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Jury Nullification As a Tool to Balance the Demands of Law and Justice Aaron Mcknight

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Jury Nullification As a Tool to Balance the Demands of Law and Justice Aaron Mcknight BYU Law Review Volume 2013 | Issue 4 Article 9 1-27-2014 Jury Nullification as a Tool to Balance the Demands of Law and Justice Aaron McKnight Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview Part of the Courts Commons, and the Criminal Procedure Commons Recommended Citation Aaron McKnight, Jury Nullification as a Tool to Balance the Demands of Law and Justice, 2013 BYU L. Rev. 1103 (2014). Available at: https://digitalcommons.law.byu.edu/lawreview/vol2013/iss4/9 This Comment is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact [email protected]. DO NOT DELETE 1/27/2014 10:31 AM Jury Nullification as a Tool to Balance the Demands of Law and Justice I. INTRODUCTION The right to a trial by jury in criminal cases is a fundamental constitutional guarantee.1 In fact, it is so fundamental that the right applies to the states as incorporated into the Fourteenth Amendment.2 Additionally, the origins of the jury system date back to the guarantee to trial by jury provided in the Magna Charta,3 and the Founders universally considered a jury trial in criminal cases to be important.4 Notwithstanding its fundamental constitutional nature, scholars often severely criticize trial by jury;5 some critics even argue that it should be abolished.6 One particular aspect of trial by jury that has come under attack is the jury’s power to nullify a case. Prosecutors, specifically, tend to dislike the idea of jury nullification; they expect a conviction when they fully prove their case. Cases where racist juries acquitted guilty white defendants of violent crimes against blacks in the South give 7 weight to prosecutors’ concerns. The argument that arises from 1. See U.S. CONST. amend VI. 2. Duncan v. Louisiana, 391 U.S. 145, 155–56 (1968). 3. Douglas G. Smith, The Historical and Constitutional Contexts of Jury Reform, 25 HOFSTRA L. REV. 377, 391 (1996). “The Magna Charta declared that no freeman would be disseized, dispossessed, or imprisoned except by judgment of his peers or by the ‘laws of the land.’” Id. at 391 n.22 (citing RICHARD THOMPSON, AN HISTORICAL ESSAY ON THE MAGNA CHARTA OF KING JOHN 85 (Gryphon Editions, Ltd. 1982) (1829)). 4. Id. at 425 (quoting Alexander Hamilton: “The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury: Or if there is any difference between them, it consists in this; the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government.” THE FEDERALIST NO. 83, at 562 (Alexander Hamilton) (Jacob E. Cooke ed., 1961)). 5. Sandra D. Jordan, The Criminal Trial Jury: Erosion of Jury Power, 5 HOWARD SCROLL SOC. J. REV. 1, 1–6 (2002) (noting that much of the criticism of jury trials focuses on the incompetence and inefficiencies of juries and that juries are also frequently criticized for acquitting guilty defendants). 6. Id. 7. See United States v. Dougherty, 473 F.2d 1113, 1143 (D.C. Cir. 1972) (Bazelon, J., concurring in part and dissenting in part). “Consider, for example, the two hung juries in the 1964 trials of Byron De La Beckwith in Mississippi for the murder of NAACP field secretary Medgar Evers, or the 1955 acquittal of J.W. Millam and Roy Bryant for the murder of fourteen- year-old Emmett Till—shameful examples of how ‘nullification’ has been used to sanction 1103 DO NOT DELETE 1/27/2014 10:31 AM BRIGHAM YOUNG UNIVERSITY LAW REVIEW 2013 these concerns is that to prevent such injustices, courts should preclude juries from nullifying verdicts at all costs. On the other side of the debate, defense attorneys tend to favor jury nullification. They cite cases in which juries refused to convict abolitionists who violated the fugitive slave laws8 as examples of nullification being used to fight unjust laws. These opposing arguments represent strongly-held beliefs and reveal a deeper tension between the rule of law and the implementation of justice. This Comment argues that jury nullification is an important tool for balancing government interests with individual rights and that courts should adopt measures that allow for jury nullification while not expressly encouraging it. Jury nullification serves as a check on government power by adding a level of discretionary review and by allowing common human experience to temper the oft-times rigid application of the law.9 In Part II, this Comment first reviews the basic concepts of jury nullification to provide a framework within which to advocate for it. Then, Part III addresses jury nullification’s historic role in American jurisprudence. Next, Part IV surveys the academic debate for and against jury nullification to provide context