Jury Nullification Gets Nullified
The highest court in Maryland, the state Court of Appeals, has outlawed jury nullification in the most forceful terms I can remember seeing. This is the right result. Jury nullification is simply inconsistent with any intelligible concept of law. One of the main functions we want law to do is to let citizens know what the rules are. If we are to have, on a completely ad hoc basis, different rules depending on which jury you happen to draw (i.e., crack is legal in one jury’s mind but still illegal in the mind of the jury across the hall, or the age of consent is 13 in one jury’s mind but 17 in the mind of the jury across the hall), then whatever you have, it’s not law.
The Court of Appeals’ opinion is here. Here’s the gist:
We hold that, despite the circumstance that jury nullification occurs, jury nullification is not authorized in Maryland and a jury does not have a right to engage in jury nullification. No case, statute, or rule in Maryland authorizes or gives juries the right to engage in jury nullification, i.e., there is no grant of authority permitting a jury to nullify. Rather, Maryland case law makes clear that it is improper for an attorney to argue jury nullification to a jury, and that jury instructions on the law are binding and trial courts must advise juries as much. On request, during voir dire, a trial court must ask whether any prospective jurors are unwilling or unable to comply with the jury instructions on certain fundamental principles. In addition, a verdict resulting from jury nullification is analogous to the return of legally inconsistent verdicts because in both instances a jury acts contrary to a trial court’s instructions as to the proper application of the law and both occurrences are impermissible. Taken together, these principles lead us to conclude that jury nullification is not authorized in Maryland.
Stated otherwise, although a jury may have the ability to nullify, and we recognize that jury nullification occurs, a jury does not have the right to engage in jury nullification. As such, for the reasons explained herein, we hold that, in this case, the circuit court did not abuse its discretion when, in response to the second and third jury notes about jury nullification, it instructed the jury, among other things, that: jury nullification is a juror’s knowing and deliberate rejection of the evidence or refusal to apply the law; the jury could not engage in jury nullification; jury nullification is contrary to the law and engaging in it would violate the jury’s oath; jury nullification would violate the court’s order; and, in Maryland, the jury must apply the law as instructed by the court. The circuit court’s instructions were neither legally incorrect nor prejudicial. Accordingly, we reverse the judgment of the Court of Special Appeals and remand the case to that Court for consideration of the remaining issues not addressed on appeal.
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So should a prosecutor be able to get a directed verdict of guilt from a judge if the material facts are not seriously in dispute and/or be able to get to have a jury acquittal reversed and a conviction entered whenever the judge concludes that the acquittal was the result of nullification? Would these be consistent with the Constitution in the federal system?
I am not in favor of directed verdicts of guilt and am aware of no precedent for allowing such things. The absolute right to a jury trial means that the Framers wanted the defendant to be entitled to the jury’s irrational sympathy or even to its stupidity (see, e.g., OJ Simpson and Casey Anthony). That is a vert steep price to pay for the protection of ensuring that the defendant does not have to run the gauntlet twice, but our law has deemed it worth paying.
It’s another matter entirely when the defendant obtains an acquittal by, for example, threatening or bribing a juror or jurors. In that case, it seems to me that, because of his criminal conduct, the defendant was never really in “jeopardy” to begin with, so vacating the “acquittal” and holding a new trial would be permissible both under the Double Jeopardy Clause and under ordinary notions of fairness — notions with which the huge majority of people would certainly agree.
A juror’s (or a jury’s) exercise of its non-existent authority of nullification falls in between those two things. It’s not as wretched (and therefore not as legally vulnerable) as a bought-and-paid-for acquittal, but not as innocent as mere stupidity or mindless sympathy (see also Evans v. Michigan). So my seat of the pants reaction is that while a “nullification” acquittal should not be subject to reversal (so long as the defendant and his team did nothing to bring it about), the juror or jurors who decided that They Are The Law should be subject either to a prosecution for violating their oath (perjury), or for obstruction of justice (by knowingly and intentionally defying the court’s instruction that they must follow the law), or both.
