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Jury Nullification: the Right to Say No Alan Scheflin Santa Clara University School of Law, [email protected]

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Jury Nullification: the Right to Say No Alan Scheflin Santa Clara University School of Law, Ascheflin@Scu.Edu Santa Clara Law Santa Clara Law Digital Commons Faculty Publications Faculty Scholarship 1-1-1972 Jury Nullification: The Right to Say No Alan Scheflin Santa Clara University School of Law, [email protected] Jon Van Dyke Follow this and additional works at: http://digitalcommons.law.scu.edu/facpubs Part of the Law Commons Automated Citation Alan Scheflin and Jon Van Dyke, Jury Nullification: The Right to Say No , 45 S. Cal. L. Rev. 168 (1972), Available at: http://digitalcommons.law.scu.edu/facpubs/686 This Article is brought to you for free and open access by the Faculty Scholarship at Santa Clara Law Digital Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. JURY NULLIFICATION: THE RIGHT TO SAY NO ALAN W. SCHEFLIN* Only one of the countless historical trials held at the Old Bailey in Lon- don -is commemorated by a memorial in the present building. On a plaque near Court No. 5 are inscribed these words: Near this site William Penn and William Mead were tried in 1670 for preaching to an unlawful assembly in Gracechurch Street. This tablet commemorates the courage and endurance of the Jury, Thomas Vere, Edward Bushell and ten others, who refused to give a verdict against them although they were locked up with- out food for two nights and were fined for their final verdict of Not Guilty. The case of these jurymen was reviewed on a writ of Habeas Corpus and Chief Justice Vaughan delivered the opinion of the court which established the Right of Juries to give their Verdict according to their conviction.' Al of the jurors in that celebrated case were fined and jailed until they ,paid their fines in full. Four of them spent months in prison and all were locked up without "meat, drink, fire and tobacco" for three days in an attempt to force them to change their verdict. Their courage, fortitude and dedication to the spirit of liberty has been institu- tionalized in our legal system under the doctrine of jury nullification. According to this doctrine, the jurors have the inherent right to set aside the instructions of the judge and to reach a verdict of acquittal based upon their own consciences, and fhe defendant has the right to have the jury so instructed. The jury nullification concept did not develop as a pure question but instead was intermixed with other issues. Thus, some of the ensuing discussion deals with the right of the jury to decide questions of law as well as of fact. This issue raises the ques- 0 Associate Professor of Law, Georgetown University Law Center. B.A. 1963, Uni- versity of Virginia; J.D. 1966, George Washington University; LL.M. 1967, Harvard Uni- versity. Visiting Associate Professor of Law, University of Southern California Law Center, 1971-72. 1. The case is Bushell's Case, 6 HowErL's STATE TRALus 999 (1670) [hereinafter cited as HowEL's]. 168 HeinOnline -- 45 S. Cal. L. Rev. 168 1972 JURY NULLIFICATION tion of whether the jury can rule on the constitutionality of statutes. For the sake of clarity, however, the jury nullification concept advocated here is the right of the jury to be told by the judge that they may refuse to apply the law, as it is given to them by the judge, to the defendant if in good conscience they believe that the defendant should be acquitted.2 This paper will examine the nullification doctrine from its heyday during the 18th century to its non-recognition by courts today. An argument advanced for the right of both the defendant and the jurors to the nullification instruction will be grounded upon the role of the jury in a constitutional democracy. I. JURY NULLIFICATION IN HISTORICAL PERSPECTIVE3 There was a time when "conscience" played a legally recognized and significant role in jury deliberations. Lord Hale, discussing the func- tion of the jury in 1665, stressed the fact that ". it is the conscience of the jury, that must pronounce the prisoner guilty or not guilty."4 In 1680, Sir John Hawles defended the right of jurors to judge both law and fact in a criminal case: To say that they are not at all to meddle with, or have respect to, law in giving their verdicts, is not only a false position, and contra- dicted by every day's experience; but also a very dangerous and pernicious one; tending to defeat the principal end of the institu- tion of juries, and so subtly to undermine that which was too strong to be battered down.5 The increased use by the English government of prosecutions for seditious libel in the 18th century as a means of silencing political foes 2. When the historical basis of jury nullification is dealt