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Duff, R. A.
2014.
Towards a Modest Legal Moralism.
Criminal Law and Philosophy,
Vol. 8,
Issue. 1,
p.
217.
Article contents
Necessity and Jury Nullification
Published online by Cambridge University Press: 13 April 2016
Extract
Jury nullification refers to the behaviour of a jury that votes to acquit a defendant of criminal charges despite believing that: a) the defendant did in fact commit the actions with which she is charged; and, b) such actions are, indeed, prohibited by law. While there are many objections to this practice, the most striking thing about jury nullification is that nothing is done to actually prevent or punish jurors who behave this way. In this paper, I explore three rationales for why jury nullification is an officially tolerated, if not necessarily welcome, element of Anglo-American criminal law jury trials. All three of these rationales centre in one way or another on the idea that the very concept of a jury trial necessitates allowing the jury to extend its traditional purview in such a manner.
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References
1. See, for instance, Arschack v. United States, 321 A.2d 845 (1974); R. v. Latimer, 2001 SCC 1, file no.: 26980.
2. See, for instance, Simson, Gary J., “Jury Nullification in the American System: A Skeptical View” (1976) 54 Tex. L. Rev. 488.Google Scholar
3. See, for instance, United States v. Thomas et al, 116 F.3d 606, (2nd Cir. 1997).
4. See, for instance, United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972).
5. I put the term ‘official’ in italics because, as the phenomenon of jury nullification demonstrates, the jury’s actual role is somewhat more extensive; the jury can, and occasionally does, function so as to judge the law as well as the facts of a case.
6. I will use the term “method of legal redress” to refer to procedures involving both statute and/or the common law, as well as established rules of procedure, designed to prevent, and where such prevention fails, to correct, legally unsanctioned and unwelcome behaviour.
7. Bushel’s Case, 6 Howell’s State Trials 999 (1671) at 1012.
8. Ibid. at 1006.
9. Conrad, Clay, Jury Nullification: The Evolution of a Doctrine (Durham, NC: Carolina Academic Press, 1998) at 28.Google Scholar
10. Levy, Leonard W., The Palladium of.Justice: Origins of Trial by Jury (Chicago, IL: Ivan R. Dee, 1999) at 61–62 Google Scholar.
11. That is, verdicts reached through an officially sanctioned deliberative process—in other words, verdicts based solely on an evaluation of the evidence admitted at trial and held to the requisite burden of proof.
12. The debate is pointless otherwise.
13. Bushel, supra note 7 at 1006.
14. Such judgments also play a large role in private law, particularly regarding accusations of intentionally tortious behavior.
15. R. v. Ladue, 4 C.C.C. 264, 45 CR. 287, 51 W.W.R. 175 (Y.T. CA., 1965).
16. Pappajohn v. R.,2 S.C.R. 120, 14 CR. (3d) 253 (S.C.C., 1980).
17. It is important that the claim be that these inferences are always unwarranted, and not just mostly unwarranted. Otherwise the possibility question becomes one of practicality, or probability, which is different question altogether.
18. Fuller, Lon, The Morality of Law (New Haven, CN: Yale University Press, 1964) at 33–62 Google Scholar.
19. It is worth noting that these two constraints—success and balance—often work in tandem with one another. Even the relatively painless costs associated with random spot checks of luggage would soon seem unnecessarily onerous if such a method of legal redress had little to no impact on the behavior it was designed to address. That is, the lower the perceived rate of success is, the higher the costs of that success begin to seem. Conversely, the higher the perceived costs of a particular MLR, the higher the bar is raised as to what would count as adequate success.
