A Case For Jury Nullification

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process

12_angry_men3Jury 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.

14 thoughts on “A Case For Jury Nullification”

  1. Why 12 Angry Men? There the lone dissenting juror convinced the others that the facts didn’t show beyond a reasonable doubt that the defendant was guilty.

    That aside, I’ve always found it somewhat shocking that jury nullification is allowed, but counsel isn’t allowed to mention it to juries. I’ve wondered, is that a “defense” that would raise constitutional issues if a defendant is not allowed to present it?

  2. Yep, “12 Angry Men” is definitely inappropriate as an illustration for an essay championing jury nullification. The jury in the movie comes to appreciate what is meant by “reasonable doubt,” and it also learns to talk and reason together. The jury symbolizes democracy.

    The decline in juries’ right to decipher issues of law as well as fact is evident well before the expanison of federal crimes and regulations. Many link the change to the development of the modern society and to the concomitant decline of community. The citizenry ceased to think jurors could have any consensus as to what the laws and their meanings were, and, furthermore, judges emerged as “experts,” people for whom command of the law was expected.

  3. Just as juries can acquit individuals that are technically guilty, they can also convict defendants that they know are innocent. The ugly history of race relations in this country has provided us with many such examples. (Think of the conviction of the Afrcian-American Tom Robinson in To Kill a Mockingbird as a literary representation of this phenomenon.)

    My late uncle, Vernon Clarkson, once provided an interesting twist to the concept of “jury nullification.”

    Vernon was the president of a small bank in the hamlet of Fincastle, Virginia, and was chosen to serve on a federal criminal jury in Roanoke, a city approximately the size of Green Bay. The trial involved a white, adult male defendant accused of various fraud-related crimes.

    Apparently the evidence against the defendant was quite shaky, and the federal prosecutor also seemed unsure of his case, making numerous errors as the trial progressed. When the jurors recessed to the jury room an inital vote revealed that eleven jurors were ready to vote “not guilty” with only Vernon favoring conviction.

    Like some Bizzaro-world version of Twelve Angry Men, for hours the jury debated the guilt or innocence of the defendant with Vernon resolutely unwilling to be swayed by his fellow jurors arguments that the prosecutor had failed to establish the guilt of the defendant by any standard, let alone beyond a reasonable doubt.

    After two days the trial judge declared a mistrial. As Vernon later revealed at a family gathering, “The government really didn’t make its case, but I could tell by looking at him that he was guilty.”

    I’m not sure what the term is for reverse “jury nullification” but I think this was it.

  4. As one of the editors of the Faculty Blog, I wish to make clear that the decision to use a poster from the film “12 Angry Men” to illustrate the post was made by me, and not by the post’s author, Chris Donovan. I did not anticipate that this decision would inspire the reaction that it received. Tough crowd.

  5. The pressure to find appropriate clip art can be enormous. So much so that I normally fail completely. I guess “A Time To Kill” would have been better. On the other hand, a nullifying jury would likely be angry, no? Perhaps the critics take allusion too far.

  6. In my opinion, the Morrissette Court wasn’t addressing issues of jury nullification. It seems that the Court was only dealing with the issue of criminal intent. The Court was saying that this shouldn’t be a strict liability offense and that the defendant should be able to present a defense based on his mens rea.

    Almost every time a statutory defense is raised “i.e. intoxication, self-defense, coercion” the defendant is essentially admitting that he violated the elements of the crime. It’s not a question therefore of whether the elements of the crime can be met by the prosecution. Rather the question the jury is presented with is whether, despite the fact that the prosecution proved the elements, the defendant’s conduct should be branded as criminal.

    1. Well, statutory defenses (and jury nullification) could be implied alternative defenses offered in case the primary defense was rejected. For a quick (and admittedly not wonderful) example, a defendant might argue they acted out of self-defense and defense of others — but could also argue that even if the judge and jury rejected those defenses, they deserve not to be convicted under the circumstances.

  7. I’m glad to see my post, or maybe more accurately Prof. Fallone’s picture, sparked some discussion on jury nullification.

    I agree that 12 Angry Men is not a good illustration of the point I was trying to make. I think juries should be able to nullify a law it views as unjust or unfair just as a governor or president can pardon someone, regardless of what the law says (think Scooter Libby). I agree there is a potential downside also, as Gordon Hylton points out with the segregated Southern society example (but the South also has elected some racist representatives, so no form of governance or oversight is immune from such dangers).

    I believe that jurors should be able to be made aware of this right as it is more legitimate, in my view, for a jury to nullify a law than an elected official that pardons someone the majority of citizens may not want to see pardoned (again, perhaps, think Scooter Libby). Why the criminal justice system feels it must hide this still-recognized and inherent power from common jurors is beyond me. I believe that given the right case, it could be fertile grounds for a trial defense and appeal when it is denied.

    As far as Tony Cotton’s comments, I agree the Morrissette court wasn’t expressly addressing nullification, but it also wasn’t just saying that the prosecution should have to prove some form of criminal intent- because the government did that. It proved he intended to move the property, just like it proves felons intend to possess a gun. Courts just don’t require that the intent be proven for each element of the offense.

