given by the judge and contrary to the evidence." State v. Mayo, 125 N.H. 200, 203 (1984). By this, the Court means that when the jury says "we acquit", its act is legally effective to acquit the defendant - even if the jury knowingly refused to follow the law. This is because under the so-called double jeopardy clause of our Constitution (and of the Federal Constitution), a person who has been acquitted may not be tried again for the same offense - regardless of why he was acquitted.

On the other hand, the jury's legal power of nullification is not absolute. When the jury convicts rather than acquits, the rules of the game are quite different. A defendant who is convicted can appeal. And if the defendant can show that the jury disregarded the law, the conviction is wiped out. Consequently, while a jury can convict a defendant whom the jury actually believes is innocent of the offense charged, the jury can only make such a conviction stick if no one finds out what it has done. Thus, although the jury has the technical power to bring in an unlawful conviction, it does not have the legal power to do so.

In addition to having no legal power to convict in violation of the law, the jury quite clearly has no legal right to do so. Most of us are familiar with the fact that prospective jurors are questioned by the court (and, in some instances, by the lawyers) before they are declared competent to sit on a given case. This process is known as the voir dire and is designed to determine whether jurors have any preconceived opinions about the case or are otherwise unable to render an impartial verdict. See generally, RSA 500-A:12. See also, Petition of James Mello, 145 N.H. 358 (2000) (use of juror questionnaires to determine bias). For example, in the 1984 case of State v. Cere, 125 N.H. 421, the Supreme Court disqualified a juror who stated that "she could not follow the law on the burden of proof and believed that the defendant must do something to prove his innocence because he must have done something to get him there." As the Court put it, such a person "whose beliefs are so subversive of such a fundamental safeguard of our freedoms is not qualified for jury service." Cere at 423 (1984). See also, State v. Rideout, 143 N.H. 363 (1999).^a

In summary, the jury has neither the legal power nor the legal right to ignore the law in order to convict. The question, then, is whether the jury's legal power to acquit in defiance of the law gives the jury the legal right to do so. In order to answer this question, we need to know what gives someone a "right" to do something? On the one hand, a jury's acquittal of a criminal defendant in disregard of the law does not itself constitute a crime in New Hampshire.^b But the mere fact that a person has the legal power to do an act without being punished for it under the criminal law does not necessarily mean that he or she has the "right" to do it. For example, a party to a contract may breach that contract without committing any criminal offense, but he or she is still subject to civil liability for the damages caused by the breach. Indeed, there are even circumstances where an actor may do an act which is neither a crime nor something which creates civil liability, but the act still has untoward legal effects. For example, it is no crime to breach one's marriage vows and, subject to a few exceptions, a breaching spouse cannot be sued for damages for such a transgression. Nevertheless, a breach of one's marital vows may well bring about a divorce.

In other words, just because one can do something doesn't mean that he or she may do it. In none of the above examples, therefore, would anyone suggest that the party in question had a "right" to do what he or she did. Indeed, while acknowledging the jury's power to nullify the law, our Supreme Court has refused to characterize the jury's capacity to nullify as a right. Instead, the Court has preferred to describe it as a "prerogative". State v. Weitzman, 121 N.H. 83, 89 (1981); State v. Preston, 122 N.H. 153, 160 (1982); State v. Mayo, 125 N.H. 200, 203 (1984).^c

Indeed, it is quite clear that under present law the jury does not have any "right" to nullify the law and acquit the guilty. For example, any prospective juror who announced his or her general intent to acquit all criminal defendants would not be permitted by the court to sit on any case. Likewise, any juror who acknowledged a conscientious inability to convict whenever a particular law with which he or she disagreed was at issue would be subject to a challenge for cause by the prosecution in any case presenting such an issue. Whether the juror's reluctance to convict arose out of a disagreement with capital punishment in a first degree murder case, a refusal to accept the criminality of drug use in marijuana possession case, or a belief in the acceptability of an eye for an eye in an assault case involving spouse abuse, the prosecution's challenge would be sustained. See, e.g., United States v. Thomas, 116 F.3d 606 (2d Cir. 1997).

