Fully Informed Jury Association

Are you fully informed about jury nullification?

Jury Nullification | 03 Aug 2013

-Criminal Courts have Quietly Moved From “May” Convict to “Must” Convict Jury Instructions


Jury BoxFIJA Advisory Board member Roger Roots, J.D., Ph.D. pens this column about how judges are quietly pulling the veil further over jurors’ right to refuse to convict under unjust or unjustly applied laws. We are often asked how is it that so few people know about jury nullification when it has been part of the United States’ legal system from the beginning and has never been overturned. This is another piece of the puzzle of how jurors’ right to nullify has become jurors’ secret right. Click through for the entire article.

Criminal Courts have Quietly Moved From “May” Convict to “Must” Convict Jury Instructions Over the past 40 Years

In the Dougherty trial, the D.C. Nine tried to get the judge to inform the jury of their inherent nullification powers. The trial judge refused, the jury convicted, and the Defendants appealed to the D.C. Circuit. On the question of whether a judge is under an obligation to fully inform juries about jury nullification, the three judges of the D.C. Circuit split sharply. Chief Judge Bazelon, one of the highest ranking judges in the federal system, issued a brilliant dissenting opinion explaining why the refusal of the trial judge to fully inform the jury constituted outright deception. “On remand the trial judge should grant defendants’ request for a nullification instruction,” wrote Bazelon, or “[a]t the very least “permit defendants to argue the question before the jury.”

Unfortunately, however, Judge Bazelon was outnumbered by Judges Leventhal and Adams, who held that trial judges are under no obligation to inform jurors of their “unreviewable and unreversible power . . . to acquit.” The two-judge majority decided that juries did not need to be explicitly informed because the power of jury nullification is implicit in the overall tone of commonly-given jury instructions.

According to Judge Leventhal (with emphasis added):

The jury knows well enough that its prerogative is not limited to the choices articulated in the formal instructions of the court. . . . Even indicators that would on their face seem too weak to notice — like the fact that the judge tells the jury it must acquit (in case of reasonable doubt) but never tells the jury in so many words that it must convict — are a meaningful part of the jury’s total input. Law is a system, and it is also a language, with secondary meanings that may be unrecorded yet are part of its life.

The problem with Judge leventhal’s 1972 statement is that it is no longer true. During the 1970s, when Dougherty was decided, the common practice was for judges to use the word “must” only when instructing jurors to acquit when prosecutors fail to establish proof beyond a reasonable doubt. In contrast, the word “should” was used when instructing jurors about their obligations when prosecutors prove their cases. But today, many courts have switched to using “must” in both commands.

Thus, a central tenet supporting the opinion of the Dougherty majority—perhaps the lynchpin of the decision—is no longer accurate. I have sat in courtrooms where judges not only tell juries they “must” convict, but where the judges emphasize the word “must” as they say the word. In my experience, judges seem especially prone to emphasize “must” in firearm prosecutions, perhaps out of fear that jurors might flirt with considering the Second Amendment as a basis for jury nullification.