Over on my comic, reader Martenzo this morning asked:

While this is off-topic for the current chapter, I got curious after reading about the recent Bundy acquittal in Oregon. Are you ever going to cover jury duty in greater detail, and will you mention jury nullification? Are you, as a lawyer, even allowed to admit jury nullification is a right that exists?

Without discussing the Bundy case (because I haven’t thought it through, frankly), I dashed off a quick reply:

When we get to Advanced Criminal Procedure, I’ll have a whole chapter on juries, how they and the law’s views of them have evolved over time, etc. And yes, jury nullification will be a big part of it. Criminal juries historically did have the power to vote “not guilty” if a law was unjust or if a conviction would result in injustice. The jury was thought of as the “conscience of the community.”

In the early U.S., it was also seen as a check against unconstitutional laws. Jurors proudly refused to convict people charged under the Alien and Sedition Acts, for example. These were enacted under President Adams, and were used to prosecute newspapers critical of him. (Think now to Hillary’s bugaboo about Citizens United being allowed to criticize her, and Trump’s similar wish that the First Amendment didn’t let people criticize him, and you’ll see that some things never change.) Ironically, Adams himself accepted jury nullification as a necessary power of the jury, saying “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.”

Jury nullification continued to be an important check on unconstitutional laws throughout the 19th century, as well as laws that were contrary to the values of the community, being used to acquit people who had violated the Fugitive Slave Ave and also early alcohol prohibition laws.

As we started to transition into the 20th Century, however, judges started shutting it down as views on the role of the jury changed. At the time of the founding, the jury was seen as judge of both the law and the facts. Our first Chief Justice, John Jay, writing for a unanimous court, spelled it out neatly in the case of Georgia v. Brailsford, 3 U.S. 1 (1794). He explained that, while traditionally it’s the role of the jury to decide what the facts of the case are, and the role of the judge to decide issues of law (as judges presumably know the law better), nevertheless that’s only a rule of thumb. The law, however, is that both the law and the facts are “within [the jury’s] power of decision.”

By the 1890s, however, the rule of thumb had come to be seen as the rule itself. (This happens a lot. I’m working on a law review article taking a deep dive there.) Courts saw the jury’s job as finding the official version of the facts, to which the judge could then apply the applicable law. Jury nullification, then, came to be seen not as an important civic right, but as a dangerous transgression on the role of the court, and a frustration of justice. As a result, trial judges routinely instruct juries that it’s their job to decide the facts, but the law is up to the judge. Lawyers who insinuate that a jury might say “not guilty” even if the facts fit the elements of the crime, are going to get shut down or worse. In the courts where I usually practice, a juror who indicates that he might nullify is going to be excused as if he said he would not be able to follow the judge’s legal instructions.

Even telling people about jury nullification pisses off prosecutors. In 2010, the feds arrested a guy for handing out fliers in front of the federal courthouse here in Manhattan, and prosecuted him for jury tampering under 18 U.S.C. § 1504. In 2015, Michigan prosecutors charged a guy with obstruction of justice for doing the same thing there. Both guys faced jail time, but the judges in both cases dismissed the charges.

That’s because, although judges don’t like jury nullification, and don’t like jurors being told about it, nullification is still not against the law, and (so long as you’re not trying to influence a juror in a specific case) the First Amendment protects telling people about it.

Indeed, though trial courts and prosecutors don’t like it, higher appellate courts continue to recognize that jury nullification is a power that juries have. Writing for the Supreme Court in 1920, Justice Oliver Wendell Holmes put it plain–though the judge should explain to the jury the law that applies to the facts, “the jury has the power to bring in a verdict in the teeth of both law and facts.” Horning v. District of Columbia, 254 U.S. 135 (1920). The Supreme Court and other higher courts have continued to accept this to the present day. See, e.g. U.S. v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972) (“The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge. * * * The jury system operates in fact so that the jury will not convict when they empathize with the defendant, as when the offense is one they see themselves as likely to commit, or consider generally acceptable or condonable under the mores of the community.”) As recently as 2013, the Supreme Court has repeated its maxim “A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government” from the case Duncan v. Louisiana, 391 U.S. 145 (1968) (Google Scholar link to the cases using that phrase).

HOWEVER — and this is a big however — these same courts are perfectly fine with ruling that the jury doesn’t need to be informed of its power to nullify. In fact, they tend to espouse the rule that juries shouldn’t be told they can nullify. The general idea is that if we do that, we’ll have anarchy. People will get acquitted, not because the jury thinks the law is unjust or unjustly applied, but because they don’t like the police, or they feel that “too many young black men are already in prison,” or because one rogue juror — rather than the community — thought the offense shouldn’t be against the law. If juries aren’t told they can nullify, then nullification will only happen in real true instances of injustice, unconstitutionality, abuse of government power, or violation of community values.

