Defense Counsel: Ladies and Gentlemen of the Jury, ignore the Court’s instructions and law in this case. Do what is right — find my client not guilty.
Prosecutor: Objection, and may we approach the Bench?
The Court: Counsel, have you lost your mind? How can you argue to the jury that my instructions on the law should be ignored?
Defense Counsel: I base my argument upon Article 23 of the Maryland Declaration of Rights. This provision provides that the jury is empowered to judge the facts and the law.
The Court: You need to brush up on your legal history, Counsel, as well as the current law on this subject. Even if the jury has the power to ignore the law, you, sir, do not have the right to so argue that point under existing Maryland law.
You may be wondering: What is wrong with defense counsel’s argument? Shouldn’t the defendant be entitled to argue that the jury should disregard the law when it is unjust or arbitrary?
The premise certainly strikes a primal chord with those who champion trial by jury, and for good reason. While the history of trial by jury is sometimes lost in the mists of antiquity, the present character of our jury in the United States is a product of seventeenth- and eighteenth-century English jury trials.
During this time period the power of the Crown bore down on those who spoke against the regime. Standing between the Crown and the citizen was the English jury, which on many occasions stood against the Judge and the Crown in protecting the rights of the English citizen.
The English jury fought for its independence and, as an outgrowth of this independence, the doctrine of jury nullification developed.
An early example of nullification in England is the 1670 trial of Quaker leader William Penn. The judge ordered the jurors fined and imprisoned because they would not convict Penn. The jurors refused, and Penn was freed and came to America.
When trial by jury traveled across the Atlantic Ocean to the Americas, jury nullification came along for the ride. Jury nullification has been described as a juror’s “intentional disregard of the law [or evidence] as stated by the presiding judge.” (See United States v. Thomas, 116 F.3d 606, 608 [2d Cir. 1997].) The concept personifies the power (but certainly not the right) of the jury to render a not guilty verdict even though the defendant transgressed the law on the basis that the law is immoral or not applicable.
Sparf: Supreme Court strikes back
Jury nullification first appeared on these shores in the 1735 trial of John Peter Zenger. This prominent publisher had been charged with seditious libel for making true statements about the governor of New York at a time when it was libelous to criticize an appointed officer of the King of England. (See New York v. John Peter Zenger, 17 Howell’s St. Tr. 675 (1735).) The jury nullified the law on seditious libel and found the publisher not guilty.
It was not until Sparf v. United States, 156 U.S. 51, 102 (1895) that the U.S. Supreme Court conclusively rejected a federal jury’s power to decide or reject the law. The decision provided that “it is the duty of [federal] juries in criminal cases to take the law from the court and apply that law to the facts as they find them to be from the evidence.”
Indeed, since the Sparf decision, the Supreme Court has characterized the practice of jury nullification as the “assumption of a power” which a jury has “no right to exercise” (Dunn v. United States, 284 U.S. 390, 393, [1932]), and as "the unreviewable power of a jury to return a verdict of not guilty for impermissible reasons” (United States v. Powell, 469 U.S. 57, 63 [1984]).
Nevertheless, without formally invoking jury nullification, juries have rendered decisions which seem contrary to the evidence. Consider the trials of Dr. Jack Kevorkian, Marion Barry, Oliver North and Bernhard Goetz, or the Prohibition cases of the 1920s and early 1930s, in which many juries refused to convict defendants guilty of trafficking alcohol. Such verdicts may shock the public, but they also serve to remind us that juries still have the power of nullification.
In fact, Maryland is one of only a few states which have expressly recognized the principle that the jury is empowered to be the judge of both the facts and the law. In the next column, to appear June 2, we will examine the curious history of jury nullification in Maryland and the current state of the law.