There is a famous old English precedent, Bushell’s Case (1670), where the jurors of William Penn were fined for acquitting him and imprisoned until they paid. They were released on habeas corpus. It is regarded as one of the great landmark cases in legal history.
I don’t think punishing the jurors for nullification is going to fly.
Whether it’s OK to punish jurors for nullification depends on their state of mind. If their state of mind is, “Wow, this lady has three small kids at home and no one to take care of them if she goes to jail,” then the acquittal against the evidence, though a deviation from the juror’s required duty under the instructions, is not going to be punished because it is not rooted in bad faith.
If the juror is thinking, “Wow, I really think it’s neat that I now have this $10,000 the defendant’s brother gave me last night to be ‘understanding,’ ” then that juror belongs in jail and will very likely go there if the government finds out about it.
If the juror in a capital case says, during voir dire, that he can apply death penalty law with an open mind, but in fact is a dead-end abolitionist who knows he’s going to vote against imposing it no matter what, and he is the one vote that derails the death penalty on an 11-1 vote to impose it, then I think he is subject to prosecution for perjury at the voir dire (although I admit that I have never seen this happen).
So the bottom line with me is that a juror can be prosecuted, and it depends on his state of mind.
Thanks for this reply, Bill, though I find it quite puzzling. Your first paragraph suggests that you believe the Framers wanted the “absolute right to a jury trial” to include the (constitutional?) authority of jurors to acquit even in the face of overwhelming and undisputed evidence of guilt. But then your final sentence suggests that you think jurors should be subject to criminal prosecution if and whenever they might actually operationalize the Framers’ vision of the right to a jury trial.
As I see matters, jury trials serve as a critical part of the people’s discretionary, case-specific judicial branch check on the potential misuse of government criminal punishment powers. The legislature, of course, makes criminal laws and is inclined to make it broad to cover all sorts of cases it might not always want to see fully prosecuted in every case (see, e.g., federal marijuana prohibition). The executive branch acting through prosecutors, via unreviewable prosecutorial discretion, really does get to act as if “They Are The Law” by deciding who will and will not be subject to investigations and prosecutions under broad criminal laws (see, e.g., federal marijuana prohibition). But if zealousness or abusiveness leads a prosecutor to pursue what “the people” view as a terribly unjust application of the criminal law, they have the power — and I think should be told about this power — to acquit in the face of undisputed evidence of guilt.
As for what to tell jurors, I would be inclined to keep it simple and say in jury instructions simply what you said here: “Jurors, our constitutional structure and its faith in trial by jury precludes judges from pronouncing guilt no matter what the evidence shows. Guilty verdicts are decided by juries and only by juries.” But, in light of your last sentence, I would think we would need to instruct jurors: “You are legally required to convict any and all defendants if the evidence supports a conviction, and a failure to vote for a conviction if and whenever prosecutors are convinced of the defendant’s guilt may result in your criminal prosecution.”
I realize you trust prosecutors more than any other government officials, Bill, but there seems to be precious little constitutional logic or real justice in your approach to this matter. I understand that prosecutors (and some judges) dislike when jurors are told about a kind of power that prosecutors exercise every day (and without any accountability). But your comment here confirms my sense that the only way to really effectuate anti-nullification principles is to strip the jury trials of any real meaning as a check on government criminal punishment powers.
So it’s OK with you if the jury in Courtroom A, which believes with you that pot should be legal, acquits a factually guilty defendant based solely on that belief, while the jury across the hall in Courtroom B, which believes with existing law that pot should remain illegal, convicts a defendant on virtually identical evidence??
In what sense is that “equal justice under law” (a motto I recall seeing somewhere)??