20. R. v. Mack, 2 SCR 903 (S.C.C., 1988).
21. Ibid. at paras. 74-80 [emphasis added].
22. Hart, H.L.A., The Concept of Law (New York: Oxford University Press, 1961).Google Scholar
23. Ibid. at 20.
24. See, for example, R. v. Walsh, 46 C.R. (3d) 97 (Ont. C.A., 1985), where the court stated at 110: “There is generally no justification in a criminal case to ask the jury to answer questions or to particularize the basis of the verdict, whether it be guilty or not guilty. We adopt what was said by the Court of Appeal in England in the case of R. v. Solomon and Triumph (1984), 6 Criminal Appeal Reports (s.) (meaning sentencing) 120 at pp. 126-27:
In a criminal case the jury cannot bring in a special verdict. The verdicts open to them are guilty or not guilty. The fact that they may in certain cases convict an accused of a lesser offence than that charged in the indictment in no way detracts from this statement. The traditional view is that it is for the jury to say whether the offence was committed and for the judge to decide upon the penalty. This division of the responsibility in the conduct of the criminal process is reinforced by the fact that it is generally regarded as improper for counsel when addressing the jury on behalf of an accused to refer to the question of sentence at all. This is a sound rule imposed for the ex Press purpose of ensuring that the jury is not distracted from its consideration of the general verdict by irrational, irrelevant or emotional consideration.
We adopt that language as appropriate in Canadian criminal law.”
25. In this case the jury, as opposed to rendering a general verdict of guilty or not guilty, instead answers two factual questions: Did the accused commit the act in question? Did the accused have a mental disorder to a degree that would preclude an ascription of responsibility to the act in question?
26. As quoted in Alan W Scheflin, “Jury Nullification: The Right to Say ‘No’” (1972) 45 S. Cal. L. Rev. 168 at 174-75.
27. Conrad, supra note 9 at 7.
28. Scheflin, Alan & Van-Dyke, Jon, “Jury Nullification: Contours of the Controversy” (1980) 43:4 Law & Contemporary Prob. 51 CrossRefGoogle Scholar at 71.
29. Conrad, supra note 9 at 128-29.
30. Ibid.
31. Appellate courts are reluctant to order a new trial in the absence of clear proof that a miscarriage of justice likely occurred, and criminal convictions cannot be supported if the evidence of guilt is less than that of beyond a reasonable doubt.
32. It is a widely held (though by no means uncontroversial) opinion, for instance, that the verdict in the O.J. Simpson criminal trial is an example of jury nullification. Often this opinion is supported by nothing more than the claim that Simpson was “obviously” guilty. In other words, the consensus seems to be that, based on the trial evidence, the only reasonable verdict the jury could have returned was that of guilty.
33. R. v. Rowbotham; R. v. Robiin, 2 S.C.R. 463, [1994] S.C.J. No. 61 (S.C.C., 1994).
34. Ibid. at para. 24.
35. To a small degree, the state already has such authority under s. 686(1)(a)(i) of the Criminal Code. However, since this authority is, for the most part, limited only to overturning verdicts of guilty, there is little possibility that the state could abuse this authority to its own benefit. If it was in the state’s interest that a particular defendant not be convicted there is little reason to believe that such a person will even be put on trial by the state.
36. On this point, see R. v. Rowbotham; R. v. Roblin, supra note 33.
37. R. v. Pan; R. v. Sawyer, 2001 SCC 42, [2001] 2 S.C.R. 344 at para. 80, online: http://scc.lexum. umontreal.ca/en/2001/2001scc42/2001scc42.html.
38. This would, of course, entail doing away with the common law rule of jury secrecy as well as eliminating (or greatly altering) s. 649 of the Criminal Code, which makes it an offence for a juror to disclose “any information relating to the proceedings of the jury when it was absent from the courtroom,” except where that information was subsequently disclosed in open court or is disclosed for the purposes of an investigation or criminal proceedings in relation to an offence of obstructing justice under s. 139(2) of the Criminal Code.
39. Given the right against self-incrimination, such an inquiry, if jurors were legally required to give their testimony, could not give rise to criminal charges against the jurors. Even if there were not such a right, one can hardly imagine what incentive there would be to testify honestly if admitting to nullification left one subject to criminal prosecution. As such, an MLR for jury nullification that depends upon juror testimony as its source of evidence most likely would involve simply the declaration of a mistrial as its corrective feature.
