The history of jury nullification is to some extent one of rebellion. As we discussed in an earlier column, the doctrine dates back to seventeenth-century England and has been exercised by juries throughout the ages to reject or ignore laws set forth before them.
Rarely invoked today, jury nullification nevertheless retains a diminished relevancy, particularly in Maryland. Ours is one of only a few states which have expressly recognized the principle that the jury is empowered to act as the judge of both the facts and the law.
Specifically, Article 23 of the Maryland Declaration of Rights, once known as Article 15, § 5, provides that: “In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.”
During the first 100 years of its existence the provision simply read: “In the trial of all criminal cases, the jury shall be the judges of law as well as fact.”
In early cases, Maryland judges in criminal matters were to inform the jurors that the instructions by the court were advisory only and that the jury was entitled to decide in accordance with their own judgment. However, judges usually tempered the instruction by noting that the jury’s power to judge the law was not “untrammeled discretion to enact new law or to repeal or ignore clearly existing law.” Blackwell v. State, 278 Md. 466, 479 (1976).
But over time Maryland courts have chipped away at the jury’s nullification power by limiting the jury’s ability to judge the law under Article 23 of the Declaration of Rights.
In 1858 the Court of Appeals held that the jury’s right to judge the law did not permit the jury to decide whether the law was constitutional. Franklin v. State, 12 Md. 236, 245-246 (1858). In 1875, however, the court held that a judge’s instructions to the jury were advisory rather than binding, thus implying that the jury was free to disregard the legal instruction. Wheeler v. State, 42 Md. 563 (1875).
The right of nullification began to significantly erode around the time of the 1950 amendment to the Article 23, which added the phrase “except that the court may pass upon the sufficiency of the evidence to sustain a conviction.”
Interestingly, it was the defense bar that took up the cause of restricting juries’ powers by arguing that Article 23 was in conflict with the U.S. Constitution’s Fourteenth Amendment and that jury nullification deprived the accused of due process or equal protection of the law.
The defense in Giles v. State, for example, insisted that Article 23 was unconstitutional because it fostered the possibility that a defendant would be “subjected to a trial different from that given to other defendants in like circumstances” and that a jury would not apply the law correctly. See Giles v. State, 229 Md. 370 (1962).
While never finding that Article 23 was unconstitutional, the Maryland Court of Appeals did examine the scope and breadth of Article 23, and in doing so, limited the Maryland jury’s ability to judge the law.
It was not until 1963 that the U.S. Supreme Court had an occasion to review Article 23, in Brady v. Maryland, 373 U.S. 83 (1963). The Supreme Court recognized the attenuation of the jury’s ability to judge the law, noting that the language of Article 23 “does not precisely mean what it seems to say.”
Ostensibly following the observations made in Brady, Maryland courts virtually eliminated the jury’s ability to judge the law. In Stevenson v. State, 289 Md. 167, 178-180 (1980) the Court of Appeals insisted that juries should never address: the constitutionality or operative effect of a statute; the court’s jurisdiction; the admissibility of evidence; or the competency of witnesses.
Today, the jury’s right to decide issues of law in criminal cases is limited to situations in which there is a sound basis for a dispute over the proper interpretation of the law. See In re Petition for Writ of Prohibition, 312 Md. 280, 317 (1988) and Maryland Rule 4-325(f).
It is one thing to recognize the jury’s power of nullification, but it is another to argue it. For those who might rely on the doctrine at trial, take heed of the learned words of the Hon. Robert M. Bell, Chief Judge of the Court of Appeals, who recently opined that “[i]t should have been clear to any reasonable attorney that a jury nullification argument would be a fruitless gesture, a failure.” Walker v. State, 391 Md. 233, 265 (2006) (Bell, C.J., dissenting). See also Bell v. State, 57 Md. 108, 120-121 (1881): “But whatever powers the Constitution may have conferred upon juries in criminal cases, it has conferred none upon counsel.” (Emphasis in original.)
While the jury’s right to judge the law in criminal cases has been eroded, it will never completely disappear. Jury nullification will always exist in a practical sense because it is, at its core, a doctrine grounded in the essential power granted to jurors to issue verdicts based on their unique responses to trials.
As such, instances of jury nullification are likely to be born of emotion. Attorneys who intend to rely even tacitly on the doctrine at trial should pay close attention to the emotional content of their case.