Bill, there is extreme variation in how prosecutors and juries apply the death penalty on virtually identical evidence, and many advocates assert that this reality provide a strong basis to abolish the death penalty to advance “equal justice.” Do you support abolishing the death penalty — or any other historic feature of American criminal laws — simply based on risks of unequal application?
Jury trials are the most fundamental feature of American criminal laws, and I want them preserved — indeed, broadly expanded — because they bring the voice of the people to the case-specific application of these laws and serve as a critical and needed check on government’s most awesome powers over individuals. Especially because (sometimes unelected) prosecutors already have broad and unreviewable nullification powers (both in initial charging and plea bargaining) that surely produce unequal applications of the criminal law — e.g., federal marijuana prosecutions are down roughly 70% in the last decade, even though large-scale marijuana activity is obviously up thanks to state reforms — I am not too worried about the potential risk of more inequality introduced via jury nullification (especially given that such a tiny percentage of cases even get to a jury).
In fact, there is good reason to suspect the prospect of jury nullification might help check the inequalities that prosecutors’ unreviewable charging and bargaining discretion produces. I suspect that we saw a continued decline in federal marijuana prosecutions even after AG Jeff Sessions repealed the Cole Memo regarding federal marijuana prosecutions because federal prosecutors still realized it would be hard to get a jury to convict state-compliant pot dealers even though so many are openly advertising their efforts to break federal laws. By deterring prosecutions that may be most out of step with what “the people” want, jury nullification can enhance equal application of societal norms as a brake on government overreach.
My understanding is that other legal systems throughout the world allow for directed verdicts of guilt and/or appeals of acquittals. Those would seem logical ways to elevate a certain conception of justice over the importance and significance of jury trials. But as a fan of democracy, check-and-balances and the American justice system, I fear we have already watered down the role of the jury far too much in service to a big government bureaucratizing of our justice systems. I think the Framers would be quite disappointed to see how we have put down juries, which they tried to elevate in both Article III and through the Bill of Rights.
Doug — Your response raises a number of important points worth discussing. but first I was wondering if I could get a direct answer to the question I asked: Is it OK with you if the jury in Courtroom A, which believes with you that pot should be legal, acquits a factually guilty defendant based solely on that belief, while the jury across the hall in Courtroom B, which believes with existing law that pot should remain illegal, convicts a defendant on virtually identical evidence? Is that equal justice under law?
Yes, Bill, if a commitment to a core and critical principle of constitutional criminal procedure like jury trials sometimes lead to different outcomes in similar cases, I would not want to sacrifice that core and critical principle of constitutional criminal procedure in service to some unclear outcome-based conception of “equal justice.” (I say “if” because I am unaware of any empiricism showing unequal justice resulting from acknowledging jury nullification, though I am aware of plenty of empiricism showing unequal outcomes resulting from discretion exercised by police, prosecutors, judges and other CJ actors.)
Especially given how police and prosecutorial discretion and all sorts of other (seemingly less important) aspects of criminal procedure regularly lead to different outcomes in similar cases, I am eager to better understand what principles and practices you would be willing to jettison in service to outcome-based notions of equality.
Notably, Oregon has now officially decriminalized all drug possession offenses, driven in part by the justifiable concern that lower-level criminal drug laws have been unequally applied by police and prosecutors and others. Arguably getting rid of criminal laws will be the best way to pursue greater equality, especially with respect to the types of laws that seem most likely to be subject to possible nullification. I presume that is not where you want to be headed, but maybe your commitment to outcome equality would take you that far in some setting.
Doug — When one jury convicts Defendant A and the jury across the hall acquits Defendant B of the same charges on IDENTICAL evidence, that cannot be equal justice under law. It’s the opposite of equal justice under law. So you can’t possibly be saying that equal justice under law is what we’re getting when that happens.
Instead, what I take you to be saying is that the principle of equal justice under law is worth sacrificing in order to honor the even more important Founding principle of allowing juries to be the voice of the community, even knowing that there will be degree of irrational disparity in outcomes (just as, in your argument, there is a degree of irrational disparity in police and prosecution decisions).
