The Analysis: Jury Nullification

The loss of control in a society of so many is truly a frightening prospect - more so perhaps than the prospect of allowing an ordered government, even if corrupt or unfair - enough power to provide order. And such is why as a society we acquiesce to a higher authority in order to provide a source of security to our lives. At times I believe that we take this for granted so much, in a constant tug of war with government for more power as an individual, that we tear a hole in it which could be dangerous. Could the individual manage to make enough of a rift in this structure of justice and law to threaten the order we have arranged for ourselves so carefully in a system of checks and balances?

The practice of jury nullification, or jury veto, the acquittal or conviction of a defendant by a jury as a form of protest, has the potential to be one of these rifts.

The idea was utilized as early as 1734 when a printer named John Zenger was arrested for libel for dragging the name of the English government through the mud within his published articles. At the time, publication was illegal unless regulated by the government. Zenger admitted to the facts but argued that since the things he'd printed about the English government were true, no libel had been committed. Despite the fact that Zenger had admitted to his guilt and that the judge instructed the jury that all they must do is convict based on the law in place and facts on the case, the jury acquitted Zenger of the charges in ten minutes. It was undoubtedly a statement demanding freedom of the press.

There are other "good" applications of jury nullification as well - like the refusal of juries in the North during the civil war to convict slaves for escaping. And this view of jury veto seems to be the one that is prevalent - that a jury of one's peers is better able to judge you and the law you are held to than big, bad government. However, there are also examples in which jury nullification was likely accountable for the neglect of predominately white juries to convict white defendants of lynching. And there are more modern undercurrents of black jury members refusing to convict black defendants for dealing drugs because they were poor or "as a protest of racism in the justice system."

The former was suspected by a judge in a drug case who dismissed the juror, following a complaint from other jury members, which lead to a conviction. The call was later overturned by the 2nd Circuit Court of Appeals who felt obligated to do so because the juror insisted he had simply been unconvinced by the evidence.

The same decision however, contained sharp criticism of this form of protest and upheld the right of a judge to dismiss any juror if they can be positive that the juror does in fact intend to nullify irregardless of the evidence presented in the case. In the words of Judge Cabranes: "Jury nullification is a violation of a juror's sworn duty to follow the law as instructed by the court."

The decision, reached in the late 1990s, was most likely in response to a cloud of controversy during that time surrounding the issue. Several prominent individuals, including a George Washington University Law professor named Butler, publicly encouraged the acquittal of black defendants for nonviolent crimes as a protest against a justice system permeated by racism.

There is no disputing that the practice of jury veto has been used for relative good, relative evil, and the virtually-morally-unexplored (such as assisted suicide or the use of an insanity defense for postpartum murders). What I was left to wonder is this: If a jury was not an entity with the right to judge the law, the application of the law, AND the facts of the case, then why have a jury at all? The same duty, that of analyzing the facts of a case and scrutinizing the evidence presented, could be undertaken just as well, if not better, by a judge or a panel of attorneys. Perhaps the 2nd Circuit simply found it best that the jury veto remain an unadvertised right.

However, on my other shoulder is another question: If a jury of individuals were fully aware of the power, if not the right, to mold, bend, or ignore the laws as they are so carefully laid out in the interest of protecting the order of our society and instead chooses to convict or acquit based on normative rules of behavior - How could we expect any consistency in our justice system? Does this truly portray the ideal of the "impartial" jury?

Several experts are certainly clear on their take of the issue. An English law professor, Sir Robin Auld , declared: "It is a blatant affront to...the criminal justice system - the control of crime - of which they are so important a part." Roscoe Pound, another law professor, on the other hand believes that "jury lawlessness is the great corrective of law in its actual administration." And right smack dab in the middle you have the pragmatists like Thom Brooks who reasons that "juries do not have a constitutional right to ignore the law, but they have the power to do so nonetheless."

The root of the power that Brooks refers to comes from the right of the jury decided in the famous Bushell's case to return a verdict without justification (this is called a general verdict). Opponents of jury nullification have suggested that special verdicts, verdicts returned complete with reasons for the decision, be instated in criminal cases.

Some more intriguing resources:
FoxNews: An example of "bad" jury nullification in a tort case: the article is presented for information on facts of the case. Notice how much the jury awards the plaintiffs compared to the net worth of the defendants. According to a study published by the Buffalo Law Journal, jurors award 20% more on average than a judge would in civil cases.
State of New York: Index of Jury Instructions given for different types of cases
National Jury Project: "Jury Consultants" business website. It's a bit surprising that it's allowable for businesses like these to be hired to assist attorneys in making their voir dire decisions (Voir Dire are questions asked of the jury in an attempt to ascertain if they would be more or less likely to be on the side of the attorney asking. Each attorney can eliminate one juror for any reason other than gender or race in what is called a peremptory challenge.
Law and the Parameters of Acceptable Deviance: I really encourage everyone to take a quick look at this Criminal Law Journal article by Mark Edwards published last year on PADs (Parameters of Acceptable Deviance). I referred to it before as a normative application of the law or application based on popular sentiment about what is acceptable rather than whether behavior is technically illegal or not. He talks about what behaviors jurors and others will find acceptable though they are illegal (and thus acquit) as well as behaviors found to be unacceptable (that may lead to a conviction despite a defendant not technically being guilty). An example of this, as he notes, would be a defendant accused of gang activity and a conviction because the jury notices he has tattoos sporting gang insignia...or perhaps because he listens to a certain type of music or dresses a certain way.