If the jury really does have a "right" to nullify the law by acquitting a guilty defendant, why is it that no one can identify the source of this right? HB 122 merely assents that it exists. However, you can search the New Hampshire Constitution ad infinitum and you will not find any provision which either expressly or impliedly guarantees any right of jury nullification.^d

The advocates of nullification are thus relegated to an argument based upon the supposed nature of the jury at common law. This is what HB 122 is referring to when it states that the jury has historically had the right at common law to judge not only the facts, but also the law. Assuming that this were true, one could argue that this right of the jury was incorporated into New Hampshire law in 1784 by virtue of Part 11, Article 90 of the Constitution which provides that, "all the laws which have heretofore been adopted, used and approved, in the province, colony, or state of New Hampshire, and usually practiced on in the courts of law, shall remain and be in full force, until altered and repealed by the Legislature, such parts thereof only excepted as are repugnant to the rights and liberties contained in this constitution".

On the other hand, the notion that the jury had the right at common law to decide the law as well as the facts stems from a profound misunderstanding of the jury's role in Anglo-American legal history. The source of this misconception is the popularization of the trials of John Peter Zenger and other dissidents in 18th century colonial America and England for the crime of seditious libel, or speaking against the government. The juries in those celebrated cases refused to follow the direction of the court to convict the defendants because the jurors did not believe that what the defendants had published was seditious. These cases, however, did not stand for the general proposition that the jury could determine for itself what the law was; they simply established that in the case of political speech, the question of whether or not certain words are libelous is a question of fact to be decided by the jury based upon the particular circumstances of the case and not as a question of law. In other words, the lesson of these cases was not that the jury was entitled to invade the province of the court, but that the court had invaded the province of the jury. See, e.g., Jones v. United States, ___ U.S. ___, 119 S.Ct. 1215, 1224-1226 (1999) (Souter, J.)

More importantly, even to the extent that some American colonists argued in favor of juries having the authority to judge the law, they were not necessarily arguing for jurors having the right to nullify the law. Besides the fact that much of the colonial law was unwritten and many colonial judges had only a rudimentary training in the law, the very nature and content of "the law" was a matter of great dispute in the colonial era. So it is no great surprise that distrustful juries suspected that the Crown's judges did not always properly instruct them in the law applicable to the case and that they often asserted their authority to determine the law for themselves. On the other hand, this is not the same as contending that where there is no dispute as to what the law is, a jury can completely ignore it.

But the real obstacle that the advocates of nullification cannot overcome is the fact that our Supreme Court has expressly held that juries in New Hampshire did NOT have the right at common law to judge the law as well as the facts. Indeed, the statement in HB 122 to the contrary is not only untrue, but is apparently also made in ignorance of the fact that New Hampshire was the very first of the post-colonial courts to rule this way on the issue. Dierdre A. Harris, Jury Nullification in Historical Perspective: Massachusetts as a Case Study, 12 Suff. L. Rev. 968, 973 n. 29 (1978).

The initial instance of a judicial pronouncement on this matter came in the case of Pierce v. State, 13 N.H. 554 (1843). That case involved the refusal of the trial court to comply with the defendant's request to advise the jury of its supposed right to judge the law and to acquit the defendant on conscientious grounds of a violation of the law requiring importers of spirituous liquors to be licensed. In words of unmistakable conflict with HB 122, the Court held as follows:

It is the opinion of the court, that it is inconsistent with the spirit of the constitution that questions of law, and still less, questions of constitutional law, should be decided by the verdict of the jury, contrary to the instructions of the court.

Similarly, twenty-five years later, in the case of State v. Hodge, 50 N.H. 510, 522 (1869), Chief Justice Doe reiterated the proposition:

We must take it as a settled principle of constitutional law, that the court are the judges of the law, and the jury judges of the facts involved in the issue .... The trial by jury established by the constitution is a trial in which the duties of the court and jury are divided in that manner. That was the true meaning of trial by jury at common law (as was held in Pierce v. State), and that was the meaning in which the constitution adopted and guaranteed it.

In view of these pronouncements, it is a mystery to me how anyone could ask the Legislature to approve a statute which so completely mistakes the constitutional law of this State. However, the error is not limited to the law of New Hampshire. HB 122 claims that courts have also interpreted the U.S. Constitution to establish a right of juries to judge the law. Again, the statement is dead wrong! In the case of Sparf, et al v. United States, 156 U.S. 51, 101-102 (1895), the Supreme Court of the United States held exactly the opposite from what is stated in HB 122:

Any other rule than that [binding the jury to follow the instructions of the court] would bring confusion and uncertainty in the administration of the criminal law. Indeed, if a jury may rightfully disregard the direction of the court in matter of law, and determine for themselves what the law is in the particular case before them, it is difficult to perceive any legal ground upon which a verdict of conviction can be set aside by the court as being against law. If it be the function of the jury to decide the law as well as the facts, - if the function of the court be only advisory as to the law, - why should the court interfere for the protection of the accused against what it deems an error of the jury in matter of law?

