Are Jurors Entitled to Have a Conscience? #CriminalDefense


Jury nullification occurs whenever a criminal jury’s collective conscience is troubled by what is deemed to be an unjust law or a truly unique set of circumstances that justify ignoring the law. In such rare cases, the jury has the power to render a verdict that disregards both the evidence presented in court and the judge’s instructions regarding the law. As a criminal defense attorney, I am consistently amazed that most citizens are unaware that a jury can wield such enormous power, yet recognition of jury nullification dates back several hundred years.

One of the more famous jury nullification cases involved William Penn. In 1670, Penn’s Quaker Church was closed by the authorities. Unable to meet inside, Penn held a peaceful church meeting on the street next to his church and was arrested for unlawful assembly. At Penn’s trial, the jury repeatedly informed the judge they wanted to acquit Penn, but each time this happened, the judge sent the jury back to the jury room for more deliberation. Finally, the judge accepted the jury’s “not guilty” verdict but imprisoned the jury. The written appellate decision that released the jurors from custody affirmed that jurors cannot be punished for voting their conscience.

During colonial times, jurors routinely failed to uphold English laws that were viewed as tyrannical in nature. As a result, when drafting the Bill of Rights, our Founding Fathers put preeminent importance on the right to a jury trial. Two centuries after the Bill of Rights was ratified, the United States Supreme Court noted that:

A right to a jury trial is granted to criminal defendants in order to prevent oppressions by the Government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. * * * Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the complaint, biased, or eccentric judge. * * * Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt.

Duncan v. Louisiana, 391 U.S. 145, 155-156, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968)
After the United States was formed, judges no longer were controlled by a king. As a result, in America’s early years, jury nullification was no longer a common place event. Yet, whenever issues of heated national debate were brought into the courtroom, jury nullification would resurface. Examples of these types of historic jury nullification cases have included such topics as: helping slaves escape, enforcement of prohibition, protesting the Vietnam War, abortion, and euthanasia of the terminally ill. Just recently, medical marijuana groups have begun openly advocating jury nullification in cases involving an ailing defendant.

And yet, for all its historical significance, defense attorneys are almost consistently prohibited from educating a jury about their nullification power. New Hampshire is currently the only jurisdiction with a statute explicitly allowing defense attorneys to inform juries about the power of jury nullification. See N.H. Rev. Stat. § 519:23-a. In all other states, including Arizona, written jury instructions regarding jury nullification are never allowed. Jurors that proclaim upfront their awareness of jury nullification are routinely excused from jury service.

Proponents of keeping the jury in the dark claim that open knowledge of jury nullification would “invite chaos” or “run the risk of anarchy.” See United States v. Dougherty, 473 F.2d 1113, 1134 (D.C. Cir. 1972) (rehearing denied Oct. 26, 1972). Such judges believe that in cases of “high conscience,” jurors can and will magically realize on their own that they have the inherent power of jury nullification. See id. at 1136.

None of us like being lied to and having key information withheld. Judges that advocate informing juries about nullification assert that there is always “considerable harm” in any “deliberate lack of candor.” See id. at 1139 (Bazelon, J., dissenting). More importantly, trust in the jury system is “one of the cornerstones of our entire criminal jurisprudence.” See id. at 1142 (Bazelon, J., dissenting). As a result, by proclaiming that we cannot trust the jury to exercise their nullification power appropriately, then what we are really saying is we cannot trust our juries to do their job. Such a conclusion would compel us to “re-examine a great deal more than just the nullification doctrine.” See id.

Although it is often a personal inconvenience, jury service demands the very best our citizens have to offer. That very best can only be provided if society as a whole openly acknowledges and understands the nullification power.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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