    That’s why I think the court in Morrissette was hinting at more. And to me that “more” was that the jury should have been able to hear Morrissette’s defense of mistaken belief of abandonment, appearance of the scrap, no warning signs, etc. But why would this matter and why would the court want that other than because it means the jury could have nullified the law even had he technically violated it? That’s the connection that I think exists between Morrissette and jury nullification.

    I appreciate and welcome all comments.

  8. Mr. Donovan, you said, “I believe that jurors should be able to be made aware of this right as it is more legitimate, in my view, for a jury to nullify a law than an elected official that pardons someone the majority of citizens may not want to see pardoned (again, perhaps, think Scooter Libby). Why the criminal justice system feels it must hide this still-recognized and inherent power from common jurors is beyond me. I believe that given the right case, it could be fertile grounds for a trial defense and appeal when it is denied.” and I agree.
    I believe another aspect is the right of the defendant to have the prospective jurors properly informed of their right (if selected) to decide both the law and the facts, because the defendant has the right to have a prospective juror disqualified if they are adamant that they would never disregard the law as given by the judge, even if they were absolutely convinced that the judge had given them instructions that were contrary to clear evidence of the original intent of founders (as properly amended) in writing the Constitution. Such a juror would in effect be saying they were more loyal to the Judge than to the Constitution and this violates the right of the defendant to a jury committed to defending the Constitution.
    As to cases where this could be applied, we have many “hot-button” issues like gun control, income taxes, abortion, gay “marriages”, property rights, and many other issues that pertain to the essential distinction between inalienable rights and state granted privileges.
    There are many people who see liberal activists judges as rewriting the law without due process (an act of Congress) and jury nullification is our best defense short of violent revolution. This problem is made worse by all the elected officials who refuse to discuss impeaching judges who clearly disregard the original intent of the Founders in writing the Constitution. It almost seems they are all about keeping the people uninformed so they can rewrite the laws in the same way that Orson Wells did it in “Animal Farm” where the animals wrote the original laws on the wall of the barn and in the end they had been rewritten (without any votes) to say, “All animals are created equal, but some are more equal than others”. Scary? If the people are so busy with other things that they do not take seriously their obligation to uphold the Constitution and keep their elected officials in line, it is only a matter of time before unethical scoundrels will come to power because they see the ease of becoming rich and powerful, real crooks, without risking jail time.
    Along with the defendants right to have the prospective jurors being informed of their right and maybe their obligation to consider their duty to use their power for jury nullification, I would like to see all nominating committees, of all political parties, publicly state that they would not endorse any candidate who refused to say, ” I am competent enough to know that any act of Congress, any Presidential executive action, any decision by any judge (including Supreme Court decisions) that contradict the clear evidence of the original intent of the Founders (as properly amended), any such actions are unconstitutional, null and void, impart no obligation to obey, and those promoting these unconstitutional actions should be impeached.”

  9. As a criminal defense attorney this works in our favor, however, for those seeking justice it is hard for them to understand.

  10. I have a question concerning one possible tactic by a defense attorney (or even a defendant going it alone). How could the following be worded better?: “Your honor, I give the court judicial notice that the courts have upheld the fact that juries have the right, when they deem it necessary, to take it upon themselves to determine both the law and the facts and therefore defendants have the right to have prospective jurors properly instructed of this their right to jury nullification.”
    The prosecuting attorney could not object to this judicial notice because they would then have to present evidence to show that the Judicial Notice was legally flawed.

  11. I have a followup thought: After giving the court Judicial notice somewhat like my preceding suggestion; asking the judge,” Your honor, just for the official record, not that I believe you are not competent in this area, but just to establish that you are competent, question: Are you competent enough to know that The original intent of the Founders in writing the Constitution, as properly amended, is the supreme law of the land and any act of Congress, any presidential executive action, or any decision of the Supreme Court, that implicitly, or explicitly contradicts the clear evidence of this original intent, any such action is unconstitutional, null and void, confers no power and is to be disregarded by all true patriots, including Jurors who swear both, to uphold the Constitution and to protect the Constitutionally guaranteed rights of defendants”?

  12. Why do we have juries if they cannot find a defendant guilty if there are circumstances which exist which make the law in question irrational, inappropriate, unjust or even stupid? In theory, at least, the jury represents the values of society as a whole and is, therefore, competent to decide the validity of the laws in question and the degree of guilt or innocence of the defendant.
    The strict application of the law does not always result in justice.

  13. The US federal government says cannabis is a public health hazard (Schedule One) meaning no meaningful use medically or “recreationally.” This blatant lie goes back to Anslinger trying to tell doctors what their La Guardia Commission Report should contain. La Guardia was the mayor of New York City. Jury nullification should have righted this wrong decades ago and barring that it should be class action suit time. The harm and detriment of all Americans under this facade can be proven: innocent lives lost on both sides of the Drug War, billions if not trillions in wasted resources (helicopters at $300 per hour doing sorties on US soil), forfeiture, forced “counseling,” and incarceration. Liberty stolen to the core: if flowers are bad ALL flowers are bad. Even dandelions provide nutrition but is it on a par with hemp seed?

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