Jury nullification
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Paul Bozzello
I do not believe that any judge could reasonably instruct a jury that it may find a defendant not guilty merely because they believe the defendant should not be prosecuted for actions which clearly place him/her within reach of the criminal law. However, I do believe in jury nullification and I support the jury's right to acquit a defendant if it is their belief that a guilty verdict would be unjust to the individual and the citizenry. I support this right because it would be anathema to the constitutional principles underlying the right to trial by jury to hold that a judge, an instrument of state power whose independence is questionable, should be the final decision-maker with respect to a defendant's liberty. However, as we discussed in class, there are all kinds of problems with a jury instruction that would explicitly grant juries the right to find a defendant not guilty merely because they believe it would be unjust to find otherwise. I think that jurors should be made aware of their right to nullify during the early stages of the jury duty process or perhaps even through education in high schools. Americans should have greater awareness of their rights as citizens, voters, jurors etc. The right to nullify as a juror could become common knowledge through such education. The closest instruction I could imagine to one which would include explicit nullification rights would be one which instructed the jury as follows:
"If you believe that the defendant's actions merit a suspension of his/her liberty as provided by the law, you should find the defendant guilty. If you do not believe that the defendant's actions merit a suspension of his/her liberty, you may enter a finding of not-guilty."
In this way the jurors could be made aware of the salience of the liberty interests at stake for the defendants and understand that a guilty verdict doesn't exist in a vacuum, but entails suspending one of the most fundamental of constitutional rights. Because the suspension of liberty is indeed meant to execute the punitive function of the law, it should only occur when we, as citizens, believe that such punishment is warranted. The jury process is itself a part of the legal process of making and remaking law. Without the right to nullify, jurors are stripped of one of their constitutional protections against state/federal power – the right to protect their fellow citizens in the face of what they believe to be a tyrannical law, state or court.
Kristin Kramer
Ladies and gentleman of the jury, you have been selected to represent your community as we embark on a process of judgment. The defendant, [insert name], stands before you accused of the crime of [insert crime]. Your job consists of two parts. The first part will take place in this courtroom. You will sit in the jury box and pay close attention to everything that transpires in front of your. Both the counsel for the defendant and the State prosecutor will present their cases to you, and it is your job to pay careful attention to their arguments, to listen to the testimony of witnesses, and to weigh the evidence presented by both sides. Some evidence will strike you as more credible than other evidence, and other witnesses will appear more believable and truthful than others. It is your job to process this evidence and testimony and to perform the fact-finding function of determining which is to be believed and which is not, what is to be given weight when it is applied to the relevant law and what is not.
Part two of your job is a bit different. In part two, the trial will be over and it will be entirely up to you to formulate a judgment about the defendant's guilt or innocence. When the trial is over, the judge will instruct you on the law to be applied to the case, and you will retire to the jury room to discuss the case with your fellow jurors. You have a great power in part two of your job. This power derives from the Constitution of the United States, a document created by "we the people'" which empowers the jury as a body to make determinations of both fact and law. This means that if you believe the evidence proves the guilt of the defendant “beyond a reasonable doubt” [or whatever burden of proof is relevant], and you believe the law at issue is properly applied to the case at hand, then you must return a verdict of "guilty." If, however, you determine that the evidence does not prove the defendant’s guilt, or you believe that the crime he is charged with does not apply to the facts as you have found them, you must return a verdict of "not guilty." The trial will not commence.
What jury nullification doesn't mean:
I believe that jury nullification allows a jury to return a “not guilty” verdict despite factual findings sufficient to return a “guilty” verdict. Basically, it means that a jury can declare through its verdict that it doesn’t believe a particular law should have been applied in a particular case. It doesn’t give a jury the power to declare that the law itself is incorrect or unconstitutional. It could be a useful way, however, to send a signal to legislatures and judges that the public at large believes that a law isn’t just.
Darrell Bennett, Jr.
