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Jury Nullification Within the Rule of Law Darryl K University of Minnesota Law School Scholarship Repository Minnesota Law Review 1997 Jury Nullification within the Rule of Law Darryl K. Brown Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Brown, Darryl K., "Jury Nullification within the Rule of Law" (1997). Minnesota Law Review. 1095. https://scholarship.law.umn.edu/mlr/1095 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Jury Nullification Within the Rule of Law Darryl K. Brown* The jury has been the subject of a resurgence of scholarly and popular interest in recent years, partly in response to sev-1 eral high-profile criminal trials and civil jury damage awards. * Assistant Professor, University of Dayton School of Law. Special thanks to my colleague Rich Saphire and to Laurie Dechery of the Minnesota Law Review, who commented extensively on earlier drafts, and to Barbara Glesner Fines and other participants in a workshop at the 1996 Central States Law School Association meeting, where I presented a version of this paper and received helpful comments. 1. See, e.g., JEFFREY ABRAMSON, WE, THE JURY (1994) (examining the role of the jury as providers of "common sense" to the trial system); NORMAN J. FINKEL, COMMONSENSE JUSTICE: JURORS' NOTIONS OF THE LAW (1995) (discussing the role of the jury in the legal system); Darryl K Brown, The Role of Race in Jury Impartiality and Venue Transfers, 53 MD. L. REV. 107 (1994) (discussing the overlap and conflict between venue and jury "representa- tiveness"); Laurie L. Levenson, Change of Venue and the Role of the Criminal Jury, 66 S. CAL. L. REV. 1533 (1993) (discussing the effect of a change of venue in selecting a jury); Andrew D. Leipold, Rethinking Jury Nullification, 82 VA. L. REV. 253 (1996) (examining the role, costs and benefits of jury nulli- fication); Colleen P. Murphy, Integratingthe ConstitutionalAuthority of Civil and CriminalJuries, 61 GEO. WASH. L. REV. 723 (1993) (suggesting a theory of jury authority under the Constitution); Anne Bowen Poulin, The Jury: The Criminal Justice System's Different Voice, 62 U. CIN. L. REV. 1377 (1994) (discussing the role of the jury in providing a human voice to counteract the rigid rationality of law); Symposium, 47 HASTINGS L.J. 1249 (1996) (a jury symposium); cf Laura Gaston Dooley, Our Juries, Our Selves: The Power, Perception and Politics of the Civil Jury, 80 CORNELL L. REV. 325 (1995) (focusing on civil jury). For legislative interest in the jury, see infra note 2. For popular commentary, see Jury Nullification, N.J.L.J., Jan. 22, 1996, at 26 (editorial against nullification); Matthew J. Moran, Ensuring Verdicts Based on Law, CI. DAILY L. BULL., Mar. 18, 1996, at 6 (retired judge criticizing nullification by urging retrial if a judge finds that jury did not follow instruc- tions). In recent years, several high-profile trials have been subject to wide- spread media coverage, these include the acquittals of Washington, D.C. Mayor Marion Barry, the Los Angeles police officers who beat Rodney King, and O.J. Simpson. See GEORGE P. FLETCHER, WITH JUSTICE FOR SOME: VICTIMS' RIGHTS IN CRIMINAL TIALS (1995) (discussing several well- publicized trials including, in addition to those just listed, Dan White's man- slaughter conviction for killing San Francisco Mayor George Moscone and Su- pervisor Harvey Milk; El Sayyid Nosair's trial for the murder of Rabbi Meir 1149 1150 157MINNESOTA LAW REVIEW [Vol. 81:1149 One part of the controversy among scholars, the popular press, and even legislators is the propriety of nullification verdicts by criminal juries.2 Jury nullification, defined as a jury's ability to acquit a criminal defendant despite finding facts that leave no reasonable doubt about violation of a criminal statute,3 is disfavored in large part because it seems to undermine the rule of law.' Juries that nullify are usually presumed to base their verdicts on illicit bias, personal disagreement with democrati- cally enacted statutes, or, at best, private moral convictions that contradict the law.' When jurors enter a verdict in con- Kahane; the prosecution of Lemrick Nelson for the death of Yankel Rosen- baum; and Mike Tyson's rape trial). 2. See FINKEL, supra note 1, at 19 (noting the positive and negative as- pects of nullification); Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 WASH. & LEE L. REV. 165, 175 (1991) (describing renewed grass roots interest in nullification, including legislative proposals in nine states to instruct juries on their nullification power, and concluding that "[tlhe jury nullification movement is more active now than at any previous period"). For legislative activity on jury nullification power, see M. Kristine Creagan, Note, Jury Nullification: Assessing Recent Legislative Developments, 43 CASE W. RES. L. REv. 1101, 1115-22 (1993) (summarizing bills or proposed constitutional amendments in seven states in 1991 that would have informed juries of their nullification power); Pamela Martineau, Assembly Rejects Jury Nullification Measure, METRO. NEWS ENTERPRISE, Apr. 10, 1996, at 9 (detailing bill that would have informed juries in misde- meanor trials of nullification power). 