Is that a correct statement of your view?
Bill, can you cite to a single example of “one jury convicts Defendant A and the jury across the hall acquits Defendant B of the same charges on IDENTICAL evidence”? (Also, if you have an example like this, I would wonder also if police arrested and prosecutors consistently charged all involved in that behavior.) I would welcome any and all real examples that you can, as I think your worry is more hypothetical than real.
That said, I can give you thousands of real examples of one officer arresting/ticketing person A and then the officer across street ignores the identical behavior of person B. I can likewise give you thousands of real examples of one prosecutor indicting person A and then another prosecutor declining to charge the identical behavior of person B. (Again, drug enforcement seems to be great examples since so many more people self-report illegal drug activities than are subject to arrest and prosecution. Indeed, I think you have here (wrongly) claimed that there is no serious enforcement of low-level marijuana laws.) Given that we accept lots and lots of actual examples of what you are calling “irrational disparity in police and prosecution decisions,” I am saying I am prepared to accept the hypothetical possibility of disparity in jury outcomes.
If you have evidence that such outcome disparity is a huge problem in the work of juries and that it eclipses other forms of inequality in the application of criminal laws that seem far more prevalent, I would worry more about jury trials undercutting equal justice under law (though everyone would still have equal access to jury trials). But, as I suggested above, I think jury trials might work effectively to actually create greater equality against the backdrop of all the inequalities that flow from the (often hidden and unreviewed) work of police and prosecutors.
Any discretion at all (in police, prosecutors, judges, juries or defense counsel) necessarily means that there will be some inequality of treatment. Because we all want to preserve cabined and rational discretion, we must all accept this fact. But to accept a degree of inequality is hardly to make an argument that we should welcome gobs more of it through do-what-you-feel-like juries. Instead, it is to make the case that we should CUT BACK on inequality where we can. One place we can is by insisting that juries understand that the legislature makes law and they don’t. The alternative is that we’ll have hundreds or thousands of wildly unrepresentative “legislatures” of 12 people making one law in the morning and a different law on the same subject across the hall that afternoon.
Whatever that is, it isn’t law. It’s somewhere between vigilantism and outright chaos. I’m sure you know this.
Suppose we apply your thinking to robbery rather than pot. Is it OK if one jury refuses to convict in a clear case of robbery (because it believes that capitalism is unfair or some such thing), but all the other juries in town follow the court’s instructions, put to one side their views of capitalism, and convict robbers when they are — ready now — PROVED TO BE GUILTY OF ROBBERY?
What you’re doing here is saying that, because discretion (and thus inequality) exist in other parts of the system, it’s Katie-bar-the-door for juries too, so there is really no law at all except whatever this particular jury thinks on this particular day. Do you really want to be a defendant in a system like that? For that matter, do you want to be a citizen in a system like that? Anything is legal — or anything is illegal — depending not on the legislature and not on precedent but on the random draw of the veniremen??? And then thousands more random draws of next week’s and next month’s veniremen??
Let’s take this thinking where it leads. Suppose State X has no death penalty, but in one particularly hideous case of child torture/murder, the jury concludes that a mere prison sentence is not close to justice, and instead returns the death penalty. That being the “voice of the community,” it seems to me your reasoning compels you to support the jury-demanded execution even though the state legislature has decided the capital punishment question the other way.
So should the execution go forward? If not, why not? The jury has voiced its conscience and done what it sincerely believes is right. On what ground could you oppose giving effect to its judgment?
Another way to engage your question would be to posit the real-world reality that persons C, D, E, F, G …. Z never got prosecuted on identical evidence (say of selling marijuana). In such a world, a reasonable argument could be made that the acquittal of defendant B by the jury actual advances equal justice (and perhaps deep commitment to equal justice would further call for reversing A’s conviction).