40. Supra note 37.
41. (Latin) Out of office. In legal parlance, that a case is closed, no longer a matter before the court.
42. Supra note 37 at para. 46.
43. Ibid. at para. 75 [emphasis added].
44. The Supreme Court addressed this issue directly. Ibid. at para. 82:
In addition, it is not at all clear that evidence given by jurors after the verdict concerning the substance of their deliberations would be a good indication of what actually occurred in the jury room. As the majority of the Court of Appeal notes at para. 148:
It is also questionable how reliable a post-verdict reconstruction of a jury’s understanding of the evidence and the law would be. Memories are likely to fade. Individual jurors could be subject to Pressure from litigants who want to influence the process. Further, some jurors, for any number of reasons, may want to revisit their decision and hence, unwittingly or not, could tailor their recollection accordingly.
This is particularly true if jurors are made aware, after the verdict, of the existence of properly excluded evidence which may lead them to reassess the facts in a different light.
45. Ibid. at para. 38 [emphasis added].
46. 1 T.R. 11, 99 E.R. 944 (K.B., 1785).
47. S.C.R. 403 (S.C.C., 1956).
48. Supra note 37 at para. 77 [emphasis added].
49. Ibid. at paras. 50 & 52.
50. Ibid. at para. 53.
51. Ibid. at para. 59 [emphasis added].
52. Ibid. at para. 68.
53. See Levy, supra note 10, for an excellent overview of the history of the jury in Anglo-American law.
54. Law Reform Commission of Canada, The Jury in Criminal Trials Working Paper No. 27 (1980) at 16-17.
55. Christopher Granger, The Criminal Jury Trial in Canada, 2nd ed. (Toronto, ON: Carswell, 1996) at 8.
56. R. v. G. (R.M.), 110 C.C.C. 26 (S.C.C., 1996) at para. 15.
57. Ibid.
58. Ibid. at paras. 13-14 [emphasis added].
59. R. v. Sherratt, 1 S.C.R. 509 (S.C.C., 1991).
60. Ibid. at para. 30 [emphasis added].
61. Thomas Jefferson, Thomas Jefferson to Thomas Paine: ME 7:408, Papers 15:269, 1789.
62. Duncan v. Louisiana, 391 U.S. 145 (U.S. Supreme Court, 1968).
63. Taylor v. Louisiana, 419 U.S. 522 (1975).
64. Ibid. at 530.
65. See, for example, R. v. Bryant, 42 C.R. (3d) 312 (1984); R. v. Bain, 1 S.C.R. 91 (S.C.C., 1992); Williams v. Florida, 399 U.S. 78 (1970). These are but a few of the many cases that refer to the jury’s role as that of, among other things, the guardian of liberty and protector of community values. For more on this, including references to English cases where this same role is affirmed for the jury see, generally: P. Devlin, Trial by Jury 3rd im Pression (London: Stevens, 1966) at ch. 3; William Forsyth, History of Trial by Jury 2nd ed. (New York: B. Franklin, 1971) at ch. 3; Law Reform Commission of Canada, supra note 54; Conrad, supra note 9 at ch. 2.
66. United States v. Datcher, 830 FSupp. 411 (M.D. Tenn., 1993) at 412 [emphasis added].
67. United States v. Simon, 361 FSupp.2d 35 (E.D. N.Y. 2005).
68. Powder cocaine and crack cocaine are two forms of the same drug, containing the same active ingredient.
69. “When jurors feel they have been coerced into returning an unjust conviction. … the jury has not been empowered to truly perform the function for which juries are intended: to protect the accused against an op Pressive act of government.” Conrad supra note 9 at 156-57.
70. See, for a detailed discussion of this phenomenon, generally, Conrad, supra note 9 at 108-15; Green, Thomas A., Verdict According to Conscience: Perspectives on the English Trial Jury, 1200-1800 (Chicago, IL: University of Chicago Press, 1985)CrossRefGoogle Scholar at chs. 2-5.
71. Consistent, of course, with the Charter, or, for the Americans, the U.S. Constitution.
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