* Excerpts extracted from Wikipedia
In 1670, William
Penn was arrested for illegally preaching a Quaker sermon. Despite the fact
that the judge demanded a guilty verdict and that preaching the sermon was illegal,
the jury in that case acquitted Penn and was subsequently imprisoned, fined,
and kept for three days without food or water as a result. Four jurors refused
to pay the fine, and one, Edward Bushnell, obtained a writ of habeas corpus.
Chief Justice Vaughn, sitting on the highest court in
In 1972, in
In 1988, in
In 2001, a California
Supreme Court ruling on a case involving statutory rape led to a new jury
instruction that requires jurors to inform the judge whenever a fellow panelist
appears to be deciding a case based on his or her dislike of a law.[16]
However, the ruling could not overturn the practice of jury nullification
itself because of double jeopardy: a defendant who has been acquitted of a
charge cannot be charged a second time with it, even if the court later learns
jury nullification played a role in the verdict
*submitted by
Patricia Yoe BA 200 4-07
------------------------------------------------------------------------------------------------------------------------------------------------
Jury Nullification
Contributed by Yessica
Lookman, BA 200, 4-24-07
Jury
nullification is the power and ability of a criminal trial jury, federal or
state, to acquit the defendant not only on the "facts" of the case
but to declare the law illegal, nonsensical, or otherwise simply not justifiably
enforceable. I.e., the jury can "nullify" the law.
That is not
the position take by our modern courts.
It is the
duty of the court to instruct the jury as to the law, and it is the duty of the
jury to follow the law, as it is laid down by the court. Sparf v.
That dissent
holds that, "The judge, by instructing the jury that they were bound to
accept the law as given to them by the court, denied their right to decide the
law." Sparf at 297 (dissent).
Dissents are
not followed as "law" by succeeding courts,
they are merely disagreements with the holding of the majority. As one Supreme
Court critic put it, "with five votes [out of nine] you can do
anything."
This was not
the law in
For to say,
they [jurors] are not at all to meddle with, or have respect to Law in giving
their Verdicts, is not only a false position, and contradicted by every
days experience; but also a very dangerous and pernicious
one, tending to defeat the principal end of the Institution of Juries, and so subtilly to undermine that which was too strong
to be batter'd down.
Sir John Hawles, The
English-man's Right, pages 10-11 (1680) (emphasis in original)
(Solicitor-General of
But if by
finding against the Direction of the Court in matter of Law, shall be
understood, that if the Judge having heard the Evidence given in Court, (for he
can regularly know no other, though the Jury may) shall tell the Jury upon this
Evidence, the Law is for the Plaintiff, or the Defendant, and the Jury
are under pain of Fine and Imprisonment to Find accordingly; then
'tis plain the Jury ought of Duty so to do. Now if this were true,
who sees not that the Jury is but a troublesome Delay, of great Charge,
much Formality, and no real use in determining right and wrong,
but meer Ecchos to
sound back the pleasure of the Court; and consequently that Tryals
by them might be better abolish'd than
continued? which is at once to spit Folly in the Faces
of our Venerable Ancestors, and enslave our Posterity.
Hawles, pages 28-29.
[F]or the Law
of
Hawles, page 39.
This was not
the law in the
The defense
can argue law to the jury before the court gives instructions. Stettinius v.
United States, Federal Case No. 13,387 (C.Ct.
D.C. 1839), 22 Federal Cases 1322, 1333 quoting United States v. Fenwick,
Federal Case No. 15,086 (1836).
Judges in
some western and southern states were not allowed to state law (to overcome
judicial interference) 5 The Law Reporter 1, 10 (1842).
An impartial
jury was required by the common law and secured by the constitution. Marshall,
[H]istorical practice is relevant to what the Constitution means
by such concepts as trial by jury.
Under the
common law, as expounded by Sir John Hawles, the jury
had the right to judge the laws as well as the facts. Anything less made the
jury partial in favor of the judge. If the judge was biased in favor of the
State, the defendant, guilty as sin or innocent as a lamb, didn't have a
prayer.
Supposedly,
the right to jury trial guarantees to the criminally accused a fair trial by a
panel of impartial, "indifferent" jurors. The failure to accord an
accused a fair hearing violates even the minimal standards of due process. Irvin v. Dowd, 81 S.Ct. 1639, 1642
(1961).