By that reasoning, the acquittal of OJ Simpson means that we can never legitimately convict anyone of murder, since your brand of “equality” would mean that when one guilty-as-sin defendant manages to get off, all such defendants should get off in order to be “equal.”
This is why I’m glad my first career was in actual courtrooms, rather than in the Alice-in-Wonderland world of academia. Jury nullification is just “do-whatever-you-feel-like” by a fancier name. That courts understand this fact is why the Maryland Court of Appeals — a liberal court in a liberal jurisdiction — came down as hard as it did.
Doug — I didn’t mean that last response to be a conversation stopper. This is a super important topic because it goes to the heart of the rule of law. If jurors are free to disregard the law as given to them by the court, what’s left to guide their decision? Whether the defendant is good looking? Whether one lawyer or the other has a pleasing manner? Whether the defendant (or the victim) is black or white or brown (or Christian, Jewish or Muslim)? Once law is discarded as the governing standard, what’s left? And how is the jury, and each individual juror, to decide what’s left, and what the proper criteria for decision ought to be? Can a nullifying jury decide that the law requiring proof beyond a reasonable doubt ALSO should be nullified, and that society would be safer if we just used preponderance of the evidence? These are crucial questions about nullification theory, and I would love your take on how we should answer them.
Bill, I respect all the concerns you have with juries applying their notions of justice when considering criminal charges, but do these concerns not also apply to prosecutors to a much greater degree? Why should we “welcome gobs more of [inequality] through do-what-you-feel-like” prosecutors who impact so many more cases than juries? I focus on marijuana cases because they are a clear source of such current inequalities: is it “OK if one prosecutor refuses to charge in a clear case of marijuana distribution (because he believes John Boehner is now on the right side of history or some such thing), but all the other prosecutors in town take federal marijuana prohibition seriously”?
What you are saying is that, even though (often unelected and hidden) prosecutors are subject to “really no law at all except whatever this particular” prosecutor decides will be his charging and bargaining policy, it would be wrong to allow juries to exercise (more visible and more representative) power to conclude in one case that a conviction is unjustified. The problem with your DP case is that the Framers clearly intended juries to LIMIT state power to punish, not expand it, and juries were to serve as the case-specific democratic safeguard against potential case-specific overreach by unelected prosecutors who may sometimes misuse the vast state power to punish. Advocate formally eliminating jury trial — which we have already largely done functionally — if you so dislike the Framers’ vision of why juries are important. But please acknowledge that real reason to have a jury trial right is to provide a voice of the people as a check on state power in the courtroom — as Hamilton put it in Federalist 83, at the “very palladium of free government.”
Critically, I am not contending that equality demands that one jury acquittal means everyone must be acquitted. Rather, I am making the simple point that, in some cases, a jury acquittal may advance equal justice (as well as serving as a democratic limit on state powers). Notably, you still have not cited a single example of “one jury convicts Defendant A and the jury across the hall acquits Defendant B of the same charges on IDENTICAL evidence.” Your concern about juries undermining equal justice seems fanciful, whereas evidence of police and prosecutors undermining equal justice is everywhere to be found. My point is simply that if you were really so concerned with the rule of law and equal justice, you would be complaining a lot more about real problems of unexplained and unequal arresting, charging and bargaining patterns. Especially because 95% of all cases are resolved by pleas, and because prosecutorial charging and bargaining discretion even shapes those that go to trial, I will keep saying that prosecutorial discretion should be the main focus for anyone sincerely concerned about the rule of law and equal justice. Jury trials were given constitutional prominence to serve other values: limiting government power and bringing “the people” into the courtroom. You want to restrict the ability of juries to serve those fundamental ends for other claimed ends that are far more robustly undermined by other actors in the system.
