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    Nullification: A Jury's 'Secret' Power

    Notorious trials draw scorn for jurors who decide the fate of criminal defendants. But jurors often are restricted in their deliberations; they are not told of their traditional power to decide both the facts and the justness of the law as applied in a particular case.

    Erik R. Guenther

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 85, No. 2, February 2012

    Blindfold 

    Enthralled by nonstop media coverage of high-profile homicide cases, like those of defendants Casey Anthony and O.J. Simpson, many members of the public wish to be like flies on the wall in the jury room (and so do the talk-show hosts). In both cases, some commentators were quick to blame the jury for the acquittals. Other observers defended the juries’ insistence on proof beyond a reasonable doubt and reminded the public that the juries viewed only admissible evidence and were privy to first-hand testimony. Some commentators on the Anthony and Simpson verdicts also raised the specter of “jury nullification” in deriding the verdicts.1 It is through the lens of constant media chatter about select cases that the public is asked to consider the jury’s role, but it is in a historic context that the scope of the jury’s power will likely be offered for consideration before the Wisconsin Supreme Court and the U.S. Supreme Court.

    Jury nullification is a recognized criminal defense strategy.2 Jury nullification, or jury independence, means that a jury has the right to refuse to convict if the jury believes conviction would be unjust. Yet, attempts by defense counsel to overtly advise a jury of its power to decide the law are generally forbidden. Also, although it is without question that jurors have the power to decline to convict regardless of the weight of the evidence, they are not advised of their power by the judge. Rather, they are instructed that they are merely to determine the facts and that they are to follow the judge’s instructions as to the law.3 In Wisconsin, juries determine guilt or innocence of their peers with no knowledge of the range of penalties the accused will face if convicted. Being ignorant of penalties, jurors have no role in considering “whether the punishment fits the crime.”4 Under an “originalist” interpretation of the Sixth Amendment (and article 1, section 7 of the Wisconsin Constitution), this limited scope of work for a petit jury appears inconsistent with the constitutional right to a jury trial as it existed when the United States declared independence and when Wisconsin became a state.5

    The U.S. Supreme Court has explicitly adopted an originalist method of interpreting a defendant’s rights, which mandates that the Sixth Amendment’s interpretation must conform to the trial rights that existed when the Bill of Rights was adopted.6 Likewise, with increasing consistency, especially in civil cases, the Wisconsin Supreme Court has also looked at the meaning of trial rights at the time of the state’s founding in determining the extent to the right to a jury trial today.7 However, neither court has considered the jury function with a view toward the original meaning of the right to a jury to decide the law. This article anticipates such review.

    When “[t]he purpose of a jury is to guard against the exercise of arbitrary power – to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge,”8 should the jury be kept in the dark about its fundamental power to decide the justness of the law as applied in a particular case? Should the power remain a secret (which is referred to only by a pejorative – nullification) rather than be acknowledged as an inherent, appropriate, and recognized part of the jury function?9

    The U.S. Supreme Court’s Originalist Interpretation of the Sixth Amendment

    To best understand the originalist interpretation of the Sixth Amendment, a brief review of several cases is required. Beginning with Apprendi v. New Jersey,10 the U.S. Supreme Court held that the Sixth Amendment right to a jury trial requires that, except for prior convictions, “any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The Court reasoned that because a jury at the time of the founding had to determine all facts necessary to permit a maximum sentence, so too must today’s juries find such facts.

    In Ring v. Arizona,11 the Court followed Apprendi’s reasoning and concluded that a jury must find any aggravating factor or fact that would make a defendant subject to capital punishment. Both Apprendi and Ring held that the Sixth Amendment jury-trial right should be based on the practice that existed in 1791 when the Amendment was adopted and that those practices must be followed today.

    Similarly, in Sixth Amendment Confrontation Clause cases, the U.S. Supreme Court has made explicit that the current right is controlled by the extent of the right in 1791.12 The right of confrontation was described as “most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding.”13 Recently, in Giles v. California, the Supreme Court stated that any restriction on the right of confrontation could only pass constitutional muster if it conformed to “a founding-era exception to the confrontation right.” Justice Scalia’s plurality opinion in Giles indicated that this originalist approach is the only permissible method of interpreting the Sixth Amendment.14

    Thus, for an exception to the Sixth Amendment to prevail, it has to have existed in 1791. As Justice Scalia stated, “the Sixth Amendment seeks fairness indeed – but seeks it through very specific means (one of which is confrontation) that were the trial rights of Englishmen.”15

    The Meaning of “Jury” When the United States and the State of Wisconsin were Founded

    The Sixth Amendment provides, in part, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” The original scope of jury authority can be understood by examining the definition of “jury” in dictionaries and case law during the eras when the United States and Wisconsin became sovereign entities.