At least
that's the rhetoric.
[T]he ability
of the judge to communicate his opinions to the jury through raised eyebrows,
choice bits of sarcasm, and questioning the witnesses strays into advocacy. Bracy
v. Gramley, 81 F. 3d 684, 701 (7th Cir. 1996)
(dissent).
Few claims
are more difficult to resolve than the claim that the trial judge, presiding
over a jury trial, has thrown his weight in favor of one side to such an extent
that it cannot be said that the trial has been a fair one. Bracy at 702.
It is my
contention that no criminal trial in the
Let the
judges speak for themselves:
The trial
court denied defendant's request to instruct the jury on his asserted doctrine
of jury nullification. The court also denied the government's motion to
prohibit the use of this term during the proceedings and, as a result, Krzyske mentioned the doctrine of jury nullification in his
closing argument. During its deliberation the jury asked the court what the
doctrine stood for. The court responded, "There is no such thing as valid
jury nullification. Your obligation is to follow the instructions of the Court
as to the law given to you. You would violate your oath and the law if you
willfully brought in a verdict contrary to the law given you in this
case." Defendant objected and claims it was error for the court to so
instruct the jury.
Krzyske defines jury nullification as a jury's power to
return a verdict of not guilty despite law and facts indicating guilt under the
indictment. Krzyske acknowledges at the same time
that no federal court has yet specifically permitted a jury nullification
instruction and that few courts have even permitted arguments to the jury on
the topic urging this "doctrine." He claims that this case is unique
because the court specifically told the jury that there is no such thing as
valid jury nullification.
We recently
addressed the question of jury nullification in United States v. Avery,
717 F. 2d 1020 (6th Cir. 1983), cert. denied, 104 S.Ct.
1683 (1984), in the following terms:
Defendant's
final contention is that the district court committed reversible error when it
refused to instruct the jury that it had the power to acquit the defendant even
though he was guilty of the charged offense. The instruction itself reads that
"a jury is entitled to acquit the defendant because it has no sympathy for
the government's position."
This argument
is completely without merit. Although jurors may indeed have the power to
ignore the law, their duty is to apply the law as interpreted by the court and
they should be so instructed.
The right of
a jury, as a buffer between the accused and the state, to reach a verdict
despite what may seem clear law must be kept distinct from the court's duty to
uphold the law and to apply it impartially. This has been recognized by the
Supreme Court in Horning v. District of Columbia, 41 S.Ct.
53, 54 (1920), where Justice Holmes stated, "[T]he jury has the power to
bring in a verdict in the teeth of both law and facts. But the judge always has
the right and duty to tell them what the law is upon this or that state of
facts . . ." This directive has been recognized by this court in United
States v. Burkhart, 501 F. 2d 993, 996-97 (6th Cir. 1974), where we
approved a district court's instruction that the jury consider only the facts
and law before them. In light of Horning, Avery, and Burkhart,
we are compelled to approve the district court's refusal to discuss jury
nullification with the jury. To have given an instruction on nullification
would have undermined the impartial determination of justice based on law.
Thus, we find
no merit in the defendant's objection concerning the court's instructions to
the jury.
Based on the
analysis above, we AFFIRM the district court in all respects.
MERRITT,
Circuit Judge, dissenting.
I disagree
with the Court's disposition of this case. I would reverse the case and remand
it for a new trial. It is clear to me that the District Court erred in
responding to the jury's specific question concerning "jury
nullification" raised after several hours of jury deliberation. The jury
returned to the courtroom concerned about the issue of "jury
nullification." The jury wanted to know to what extent it had the right to
acquit the defendant because it disagreed with the government's prosecution. It
wanted to know what was meant by the idea of "jury nullification."
