Judges can’t lie to juries about nullification
Trial by jury is a cherished constitutional right. But what is little known, and court officials prefer to keep it that way, is how powerful juries really are.
That’s particularly true in the case of jury nullification, a power that was very familiar to the nation’s founders:
When our nation’s founders convened in Philadelphia to write our Constitution, they were well aware of the 1735 trial of John Peter Zenger, who was famously acquitted against the evidence for the crime of seditious libel against the Royal Governor of New York, William Cosby. Expressing what he and other Founders would no doubt have considered a truism, John Adams said that “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.” Thus, the power of jury nullification—or stated more accurately, conscientious acquittal, since a jury’s verdict does not invalidate the underlying law—isn’t a bug in our nation’s criminal justice system. It’s a feature, designed to permit juries to act as a check against unjust charges, draconian punishments, and other abuses of government power.
Which makes it all the more troubling when state courts will go to extraordinary lengths to deny such a power exist – even lying about it. As James Craven writes:
Juror #112 had serious reservations about the case in front of him. The defendants were each charged with no less than 42 offenses. “Do we have the right to use jury nullification of a charge?” the juror asked.
The trial court’s answer was evasive, but the juror was insistent. “Can you answer the jury nullification with a yes or no response?” came the second note. After the third such inquiry, the circuit judge made the following declaration:
“Ladies and gentlemen of the jury you may not use, implement, or resort to jury nullification. It is improper, it’s contrary to the law [and] would be a violation of your oath…”
That declaration prompted a reversal by the Maryland Special Court of Appeals, the state’s intermediate appellate court. But in an opinion filed on Jan. 29, Maryland’s highest court—the Maryland Court of Appeals—upheld the circuit judge’s bald‐faced assertion that jury nullification was “contrary to the law.”
As Craven notes, it’s not – the Supreme Court has explicitly upheld the right of jury nullification. And spells trouble for judges who insist otherwise:
No matter how much some judges may dislike jury nullification, letting them lie to juries to prevent the conscientious acquittal of a defendant is unconstitutional.