    The Bill of Rights was ratified on Dec. 15, 1791, after being introduced by James Madison in 1789. At the time, the most widely used legal dictionary in colonial Virginia was Jacob’s Law Dictionary.16 This dictionarydefined jury as follows:

    “Jury (jurata, from the LAT. jurare, to swear) Signifies a certain number of men sworn to inquire of and try the matter of fact, and declare the truth upon such evidence as shall be delivered them in a cause: and they are sworn judges upon evidence in matter of fact.

    “... Juries are fineable, if they are unlawfully dealt with to give their verdict; but they are not fineable for giving their verdict contrary to the evidence, or against the direction of the court; for the law supposes the jury may have some other evidence than what is given in court, and they may not only find things of their own knowledge, but they go according to their consciences. ....

    “If a jury take upon them the knowledge of the law, and give a general verdict, it is good; but in cases of difficulty, it is best and safest to find the special matter, and to leave it to the judge to determine what is the law upon the fact. ...”17

    The Wisconsin Constitution was authored in December 1847 and approved by referendum in March 1848. Echoing the Sixth Amendment, the Wisconsin Constitution guarantees, in article I, section 7, that “[i]n all criminal prosecutions the accused shall enjoy the right [...] in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.” It also provides, in article I, section 5, that
    “[t]he right to trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy, but a jury trial may be waived by the parties in all cases in the manner prescribed by law.”

    Before Wisconsin established statehood, the first American dictionary had been published. Noah Webster’s Dictionary of the English Language (1828) defined jury as follows:

    “JURY, n. (Fr. jure, sworn, L. juro, to swear.) A number of freeholders, selected in the manner prescribed by law, empanneled [sic] and sworn to inquire into and try any matter of fact, and to declare the truth on the evidence given them in the case. ... Petty juries, consisting usually of twelve men, attend courts to try matters of fact in civil cases, and to decide both the law and the fact in criminal prosecutions. The decision of a petty jury is called a verdict.18

    These historical definitions illustrate how the Sixth Amendment is presently viewed by a majority of the U.S. Supreme Court. Likewise, as described later, the Wisconsin Supreme Court has interpreted trial rights by looking to their extent at the time when Wisconsin became a state.

    A Brief History of Jury Independence

    The historic right to a jury conformed in practice to dictionary definitions. Under the Supreme Court’s originalist interpretation of the Sixth Amendment, judges look to criminal practices of the 13 colonies and England in 1791, when the Amendment was adopted. Unlike most present-day juries, the petit jury of 1791 would have been aware of its authority to return a verdict of not guilty or of guilty of a lesser crime, if it believed the punishment for the crime charged, and proven, was too severe. Juries had – and sometimes exercised – the power to refuse to convict even if the facts and law proved guilt.

    “In America following the Revolution [,...] the authority of juries to resolve legal issues was frequently confirmed by constitutions, statutes, and judicial decisions.”19 Indeed, the jury’s power not to convict was routinely exercised when the anticipated punishment was considered overly punitive.20 The Framers could look to publicized trials like those of William Penn and John Peter Zenger,21 in which juries refused to convict despite the court’s insistence that the law required them to do so. American juries also followed the precedent of English juries in finding the amount of stolen goods to be less than the actual value, to spare defendants from the imposition of a mandatory death penalty for conviction of theft of goods of a higher value.22 Thus, it is clear that the jury had the power to control sentences in the founding era.23

    A jury’s fundamental right to decide the law, or to decide how the law should apply in an individual case based on the potential punishment, was incorporated into the Sixth Amendment’s right to trial by jury. This was aptly illustrated in 1794 in Georgia v. Brailsford,24 and subsequent cases. In Brailsford, the U.S. Supreme Court sat in original jurisdiction because the state of Georgia was a party. Chief Justice John Jay charged the jury as follows:

    “It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law it is the province of the Court to decide. But it must be observed that by the same law, which recognizes this reasonable distinction of jurisdiction, you have nevertheless the right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect which is due to the opinion of the court: For, as on the one hand, it is presumed, the juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.25

    The Supreme Court instructed the jury of its “right” and “power” to decide both the facts and the law of a case.26 Other cases and legislation during this period before Wisconsin became a state were consistent with this understanding.27 However, several other courts, in states that did not specifically protect independent juries, authored contrary opinions around the same time.28 While appellate authority from Wisconsin is scarce, the state appears to have followed the more prevalent view that juries had the power to decide both the law and the facts, at least in criminal cases.29

    Sparf and Subsequent U.S. Supreme Court Cases Limit Jury Independence

    As the 19th century drew to a close, state and federal courts became more reluctant to advise juries of their power to decide the law. In 1895, the controversy reached the U.S. Supreme Court, in Sparf v. United States.30 Justice Harlan delivered the opinion of the Court with Justice Jackson concurring, denying that juries had the right to decide the law. He opined that “[p]ublic and private safety alike would be in peril if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court, and become a law unto themselves.”31 Justice Brewer dissented but concurred with the majority’s separation of jury and judicial functions. Justice Grey, in dissent, argued that “the jury [...] in a criminal case, have the right, as well as the power, to decide, according to their own judgment and consciences, all questions, whether of fact or of law, involved in that issue.”32

    In decisions after Sparf and before Apprendi, the U.S. Supreme Court continued to limit the right to jury independence and squarely found that the jury was not to consider the possible sentence in noncapital cases. For example, the Court said that “[i]t is well established that when a jury has no sentencing function, it should be admonished to ‘reach its verdict without regard to what sentence might be imposed.’”33 Despite this, judges have, albeit rarely, advised juries of the penalty the defendant faced if convicted.34

    In Sparf, the Court held that federal judges are not required to advise a jury of its power to decide the law, but the opinion did not forbid federal judges giving such an instruction. Also, the holding was limited to federal criminal trials. The U.S. Supreme Court has never extended Sparf’s holding to state court criminal trials.35 As a consequence of the Supreme Court’s Sixth Amendment opinions beginning with Apprendi, Sparf’s foundation has started to become less firm even in federal criminal trials.

    Jury Independence in Wisconsin

    Wisconsin courts recognize that “[j]uries have always had the inherent and fundamental power to return a verdict of not guilty irrespective of the evidence.”36 The first Wisconsin appellate case to address jury nullification as a term of art stated that “[b]y convicting [the defendant] of one rather than both charges, the jury may have acted out of sympathy, or exercised a form of jury nullification based upon their sense of fairness and justice. Whatever reasoning the jury employed, their determination must be respected by this court.”37

    An early Wisconsin Supreme Court civil libel case reviewed a trial court instruction regarding the jury’s role. The supreme court’s 1885 reversal of the finding of libel is not of import here, but the trial court instruction describing the understanding of the jury’s role is relevant, because the supreme court quoted the instruction without objection or comment:

    “If the words of the alleged libel admit of more than one construction, one which may be innocent, and one which is libelous; or when it would be doubtful, whether it would be libelous or not, it is a question of fact for the jury to find. But if the words do not admit of an innocent construction if the alleged publication per se is libelous, if it necessarily impute a charge involving moral turpitude, and which holds up an individual to scorn and contempt, it is the duty of the court in a civil suit between party and party, to declare the publication a libel per se, if the jury are satisfied that it was published by the defendant of and concerning the plaintiff. It is a responsibility from which the court could not withdraw itself if it would, and herein is the distinction between civil suits, between party and party, when either may except and have the case reviewed in the court of last resort, and criminal prosecutions for libel, in which, by our constitution and laws, the jury are made the judges of the law and fact.38

    Wisconsin courts have had opportunities to consider requests to inform juries of the penalties that a defendant faces if convicted and of the juries’ privilege to decide the law.39 These requests are uniformly rejected in (almost exclusively unpublished) appellate cases. Yet, in rejecting these requests, Wisconsin appellate courts have not been asked to review the right to an informed jury, under the Supreme Court’s originalist Sixth Amendment interpretation, which has progressively taken root since at least 2000.40 Further, appellate courts have not considered jury independence in light of the Wisconsin Supreme Court’s similar embrace of the historic scope of the jury trial right.41

    A 1991 Wisconsin Court of Appeals case, State v. Bjerkaas, is often cited for the proposition that jury nullification may not be discussed at trial. This is an overly broad reading of the case. The Bjerkaas court found that the trial court did not abuse its discretion in disallowing defense counsel to argue that the jury could decline to follow the law.42 This decision was not appealed to the Wisconsin Supreme Court. Bjerkaas has been cited as support for foreclosing jury instructions or comments by counsel regarding jury independence.

