Jury Nullification Workshop
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Re-empowering Juries
Our founders prized liberty above all. They understood the threat government poses to liberty. Speaking for “We the People”, giving voice to the spirit of democracy, they placed their hope and faith for the preservation of liberty in the jury. No citizen’s liberty could be taken by the state without the unanimous consent of a jury of peers. A jury of peers was (and was to continue to be) the ultimate judge of the justice, judge of the whole case, law and fact. The judges final instruction to the jury was: “The whole case, both law and fact, is now committed to you in the fullest confidence that you will do justice.” [1]
“I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution.” |
| — Thomas Jefferson[2] |
“Jurors have not only have a right, but a duty … to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court.” |
| — John Adams[3] |
“The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal of arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation.” [4] |
| — Theophilus Parsons[5] |
“No idea was more central to our Bill of Rights — indeed, to America's distinctive regime of government of the people, by the people, and for the people — than the idea of the jury. Yet no idea today has suffered more abuse — from benign neglect to malignant hostility to cynical manipulation and strategic perversion — than the idea of the jury.” |
| — Akhil Amar[6] |
“[A jury] verdict, when general, is necessarily compounded of law and of fact; and includes both. In each [case] they must necessarily determine the law, as well as the fact. In each, they have the physical power to disregard the law, as laid down to them by the court. But I deny, that, in any case, civil or criminal, they have the moral right to decide the law according to their own notions, or pleasure. ... 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.” |
| — United States v. Baptiste, 24 F. Cas. 1042 (D. Mass. 1835) (Note: Webster won.) |
Lemuel Shaw, Chief Judge of the Commonwealth of Massachusetts, carried the assertion of judicial primacy on law into action in Commonwealth v. Anthes (1855). In that crucial case, the issue was whether defense counsel could argue to a jury that the statute allegedly violated by his client was unconstitutional. Justice Shaw ruled that it is the province of the judge, not the jury, to say whether a statute is constitutional.
Shaw framed this holding, altogether reasonable if confined to matters of constitutionality and other matters of legality, in the dichotomy between “law and fact.” Having asserted judicial primacy over “law”, Shaw left the jury only primacy over “fact”. He limited the jury’s function to determining whether a statutory violation has been proved. He instituted judicial instructions to jurors that jurors are bound to follow and apply the law as given to them by the judge, and he authorized judges to use the powers of contempt to prevent defense counsel from arguing to the contrary. All subsequent cases in Massachusetts and elsewhere soon followed suit.[7]
My proposition is that there is more to “law” than legalism. There is justice, grounded in the hearts of the jurors as the collective conscience of the people, central to the jury's function of judging the whole case. One hundred and fifty years of jury nullification doctrine fails to distinguish between legalism and justice. According to the original understanding, lawyers are entitled to argue to juries, and juries are entitled to hear a defendant’s argument that the application of the law of the statute to the defendant’s conduct would be unjust. If the court asserts as law that the jury must convict if it finds a violation of the statute, that instruction is unconstitutionally at odds the unquestioned rule that a judge may not direct a verdict of guilty in a jury case. Any instruction to the contrary is unconstitutional and obfuscatory. The challenge for judges is to instruct juries in a manner that harmonizes judicial oversight of legality with jury understanding and responsibility for liberty and justice.
Re-Empowering Juries -- Workshop June 9, 2008
CHARLES NESSON: I start from a presumption of liberty. Think of the founders of our nation. They assembled as people who had the liberty to create a government. They knew that historically all governments reflect their own self-interest and come over time to limit, if not destroy the collective power of the people. They believed that a government built of checks and balances would ensure that their (and our) liberty remain protected into the future.
One method for doing this was to provide that the government must present its case for taking away a citizen's liberty to a jury of his peers, and that the jury must unanimously agree to a general verdict of guilt as warrant for the State to take his liberty. The jury will last as a bulwark so long as it decides the whole case -- the law and the fact. When all other balances fail, the jury will remain as the last protection of liberty.