Public and private safety alike would be in peril if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court, and become a law unto themselves. Under such a system, the principal function of the judge would be to preside and keep order while jurymen, untrained in the law, would determine questions affecting life, liberty or property according to such legal principles as, in their judgment, were applicable to the particular case being tried .... And if it be true that a jury in a criminal case may determine for themselves what the law is, it necessarily results that counsel for the accused may, of right, in the presence of both court and jury, contend that what the court declares to be the law applicable to the case in hand is not the law, and, in support of his contention, read to the jury the reports of adjudged cases, and the views of elementary writers .... Upon principle, where the matter is not controlled by expressed constitutional or statutory provisions, it cannot be regarded as the right of counsel to dispute before the jury the law as declared by the court.

Based upon the foregoing, it is evident that HB 122 has no basis either in abstract logic or in precedent.^e So what about plain old public policy? If we acknowledge that jurors have the power to acquit in defiance of the law, don't we want them to be - as HB 122 puts it - "fully informed" of their power? I, for one, say no - we do not want to encourage juries to exercise their acknowledged power to acquit in defiance of the law.

The fact that jurors who don't like a law or who don't like those who enforce the law can acquit a guilty defendant does not mean that they should do so. Under the current system, jurors in criminal cases are specifically instructed by the judge that, "It is your duty as jurors to follow all the instructions I am about to give you. Regardless of any opinion you may have as to what the law ought to be, the law as I explain it to you is the law you must follow in reaching your verdict." Instruction 1.01. See also, § 2.1, New Hampshire Civil Jury Instructions. I would have thought that this is the way it is supposed to be in a democracy. A juror's vote on whether to convict or to acquit some criminal is not supposed to be a referendum on the law. The place to cast that kind of a ballot is at the polls, not in the jurybox.

Despite being advertised as some type of populist measure designed to protect the little guy from an overbearing government, the Jury Nullification Bill is really a call to anarchy. I call it the "O J Simpson Bill" because it would validate the kind of argument that Attorney Johnnie Cochran made to the jury in that case. With Judge Lance Itoh sleeping at the switch, Cochran was permitted to tell the jury that because Detective Mark Furman had used the "N" word, the LAPD cops must all be racist pigs, and because of that, the jury should ignore the overwhelming evidence against O J and acquit him in order to "send the LAPD a message". Unfortunately, this is precisely the kind of argument which HB 122 would not only permit, but would actually invite. See generally, Clay S. Conrad, Jury Nullification and The Lawyer’s Challenge, 24 - FEB Champion 30 (2000).

It is tough enough for a prosecutor to get a conviction in a criminal case. Proof beyond a reasonable doubt is a very difficult standard to meet--and properly so. However, HB 122 requires that the jury be instructed that it need not convict a criminal defendant if that "could do violence to your conscience". Consequently, if a bill like HB 122 were to pass, the prosecution will not only have to prove that the accused did the deed, but it will also have to defend the law which he violated. This is simply too great a burden for us to put upon our system of justice.

The advocates of jury nullification, however, suggest that the jury has a role to play in the democratic process by refusing to enforce laws which do not command the support of the citizenry. Even assuming that the concept of nullification had some validity in 17th century England or in colonial America where juries arguably represented the conscience of a community which had little or no input into the law-making process, modern America is one of the most democratic societies in all of history. And if anyone today has a right to complain about being left out of the process, it is certainly not a citizen of New Hampshire, the state with one of the largest legislative assemblies in the world.