    In reaching its decision, the court of appeals began with the notion that “the precise question of [the jury nullification right has not] arisen in Wisconsin.”43 The Bjerkaas opinion then stated:

    “Thus, juries have the power to do what they want in a given case because neither the prosecution nor the court has the authority to compel them to do what they should [.] But this power does not translate to a right to have a jury decide a case contrary to law or fact, much less a right to an instruction telling jurors they may do so or to an argument urging them to nullify applicable laws. ‘[A] defendant has no right to have the jury defy the law or ignore the undisputed evidence’.”44

    Reviewing courts often cite this passage from Bjerkaas in upholding a circuit court’s decision to reject requests by defendants to ask a jury to acquit on grounds of fairness or to reject other perceived attempts at jury nullification.45 But, similarly to Sparf, the Bjerkaas court did not prohibit a trial judge from advising a jury of its power to decide the law but merely advised that there is no requirement that a judge offer such a jury instruction. The Bjerkaas opinion raised the distinction between the “power” to render a verdict based on nullification and the “right” to have a jury that is advised of this power.46 However, the notion that a jury has the power but does not have the right to decide a case based on its opinion of the law is inconsistent with the notion of the role of the jury at the time of the founding of the United States and of Wisconsin.47

    Whether categorizing jury independence as a right or as a power, Wisconsin opinions reject attempts to raise the harsh consequences of a conviction to the jury.48 Some opinions allow circuit courts wide room to maneuver to avoid the risk of jury nullification.49 More rarely, Wisconsin courts have considered, and declined, an explicit request for a jury nullification instruction.50 Not one of these reviewing courts, in reaching their conclusions, tackled the changing manner in which the Sixth Amendment was being viewed by the U.S. Supreme Court.

    Even before an originalist view became prevalent, the proper role of a jury was recognized by Wisconsin courts as a difficult issue. In 1978, in reviewing a wrongful death action in Peot v. Ferraro, the Wisconsin Supreme Court discussed the complexity of the jury’s role. The supreme court noted that “the jury should not be allowed to determine a verdict based upon ignorance, speculation, or false assumptions” and found that the jury should be apprised of the statutory limitation on damages.51 The Peotopinion also noted that:

    “[D]evotees of the jury system praise it precisely because the jury, in the privacy of its retirement, can adjust the general rule of law to the justice of the particular case. It is because our system values the application of the general rule to each case, and at the same time justice in the particular case, that the controversy persists as to how the jury best performs its role.”52

    Reflecting the prevalent originalist approach, the Wisconsin Supreme Court has looked to the extent of the right to a jury trial at the time of the state’s founding in denying the right to a 12-person jury trial for a civil speeding citation (2005), denying the right to a jury trial for a Wisconsin Family or Medical Leave Act claim (2009), considering the contours of the invocation of the right to counsel in a criminal case (2011), and finding a constitutional right to a 12-person jury in criminal cases (1998).53 These cases demonstrate the Wisconsin Supreme Court’s comfort with originalism as a basis for opinions.

    Erik R. GuentherErik R.Guenther, U.W. 2002, maintains a statewide criminal defense and constitutional law practice with Hurley, Burish & Stanton S.C., Madison. He is presently the deputy county director, in Belize, with the American Bar Association Rule of Law Initiative. Contact him at eguenther@hbslawfirm.com.

    Likewise, with respect to civil jury trial rights, Wisconsin has a long-standing history of interpreting article I, section 5’s language that “the right to trial by jury shall remain inviolate” to require that the jury trial right be given the scope it had at the time of the adoption of the Wisconsin Constitution.54 While article I, section 5 is typically considered to be limited to civil matters, “there are also cases from [the Wisconsin Supreme Court] that borrow concepts from Article I, § 5 and attempt to apply them to the jury trial right in criminal cases protected by Article I, § 7.”55 Further, in considering whether a jury should be instructed as to potential penalty and to the jury’s ability to judge the law, the Wisconsin Legislature mandates that the nature of appropriate instructions for a civil trial jury be similar to the instructions given to a criminal trial jury.56 Thus, at least in the area of fully informing a jury, there is both constitutional and statutory foundation to support having the right to an independent jury “remain inviolate.”

