What could have caused such calamity? This supposedly radical legislation would merely require judges to tell criminal juries the undisputed fact that they have "the power to judge the law as well as the evidence, and to vote on the verdict according to conscience." It is hard to remember the last time there was so much turmoil over a proposal to declassify a government secret during peacetime.

Meanwhile, out in Nevada, a 50-year-old florist and grandmother almost landed in prison for her efforts to help spread the word to jurors. When her son went on trial for drug charges in federal court, Yvonne Regas and a friend papered the windshields of nearby parked cars, hoping to let the jurors learn the completely unexpected fact that her son faced 450 years in prison for a single drug transaction nine years earlier. Federal authorities charged her with jury tampering and obstruction of justice, but eventually dropped the charges. Presumably, they gave up hope of figuring out how they could get jurors to convict her without showing them the contents of the pamphlets she had been distributing--and then her jury would know the truth about nullification.

Despite all the modern government resentment toward "jury nullification," its roots run deep in both our history and law. At least two provisions of the Constitution, and arguably three, protect the jury's power to nullify. They also explain why that power is limited to criminal cases, and has no analogy in the civil context.

First, it is reflected in the Sixth Amendment, which grants the accused an inviolable right to a jury determination of his guilt or innocence in all criminal prosecutions for serious offenses. Because of this right, a trial judge absolutely cannot direct a verdict in favor of the State or set aside a jury's verdict of not guilty, "no matter how overwhelming the evidence." Sullivan v. Louisiana, 508 U.S. 275, 277 (1993). Any violation of this rule is automatically reversible error without regard to the evidence of guilt. Id. Indeed, the point is so well settled that it was announced without dissent in Sullivan by a Court that has been unanimous on only a few constitutional questions in the past ten years.

This rule is applied with a rigor that is without parallel in any area of civil practice. For example, it is reversible error to direct a verdict of guilty over the defendant's objection, even if he takes the witness stand and admits under oath that he committed every element of the charged offense! Bryant v. Georgia, 163 Ga. App. 872, 296 S.E.2d 168 (Ga. Ct. App. 1982). (Although one might fairly describe that particular defense strategy as a questionable use of direct examination.)

Judicial Deference

Likewise, when a judge takes judicial notice of a fact in a criminal case--for example, that the defendant could not have boarded a train in New York and exited in Texas without somehow crossing state lines--he will tell the jury they "may" accept that fact as proven without further evidence. But he may not tell them that they are required to do so, or take the factual question away from them, no matter how obvious the fact might seem. See Advisory Committee Notes to Fed. R. Evid. 201(g). Even where the defendant and his attorney enter into a formal stipulation admitting an element of the offense, the jury should be told merely that they may regard the matter to be "proved," if they wish, but the judge still cannot direct a verdict on that factual issue or take it away from the jury over the defendant's objection. United States v. Muse, 83 F.3d 672, 679-80 (4th Cir. 1996). All of these rules are designed, in part, to protect the jury's inviolable power to nullify and to avoid the reversible error always committed when "the wrong entity judge[s] the defendant guilty." Rose v. Clark, 478 U.S. 570, 578 (1986).

Second, the roots of nullification also run deep into the (p.7)Double Jeopardy Clause. Even where the jury's verdict of not guilty seems indefensible, that clause prevents the State from pursuing even the limited remedy of a new trial. This rule, by design, gives juries the power to "err upon the side of mercy" by entering "an unassailable but unreasonable verdict of not guilty." Jackson v. Virginia, 443 U.S. 307, 317 n.10 (1979).

Finally, the jury's power to nullify is protected by our abiding "judicial distaste" for special verdicts or interrogatories to the jury in criminal cases. United States v. Oliver North, 910 F.2d 843, 910-11 (D.C. Cir. 1990). Unlike in civil cases, where such devices are routinely employed, in criminal cases it has frequently been held to be error to ask a jury to return anything but a general verdict of guilty or not guilty. United States v. McCracken, 488 F.2d 406, 418-419 (5th Cir. 1974) (collecting cases). This rule is designed to safeguard the jury's power "to arrive at a general verdict without having to support it by reasons or by a report of its deliberations," and to protect its historic power to nullify or temper rules of law based on the jurors' sense of justice as conscience of the community. Id.; United States v. Spock, 416 F.2d 165, 181-82 (1st Cir. 1969). The jury is given "a general veto power, and this power should not be attenuated by requiring the jury to answer in writing a detailed list of questions or explain its reasons." United States v. Wilson, 629 F.2d 439, 443 (6th Cir. 1980). Although the issue is far from settled, a powerful argument can be made that this rule "is of constitutional dimensions," and a direct corollary of the Sixth Amendment's protection of the jury's power to nullify. Wayne LaFave v Jerold Israel, Criminal Procedure § 24.7(a) (2d ed. 1992).

These constitutional rules, in combination, give a criminal jury the inherent discretionary power to "decline to convict," and insure that such "discretionary exercises of leniency are final and unreviewable." McCleskey v. Kemp, 481 U.S. 279, 311 (1987). This state of affairs does not even have a rough parallel in civil cases, where the Seventh Amendment right to a "trial by jury" does not preclude judges from granting summary judgment, directed verdicts, and new trials. (In effect, although both amendments are written quite similarly, the Supreme Court has interpreted the Sixth Amendment to give criminal defendants a right to a jury and a trial; the Seventh Amendment, where it applies, only gives civil litigants the right to a jury if there is a trial.)

The existence of a criminal jury's power to nullify is currently as well settled as any other rule of constitutional law. It is a cornerstone of American criminal procedure. The far more controversial issue--and much more frequently litigated--is that perennial dilemma: What should we tell the kids? Should (or must) the judge tell the jurors anything about their power (or right) to nullify? Should the judge at least allow the defense to tell them? If so, how much should we tell them, and how should we do it? These issues lie at the very core of our criminal justice system, and have been debated by lawyers, journalists, philosophers, and patriots for two centuries. It is therefore ironic that these questions have, at least in recent decades, generated one of the most remarkable displays of unanimity ever orchestrated by state and federal courts on any issue of law in American history.

'The existence of a criminal jury's power to nullify is currently as well settled as any other rule of constitutional law.'

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