Indeed, since I believe you generally champion unreviewed and unaccounted prosecutorial discretion, can you explain “what’s left to guide their decision? Whether the defendant is good looking?” Perhaps USA Acosta was using the “looks principle” when nullifying the law for Jeffrey Epstein. Or “Whether one lawyer or the other has a pleasing manner? Whether the defendant (or the victim) is black or white or brown (or Christian, Jewish or Muslim)?” Gosh knows statistics on who gets prosecuted for drug crimes suggest prosecutors seem to care a whole lot more about wealth and skin color than do juries. “Once law is discarded as the governing standard, what’s left? And how is the each individual prosecutor to decide what’s left, and what the proper criteria for decision ought to be?” These are crucial questions about the real nullification actions taken by every prosecutor every single day, and I would love your account on how we should answer them.
My sense is you generally believe we just can and should just trust prosecutors to be good stewards of justice as they exercise charging and bargaining discretion unbound by any laws and subject to no review or real scrutiny. But juries were the decision-makers trusted by the Framers to be the ultimate stewards of justice. Like so many government bureaucrats, I sense you are inclined to say we cannot trust “the people” to administer justice, we must trust only “government bureaucrats.” Sounds like a winning claim in China, but I suspect the Framers would be sad to see it prevail in the USA. Justice Scalia once called the constitution’s jury trial right the “spinal column of American democracy,” and I want it to stand tall and walk proud “to guard against a spirit of oppression and tyranny on
the part of rulers” and Justice Story put it. (If juries played a huge role in our system and seemed to use their power for mischief, I might look at these matters different. But juries have been so marginalized in our current bureaucratic system of justice, I am ever eager to return them to the role that the Framers’ plainly had in mind.)
I think the proper way to look at this case is to analyze the specific legal issue of the case rather than looking at any broad policy issue that one might ascribe to it. The legal question is one of abuse of discretion, did the trial court abuse its discretion when it answered the jury’s question? I broadly understand abuse of discretion as the court’s consideration of improper factors, ignoring proper factors or considering all factors but making a decision that no reasonable jurist would make. It seems clear to me that the trial judge did not make any inaccurate statements of law, one might have used different language in answering the questions but it is hard to argue that the law was stated in a way that no reasonable jurist would agree with. Jury nullification can and does happen and there is no legal recourse when it does. Here, the juror actually used the term, “jury nullification” which implicitly acknowledges the juror’s conclusion that the evidence was legally sufficient for conviction. The court’s instruction, after defining jury nullification, reiterated that the jury must decide the facts, weigh the evidence, and apply the law. The jury could have found the weight of evidence insufficient to convict regardless of the facts and could have exercised de facto jury nullification. The problem here is that the jury asked a very specific question and the court answered in a way that was not unreasonable. I think it is ill advised to view a case that presents a very narrow legal issue as implicating much larger policy issues.
There is much to what you say. Thanks for chiming in (and I hope you’ll chime in more often). What struck me about the court’s opinion was less its holding, which I view as the conventional thinking on nullification, than its uncompromising tone, and also its source — a notably liberal jurisdiction.
As you can see from the thread, however, the larger issue of nullification has been joined, and I view the discussion, though extended at this point, to be worthwhile, because that subject goes to the heart of the role of juries and the very definition of “law.”
Here is another angle on this discussion. Suppose the people of Maryland had been able to consider this debate between Doug Berman and Bill Otis. Let’s suppose that, after some deliberation, they decided that they wanted Maryland juries to possess the power of lenity that Doug outlined. What language might they employ in the state constitution to make that happen? Actually, we do not have to ponder that question very long. Article 23 of the Maryland Declaration of Rights provides, “In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.” The high court of Maryland devoted much space and analysis to its own case law while studiously avoiding the text. And no wonder. The text poses an (I was going to say ‘insuperable’) obstacle to the court’s logic.
Very interesting, Tim, and thanks for bringing some law to the discussion.
Tim, let me join in welcoming you to the site. I’m hoping for more commentary from you. You might have seen that a week ago I debated your successor at Cato on plea bargaining.