    Conclusion

    Under current interpretations of Wisconsin law, neither the judge nor counsel will inform the jury of its inherent power to acquit regardless of the evidence – in other words, to judge the law, unless the court deviates from the Wisconsin pattern jury instructions.57 The typical criminal jury instructions are akin to a parent declining to provide accurate information about sexual activity to a child, in deference to the information that can be obtained on the “street.” This leaves a juror to think that rendering a verdict according to conscience is a “dirty secret” rather than an inherent and honorable part of jury service.58 Given the U.S. Supreme Court’s and Wisconsin Supreme Court’s reliance on the founders’ intentions with respect to the right to a jury trial in recent years, it is likely that this disconnect will be considered by one or the other court in the near future. This will offer an opportunity to see how consistent courts are in interpreting trial rights under an originalist framework.

    Endnotes

    1 See generally the “Nancy Grace” program’s coverage of the Casey Anthony trial. See also Marcia Clark, Casey Jury Brainwash, The Daily Beast, July 8, 2011; Alan M. DershowitzCasey Anthony: The System Worked, Wall St. J., July 7, 2011; Jeanette Desantis, Los Angeles Daily News, March 17, 1996, Darden Blames Judge for Losing Control of Simpson Trial; Casey Anthony Prosecutor Responds to Juror Remark, CNN Justice, July 7, 2011.

    2 See Weatherall v. State, 73 Wis. 2d 22, 30, 242 N.W.2d 220 (1976); United States v. Sams, 104 F.3d 1407 (D.C. Cir. 1996). Defense counsel “may advance any argument for which the lawyer has a good faith basis [including an] argument [which] may result in jury nullification.” D.C. Bar Legal Ethics Comm., Op. 320 (2003).

    3 Wis. J.I.–Crim. 100 (“It is your duty to follow all of these instructions. Regardless of any opinion you may have about what the law is or ought to be, you must base your verdict on the law I give you in these instructions. Apply that law to the facts in the case which have been properly proven by the evidence. Consider only the evidence received during this trial and the law as given to you by these instructions and from these alone, guided by your soundest reason and best judgment, reach your verdict.”); Wis. J.I.–Crim. 460 (“The court has instructed you regarding the rules of law which should govern you in your deliberations. The time has now come when the great burden of reaching a just, fair, and conscientious decision of this case is to be thrown wholly upon you, the jurors, selected for this important duty. You will not be swayed by sympathy, prejudice, or passion. You will be very careful and deliberate in weighing the evidence. I charge you to keep your duty steadfastly in mind and, as upright citizens, to render a just and true verdict.”)

    4 Punishment includes not just the negative credential of a criminal conviction and direct penalties but also “collateral” penalties of conviction.

    5 A more accurate term than jury nullification is “jury independence” or a “fully informed jury.” A jury that considers whether a law is just or a punishment too severe is acting as the Sixth Amendment intends. Thus, it is not “nullifying” the jury function but carrying out the function.

    6 Giles v. California, 544 U.S. 353, 373-75 (2008); Crawford v. Washington, 541 U.S. 36, 54 (2004). The originalist interpretation of the Constitution has also been found to govern with respect to the Second Amendment. District of Columbia v. Heller, 554 U.S. 570 (2008). The right to a jury trial is also guaranteed by article III, section 2 of the U.S. Constitution.

    7 Seeinfra note 53.

    8 State v. Thomas, 161 Wis. 2d 616, 631, 468 N.W.2d 729 (Ct. App. 1991) (citing Taylor v. Louisiana, 419 U.S. 522 (1975)).

    9 See Witherspoon v. Illinois, 391 U.S. 510, 519 (1968) (“[A] jury [...] can do little more – and must do nothing less – than express the conscience of the community”).

    10 540 U.S. 466, 490 (2000).

    11 536 U.S. 584 (2002).