for this Comment’s argument. Finally, this Comment argues in Part V that jury nullification creates an appropriate balance between the rule of law and the administration of justice and concludes in Part VI with suggestions for ways that jurists, attorneys, and judges can allow jury nullification without explicitly encouraging it. II. JURY NULLIFICATION BASICS There are many definitions or descriptions of jury nullification. For example, Black’s Law Dictionary defines jury nullification: A jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message murder and lynching.” United States v. Thomas, 116 F.3d 606, 616 (2d Cir. 1997) (citing DAVID HALBERSTAM, THE FIFTIES 431–41 (1993); RANDALL KENNEDY, RACE, CRIME, AND THE LAW 60–63, 250 (1997); JUAN WILLIAMS, EYES ON THE PRIZE: AMERICA’S CIVIL RIGHTS YEARS, 1954–1965, at 38–57, 221–25 (1987)). 8. JEFFERY ABRAMSON, WE, THE JURY: THE JURY SYSTEM AND THE IDEAL OF DEMOCRACY 80–82 (1994) (explaining that in the Fugitive Slave Cases, attorneys successfully persuaded juries not to convict abolitionists helping slaves and to not send runaway slaves back home to the South). 9. See infra Part V. 1104 DO NOT DELETE 1/27/2014 10:31 AM 1103 Jury Nullification as a Tool about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.10 Some scholars define jury nullification as the jury’s refusal to convict a criminal defendant even though there is proof beyond a reasonable doubt that the defendant’s behavior has satisfied the statutory elements of a crime.11 Meanwhile, critics refer to jury nullification as “the intentional disregard of the law as stated by the presiding judge”12 or “when a jury ignores the law as given by the court and chooses instead to play by its own rules.”13 This Comment defines jury nullification as the jury’s intentional choice to acquit a criminal defendant despite proof beyond a reasonable doubt of the defendant’s guilt. In this Comment, jury nullification does not include convicting a criminal defendant that has not been proven guilty beyond a reasonable doubt. This definition allows this Comment to advocate for jury nullification without asking for courts to allow juries to find defendants guilty notwithstanding clear evidence of their innocence. The paper limits the definition this way because, while there may be justifications for juries to nullify a defendant’s guilt, a jury’s decision to convict notwithstanding the evidence inherently violates due process. Finally, this Comment will focus exclusively on criminal matters. The issue of jury nullification in civil trials, while similar in some respects, presents distinct problems. A full exploration of nullification in civil trials will have to wait for another time. A. Categories of Jury Nullification To understand why jury nullification is an important tool for balancing government interests with individual rights, one must understand the basic justifications that juries have for nullifying. It is impossible to know exactly why a jury chooses to acquit against the weight of the evidence in every situation, and different members of 10. BLACK’S LAW DICTIONARY 936 (9th ed. 2009). 11. Andrew J. Parmenter, Nullifying the Jury: “The Judicial Oligarchy” Declares War on Jury Nullification, 46 WASHBURN L.J. 379, 379 (2007) (citing Darryl K. Brown, Jury Nullification Within the Rule of Law, 81 MINN. L. REV. 1149, 1150 (1997)). 12. United States v. Thomas, 116 F.3d 606, 608 (2d Cir. 1997). 13. Lawrence W. Crispo, et al., Jury Nullification: Law Versus Anarchy, 31 LOY. L.A. L. REV. 1, 3 (1997). 1105 DO NOT DELETE 1/27/2014 10:31 AM BRIGHAM YOUNG UNIVERSITY LAW REVIEW 2013 the jury may have different reasons for reaching their conclusions. However, past studies have shown that most instances of jury nullification are in response to what the members of the jury perceive as unlawful government behavior, unjust laws, or the inequitable application of the law.14 1. Jury nullification as a response to unlawful government behavior In the first category of jury nullification—jury nullification in response to unlawful government behavior—the government correctly and justly applies the law to a criminal defendant’s behavior.15 However, in the course of a criminal investigation or prosecution, the government commits an objectionable offense, and the jury punishes the government by acquitting the defendant.16 Objectionable offenses could include, but are not limited to, perjured testimony or unreasonable searches or seizures.17 In this case, the jury makes a value judgment that the government’s inappropriate behavior was more reprehensible than the defendant’s.18 Thus, this category of jury nullification acts like the exclusionary rule by allowing a guilty criminal to escape punishment to discourage 19 unacceptable governmental acts.
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