The notion that the jury is an agency of democracy which should act as a "safety valve" for the community when it is confronted with the responsibility of enforcing a purportedly "unjust law" is nothing more than a misguided libertarianism which threatens the rule of law. Indeed, advocating the right of a jury of twelve unelected citizens chosen at random from a list of registered voters to disregard a law passed by our elected representatives and signed by our elected governor is almost as anti-democratic as one can get. This is the reverse of the classic problem of the tyranny of the majority; it is the tyranny of a minority.^f

A juror who would refuse to enforce the law has no greater claim to knowledge of what is moral or just than our elected legislators or our appointed judges. As Ralph Waldo Emerson pointed out, one man's justice is another's injustice. Accordingly, there is no way to assure that the power to nullify will be exercised only in "appropriate" cases. ^g

So why should we grant jurors the "right" to override the law? At best, they can exercise their rights of conscience by engaging in personal civil disobedience and suffering the legal consequences of doing so. But if they want to foist their views upon others, let them enter the political thicket and, if they get elected, they are free to pass any law that their consciences may dictate.

In the meantime, just because our imperfect system of justice prefers to err in favor of the possibility of letting ten guilty persons go free rather than chancing the conviction of a single innocent one doesn't mean that we actually want the former to occur. Yet that is precisely what will occur if something like HB 122 ever becomes law. In my opinion, telling a jury that it has "the absolute right to decline to enter a verdict which could do violence to your conscience" (as is required by HB 122) is tantamount to issuing an invitation to acquit - and you can rest assured that many a juror will accept that invitation.^h

U.S. Supreme Court Justice Ruth Bader Ginsburg got it right twenty years ago when she was serving on the Court of Appeals for the District of Columbia. In the case of United States v. Washington, 705 F.2d 489, 494 (D.C. Cir. 1983), she wrote:

A jury has no more "right" to find a "guilty" defendant "not guilty" than it has to find a "not guilty" defendant "guilty", and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.