    12 Crawford v. Washington, 541 U.S. 36 (2004); Davis v. Washington, 547 U.S. 813 (2006); Giles v. California, 554 U.S. 353 (2008); Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2540 (2009) (“The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause – like those other constitutional provisions – is binding, and we may not disregard it at our convenience.”) In Michigan v. Bryant, 131 S. Ct. 1143 (2011), the Court relied on or, depending on one’s perspective, diluted Crawford v. Washington, although all Justices seemed to remain aware of the originalist framework of Sixth Amendment interpretation.

    13 Crawford, 541 U.S. at 54.

    14 554 U.S. at 375-76 (quoting Crawford, 541 U.S. at 54).

    15 Id.

    16 Clay S. Conrad, Jury Nullification: The Evolution of a Doctrine (Durham, NC: Carolina Academic Press, 1998) (citing William Hamilton Bryson, Census of Law Books in Colonial Virginia, XVI, at 46 (1978)).

    17 Id. (citing Jacob’s Law Dictionary 46-47 (1782)) (emphasis added).

    18 Id. (citing Noah Webster’s Dictionary of the English Language 47 (1st ed., 1828)) (emphasis added and in original).

    19 Albert W. Alschuler & Andrew G. Deiss, A Brief History of Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 903 (1994); Erwin A. Horowitz & Thomas E. Willging, Changing Views of Jury Power, 15 Law & Hum. Behav. 165, 167 (1991) (“[It] seems clear that in the period soon after the Constitutional Convention, juries had the right to determine both law and facts.”)

    20 See, e.g.,Verman v. Georgia, 408 U.S. 238, 245-47 (1972) (Douglas, J., concurring) (citing W. Forsyth, History of Trial by Jury 367-68 (2d ed. 1971) and stating that “[j]uries would not condemn men to the gallows for an offense of which the punishment was out of all proportion to the crime; and as they could not mitigate the sentence they brought in verdicts of Not Guilty.”)

    21 See Trial of William Penn, 6 How. St. Trials 951, 958 (1670), (last visited Nov. 1, 2011); James Alexander, A Brief Narrative of the Case and Tryal of John Peter Zenger, Printer of the New-York Weekly Journal (Stanley Nider Katz ed., Cambridge, Ma.: Belknap Press of Harvard Univ. Press, 2d ed. 1972), (last visited Nov. 1, 2011.)

    22 South Carolina v. Bennett, 3 S. Car. 514 (1815).

    23 SeeBryant v. State, 296 S.E.2d 168, 169-70 (Ga. App. 1982) (citing early cases); Stevenson v. State, 423 A.2d 558, 569-70 (Md. 1980); Commonwealth v. Leno, 616 N.E.2d 453 (Mass. 1993) (“declin[ing] to require an instruction on jury nullification in accordance with the prevailing view, though, recogniz[ing] that jurors may return verdicts which do not comport with the judge’s instructions”).

    24 3 U.S. 1 (1794).

    25 Id. at 4 (emphasis added).

    26 See also Bingham v. Cabot, 3 U.S. (3 Dall.) 19, 33 (1795) (Patterson, J., concurring) (“It will not be sufficient to remark, that the court might charge the jury to find for the Defendant; because, though the jury will generally respect the sentiments of the court on points of law, they are not bound to deliver a verdict conformably to them.”).

    27 See id. See also, e.g., United States v. Poyllon, 27 F. Cas. 608, 611 (D.C.D.N.Y. 1812); United States v. Hutchings, 26 F. Cas. 440, 442 (C.C.D. Vir. 1817); United States v. Wilson, 28 F. Cas. 699, 712 (E.D. Penn. 1830); Indiana Const. art. I, § 19 (1851)
    (“[i]n all criminal cases whatever, the jury shall have the right to determine the law and the facts”); Mark DeWolfe Howe, Juries as Judges of Criminal Law, 52 Harv. L. Rev. 614 (1939) (discussing similar laws in Maryland, Massachusetts, Illinois, and Indiana in the mid-1800s).

    28 See Montee v. Commonwealth, 26 Ky. 132 (3 J.J. Marshall) (1830); Hardy v. State, 7 Mo. 607 (1842); Pierson v. State, 12 Ala. 149 (1847).

    29 Cramer v. Noonan, 4 Wis. 231 (1885).

    30 156 U.S. 51 (1895).