As to your point here, I agree with Doug that it’s noteworthy. What is most noteworthy, though, is not that this provision is present in the Maryland Declaration of Rights, but that it’s absent in so many other states.
The problem discussed in this thread remains one way or the other. We can have nullification or we can have law, but we can’t have both. If one jury can ignore standard legal instructions while another follows them and a third does some hybrid, there is simply no intelligible sense in which we have law. Law is a set of rules. Rules are mandatory. But if a set of “rules” counts in the morning, but only half counts with the next jury at noon and doesn’t count at all with a third jury at 4 pm, they’re not mandatory; indeed they’re not even rules.
Nullification sounds fine — like the anthem of freedom — until we stop to understand that the thing that gets nullified is law. If law can mean anything you want depending on the luck of the venire draw, then it means nothing at all, and we are literally back to lawlessness. And that’s fine if you’re a criminal or a thug or a strongarm, but the rest of us will fare poorly in such a system.
I’m not sure Tim’s argument works, I think the term “judges of law” needs to be defined, because the bare words themselves don’t necessarily point towards lenity. If the jury asked, “Can we convict the defendant if we are fairly sure he is guilty, is that the same as BARD?” Would the judge then answer, “You are the judges of law and fact in this case.” I think the words of the Md. Constitution means the jury has to decide how the law applies to the facts that they have found and not what the law itself means.
“Judges of the law” is indeed a broad phrase. Taken literally, it lends support to my theory that nullification could mean that juries could scrap the judge’s instruction that a conviction requires proof BRD. It could also mean that the statutory absence of a death penalty could be deemed by the “judges of the law” to be erroneous, null and void, and the jury could return a death sentence for a heinous murder (or, now that I think of it, for anything, law having been swept over the side).
Doug would limit nullification to defiance of law (or to making up law) only where it benefits the defendant. But such a cramped view subverts the heart and soul of nullification theory, to wit, that the jury is the voice and conscience of the community, better than the legislature (at least in this one case). But conscience is hardly as limited as Doug would have it. If the conscience of the jury is that this defendant deserves a punishment harsher than the legislature has provided, by what right do we then (but only then) say that conscience doesn’t count? The clarion call of nullification has a false ring if its really just a partisan tool.
There are other problems as well. If the law as given by the judge is not to be the lodestar of the jury’s decision, what is? And who decides? And on what grounds? Who announces this to the jury, and under what authority? Is it impermissible for a juror to vote to acquit simply because he thinks the lady defendant is hot looking? Well one would hope, but under what standard would we tell this juror he can’t go there?
The point is this: Once we go down the road of nullification, we’re in no man’s land. Once law is jettisoned, there is no standard left, and still less an agreed upon standard or a standard that has anything within shouting distance of democratic legitimacy (unless you’re to count transient and ever-shifting groups of 12 as a “democracy” in a jurisdiction of a few hundred thousand (or a few million)).
I appreciate the welcome! I wanted to add two things to the discussion: (1) the text of the Maryland Declaration of Rights and (2) some American legal history, which stands behind the text of that provision.
As I noted before, the Maryland Court avoided the constitutional text for a reason. Article 23 was all about constitutionalizing a role for the jury that Doug outlined–to elevate it beyond the grasp of legislators and judges. In light of this information, I thought Bill might have some second thoughts about the ruling. In my view, the case is not unlike matters pertaining to the right to bear arms or federalism. Such doctrines are deemed so “backward” by liberal jurists that some feel totally justified in just ignoring them instead of giving them legal effect.
I would also note that Maryland’s embrace of the doctrine was not an outlier. Our second president, John Adams, wrote, “It is not only [the juror’s] right, but his duty …to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court.” Adams was not speaking for himself. The view was widely held. The point here is that, like it or not, many American jurisdictions embraced the concept of law-finding juries in criminal cases. The doctrine is not an untested theory, out of left field, that will bring chaos or leave us in a “no man’s land.” This does not make the doctrine immune to criticism. Bill can make his case for a better legal regime. In Maryland, however, that case should have been made in the context of a proposed amendment to the state constitution.