3. See KENT GREENAWALT, CONFLICTS OF LAW AND MORALITY 360 (1987) (defining nullification); Paul Butler, Racially Based Jury Nullification:Black Power in the Criminal Justice System, 105 YALE L.J. 677, 700 (1995) (same). For a recent judicial definition and discussion of jury nullification, see People v. Wright, 645 N.Y.S.2d 275 (Sup. Ct. 1996). I use nullification here in its narrow and traditional sense, which refers only to criminal court verdicts of acquittal. Only acquittal verdicts cannot be reversed or corrected, and thus only in those instances has the jury fully and determinatively controlled the legal outcome. Therefore, verdicts for convic- tion are not nullification, properly understood, although they may be deliber- ate efforts to determine a case in contravention of the law. But see FINKEL, supra note 1, at 27-38 (describing deliberately incorrect verdicts for conviction as "vengeful nullification"). Incorrect convictions can be overturned on ap- peal. Additionally, civil jury verdicts do not nullify law, because their ver- dicts, whether for or against liability, can be reversed. 4. See Butler, supra note 3, at 705 ("The idea that jury nullification un- dermines the rule of law is the most common criticism of the doctrine."); see also, e.g., United States v. Perez, 86 F.3d 735, 736 (7th Cir. 1996) (stating jury nullification "is lawless"). 5. See, e.g., United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993) (characterizing nullification as occasions when "jurors... choose to flex their muscles, ignoring both law and evidence in a gadarene rush to acquit"); Butler, supra note 3, at 705 (noting concern that nullification threatens "self- government" and "democratic principles"); id. at 709 (noting similar criticisms by a federal judge); Phillip B. Scott, Jury Nullification:An Historical Perspec- 1997] JURY NULLIFICATION 1151 travention of what the law authorizes and requires, they sub- vert the rule of law and subject citizens-defendants, wit- nesses, victims, and everyone affected by criminal justice ad- ministration-to power based on the subjective predilections of twelve individuals. They affect the rule of men, not law.6 Nullification has more support among academics than among judges7 or the popular press, where criticism of per- ceived nullification verdicts has reemerged in the wake of sev- eral well publicized acquittals.' Yet even among scholars who tive on a Modern Debate, 91 W. VA. L. REv. 389, 420 (1989) (arguing nullifica- tion subverts democratic processes). 6. Cf Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) ("The gov- ermnent of the United States has been emphatically termed a government of laws, and not of men."); MODEL CODE OF PROF. REsP. EC 7-1 (1980) ("In our government of laws and not of men, each member of our society is entitled to have his conduct judged and regulated in accordance with the law. ."); see also Margaret Jane Radin, Reconsidering the Rule of Law, 69 B.U. L. REV. 781, 809 (1989) ("The point of 'the Rule of Law, not of individuals' is that the rules are supposed to rule.... [JMudges, police, administrators ... are to be rule-bound, merely instrumental functionaries."). 7. The vast majority of case law condemns nullification as "lawless," see, e.g., Strickland v. Washington, 466 U.S. 668, 695 (1984) (implying in dicta that nullification is a "lawless decision" equivalent to "arbitrariness" and "caprice"); United States v. Perez, 86 F.3d 735, 736 (7th Cir. 1996) (characterizing jury nul- lification as "lawless"), or the first step to "anarchy." See, e.g., United States v. Krzyske, 836 F.2d 1013, 1021 (6th Cir.), cert. denied, 488 U.S. 832 (1988) (approving a judge's refusal to instruct the jury on its nullification power); United States v. Trujillo, 714 F.2d 102, 105-06 (11th Cir. 1983) (stating that a jury instruction of the power of nullification invites juries to ignore the court and apply their own version of the law); State v. McClanahan, 510 P.2d 153, 159 (Kan. 1973) (denying a request for a jury instruction on the power of nul- lification); Scheflin & Van Dyke, supra note 2, at 169-70 & nn.15-20 (citing cases against nullification). But see United States v. Dougherty, 473 F.2d 1113, 1130-37 (D.C. Cir. 1972) (disapproving a nullification instruction, but approving nullification if jury was not instructed on it). See also Christopher B.
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