ENDNOTES

a.	Indeed, although HB 122 is intended to relate only to the jury's supposed right to disregard the law in order to produce an acquittal, one of the dangers of its requirement that the jury be informed of its supposed right to "nullify" the law is that the jury could erroneously assume that it also has the right to ignore the law in order to convict. This issue was actually presented to the court in the case of State v. Preston, 122 N.H. 153 (1982), where a defendant who had been convicted in a trial by jury objected to the trial court's charge to the jury that they could act on their "conscientious feeling about what is a fair result in the case". 122 N.H. at 160. The defendant argued that this was an instruction which could have led the jury to nullify the law requiring the State to prove its case beyond a reasonable doubt. The Supreme Court did not reverse the defendant's conviction, but that was only because it concluded that the trial judge's instructions to the jury, as a whole, made it clear that the State required to prove its case beyond a reasonable doubt and that the nullification instruction, viewed in context, could only have been understood by the jury as relating to its power to disregard the law in order to acquit the defendant.
b.	There are several far-fetched theoretical possibilities that juror nullification could constitute criminal conduct, but (at least to my knowledge) no prosecutions have ever been based upon these theories in New Hampshire. The first is contempt of court for affirmatively lying or failing to be candid in the voir dire. On rare occasions, such actions have been brought and have been sustained in other jurisdictions. See United States v. Clark Colorado v. Kriko, Case No. 96-CR-91, Division 1, Gilpin County, Colorado (Feb.10, 1997). Another possibility is a charge for false swearing for violating the oath which jurors are required to take that they will try the case "according to law and the evidence given [them]." RSA 606:2. See United States v. Krzyske, 836 F.2d 1013, 1021 (6th Cir. 1988); and United States v. Thomas, 116 F.3d 606, 608 (2d Cir. 1997).
c.	Note that the prerogative of nullification belongs to the jury, not the defendant. E.g., State v. Weitzman, 121 N.H. 83, 89 (1981); State v. Mayo, 125 N.H. 200, 203 (1984) (emphasis supplied). For example, in 1987, the Court specifically ruled that a criminal defendant's rights were not violated in a case where the trial judge refused his request to advise the jury of its nullification prerogative. State v. Cote, 129 N.H. 358, 368 (1987) . On the other hand, HB 122 is somewhat schizophrenic about whose prerogative (which it calls a "right") is at issue. While expressly describing nullification as a right of the jury, the title to proposed new RSA 519:23-a is "Right of Accused". Moreover, the obligation of the trial jury to instruct the jury concerning its supposed right of nullification is only triggered by a request from the defendant. This makes no sense at all. For if the jury truly had a right to nullify the law, the jury should be able to freely exercise its rights and not have to rely upon a defendant to assert them.
d.	Part 1, Article 15 of the Constitution does grant the right to trial by jury in certain criminal cases. However, as noted above, this is a right of the defendant, not the jury. See note 3, ante. Although one could make an argument that the supposed right of the jury to nullify was one of man's "natural, essential and inherent" rights protected by Part 1, Article 2, there would be no support in history, philosophy or jurisprudence for such a contention.
e.	This does not mean that either the Pierce case or the Sparf case were necessarily correct in denying the existence of the jury's right at common law to judge the law as well as the facts. See generally, David Farnham, Jury Nullification - History Proves It’s Not a New Idea, 11 Criminal Justice 4 (Winter, 1997). It seems fair to say that there is no one "correct" answer to this question. It depends upon what period of time one examines; what country, colony or state one investigates; which contemporary author or jurist one credits; what weight one gives to legal theory versus accepted practice versus necessity versus simple happenstance; and, perhaps, how one's own jurisprudential or political views color the mix. There is no denying that the proper role of the judge and the jury with respect to determining the law applicable to the facts -particularly in civil cases - was a matter of great public controversy in the first few decades of the Republic, especially in New Hampshire. Indeed, the battle between the early Federalist judges led by Chief Justice Jeremiah Smith and the Jeffersonian republicanists led by Governor William Plumer (a converted Federalist) over the professionalization of the law in general and trial by jury in particular is the subject of a fascinating book scheduled for publication in 2004. See Prof. John Phillip Reid, CONTROLLING THE LAW - THE POLITICS OF LAW IN THE EARLY REPUBLIC: NEW HAMPSHIRE, 1791-1816 (unpublished manuscript, NYU Law School). But whether the professionalizers were only restoring the status quo ante after a temporary post-Revolutionary War excess of populist democracy or whether the so-called "common sense jurisprudence" of the period was more the rule of the common law than the exception, the point is that the professionalizers won the battle. See, Eyers Woolen Co. v. Gilsum, 84 N.H. 1, 18-20 (1929. So, like it or not, at least since Pierce was decided in 1843, the rule in New Hampshire has been that the jury does not have the right to determine the law in a criminal case.
f.	This is not to say that the notion of a "safety valve" to ameliorate the unintended or unduly harsh consequences of the law's application to a particular situation is an inappropriate feature of a well-constructed criminal justice system. However, those case-by-case reconciliations are best left to the prosecutor's discretion as to whether or not to prosecute and/or to the judge's traditional latitude in rendering an appropriate sentence in the event of a conviction.
g.	It is typical for the supporters of jury nullification to hypothesize some situation that enlists the sympathy of a given audience - like posing to a group of high school students the case of a 16 year old who is charged with statutory rape of a 15 year old. If that group is asked to put themselves in the position of potential jurors, they might well think that jury nullification is a good thing. But ask them how they would feel about the concept if they knew that the "right" of juror nullification would apply equally to the juror who would acquit a man who had shot and killed their father because the man had found dear old dad in bed with his wife. As the Court said in Pierce v. State, 13 N.H. at 571: "The proposition [that the power of nullification proves the right] is certainly not commended to us by its law, its logic, or its morality. And it proves quite too much. If it were true that the legal power to do the act, without legal accountability for it, established a right to do the act, the jury might rightfully acquit the accused in all cases, without regard to the law or the evidence, for their power so to do is undoubted, and their exemption from accountability equally clear."
h.	HB 122 raises one additional concern which I note only in passing. Under Part II, Article 73-a of the New Hampshire Constitution, the Supreme Court has the power to "make rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts." In the case of Opinion of the Justices (Prior Sexual Assault Evidence), 141 N.H. 562 (1997), the Court asserted that this gave the Judiciary the exclusive power to prescribe procedural rules, which it defined as "those laws which have for their purpose ... to prescribe machinery and methods to be employed in enforcing [substantive law]." Id. at 572. Would a law requiring judges to give juries an instruction on their so-called right to nullify be substantive or procedural? Who knows? I suppose it depends upon how expansive a mood the Supreme Court is in when it confronts such a question. Compare, Opinion of the Justices (Prior Sexual Assault Evidence), supra, with, Opinion of the Justices (Certain Evidence in Sexual Assault Cases). See also, Petition of Mone, 143 N.H. 128 (1998) (striking down the court security officer bill).

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