Jury nullification is a controversial issue in criminal law. There are undoubtedly many definitions of it, but it occurs most fundamentally when a jury acquits a defendant even when the letter of the law says that he or she committed a crime. Appearing at first blush as a theory for anarchists, it is a well-established power of the jury in criminal cases, pre-dating the United States Constitution.
This article on the Fully Informed Jury Association website gives an example from America’s colonial days. In 1734, a printer named John Peter Zenger was arrested for committing libel against His Majesty’s government by publishing articles strongly critical of it. When brought to trial on the charges, he admitted what he had done, but argued he had an affirmative defense that what he printed was the truth and therefore that he should not be convicted. The judge instructed the jury that truth was no justification for libel, and that only the fact of the publications need be proved. Despite the judge’s instructions and Zenger’s confession, the jury acquitted Zenger. Clearly, the members of that jury opposed the Crown by engaging in nullification of the law before them. This opposition would eventually come to full fruition during the American Revolution.
The right for jurors to judge the law and not just the facts survived into American common law.
Chief Justice John Jay wrote in Georgia v. Brailsford, 3 U.S. (Dall) 1 (1794):
It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.
Modern courts have also recognized this right. The U.S. Court of Appeals for the District of Columbia has stated as recently as 1972 that there exists “an unreviewable and unreversible power in the jury, to acquit in disregard of the instructions on the law given by the trial judge…” See United States v. Dougherty, 473 F.2d 1113, 1132 (D.C. Cir. 1972) (this case also includes an excellent discussion of the history and evolution of the idea of jury nullification in America). Despite recognizing and acknowledging the jury’s innate power to nullify, the Dougherty Court also articulated virtually every modern courts’ holding that such power “does not establish as an imperative that the jury must be informed by the judge of that power.” Indeed, most courts refuse to let any arguments be made to the jury about this “innate” right and power.
So why should juries be informed of their right to nullify the laws that are put before them? Consider the defendant in Morissette v. United States, 342 U.S. 246 (1952) [discussed in an article by Harvey Silverglate, “The Decline and Fall of Mens Rea," in the September/October 2009 issue of The Champion, the magazine of NACDL (the National Association of Criminal Defense Lawyers)]. Joseph Morrissette was an Army veteran who worked as a fruit stand operator in the summer and as a truck driver and scrap iron collector in the winter. Once while he was out hunting in a desolate field in Michigan, he came across from what all appearances were empty bomb casings. Believing them to be abandoned property, he took some of them and sold them as scrap metal for $84. The land he took the casings from was actually Oscoda Air Base, which the U.S. Air Force had used for dropping simulated bombs at ground targets. Morrissette was indicted in federal court for “unlawfully, willfully, and knowingly” stealing and converting property of the United States government. When he challenged his case at trial, the judge would not let him argue that he believed the property was abandoned, nor that the government failed to take steps such as posting signs to warn people not to trespass or take any property.
Morrissette was not as lucky as Zenger to have a jury that would nullify the law in question when it defied common notions of fairness and justice. The judge in Morrissette’s case instructed the jury that the only issues for them to decide were limited to the elements of the crime: was the property on government land, and did Morrissette knowingly move the property and convert it? The judge did not deem it relevant that Morrissette may not have known that it was government land or property that was involved in the first place. Luckily for Morrissette, the United States Supreme Court saw fit to review the case, and reversed in his favor, finding that crimes have historically required “a culpable state of mind.” Put simply, to convict someone of a crime, there must be “an evil-meaning mind with an evil-doing hand,” or as first-year law students learn, both a mens rea and actus reus.
Most relevant to this discussion, though, was the Court’s assertion that had the jury been allowed to consider Morrissette’s state of mind “they might have concluded that the heaps of spent casings left in the hinterland to rust away presented an appearance of unwanted and abandoned junk” and therefore might “have refused to brand Morrissette as a thief” (emphasis in quote is mine). What the Court is implicitly recognizing with this statement is jury nullification. The Court seems to hint that were the jury allowed to be judges of the law and not just the facts, perhaps they would have found, pursuant to their common-sense and judgment, that even though Morrissette violated the letter of the law, he should not be branded a criminal. If the jury considered not only the factual circumstances of the crime, but also the legal circumstances, such as how the casings appeared, what explanation Morrissette offered for taking them, or whether the law put him on fair notice, perhaps a more just and robust verdict would have been rendered. When juries, such as the one in Morrissette, are constrained to mechanically apply the facts of a case as they see them to the elements of the crime as given to them by the judge with no further critical inquiry, justice suffers.
So why are courts afraid to let juries judge both law and fact and exercise nullification in their sound discretion? I believe that it may be due in part to the desire to protect and extend the rampant proliferation of criminal laws and regulations in recent years, many of which do not require any specific intent on the part of the accused, but rather are “status” crimes. For example, consider the variety of gun crimes that the U.S. Attorney’s Office has the power to prosecute. A person convicted of any felony crime in the United States is forever barred from possessing a firearm (felon in possession of a firearm). This is the classic status crime and the jury is asked to answer essentially two questions: 1) is the defendant a felon? and 2) did he or she possess a gun? In other words, the mens rea applies only to the knowledge of the firearm, not to the knowledge of being a felon. Not only does the rampant proliferation of criminal laws exist, but so does the rampant proliferation of criminal prosecutions. With the government having been alleviated of the burden of having to prove one’s knowledge as to their “status,” the government can bring these prosecutions and secure convictions with relative ease.
Consider the very real example of the young man charged with being an illegal alien in possession of a firearm. If he is brought here at a young age and raised by his parents to believe that he is a United States citizen, this man could be subjected to federal prosecution for exercising what he would believe to be his Second Amendment right. Again, the question for the jury becomes 1) is he an alien in the United States illegally? and 2) did he possess a gun? In at least one case in the Eastern District of Wisconsin, however, defense counsel persuaded the court that the government should have to prove that the person was aware of their “prohibited status” as an illegal alien (see Eastern District of Wisconsin Case No. 07-CR-16). When confronted with the court’s ruling that it would have to prove that the person knew he was an illegal alien, the government elected to dismiss the charges on the eve of trial.
In his article, Silverglate discusses a study by the Federalist Society reporting that by 2003 there were over 4,000 offenses listed in the United States Code (up from 3,000 in 1980). And this figure does not include the countless federal regulations and administrative laws that are written by agencies such as the Securities and Exchange Commission that Congress delegates such powers to. When law becomes this specialized and complex, I believe that reasonable people have a hard time deciding what should rightly be regarded as criminal conduct (like the vast majority of people would when considering murder, rape, child abuse, and large-scale drug dealing). When conduct is deemed criminal that most reasonable people would not instinctively or intuitively view as such, then it becomes more and more difficult for judges and prosecutors to trust jurors to “do the right thing” and apply the law “correctly.” It is for this very reason, the fact that the line between offenses that are mala in se (evil in itself) versus mala prohibita (wrong because it is prohibited) has become so fine and so subject to the whims and fancies of the individual prosecutor and judge that not only should jury nullification be recognized and acknowledged, but extolled and reaffirmed as a fundamental right that juries can exercise in their sound pursuit of justice.
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