Ladies and gentleman of the jury:
First let me say thank you for agreeing to serve on this jury today. Your role in these proceedings is equally as important as mine as judge. Together we are charged with deciding the matter before us.
My role as judge is to facilitate the process by which you make the decision as to guilt or innocence. I will keep order and make certain that the proceedings are done in a matter fair to you, the jury, and the parties involved. You ultimately decide the fate of the defendant and only a unanimous vote of guilt can convict the defendant of the crimes alleged.
As jurors you have an immense task. Your role is grounded in the very essence of our American democracy. You, the peers of the defendant, stand as the deciders of his/her fate. You decide whether the defendant committed a crime.
In determining whether the defendant is guilty or not, you must first decide whether each element of the statutory charge against the defendant has been proven by the state. In order to reach a guilty verdict, you must believe that the state has proven beyond a reasonable doubt of the truth of the charge against the defendant. You are the finders of fact. As the facilitator of this process, I will identify, explain and clarify the relevant laws with respect to all matters of evidentiary admissibility, statutory interpretation and constitutionality. I am the finder of law.
There is, however, an exception to when you must follow the law. If you decide that the state has proven each element of the statutory charge against the defendant, you can still choose not to convict. You can nullify the charges, if you believe any of these three conditions exists: (1) the conduct addressed in the statute should not be a crime; (2) the particular circumstances of the case make the defendant’s conduct not criminal; or (3) the defendant’s act, though criminal, does not warrant the charge (and subsequent penalty) sought by the prosecution. This is not only your right as a jury, it is your responsibility.
matt sanchez
"Ladies and gentlemen of the jury, your task is to determine the guilt or innocence of the defendant. This is an important duty, as you have the power to decide whether the defendant, your peer as American citizen, will go free, or whether she will lose her liberty through incarceration. I have presented you with the laws governing this case. You must decide whether the facts of this case warrant a verdict of "guilty" or innocent" under those laws. Your decision should comport equally with the law and with your collective view of what justice requires in this case. Good luck."
Jeremy Kasile Goldberg
Ladies and gentlemen of the jury, all of the evidence that will be presented in this trial has been heard. Now, you bear the responsibility of carrying out one of the essential duties and responsibilities of the American legal system: determining what you believe to be the true facts of this case. You have all of the necessary tools to carry out this duty. Consider all of the information that has been presented; do not focus on one statement or piece of evidence at the expense of all others; do not let any initial impressions or pre-judgments hinder your rational, balanced examination of the evidence that has been presented.
Ladies and gentlemen of the jury, you bear a great responsibility but it is a responsibility that is tightly circumscribed. Your duty is to determine what you believe to be the true facts of this case. That is all. You bear no duty nor do you have the privilege to consider the validity of any given law.
These laws have been passed after much deliberation and consideration by legislators. Their effects, application, and repercussions have been considered in great detail and it is not your place to pursue any sort of reexamination. Those who passed these laws are men and women selected through the democratic process by you and other American citizens to serve as lawmakers. It is these lawmakers who bear the ultimate responsibility, good and bad, in their consciences and in the democratic process, for the judicial decisions that result from the laws they create.
The severity of the punishments and repercussions that will result from your finding of fact are also outside of your role in this case. Those legislators that you elected have determined, in this instance and most others, minimum and maximum limits on the punishment that may provided for those who have violated this law. Within these limits, it is my duty as the judge to make a determination of where the severity of the acts committed in the case before us if the defendant is judged to be guilty by you. I have the tool of foresight, I have seen similar cases before and am able to place this case in their context. I have the gift of pragmatism, what may be shocking or unprecedented to you has, unfortunately, likely been seen many times before within our country's borders.
So, ladies and gentlemen of the jury, I task you with the responsibility of determining what you believe to be the true facts of this case. You bear no duty nor privilege to determine whether the existence, enforcement, and severity of this law are just or correct.
