Jury Nullification: Threat or Menace?

A teaser (not taser) of a title, okay? HT to friend Dan Burke for sending me a link to an article about New Hampshire's recently enacted law that specifically authorizes defense counsel in a criminal proceeding to inform the jury of its power to "nullify" the law on which the judge instructs them. Specifically,  “In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy."

Until I read the posted article I knew little about the concept of jury nullification. Now, a couple of days later, at best I know only a little more so what follows is more a bricolage of random musings (is that redundant?) than a well-thought out analysis.

First, the "Findings and Intent" of the New Hampshire "General Court" (its legislature) in the preamble to this law assert that the United States Supreme Court has decided that "the jury has the right to judge the facts and the application of the law in relationship to the facts in controversy." Well, yes, but in a very peculiar case so far as the United States Supreme Court is concerned. In 1794 Associate Justice John Jay instructed the jury in a civil trial before the Court (yes, that's right, the Supreme Court sat as a trial court (for reasons that need not detain us here)) in a case involving a very touchy issue--could pre-Revolutionary English creditors recover from post-independence American debtors in the face of a contrary state statute--and instructed the jury that

It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.

Justice Jay went on to instruct the jury emphatically in effect that the English creditor was entitled to recover, and the jury found for him. In any event, one must assume that Jay's (and that of the rest of the members of the Court) instruction stated the law as then understood.

Then in 1895 the Court in Sparf v. U.S. held that no such right existed but since then it seems to have come back into judicial favor.

However, even if the procedural peculiarities of Georgia v. Brailsford diminish its precedential value, the 6th Amendment and the double-jeopardy clause of the 5th Amendment effectively make acquittals in criminal cases unreviewable. Thus, the jury has the power to nullify even if one might believe that it shouldn't have the right to do so.

So what are we to make of this? Is jury nullification part of the constitutional right to trial by jury or was it a mistake from the start?

One would might quickly conclude that the 1794 Court, closer as it was to the ratification of the Constitution and the Bill of Rights, got it right. But there was another amendment after the first ten that Jonathan Bressler argues effectively eliminated a right of jury nullification: the 14th Amendment. See Reconstruction and the Transformation of Jury Nullification. I'll leave evaluation of Bressler's argument to 14th Amendment aficionados and move on; I have neither the time nor inclination to dig deeper into the constitutional crevices of this issue.

Next is my concern over the lack of any standard for a jury's judgment of the law under New Hampshire's statute. Have the proponents of jury nullification considered the possibility that some members of a jury (perhaps not in New Hampshire but maybe in a less homogeneous state) might hold out for an acquittal of someone charged with murder because they, like the accused, believe there is a divine mandate to engage in "honor killing?"

Finally, I question the practical wisdom of enhancing jury nullification. I have no question that there are far too many laws in America at both the state and the federal level. Many (most?) (all?) of us, I suspect, have committed a series of serious misdemeanors if not felonies. Were everyone prosecuted for every such crime the outrage would cause a general repeal of our surfeit of criminal laws. Why hasn't this happened? Largely because prosecutors exercise their power of prosecution gingerly, but that isn't always true and in any event can easily change. 

I think that widespread jury nullification wouldn't help get rid of our multitude of unnecessary laws. Instead, it would provide a safely valve to let off just enough steam to keep popular outrage below the boiling level. Even worse would be the state of affairs if persons of majority groups (at least members of the same group as the majority of the jury) successfully employed nullification arguments while members of a disfavored minority regularly failed. Preventing use of nullification as a tool of invidious discrimination forms the backbone of Bressler's claim that the ratifiers of the 14th Amendment intended to do away with the practice.

Well, there you go. For better or worse, it seems that jury nullification is part of America's constitutional system. I'll leave it to each reader to decide whether it's a good part.