The Court responded by telling the jury that it had no power to engage in jury
nullification and that was the end of the matter. It told the jury in effect that
it had no general authority to veto the prosecution. This is simply error. The
Court should have explained the jury's function in our system. Our Court has
made it clear in the past that the jury does have veto power and the jury
should have been so instructed. For example, in United States v. Wilson,
629 F. 2d 439, 443 (6th Cir. 1980), in an opinion which I wrote for a unanimous
panel we stated:
In criminal
cases, a jury is entitled to acquit the defendant because it has no sympathy
for the government's position. It has a general veto power, and this power
should not be attenuated by requiring the jury to answer in writing a detailed
list of questions or explain its reasons. The jury's veto power was settled in
Throckmorton's case in 1544 according to Professor Plucknett:
In Crompton's
treatise on the jurisdiction of courts (1594) we read:
"Note
that the London jury which acquitted Sir Nicholas Throckmorton, Knight, about
the first year of Queen Mary, of high treason, was called into the Star Chamber
in October, 1544 (sic), forasmuch as the matter was held to have been
sufficiently proved against him; and eight of them were there fined in great
sums, at least five hundred pounds each, and remanded back to prison to dwell
there until further order were taken for their punishment. The other four were
released, because they submitted and confessed that they had offended in not
considering the truth of the matter." * * * Throckmorton's prominent share
in Wyatt's rebellion put his guilt beyond the slightest question, but he was a
protestant hero to the Londoners, and the jury's verdict was purely political.
From now onwards the jury enters on a new phase of its history, and for the
next three centuries it will exercise its power of veto on the use of the
criminal law against political offenders who have succeeded in obtaining
popular sympathy. Plucknett, A Concise History of The Common Law 133-34 (5th ed. 1956).
The District
Court gave short shrift to this legal tradition and made no effort to explain to
the jury its historical role as the protector of the rights of the accused in a
criminal case. Our Court unfortunately has done no better.
I would
reverse the case and remand it for a new trial with instructions that the Court
advise the jury, if requested, concerning the jury's general veto power,"
in accordance with the
ON REHEARING
MERRITT,
Circuit Judge, dissenting. For the reasons stated in my panel dissent, I would
grant en banc rehearing on the "jury nullification" issue. The law is
settled that the jury has the power to decide against the law and the facts.
The jury specifically asked about its power to do so, and was told by the
District Court that it had no such power. The least that the jury should have
been told was "the jury has the power to bring in a verdict in the teeth
of both law and facts . . . the technical right, if it can be called so, to decide
against the law and the facts . . ." Horning v. District of Columbia, 41 S.Ct. 53, 54 (1920). These were the words of Justice Holmes
speaking for the Court. The Supreme Court has never taken these words back or
indicated that they do not properly state the law. The District Court and our
Court are simply refusing to apply these words because they do not agree with
them. It is not our prerogative to overrule the Supreme Court.
The following
words of the Supreme Court need to be read several times by the judges of
today's courts.
The
guarantees of jury trial in the Federal and State Constitutions reflect a
profound judgment about the way in which law should be enforced and justice
administered. A right to jury trial is granted to criminal defendants in order
to prevent oppression by the Government. (Footnote 23)
Footnote 23:
"The [jury trial] clause was clearly intended to protect the accused from
oppression by the Government. * * *." Singer v. United States, 85 S.Ct. 783, 788 (1965), "The first object of any tyrant
in Whitehall would be to make Parliament utterly subservient to his will; and
the next to overthrow or diminish trial by jury, for no tyrant could afford to
leave a subject's freedom in the hands of twelve of his countrymen. So that
trial by jury is more than an instrument of justice and more than one wheel of
the constitution: it is the lamp that shows that freedom lives." P.
Devlin, Trial by Jury 164 (1956). (End of Footnote)
Those who
wrote our constitutions knew from history and experience that it was necessary
to protect against unfounded criminal charges brought to eliminate enemies and
against judges too responsive to the voice of higher authority. The framers of
the constitutions strove to create an independent judiciary but insisted upon
further protection against arbitrary action. Providing an accused with the
right to be tried by a jury of his peers gave him an inestimable safeguard
against the corrupt or overzealous prosecutor and against the compliant,
biased, or eccentric judge. If the defendant preferred the common-sense
judgment of a jury to the more tutored but perhaps less sympathetic reaction of
the single judge, he was to have it. Beyond this, the jury trial provisions in
the Federal and State Constitutions reflect a fundamental decision about the
exercise of official power--a reluctance to entrust plenary powers over the
life and liberty of the citizen to one judge or to a group of judges. Fear of
unchecked power, so typical of our State and Federal Governments in other
respects, found expression in the criminal law in this insistence upon
community participation in the determination of guilt or innocence. The deep
commitment of the Nation to the right of jury trial in serious criminal cases
as a defense against arbitrary law enforcement qualifies for protection under
the Dues Process Clause of the Fourteenth Amendment, and must therefore be
respected by the States.