In a criminal prosecution the legislature must first pass a statute that defines a crime. Then the executive must choose to enforce the statute by coming forward with a formal charge and proof of it. Finally the judiciary must oversee the trial to make sure the statute is constitutional and the process of proof completely legal. And that package is then presented to a jury of the people. The jury represents us, so that we have some assurance that our values, our sense of justice and our liberty will be preserved.
All right, now that's the policy background. But I really want to make a doctrinal argument here. The doctrinal argument is this: That in the phrase, “the whole case, the law and the fact”, the reference to law is misunderstood. “Law” is used to mean the sense of justice, it's used in the sense of connection with the conscience of community. The judges who created the current doctrine of jury nullification read it as if it meant the formal law created by the State, e.g., legislation, common law, judicial precedent. But they were wrong (or just clever) to use it this way.
The argument came to a head in the 19th century over a dispute as to whether lawyers could continue to argue the unconstitutionality of statutes to the jury despite the trial judge's ruling that the statute was constitutional. The view that the judge decides constitutionality and that lawyers may not re-argue that issue to the jury prevailed. But in every single case, the ruling was based upon the judges power to decide constitutionality and other legal matters. It resolved the question insofar as it applied to constitutional matters, statutory interpretations and evidentiary rulings -- matters of legality. But, I assert, it did not address, nor did it justify, the claim that juries had no business deciding “law” in the more fundamental sense.
Even after the “legalities” have been articulated by the judge to the jury, the jury hears and must accept the interpretation of the law of the state that the judge puts upon it, the jury nonetheless retains the essential independent function and responsibility of deciding whether to apply the state’s law to the defendant before them. That is the jury’s constitutional function. That is its protective check and balance versus the state’s power to deprove a citizen of liberty. To take this funtion away diminishes, even obviates, the jury’s function as the last bulwark of liberty.
All right, that's my ten minutes. I'd be delighted with any and all comments.
A Text: Commonwealth v. Hebert
379 Mass. 752 (1980)
How should the jury be selected and instructed?
WILKINS. J.
In this case we conclude that a poll of the jury showed that the jurors did not agree unanimously on a verdict of the defendant's guilt and that, following a dialogue between the judge and an unconvinced juror, a mistrial should have been declared.
We summarize the evidence briefly. On April 1, 1975, the first day of the effectiveness of the mandatory one-year sentence for the carrying of a firearm without a firearm identification card, a policeman apprehended the defendant who was carrying an unloaded, but operational, rifle on a dirt road leading into woods in a rural area of the city of North Adams. The rifle belonged to the defendant's father. The defendant, who lived with his parents, was using the rifle with his father's permission. The defendant did not know what a firearms identification card was, and he did not have one. His father had the necessary permit, but he had not informed his son of the need to obtain a firearms identification card.
The case was tried before a judge and a jury of six in the District Court of Central Berkshire. After the jury had deliberated for approximately forty minutes, the jury sent a statement to the judge: "One juror out of their [sic] own conscience cannot give a verdict of guilty, knowing the defendant to be in possession of the firearm without an F.I.D. card based on the premise that the defendant might not have known the date to be April 1st."
The judge told the jury that the defendant's lack of knowledge that the effective date of the gun control law was April 1 was of no consequence. The defendant requested a mistrial and argued that the judge's further instructions were coercive. The judge denied the motion. The jurors resumed deliberation.
About twenty minutes later, the jury sent another message to the judge which read: "One juror wants to be disqualified because of the date involved. The boy should not be put in jail or have such on his record. It is a matter of conscience." The judge told the jury that the matter of sentencing was not the jury's responsibility. He gave a further charge derived from the modified Tuey 2 charge approved in Commonwealth v. Rodriquez, 364 Mass. 87, 98-101 (1973).