    31 Id. at 101.

    32 Id. at 114.

    33 Shannon v. United States, 512 U.S. 573, 579 (1994).

    34 See, e.g. United States v. Datcher, 830 F. Supp. 411, 412-13 (M.D. Tenn. 1993) (advising jury of sentence for attempted distribution of controlled substances so jury could “decide whether a sentence should be nullified.”)

    35 Stevenson, 423 A.2d at 569-70 (noting that “[e]ven if the Supreme Court’s decision in Sparf could be read as prohibiting a jury from deciding questions of law because of a conflict with the constitutional right to a jury, that Court has yet to extend the holding of Sparf to state jury trials despite a number of opportunities to do so” and collecting cases to illustrate this point).

    36 State v. Thomas, 161 Wis. 2d 616, 630, 468 N.W.2d 729 (Ct. App. 1991); State v. Marhal, 172 Wis. 2d 491, 501-02, 493 N.W.2d 758 (Ct. App. 1992) (holding that a “jury verdict may be based on considerations of compromise, leniency, or even nullification”).

    37 State v. Mercord, 134 Wis. 2d 454, 397 N.W.2d 157 (Ct. App. 1986). Seealso De Pow v. Chicago & N.W. Ry. Co., 154 Wis. 610, 143 N.W. 654 (1913) (“No one can be said to have exercised ordinary care, within the rule repeatedly declared by this court, who fails to look when approaching a grade railway crossing where looking would materially add to his safety. Under such circumstances, the duty to look is imperative, and juries should not be permitted to nullify it.”)

    38 Cramer v. Noonan, 4 Wis. 231 (1885).

    39 See infra notes 42, 45, 48, 49.

    40 On behalf of the defendant in a criminal case, the author objected to a motion in limine, filed by the Wisconsin Department of Justice, that included a one-sentence request to prohibit “jury nullification” arguments. In its response, the defense sought modified jury instructions advising the jury of the potential penalties of conviction and describing the right of the jury to decide the law, quoting the language from the U.S. Supreme Court’s instruction in Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794). In State v. Johnson (Columbia County Circuit Court 2008-CF-00469), Judge James Miller granted the plaintiff’s motion in limine and denied the defense request for modified jury instructions. These rulings were not subject to appeal, because Mr. Johnson was acquitted of all charges at trial.

    41 See infra notes 45, 48, 49.

    42 State v. Bjerkaas, 163 Wis. 2d 949, 963, 472 N.W.2d 615 (Ct. App. 1991).

    43 Id. at 962.

    44 Id. at 960.

    45 State v. Collins, No. 2006AP1814, 2007 WL 602421 (Wis. Ct. App. Feb. 28, 2007) (unpublished); State v. Cleaves, No. 02-0487-CR, 2002 WL 1633344 (Wis. Ct. App. July 24, 2002) (unpublished); Guzman v. St. Francis Hosp. Inc., 2001 WI App 21, ¶¶ 7-12, 240 Wis. 2d 559, 623 N.W.2d 776, overruled on other grounds by Ferdon v. Wisconsin Patients Compensation Fund, 2005 WI 125, 284 Wis. 2d 573, 701 N.W.2d 440; State v. Sarlund, Nos. 95-1621-CR, 95-1622-CR, 95-1623-CR, 1996 WL 26701 (Wis. Ct. App. Jan. 25, 1996) (unpublished). Bjerkaas was also cited in a case in which the defendant, an anti-abortion protestor, objected to the trial court instruction that the jurors may not consider the contents of a pamphlet that advised them of jury nullification rights. State v. Braun, No. 93-1937-CR-FT, 1993 WL 525097 (Wis. Ct. App. Dec. 21, 1993) (unpublished).

    46 Bjerkaas, 163 Wis. 2d at 960; Dean of St. Asaph’s Case, How. St. Tr. 21: 847 (1785).

    47 See, e.g., Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794); State v. Snow, 18 Me. 346, 348 (1841); Rex v. Shipley, How. St. Tr. 21:847 (1785); State v. Croteau, 23 Vt. 14, 45-47 (1849); Kane v. Commonwealth, 89 Pa. 522, 527 (1879). The state court decisions were later overruled (State v. Wright, 53 Me. 328 (1865); State v. Burpee, 65 Vt. 1 (1892)) or severely undercut (Commonwealth v. McManus, 143 Pa. 64, 85 (1891)).