Caitlyn Ross
cessante ratione legis cessat ipsa lex
"When the reason for the law ceases, the law itself ceases."
In defining the role of a jury, there is a focus on what a jury must do: a jury has a responsibility to serve as representatives of its community. Within that responsibility, a jury must also seek out the truth. When in doubt, a jury must protect individuals within the community against the government. As Thomas Jefferson noted, “I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.”
It is more difficult to determine what a jury must not do. Beyond the basic ethics of the situation (a juror should not accept bribes, convict without evidence etc.) the jury as an entire body has fewer limitations. Because a jury is made up of more than one person, the effect of one juror is limited. So long as there is a belief in the maxim that a person is innocent until proven guilty, even a juror deciding to vote not guilty in the face of the evidence is less harmful than the opposite situation.
When the question of jury nullification is raised, we tend to limit the scope to the United States. Although other English-law countries such as the UK and Canada have histories of jury nullification, the US has the most prominent examples. This phenomenon helps keep the government in check, and possibly more in tune with how laws are perceived. I believe that all citizens have a responsibility to fight against unjust laws; this can include jury nullification. However, expecting jury nullification to provide the antidote to all such laws is a true abdication of responsibility. Therefore, a jury must not see itself as a legislative tool, but as a final check against tyranny.
Jury instructions:
As members of this jury, you are serving not only the government’s needs, but as your own community’s conscience. You are instructed to find the defendant guilty or not guilty of particular criminal acts. In order to convict, you must believe beyond a reasonable doubt that a crime has been committed by this defendant. You are responsible for determining if the actions occurred, and whether the defendant should be condemned for those actions. You cannot pass responsibility on to another person.
Debbie Rosenbaum
Although my liberal inclinations lead me towards favorably approving jury nullification, law school – for better or worse – has taught me to carefully consider the long-term consequences that would result from any position. On one hand, there is a romantic feeling behind the notion that American people, through positions on the jury, can have a powerful stance in the right to determine questions of both law and fact. Personally, I relish the power to nullify decisions. In a judicial system that is plagued with politics and bureaucracy, I see how a jury nullification policy could help mitigate these influences and serve as a check on the judiciary, as protection against potential overreaching by the prosecution, and as a means to legitimize the validity of democratically enacted laws. Jury nullification is a powerful tool by which the jury can send a message about some social issue that is larger than the case itself, or a statement that application of such a law is contrary to the jury's sense of justice, morality, or fairness. After all, trust in the jury is one of the cornerstones of our entire criminal jurisprudence, and if that trust is without foundation, we must reexamine a great deal more than just the nullification doctrine.
All of those arguments resonate with my faith in the judicial system and the American people. But it is a well-recognized fact that jurors have the power to acquit an otherwise guilty defendant, but it remains unclear whether jurors have the right to do so. For instance, I have concerns about juries' ability to understand trial evidence and to render informed and unbiased verdicts – particularly with regard to legal decisions. I also worry that jury nullification could allow or encourage jurors to stray from the facts and decide cases primarily on their emotional reactions, personal biases, and other non-evidentiary factors. Jury nullification could lead to verdicts that are arbitrary, idiosyncratic, and induce chaos in the legal system. Moreover, judges are repeat players in the justice system, making judicial nullification more dangerous for the justice system in the long run. A judge's routine refusal to follow the law is more pernicious than a single verdict rendered by twelve jurors, randomly selected from the community, who are then released from service, unlikely to serve again in the near future. This is precisely why judges, unlike juries rendering a general verdict, are required to explain in great detail their rationale for judgments or other dispositive decisions. Thus, when judges decide to disregard an established court policy concerning jury trial practices, they should likewise be required to explain their reasoning explicitly and on the record. For me, the possible negative consequences on the structure and confidence in the American judicial system outweigh the civil disobedience that arise from jury nullification. Judges and jurors can continue to raise their support for, or opposition to, policies through other judicial and legislative policymaking venues.