Ten minutes later the jury returned to announce a verdict of guilty. The judge authorized a polling of the jury. One juror answered that her verdict was qualified, because she felt in good conscience that if the defendant did not know he needed a firearms identification card on April 1, 1975, she could not find him guilty. The judge then engaged in a three minute dialogue with the juror. He explained that, in his opinion, the evidence was clear that the defendant had possession of a rifle on April 1, 1975, and did not have a firearms identification card. The juror said she was concerned about the fortuitous nature of the incident because on the preceding day the defendant's failure to have a firearms identification card would not have been a crime. In response to questioning by the judge, she admitted that she was satisfied beyond a reasonable doubt that the defendant had a rifle on April 1, 1975, and that he did not have an identification card. The judge commented that he could see no problem with the case. The juror again expressed her concern with the defendant's lack of knowledge of the effective date of the statute. The judge disregarded the juror's comments and excused the jury.
The defendant objected to the judge's dialogue and renewed his motion for a mistrial. He argued that it was improper to review the evidence in a conversation with a juror and that if a juror's verdict is qualified, the judge must either direct the jury to deliberate further or discharge the jury.
A guilty verdict was entered, and the defendant was sentenced to a mandatory one-year term in the Berkshire County house of correction. The trial judge stayed execution of the sentence pending this court's decision on the defendant's bill of exceptions.
It is beyond dispute that the jury verdict in a criminal trial in this Commonwealth must be unanimous. See Brunson v. Commonwealth, 369 Mass. 106, 120 (1975). Although the decision to poll a jury is discretionary with the trial judge ( Commonwealth v. Valliere, 366 Mass. 479, 497 [1974]; Commonwealth v. Caine, 366 Mass. 366, 375 [1974]), once the decision to poll is made, it must appear that the verdict is unanimous. A judge has no authority to direct a verdict when there are issues of fact to be resolved. See Commonwealth v. Moniz, 336 Mass. 178, 180 (1957). He may, however, question a juror in a limited way in order to understand whether a juror's answers show that the juror agrees with the verdict as announced. See Commonwealth v. Fleming, 360 Mass. 404, 408 (1971); Commonwealth v. Rego, 360 Mass. 385, 393 (1971). In general, however, our law does not permit inquiry into "the subjective mental processes of jurors, such as the reasons for their decisions." Commonwealth v. Fidler, 377 Mass. 192, 198 (1979). Moreover, any questioning of a juror must be neutral and not coercive or otherwise calculated to affect the juror's judgment. Amos v. United States, 496 F.2d 1269, 1272-1273 (8th Cir.), cert. denied, 419 U.S. 896 (1974). United States v. Sexton, 456 F.2d 961, 966-967 (5th Cir. 1972). United States v. Brooks, 420 F.2d 1350, 1354 (D.C. Cir. 1969).
In our view, the judge's comments and questions in this case exceeded proper limits. There is a distinction between judicial action taken to obtain clarity and judicial action that is likely to coerce. Williams v. United States, 419 F.2d 740, 746 (D.C. Cir. 1969). The judge's statements that, in his view, the evidence was clear and that he could see no problem with the case are themselves improper. See Commonwealth v. Sneed, 376 Mass. 867, 870 (1978). The inquiry whether the juror agreed that certain facts were proved beyond a reasonable doubt was likely to be coercive because it intruded into the jury's function. See United States v. Spock, 416 F.2d 165, 182 (1st Cir. 1969). Although it is improper for a juror to disregard the law as given by the judge, it remains within the power of a juror to vote his or her conscience. See Commonwealth v. Dickerson, 372 Mass. 783, 797 (1977), and id. at 811-812 (Quirico, J., concurring); Commonwealth v. Mutina, 366 Mass. 810, 819-820 (1975); Horning v. District of Columbia, 254 U.S. 135, 138 (1920) ("[T]he jury has the power to bring in a verdict in the teeth of both the law and facts") (Holmes, J.); United States v. Dougherty, 473 F.2d 1113, 1132-1133 (D.C. Cir. 1972). See generally, Note, Jury Nullification in Historical Perspective: Massachusetts as a Case Study, 12 Suffolk U. L. Rev. 968 (1978). In this case to the very end, the unconvinced juror felt in good conscience that she could not find the defendant guilty. In such a case, there was no unanimous verdict. The judge properly might have ordered further jury deliberations (prior to the dialogue with the juror) or he might have declared a mistrial. See Thames v. Commonwealth, 365 Mass. 477, 480 (1974). He did neither, and thus the defendant's motion for a mistrial made after the dialogue with the juror should have been allowed.
