THE TRUTH ABOUT JURY NULLIFICATION

By: Alana S. Segal, Esq.

Jury instructions are designed to discourage jury nullification and most judicial processes entail judges misleading jurors into thinking they must apply the law exactly as instructed. It is a rare case indeed where the judge tells the jury about their constitutional right to disregard the law. This right is known as jury nullification, a previously unspoken yet undeniable power that has been assigned a voice by the New Hampshire legislature. In most jurisdictions, substantive law precludes express advocacy of jury nullification, but HB 146, as signed into law on June 18, 2012, expressly invites that type of advocacy. Every jury in the land is tampered with and falsely instructed by the judge when it is told it must take (or accept) as the law that which has been given to them, or that they must bring in a certain verdict, or that they can decide only the facts of the case.1 New Hampshires HB 146 has granted legislative validation to the jurys power to judge the facts and the application of the law in relation to the facts in controversy.2 What is the exact role of jurors in bringing about justice in the legal system? Paul Newman in the movie, The Verdict, tells the jury exactly their role in his summation Today, you are the law. Not some book. Not some lawyers. You are the law. Traditionally, jurors have been assigned the role as fact finders. There are many jury instructions specifically tailored to limit the jurys capacity to decide the whole case. Determinations of law are confined to the judge, whose power includes the right, in certain instances, to disregard the verdict. In most cases, the judge retains exclusive power over sentencing. Indeed, arguments of law are made outside the presence of the jury through motions in limine. Juries should not be exposed to arguments in which they may hear evidence that may be potentially excluded from trial. The Verdict portrays the issue of jury nullification in its purest form. The Verdict involves a medical malpractice suit against an anesthesiologist for negligently causing a woman in labor to go into cardiac arrest and experience irreparable brain damage from improperly administering anesthesia. At trial, Paul Newman plays the lawyer suing the doctor and he presents a nurse as a rebuttal witness. The nurse testifies that the doctor confessed that he failed to look at the admission sheet before giving treatment to the patient and this hospital record indicated the patient ate a full meal one hour before being admitted to the hospital. The nurse testified that the doctor forced her to conceal his negligence by changing the time of the patients last meal on the intake sheet. When the court excludes the document from evidence on the basis that it was not an original and instructs the jury to completely disregard the nurses testimony, this is a
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Lord Denman (1884) O Connel v. R. http://www.nhliberty.org/bills/view/2012/HB146

classic example of a situation inviting jury nullification. Jurors are instructed to give this extremely relevant evidence no weight in their minds. By using their power to nullify the jury instructions, the jury returned a verdict against the doctor. If the jurors were unaware of their power to disregard the instructions, the result would have been a perceived injustice because of the courts ruling that this crucial evidence proving culpability was inadmissible. Does justice require jurors be informed of their power to disregard the judges instructions to follow the law? It depends on whether the verdict represents the truth. Although a constitutional right, courts do not have to inform jurors that such a right exists. Throughout history, the exercise of the jurys power to nullify in the search for truth has been evident in the Alien Sedition Act, the Fugitive Slave Laws and the Prohibition Era of the 1930s. Chief Justice John Jay, in United States v. Sparf3, told jurors [y]ou have the right to take it upon yourselves to judge [both the facts and the law.] By the same token, the court held that the trial judge has no responsibility to inform the jury of the right to nullify laws. Thereafter, cases have affirmed the concept of jury nullification yet simultaneously continued to support the courts refusal to permit instructions regarding nullification.4 When jurors are sworn in and take an oath to truly try the cause and render a true verdict according only to the evidence presentedand to the instructions of the court" 5, the quest for truth may encompass a contortionist legal ideal. Jury nullification can lead to unjust results when jurors use their discretion to acquit a defendant in a case where the jury believes that the defendant actually committed the act with which he is charged. The risk of tainting the jury based on exposure to inadmissible evidence may provide a rational basis for a courts refusal to instruct the jury about their nullification power. Setting such boundaries appears to be rooted in jurors presumed inability to follow legal instructions directing them not to consider certain facts as evidence. Indeed, potential jurors may be excused during voir dire (jury selection) proceedings for cause on the basis of their expressed inability to follow instructions from the judge. Although some judges appear to believe that jury nullification arguments may subject an attorney to be disciplined under the Rules of Professional Conduct, there remains a thin line between a good faith basis for appealing to a jurys nullification powers and the dangers of appealing to their prejudices. Appealing to the jurys nullification power can lead to a hung jury or a mistrial. Alternatively, it can become a powerful forum and means of imposing checks and balances against abusive prosecution or misplaced enforcement of government tyranny. The power held by juries to act as social progenitors in opposing unwanted legislation in the form of
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156 U.S. 51 (1895) U.S. v. Moylan, 417 F.2d 1002 (4th Cir.1969); United States v. Dougherty, 473 F.2d 1113. 5 California Code of Civil Procedure 190 - 237

bold civil protest from the jury box may be a legitimate concern.6 A jury could not even be pooled in Montana because of the reaction of potential jurors demonstrating people were unwilling to convict for marijuana possession.7 In the search for truth, does the power of jury nullification ensure that justice be served or does it negate that process? In My Cousin Vinny (1992), the D.A. Trotters closing argument seems to suggest that its the jurys job to decide whos telling the truth, Truth, thats what verdict means. Truth is not just plain facts but it also includes inferences to be drawn from those facts, as directed and shaped by persuasive advocacy. The search for truth may be difficult to police. It appears the right to effective counsel would encompass indirect appeals to the jurys nullification power, so long as the power to acquit in disregard of the evidence exists. Whether it is the lawyer or the judge that informs the jury of their right to nullification, it seems the jury is out on whether awareness of nullification powers leads to just results. Where a lawyer has a good faith basis to appeal to the jurys nullification power, even if it has an incidental effect of appealing to a jurys prejudice or enhancing its awareness of its ability to decide the case against the evidence, this seems to be a recipe for good lawyering.8

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http://www.washingtonpost.com/wp-srv/national/jury080299.htm http://missoulian.com/news/local/article_464bdc0a-0b36-11e0-a594-001cc4c03286.html 8 http://www.dcbar.org/for_lawyers/ethics/legal_ethics/opinions/opinion320.cfm