    48 Buffalo County v. Stauffenecker, Nos. 2006AP2715, 2006AP2716, 2007 WL 1544133 (Wis. Ct. App. May 30, 2007) (unpublished) (upholding circuit court’s decision to decline to allow defendant to testify that he was a commercial truck driver based on “the danger of jury nullification and the invitation for the jury to make the decision based on inappropriate factors, such as the effect of the citation on his CDL.”).

    49 See e.g., State v. Burr, No. 02-3250-CR, 2003 WL 21448555 (Wis. Ct. App. June 24, 2003) (unpublished) (finding harmless error where the “trial court sustained the State’s objection to Burr’s question to [co-defendant] Paul whether he was aware that first-degree intentional homicide carried a life sentence as an attempt at jury nullification”); State v. Ragan, No. 96-0352-CR, 1997 WL 20705 (Wis. Ct. App. Jan. 22, 1997) (unpublished) (in case charging false declaration of candidacy, finding it “obviously correct” to exclude evidence that defendant “had won the election for town supervisor but had been denied the position” based on concern jury may find he “has been punished enough”); State v. Moore, No. 89-0553-CR, 1989 WL 143052(Wis. Ct. App. Sept. 1, 1989) (unpublished) (holding that “counsel may not argue nullification before a jury and therefore affirm[ing] the trial court” but “[i]n closing argument, counsel may accurately comment on the jury instructions”).

    50 State v. Carter, No. 86-1480-CR, 1987 WL 267532(Wis. Ct. App. June 12, 1987) (unpublished).

    51 Peot v. Ferraro, 83 Wis. 2d 727, 748, 266 N.W.2d 586 (1978).

    52 Id. at 747.

    53 Dane County v. McGrew, 2005 WI 130, 285 Wis. 2d 519, 699 N.W.2d 890 (interpreting art. I, § 5 of the Wisconsin Constitution); Harvot v. Solo Cup Co., 2009 WI 85, 320 Wis. 2d 1, 768 N.W.2d 176 (same); State v. Forbush, 2011 WI 25, ¶ 43, 332 Wis. 2d 620, 796 N.W.2d 741 (“Although, records from the Wisconsin constitutional conventions do not contain informative debate about the right to counsel in Article I, Section 7, cases decided near the time the Constitution was enacted are instructive.”); State v. Hansford, 219 Wis. 2d 226, 238-39, 580 N.W.2d 171 (1998) (explaining that an 1852 case that held a right to a 12-person jury under the Wisconsin Constitution was “particularly significant” given that one of the justices on the unanimous court, although not the author of the opinion, was a delegate to the 1847-48 convention).

    54 See, e.g., Gaston v. Babcock, 6 Wis. 503 (1857); Stilwell v. Kellogg, 14 Wis. 499 (1861); Reliance Auto Repair Co. v. Nugent, 159 Wis. 488, 149 N.W. 377 (1914).

    55 McGrew, 2005 WI 130, ¶ 14 & n. 11, 285 Wis. 2d 519 (collecting cases to illustrate this point).

    56 Wisconsin Statutes section 972.01 provides that “[t]he summoning of jurors, the selection and qualifications of the jury, the challenge of jurors for cause and the duty of the court in charging the jury and giving instructions and discharging the jury when unable to agree shall be the same in criminal as in civil actions, except that s. 805.08(3) shall not apply” (emphasis added).

    57 Declining to advise the jury of its inherent power has been described as a “deliberate lack of candor” by judges (United States v. Dougherty, 473 F.2d 1113, 1139 (D.C. Cir. 1972) (Bazelon, C.J., dissenting) and a “deceptive ingenuity” by judges that is “discreditable” to the legal profession. Mark DeWolfe Howe, Juries as Judges in Criminal Law, 52 Harv. L. Rev. 582 (1938).

    58 Although accurate information about one’s obligations as a juror could be provided by candid instruction from judges, other sources fill the void to provide advice about the “dirty secret” of jury independence. The Fully Informed Jury Association (FIJA) maintains a website (www.fija.org) to support its efforts to educate Americans about their rights and responsibilities as jurors. In addition to the FIJA, individuals may gather information about the right to jury independence from diverse sources including an open letter authored by the creators of the television program The Wire and a free illustrated short story by illustrator Ricardo Cortés. See The Wire’s War on the Drug War, Time, March 5, 2008; Ricardo CortésJury Independence Illustrated, 2011, (visited Aug. 19, 2011). 




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