Exceptions sustained.
A Project: Suggested Opening Jury Instruction
Ladies and gentleman of the jury:
Thank you for honoring your citizen’s duty by serving today on this jury. Each one of you, as a juror, is as much an agent of our government as I am as judge. We each have our roles and responsibilities in the trial in which you will be participating.
My role as presiding judge is to direct the process of the trial of the defendant, and to instruct and guide you in the performance of your jury duty. Your role is to determine whether the defendant is guilty of committing a crime. Without your unanimous verdict of guilt the state cannot take the defendant’s liberty away.
As jurors you will speak for the people. You echo the voice of the original founding citizens of our government who gathered together in a constitutional convention to create our government and fundamental laws.
The prosecution has charged this defendant with carrying of a firearm without a firearm identification card.
I will instruct you as to the applicable law with respect to all matters of evidentiary admissibility, statutory interpretation and constitutionality. I decide the law.
You, the jury, are to judge whether the defendant committed a crime.
It will be your responsibility to determine first whether each element of the statutory charge against the defendant is true. Proof beyond reasonable doubt of the truth of the charge against the defendant is a legal precondition that must exist for you to convict the defendant of a crime.
In addition to statutory violation, a defendant’s act, to be a crime, must be an offense to the safety and tranquility of our community that, in your judgment, as the conscience of our community, warrants your verdict of criminal guilt.
Additional links
Trial_By_Jury -- early origins
A Video: The Verdict -- "YOU ARE THE LAW!
Watch Paul Newman's closing argument from "The Verdict" (1980) here.
A Video: Juror #6 -- "WE MAKE OUR OWN REALITY"
Watch Rachel Lyon's expression (2008) of how we train ourselves to racism by the media we demand for our public consumption. here.
A Text: Mark DeWolfe Howe on Juries
Juries as Judges of Criminal Law, 52 Harv. L. Rev. 582 (1939)
David Simon's Editorial
The Wire's War on the Drug War (time.com)
Justice O'Conner's OurCourts
Teachers, professors and technologists are designing an interactive online civics curriculum that will be free of costs to all users. here.
Correspondence
adriaan
Dear Charles,
I’m sorry to say that I won’t be able to attend your workshop on Monday. But I read and enjoyed the paper you circulated. If I were at the workshop, I probably would have asked the following questions:
1. Jury nullification is often divided into three types: (1)refusing to convict because the jury believes that the conduct addressed in the statute should not be a crime; (2) refusing to convict because the particular circumstances of the case make the defendant’s conduct not criminal; and (3) refusing to convict because the jury believes that the defendant’s act, though criminal, does not warrant the serious charge (and attendant penalty) sought by the prosecution. Which of these three are you most concerned to protect (Hebert seems to involve primarily #2), and if you want to protect all three, should you include more precise language in the proposed jury instruction to include them all?
2. As I’m sure you know, the history of jury nullification includes not only protection from oppressive statutes like the sedition acts, but also refusals of white jurors to convict other whites who perpetrated hate crimes. Do your suggested reforms include some mechanism to prevent this kind of problem (e.g. a proposal for mandatory representation on juries, or more serious review of allegedly racially-motivated jury verdicts)?
Once again, sorry I won’t be at the workshop. I’d be interested in reading further drafts of this paper in the future if you’d like.