Accepting that the jury has this power, while at the same time insisting that they not be informed of it, is seen not as a compromise, but as a well-balanced equilibrium. We don’t get chaos and anarchy contrary to the will of the people (as expressed by the legislature that passed the laws… and I guess as also expressed by the unelected bureaucrats who enacted the vastly more numerous regulatory crimes). But we do get a “safety valve” for the truly exceptional cases. If we tell the jury that they can nullify, it will throw this whole equilibrium out of whack.

Courts back this up by insisting that jurors already know they can do it, anyway. “Everyone knows,” from the osmosis of popular culture, that juries have the prerogative to acquit when a conviction offends their conscience. Formally telling them they can, then, could be taken as a strong hint that they should.It will make them consider it when they shouldn’t. It will be a validation for those who would use it for the wrong reasons. No, no, we ensure that it’s only used for the most egregious cases by letting the popular culture create the general perception that it can happen, and ourselves refusing to tell jurors outright.

I’m not making this up. You can’t make this up. That’s what courts actually say.

(Aside: this isn’t the only area of our jurisprudence with such an inane rule. As you may recall from an earlier chapter, courts generally prohibit evidence informing juries of how inaccurate and unreliable eyewitness testimony is. Why? Because we don’t want jurors to hear that, and besides “everyone knows” anyway, so the testimony is unnecessary.)

Sadly, the theory fails when confronted with the facts. Everyone doesn’t know. It is frankly routine for jurors to be incredibly distraught by their guilty verdicts, convinced that they had absolutely no choice but to say guilty because the elements of the crime were satisfied. That’s what the judge and prosecutor — and maybe even their orientation video — firmly instructed them. Those who indicated that there was even a chance that they might not follow that instruction had been dismissed. The truth is that jurors do not know or understand that it is their power, right, and civic duty to vote “not guilty” in cases where a conviction would be unjust. Jurors of good conscience are routinely devastated by the awful decisions they felt compelled to make. Meanwhile, real human beings are right now suffering awful years of lengthy prison sentences, their lives ruined, their families destroyed, by convictions nobody of good conscience would have wanted.

Look, runaway juries are a truly bad thing. When I was a young prosecutor in Manhattan, we used to joke ruefully with our counterparts in the Bronx that the only time they could get a conviction at trial was if they were prosecuting cops. It was an exaggeration, of course, but the kernel of truth was that people were so unsatisfied with the justice system in that community that truly guilty people were going free, not because their individual conviction would have been unjust, but as an expression of larger, deeper failings. But it wasn’t a solution to the entrenched problems. Police saw it as proof that they were the opponents of the community, rather than its protectors, a justification for their “us vs. them” mentality. Two of my first trials in that period that ended in hung juries, where every single juror was convinced of guilt, but members of oppressed communities didn’t want to see another young black man go to jail. Their words, not mine (and hence my use of the phrase earlier). Nullification is not a safety valve for systemic failures. It’s for individual justice. Trials are individual cases about individual people. Defense attorneys who want to change the system through individual cases both fail at it and wrong their clients. Juries who want to protest or change the system through individual cases also fail and do a disservice to justice. This is the chaos and anarchy judges fear. They didn’t just fantasize about it.

The jury’s prerogative of nullification is a powerful component, not only of our justice system, but of our constitutional heritage. From the earliest juries in medieval England to the modern courthouses of our postindustrial society, the jury’s role as the conscience of the community has served as the last resort of the people to protect their rights and their justice from the might of the state, against the caprices and failings of those who wield that power. The power to say “not guilty” is absolutely necessary to democracy and the rule of law. Without it, tyranny is all to easy. The next John Adams could succeed in imprisoning anyone who said unkind things about it.

But when it the tool is used for the wrong task, it undermines that very democracy and rule of law.

So what’s the solution?

Easy. Tell juries as a matter of course, in those orientation videos so proud of the jury’s important role in society, that one of its important roles is to act as the conscience of the community. Inform them, in plain language, that the jury can act as a safety valve and acquit even when the facts technically fit the crime, when to do so in this particular case would offend our human decency. But warn that this power must not be abused. Warn that voting not guilty just because you don’t like the fact that something’s against the law, or as a form of political protest, steals justice from our justice system. In voir dire, do eliminate for cause anyone who thinks the offense shouldn’t be against the law — the jury’s role in defeating unconstitutional laws has probably been transferred to the courts ever since Marbury v. Madison et al. Do eliminate for cause anyone who would abuse the nullification power. But don’t eliminate anyone who promises to use it to prevent individual injustice. Do let lawyers argue for it and against it. And do instruct them before deliberations on its appropriate use.

Sure, judges might screw it up. Courts would rule on those instructions. We might even develop a line of cases refining our jurisprudence on precisely when jury nullification is desirable. Instead of being a worrisome secret, it might become a subject of popular debate and scholarly thought. And people serving on juries will proudly and confidently see that justice is done.

That wouldn’t be such a bad thing.