Why Aren’t Juries Informed of Their Right to Nullification?

In the United States juries are not informed by the judge of their right to nullification because the case law addressing jury nullification remains oblique. It is therefore commonly said that in the United States juries are empaneled to resolve issues of fact, but when it comes to nullification, juries have the right but not the power to judge the law. Consequently, a judge will never directly instruct a jury than they judge the law.  The reverse is also true; a judge will not instruct a jury that they may not judge the law. In a criminal case, the litigants are also precluded from advising the jury of their right to nullification.

When looking at the history of nullification in the Untied States, it is clear that while the breadth of jury nullification in our criminal justice system has ebbed and flowed it has never entirely gone away. Today a jury sitting on a criminal case may engage in nullification. Since nullification remains a part of our criminal justice system, the question that obtains is this; how much influence can, or should, the judiciary have in limiting or otherwise influencing the jury’s right to nullify?  Said differently, as “keepers of the law,” what role do judges have in explaining or refuting nullification?

In looking at the question of whether or not jurors should be informed of their right to nullify, Irwin A. Horowitz has this to say:

Some legal scholars and jury activists argue that judges and courts are actively attempting to constrain the jury’s unfettered right to return a verdict by its own rights.  Proponents want judges to inform jurors directly that they can exercise their right to nullify. Indeed, much of the empirical research on nullification has focused on the effects of providing just such an instruction to the jury. One practicing attorney eloquently argues that defense attorneys should aggressively seek nullification in cases where their technically guilty clients are morally blameless.  Proponents believe that nullifying juries inform the legal process and militate against unjust laws. Furthermore, the pro-nullification argument contends that research shows that lay people are more sophisticated than the courts assume and that anarchy emanates not from jury disobedience but when laws are in conflict with community sentiment. [i]

Michael Dann, a retired Arizona judge and an articulate and perceptive supporter of the jury system, has carefully considered the issue of jury nullification and the possibility that judges inform the jury of this power.  Dann’s focus is on nullification in the service of mercy, although nullification may not always operate in the service of compassionate verdicts.  Dann finds it distasteful that the judicial system lies to the jury.

In every criminal trial, the jury is instructed that it must convict if a certain standard of proof is attained. However, juries need not do any such thing. They may, of course, return a not guilty verdict without fear of legal reprisal. Dann cites Federal Judge Jack B. Weinstein’s comment that jurors can produce nuanced decisions in specific cases that cannot be expected of the legislators who promulgated these laws.  Of course, this suggests that nullifying juries can serve as mini-legislatures. The core of Judge Dann’s argument is the notion that the current jury instructions are designed to prevent the jury from exercising its “constitutionally mandated” prerogative to vote their conscience.[ii].

It is this prerogative to vote their conscience that is the subject of the next article, “What Does Michigan Law Say About the Issue of Jury Nullification?”

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[i]Horowitz, Jury Nullification: An Empirical Perspective, 28 N. Ill. U. L. Rev. 425 (2008).

[ii] Id.