Best wishes, Adriaan
Forwarded conversation Subject: Re-empowering juries
From: Adriaan Lanni <adlanni@law.harvard.edu> Date: Fri, Jun 6, 2008 at 1:25 PM To: Charles Nesson <nesson@law.harvard.edu>
Dear Charles,
I’m sorry to say that I won’t be able to attend your workshop on Monday. But I read and enjoyed the paper you circulated. If I were at the workshop, I probably would have asked the following questions:
1. Jury nullification is often divided into three types: (1)refusing to convict because the jury believes that the conduct addressed in the statute should not be a crime; (2) refusing to convict because the particular circumstances of the case make the defendant’s conduct not criminal; and (3) refusing to convict because the jury believes that the defendant’s act, though criminal, does not warrant the serious charge (and attendant penalty) sought by the prosecution. Which of these three are you most concerned to protect (Hebert seems to involve primarily #2), and if you want to protect all three, should you include more precise language in the proposed jury instruction to include them all?
2. As I’m sure you know, the history of jury nullification includes not only protection from oppressive statutes like the sedition acts, but also refusals of white jurors to convict other whites who perpetrated hate crimes. Do your suggested reforms include some mechanism to prevent this kind of problem (e.g. a proposal for mandatory representation on juries, or more serious review of allegedly racially-motivated jury verdicts)?
Once again, sorry I won’t be at the workshop. I’d be interested in reading further drafts of this paper in the future if you’d like.
Best wishes, Adriaan
From: Charles Nesson <nesson@gmail.com> Date: Sat, Jun 7, 2008 at 9:56 AM To: Adriaan Lanni <adlanni@law.harvard.edu>
thank you for writing. your questions are excellent.
1, (1) and (2) more than (3). The verdict of guilty of a crime is a warrant to take the defendant's liberty. Both (1) and (2) express the jury's judgment that though a defendant may have violated the letter of a legislative statute his conduct does not warrant condemnation as a crime and loss of liberty. (3) involves not the justice of taking the defendant's liberty because of his action but the further and different question of for how long.
2. :Who are WE? My first case engaged the jury practice of lowndes county alabama (1966). Yes, the bias of the juries in the south made the judicial system which fostered it complicit as a system in the murder of Emmett Till and many many others. There is obviously no remedy for this problem in jury nullification doctrine that tries to obscure the jury's power. The combination of the Voting Rights Act of 1965, the Jury Selection and Service Act of 1968, and Batson v. Kentucky have done much to change things by changing the composition of juries to reflect a truer cross-section of the people.
i'd love to have your thoughts. --
when appropriate (in my judgment) to an open project and not sensitive (in my judgment) in terms of privacy, i may post email to my blog. all privacy requests respected. ----------
From: Adriaan Lanni <adlanni@law.harvard.edu> Date: Mon, Jun 9, 2008 at 9:57 AM To: Charles Nesson <nesson@gmail.com>
Thanks for your note.
In this age of determinate sentencing and mass incarceration, I think the third type of jury nullification (acquitting to avoid a high penalty) may be the most important. But to make this effective, jurors would have to be informed of the statutory sentencing range, including the applicability of mandatory minima, 3-strikes laws, etc. These kind of quasi-sentencing decisions are not as far from the original role of the jury as might seem; in England, and to some extent in colonial America, jury nullification was used to combat the effects of the mandatory death penalty for all felonies.
Best wishes,
Adriaan
References
- ↑ See e.g., United States v. Hoxie, 26 F. Cas. 397, 403 D. Vt. 1808; Georgia v. Brailsford, 3 U.S. 1 (1794)
- ↑ To Thomas Paine, 1789.
- ↑ 2 John Adams's Works, 254, 255
- ↑ The Massachusetts Convention on the ratification of the Constitution, January 23, 1788, in Debates in the Several State Conventions on the Adoption of the Federal Constitution, Jonathan Elliot, ed., v.2 p.94 (Philadelphia, 1836)
- ↑ Parsons was a member of the state constitutional convention of 1779-1780 and one of the committee of twenty-six who drafted the constitution. He was also a delegate to the state convention of 1788 which ratified the Federal Constitution.
- ↑ Reinventing Juries, 28 U.C. Davis L. Rev. 1169 (1995)
- ↑ Clay Conrad, Jury Nullification: The Evolution of a Doctrine (1998), Sparf v. United States, 156 U.S. 51 (1895)