If Steve and Bill remain unconvinced of the import of Article 23, I would put the question again: What terms might be employed to compel jurists to concede that “this state accepts Doug Berman’s view of the jury, not Bill Otis’s”?
I think the terms would have to be something like, The jury in a criminal case may render a verdict of not guilty despite the state having produced evidence sufficient to prove the crime charged if, in their judgement, the circumstances or law of the case, in fairness, do not justify conviction and punshment of the defendant, the jury being the ultimate arbiter of law and fact. Show me some black letter or case law that says something like that and
I would agree with you.
I like legal arguments that have logical cosistency, if we read the language literally I see no.reason why the jury couldn’t convict on any standard of proof they liked.
Steve, Thanks for your reply. However, you misunderstood my point. I do not contend that current law (federal or Maryland) supports jury lenity –so there is no “black letter” law or good case law to cite. My point is that jury lenity or jury independence is not a new doctrine. It was generally the law around the time of the American Revolution and around the time the U.S. Constitution was adopted. Many people are unaware of this history. The Maryland Court just had to be aware, but as I say, was highhanded in giving Article 23 no effect at all. You may want to check out Wyley v. Warden, 372 F.2d 742 (1967). The holding is that advisory instructions comport with federal constitutional law–but let me highlight page 743, note 1 where Maryland advisory instructions were quoted. One can disagree with this law and approach as a matter of policy, but when constitutional issues are before a court, originalists put a premium on text, history, and usage. Anyone reading the recent ruling by the Maryland court would not be informed of the usage of its state trial courts, as noted in Wyley. My other point was a hypothetical question for you (if you are not an originalist) and/or Bill (who I believe is an originalist) –that if the text and history, and usage, were not sufficiently persuasive to decide the recent case differently, what terms would be. You took a stab at it. Fair enough.
Tim, I’m not sure you can square the Wyley case with U.S. v. Moylan 417 F2d 1002 (1969) which came after or Sparf v. U.S. 156 U.S. 51 (1895) which came before. Reasonable minds can dissagree which is why I think it better to look at the case through the lense of abuse of discretion.
I am misstaken in citing Moylan which, in a footnote cites Wyley for the proposition that a jury may told that they can dissregard the law as given to them by the court. Clearly I need to put more thought into this question.
If the jury can disregard the law, what is left as the standard for decision?
How is the jury to determine that question?
Suppose some jurors have one standard for deciding the case and some have another and some have a third. How is that going to work? Or suppose you have 12 different standards (which could easily happen)?
If there is no settled standard under which juries are to reach their decision, what is left of the notion — heretofore thought to be essential — that cases must be resolved with “equal justice under law”? Indeed, what’s left of any intelligible concept of law at all? If anyone can be acquitted — and, on the same facts, anyone can be convicted — how is that justice? Indeed, how is it anything but roulette?
How will citizens know what is and is not lawful when the outcome of trials depends strictly on the luck of the venire draw?
Until we have satisfactory answers to these questions, nullification cannot be allowed. And I can tell you from 25 years of practice in the federal courts, it isn’t.
I might add that we tried the theory of nullification for many years over a large swath of this country and didn’t care for the results.
In the old Confederacy, during at least the first half of the last century, it was all but impossible to get a jury to convict a white person of a crime against a black one. This was because, at that time and place, the majority was convinced (or loudly claimed to be convinced) that black people were less than human, and that to allow a white defendant to be convicted of a crime against a black victim, no matter how clear the evidence of guilt, would undermine white supremacy. This was, in that malign world, unconscionable.
There may be those who are certain that this kind of perversion of conscience can never happen again. I am not among them. And that is yet another reason I will choose adherence to law, with all its drawbacks, over what will get passed off as the products of conscience, which will have more.