with, it is essential ini- tially to pose the issue in broader terms since the right of the jury to decide questions of law of necessity contains the lesser integral right to nullify. This broader right to decide questions of law has occasionally been argued to include the right of the jury to declare a statute unconstitutional-an extension which seems invalid. The jury may feel that the statute is unconstitutional and refuse to -onvict under it (nullify), but it is absurd to think that-they could declare a statute unconstitutional and have that decision be legally binding in other cases. It seems likely, therefore, that all the argument means is that the jury can nullify because they in good conscience believe the law is wrong. Similarly, if the right to nullify, as it is advocated here, is recognized, it is not necessary to give the jury the broader right to determine the law as weil as the facts. Thus, it is quite possible to disapprove of the broader right without also disapproving of -the nullification right. 3. :I have drawn heavily on the excellent brief of Caroline Nickerson, Esq., in United States v. Bernard E. Meyers, Criminal No. 872-69 (D.D.C. 1970). 4. 2 M. HALE, HTroRY oF THE PLEAS OF THE CROWN 312 (W. Stokes & E. Ingersoll ed, 1847.), - 5. J. HAWEas, THE ENGLISHMEN'S RIGHT OR A DIALOGUE BETW EN A BARRISTER AT- LAW AND A JURY M4AN 80 (reprinted Phila. 1-798). - HeinOnline -- 45 S. Cal. L. Rev. 169 1972 170 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 45:168 gave rise to a great debate as to the extent of the role of juries in those cases.6 Under the law of libel as it then existed, truth was not a defense. In addition, judges left to the jury only the issue of whether there was a publication by the defendant. With this view of the power of the jury, prosecutions for seditious libel provided an excellent device for repres- sion of dissent. With an agreeable, or at least neutral, judge, with truth not a defense, and with a jury rubber-stamping the fact of publication, which was usually not contested by the defendant anyway, convictions were routine. Were it not for some courageous jurors who were willing to put their lives on the line and decide political cases upon their own consciences, the law of seditious libel might have prevented the birth of our constitutional democracy by silencing all voices raised in protest. Certainly freedom of speech and press would only have meant the inalienable right to publicly agree with the government. Consider the courage of the jury that tried William Penn.7 Penn and Mead were indicted in 1670 for preaching before an unlawful assembly. After hearing the evidence, the jury retired to consider its verdict. Within an hour and a half, eight jurors returned to convict but four refused to return to court until ordered to do so. The jury was threatened by the court and sent back for further deliberations. When they returned they found Penn guilty of speaking at Gracechurch Street but refused to say whether he had been addressing an unlawful as- sembly. Sent back again, they returned with a verdict of not guilty for Mead and guilty of preaching to an assembly for Penn. The Recorder then addressed them: Gentlemen, you shall not be dismissed till we have a verdict that the court will accept; and you shall be locked up, without meat, drink, fire, and tobacco; you shall not think thus to abuse the court; we will have a verdict by the help of God, or you shall starve for it. Penn: My jury, who are my judges, ought not to be thus menaced; their verdict should be free, and not compelled; the bench ought to wait upon them, but not forestal them. I do desire that justice may be done me, and that the arbitrary resolves of the bench may not be made the measure of my jury's verdict. 6. On seditious libel see 2 J. STErHENs, A HISTORY OF THE CRIMINAL L&w oF ENGLAND (1st ed. 1883); Shientag, From Seditious Libel to Freedom of the Press, 11 BRooKLYN L. REv. 131 (1941); Kelly, Criminal Libel and Free Speech, 6 KANSAS L. Rzv. 295 (1958); L. Levy, FREEDoM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY: LEGACY oF SUPPRESSION (1963). 7. Penn & Meads' Case, 6 HowElr's 951 (1670). HeinOnline -- 45 S. Cal. L. Rev. 170 1972 1972] JURY NULLIFICATION Recorder: Stop that prating fellow's mouth, or put him out of the court 8 Once again the jury was sent out and once again they returned with the same verdict. After threats by the court failed to move them, Penn spoke up: Penn: It is intolerable that the jury should be thus menaced: is this according to the fundamental laws? Are not they my proper judges by the Great Charter of England? What hope is there of ever having justice done, when juries are threatened, and their verdicts rejected? I am concerned to speak, and grieved to see such arbitrary proceedings.
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