Duncan v. State of
The problem
is that we have judges making decisions they have no right to make. This is not
anything new.
In the state
courts,
Jeremy
Bentham, a noted English legal scholar, had a few choice words to say about
where we get our judges from:
Filling the
bench from no other fund than the bar, is it not exactly such a mode as if
boarding-school-mistresses and governesses, were never
to be chosen but from brothels?
Judges are
the chief competition to the jury.
As
competition the rulings of judges cocerning
jury nullification make sense, even if such rulings are in fact
unconstitutional.
Courts must
presume "that jurors, conscious of the gravity of their task, attend
closely the trial court's instructions in a criminal case." Francis v.
Franklin, 105 S.Ct. 1965, 1976 note 9 (1985), and
that they follow those instructions.
Jurors do not
have to be informed of jury nullification power or possible sentence. United
States v. Calhoun, 49 F. 3d 231, 236 note 6 (6th Cir. 1995).
Jurors
possess raw power . . . which defense counsel may not press for. Scarpa
v. Dubois, 38 F. 3d 1, 11 (1st Cir. 1994).
The question
of whether an offense is a crime of violence for purposes of use of firearm is
a question of law which should not be submitted to the jury.
How did we
get in this mess?
[T]his
Court's constitutional decisions are grounded upon fundamental principles whose
context does not change dramatically from year to year, but whose meanings are
altered slowly and subtly as generation succeeds generation. Yates
v. Aiken, 108 S.Ct. 534, 537 (1988).
The Supreme
Court had already expanded the language of the Sixth Amendment well beyond its
obvious meaning. Nichols v.
The Supreme
Court did "put the brakes" on the lower courts recently.
The jury can
decide mixed questions of law and fact.
That is, if
the lower courts follow that decision, a dubious proposition in lights of Judge
Merrit's last sentence in his dissent in U. S. v. Krzyske.
However,
there is another way to nullify a bad law that no one in modern times even
considers.
Decisionmakers (jury or judge) must rely on the jury's factual
findings as to the disputed issues of fact. Acosta v. City
and
Now let's
break this down into a hypothetical situation. Assume you are on a jury and you
are faced with a defendant in a criminal case caught with a sawed-off shotgun.
The judge tells you, "You must obey the law as I give it to you, you are to judge the facts."
The law is
obviously unconstitutional, no matter what your competitor (the judge) says.
The fact is
up to you to determine. If you tell the judge, "That is a broomstick, not
a sawed-off shotgun," he must accept that as a fact. He has no choice.
And, finding that the object of the prosecution for a sawed-off shotgun
is--according to your verdict, a broomstick--you must acquit.
Such conduct on
the part of juries, going so far as to change the historical facts of a case in
order to render a verdict the jurors thought just, was a common practice in
England for hundreds of years. Green, Verdict According to Conscience
(1985).
Today one
also has the advantage of refusing to believe the usual parade of bribed,
lying, and otherwise untrustworthy government witnesses.
Verdict According to Conscience makes interesting reading in other
respects:
John Lillburne, leader of the Levallers,
appealed to the juries in his case [treason] to be "as judges of law as
well as fact," in 1649. The jury acquitted him. Page
153.
Coercion of
jurors (today known as "jury instructions") meant the loss by
Englishmen of control over the law. Page 154.
Unfortunately,
even if jury nullification becomes as widespread as it was in the nineteenth
century, it would avail most criminal defendants absolutely nothing. Most
criminal defendants these days are terrorized into "plea bargains" by
the threat of the imposition of harsh penalties if they dare to participate in
a jury trial system they are already aware is "rigged" by the judge
and the prosecutor anyway. Only the bravest, the craziest, and the richest
(like O. J. Simpson) even consider jury trial.
http://home.earthlink.net/~dlaw70/jurnul.htm